Law as a Complex Adaptive System
| DOI | 10.1177/1023263X1402100403 |
| Author | Steven Lierman |
| Date | 01 December 2014 |
| Published date | 01 December 2014 |
| Subject Matter | Article |
21 MJ 4 (2014) 611
LAW AS A COMPLEX ADAPTIVE SYSTEM
e Importance of Convergence in a
Multi-Layered Legal Order
S L*
ABSTRACT
e notion of legal pluralism indicates that the national and subnation al levels coexist with
legal systems being develop ed at the European and the international level . is phenomenon
of increased complexity gives r ise to adapted learning methods and the equilibrium is to
a certain extent restored by convergence. With regard to the vertical convergence, that is,
convergence between the national legal orders and th e supranational legal orders, the rst
part of the article recalls the development of the EU-principle of indirect e ect into a true
principle of harmonious interpretation, which applies on every level, for all actors and in
every direction. With regard to horizontal c onvergence, the article explores the limit s of the
traditional dichotomy between public and private law. In addition, two principles of law
are discussed in order to illustrate the close interweaving between legal orders and elds
of law: the principle of proportionality an d the principle of equality before public burdens.
Keywords: equality of the citizens before public burdens; legal pluralism; principle of
indirect e ect; principle of proportionality; publ ic-private divide
§1. INTRODUCTION: LAW AS A COMPLEX SYSTEM
Scientists in di erent elds use the notion a ‘complex system’ to describe a system
consisting of multiple interconnected elements. Examples of complex systems are the
* Prof. Dr. Steven Lierma n, KU Leuven, Universit y of Antwerp. Many of t he ideas elaborated i n this
article were a lready expressed in the bo ok that Prof. em. Walter Van Gerven and I wrote a s a general
introduction to pr ivate and public law in a multi-layered lega l order (W. Van Gerven and S. L ierman,
Algemeen deel . Veertig jaar late r. Privaat- en publiekrech t in een meergela agd kader van regelg eving,
rechtsvorming e n regeltoepassing, Be ginselen van Belgi sch privaatrecht (Kluwer, 2010), p.603).
Steven Lierman
612 21 MJ 4 (2014)
economy, our climate and living organisms. ese systems are characterized by strong
interactions between the di erent components. ey interact and sometimes one
component counteracts the other. Due to the strong coupli ng between these elements, a
failure in one or more elements can lead to cas cading failures wh ich may have catastrophic
consequences on the func tioning of the system as a whole.
Nowadays, law too has the features of a complex system.1 Law is no longer solely
constructed at the nat ional level. e notion of legal plura lism indicates that the national
and subnational levels coexis t with legal systems bei ng developed at the European and the
international level. ese legal system s interact, in uence and counteract each other. e
interweaving and interac ting of modern legal orders have become a topic of particular
interest to legal practitioners and academ ics alike. is multi-layered legal order results
in a pluralism of norms, a nd legal professionals are called upon to create tools to help to
apply these (partly) overlapping and c oncurring rules, principles a nd methods.
§2. IN SEARCH OF A MORE DYNAMIC APPROACH TO
MANAGE THE PHENOMENON OF LEGAL PLURALISM:
MUTUAL RESPECT, COOPERATION AND CONVERGENCE
Since legal systems tr aditionally rest on a normat ive hierarchy, the plurality of lega l systems
results in a pluralit y of normative hierarchies. Scholars rightly state that traditional
normative hierarchy constructions no longer appear to be the most appropriate models
to deal with multilevel legal application.2 First, multi-level governance is characteriz ed
by the existence of decision-mak ing centres at multiple levels of government that are not
clearly hierarchica lly ordered and whose decision-making processes are intertwined.3
Second, the responsibility of examining a legal situation is not located solely with
national courts, but may also lie with the supranational courts, such as the Court of
Justice of the European Union (CJEU) or the Europea n Court of Human Rig hts (ECtHR).
e various legal view points situated at di erent levels st rongly temper the importance
of each legal system’s own normative hierarchy. ird, theories framed in terms of a
1 Law has been conceive d as a (complex) system since many years , as is illustrate d by Niklas Luhma nn’s
system theor y to law (N. Luhmann, Law as a s ocial system (Oxford University Press, 2004); this book
is the trans lation of the book rst published as N. Lu hmann, Das Re cht der Gesell scha (Suhrka mp
Verlag, 1993); see also R. Nobles a nd D. Schi , ‘Using systems theory to st udy legal pluralism: what
could be gained? ’, 46 Law & Society Review (2012), p.265–296; R . Nobles and D. Schi , Observing law
through systems t heory (Hart Publis hing, 2012), p.290.
2 J.S. Bergé, ‘Implement ation of the Law, Global Legal Plura lism and Hierarchy of Norms’, 4European
Journal of Legal S tudies 2 (2011), p.241–263.
3 M.A.P. Bovens et al., ‘A research proposa l.Multilevel governance a nd public accountability i n Europe:
which instit utions, which prac tices, which de cit?’, CONN EX, Research Group 2 : Democracy and
Accountability in th e EU (2005), ww w.uu.nl/Si teColle ctionDo cuments/ REBO/R EBO_USBO/ REBO_
USBO_OZZ/Bovens/Mu ltilevel_gove rnance_a nd_public_ accountabilit y_in_Europ e_Which_
institutions,_which_practices,_which_de cit1.pdf, p.4–5.
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