OBSERVING LAW THROUGH SYSTEMS THEORY by RICHARD NOBLES and DAVID SCHIFF

DOIhttp://doi.org/10.1111/j.1467-6478.2013.00626.x
Date01 June 2013
Published date01 June 2013
OBSER VING LA W THROU GH SYS TEMS TH EORY by R ICHAR D
NOBLES and DAVID SCHIFF
(Oxford and Portland: Hart Publishing, 2013, 290 pp., £42.00)
After the slow up-take or even hostile reception of systems theory in Anglo-
American legal theory, interest has gathered momentum in the past decade.
As a consequence, systems theory has moved from a marginal, exotic genre
in legal theory to the mainstream of legal theory discussions in English-
speaking law schools. Richard Nobles and David Schiff have, in no small
part, contributed to this development as editors of the translation of Niklas
Luhmann's authoritative work on law and systems theory
1
and as authors of
further publications with a systems theory perspective. These efforts enabled
English-speaking legal scholars to catch up with their German-speaking
colleagues in the discussion of how systems theory could be exploited by and
for jurisprudence on a surer footing than that provided the few articles and
early translations that appeared, long after Luhmann had moved on to a
further elaboration of his work on systems theory. So it is with anxious
anticipation and great expectations that one opens their new book, which
promises:
to demonstrate that jurisprudence, as philosophy and sociological approach to
law, informed by systems theory could improve our understanding how the
legal system generates issues which philosophy has attempted to describe and
evaluate (p. vii).
This is all the more so if one, as a law teacher or legal jurisprudence scholar,
faces daily the challenge of demonstrating exactly this potential of systems
theory ± and fails, more or less miserably.
This book is no easy reading, and it is probably even more difficult to
work with. In order to put the following comments and observations in
perspective, I would like to state initially that there are two fundamental
problems with the book, probably related to each other, which permeate the
text and confound the reader. Ironically, the authors are aware of these
problems, and warn against them. However, in developing their arguments in
favour of a systems-theory-informed jurisprudence, and portraying their idea
of systems theory, they neglect to heed their own warnings.
The first problem is this: systems theory, particularly Luhmann's ± and
there is currently no other or alternative version in sight ± is a social science
theory, that is, a scientific theory, systematically developed on the founda-
tions of sociological theory and sociological research and, as such, is subject
to methodical empirical testing through sociological research. Jurisprudence
is not science but law (legal communication), and legal theory is not a
scientific way of systematic `theory building' but is eclectic legal reasoning,
building on and evaluating variously selected arguments. A robust scientific
321
1 N. Luhmann, Law as a Social System (2004).
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT