Getting at Law’s Boundaries
| Published date | 01 December 2006 |
| Date | 01 December 2006 |
| DOI | 10.1177/0964663906069552 |
| Author | David Nelken |
| Subject Matter | Articles |
GETTING AT LAW’S
BOUNDARIES
DAVID NELKEN
University of Macerata, Italy and Cardiff University, UK
KEY WORDS
autopoietic theory; expert witnesses; law and science; law’s autonomy; social theory
ROBERT VAN KRIEKEN’Sinformative article about recent Australian
decisions regarding native title to land offers interesting and provok-
ing arguments for those interested in the relationship between law and
knowledge. I shall concentrate on the following questions. How does he
make use for his purpose of social theorists such as Luhmann and Bourdieu?
What does his empirical investigation add to their arguments? What is the
point of the exercise? I shall try and show how much room there still is for
debate about all these matters, making some reference also to what Mariana
Valverde had to say in her comment.
Luhmann and Bourdieu themselves wrote little about the role of expert
witnesses. Van Krieken nonetheless sees these authors as offering valuable
starting points for studying the relation between law and other knowledges.
But, he argues, especially in the case of Luhmann, this will also lead us to
revise theoretical formulations, ‘once we have acknowledged the phenom-
enon of cognitive openness, what then become interesting is the competition
between different sources of cognitive openness’. To examine this what is
required is empirical research into ‘how the articulation of normative closure
and cognitive openness, the structural coupling of the legal system with other
systems and its environment, actually works’. This, he argues, ‘is a strategic
question which can only be answered “on the ground” in relation to specific
configurations of issues and the actual choices made by the relevant parties,
and also depends on the ways in which different parts of the juridical field
relate to each other’.
Followers of Luhmann’s theory, however, could raise questions about
whether van Krieken has operationalized it correctly. He paraphrases
SOCIAL &LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(4), 598–604
DOI: 10.1177/0964663906069552
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