Taking the Complexity of Complex Systems Seriously
| Author | David Schiff,Richard Nobles |
| DOI | http://doi.org/10.1111/1468-2230.12488 |
| Published date | 01 May 2020 |
| Date | 01 May 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12488
REVIEW ARTICLE
Taking the Complexity of Complex Systems Seriously
Richard Nobles and David Schiff∗
Jamie Murray, Thomas E. Webb, Steven Wheatley (eds),Complexity Theory
and Law: Mapping an Emergent Jurisprudence, Abingdon: Routledge,
2019, viii +288 pp, hb £95.00.
Eighteenth-century science, following the Newtonian revolution, has been char-
acterized as developing the sciences of organized simplicity, nineteenth-century
science, via statistical mechanics, as focussing on disorganized complexity, and
twentieth-and twenty-first century science as confronting organized complexity.1
INTRODUCTION
In the series ‘Law, Science and Society’, this book of widely ranging essays
attempts to engage readers in recognising the importance and value of under-
standing and applying complexity theory, as particularly directed to systems
and as advanced in many sciences and mathematics, to the operation of law and
legal systems. It does so by alluding to the limitations of recent focus on com-
plexity concerning the legal system, as steered by autopoietic systems theory.
This review article questions whether complexity theory does indeed enhance
the importance of systems thinking in and about law, and whether it might be
possible for the two theoretical positions, complexity theory and autopoietic
theory, to be reconciled. It does so whilst agreeing that systems thinking about
complex systems is of profound relevance to many emerging jur isprudential
and socio-legal themes.
OBSERVING COMPLEXITY
Lawyers are used to describing law in terms of a system – the legal system.
As such, there is less resistance from lawyers (compared, say, to artists) in
∗Respectively, Professor of Law and Emeritus Professor of Law, School of Law, Queen Mary Uni-
versity of London.
1 S. Kauffman, The Origins of Order: Self-Organization and Selection in Evolution (Oxford: OUP, 1993)
173.
C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited. (2020) 83(3) MLR 661–685
Taking the Complexity of Complex Systems Seriously
connecting with theorising, developed first within the natural sciences, about
the nature of complexity and the character of complex systems. The penetration
of this theorising and its attendant analysis, within recent socio-legal scholar-
ship, has been primarily down to the work of Niklas Luhmann and Gunther
Teubner. Luhmann drew on theories of systems, as they had developed within
biology and cybernetics, to adapt Talcott Parsons’ sociological version of sys-
tems theory. Law, within this theory, is one of society’s sub-systems. Luhmann’s
writings on society, society’s sub-systems, and law itself, offer a rich, rigorous
and coherent set of tools with which to observe the complexity of modern
laws and modern legal systems, and their complex relationship to the rest of
society. Complexity is understood both as an attr ibute of modern systems, and
of our understanding of those systems, primarily represented in the distinc-
tion between first-order and second-order observation. Teubner has taken this
further, drawing on Luhmann’s version of systems theory, autopoietic systems
theory (AST) to observe a wide range of linked legal or potentially legal issues
such as juridification, pluralism, transnational law, justice, the role of law in
inter-social sub-system conflict,2among others. Is this application of systems
theory to law, what might be called ‘the Luhmann route’, a necessary, or even
a particularly fruitful footing from which to observe contemporary legal phe-
nomena and legal systems, their complexity and evolution? Could one do just
as well, or even better, by taking the ‘lessons’ of complexity theory (CT), as it
has been and continues to be developed in the natural sciences and mathemat-
ics, and applying them directly to legal phenomena? Such direct application
would not only avoid engagement with AST, it would also ameliorate the need
to engage with much sociology. One would not have to commit oneself to
any particular explanation for the existence and evolution of complex forms
of co-ordinated behaviour – whether consensus or conflict driven, whether
organised around rational self-interest or community – and similarly avoid a
commitment to any particular quantitative or qualitative methodology for the
observation of social phenomena – social action theory, structural functional-
ism, actor network theory, AST – and just get on with the job of observing
law as a complex system, seen through the prism of the expectations of the
features of complex systems as these have been observed within the natural
sciences and/or mathematics.3With such sociological pluralism every chosen
approach or model will focus on something that the others ignore, leading
to the suggestion that multiple perspectives will provide greater understanding
2 To give just one reference for this issue, see G. Teubner, ‘Altera pars audiatur: Law in the Collision
of Discourses’ in R. Rawlings (ed), Law, Society and Economy (Oxford: OUP, 1977) ch 7. Many
references to Teubner’s writings on the other issues mentioned are readily available in English.
3 The neutrality (or indifference) of CT towards the categories through which sociology organises
its observations of society is captured by a definition of systems adopted by the European
Commission’s Complexity in Social Science Research Project of 2008: ‘macroscopic collections
of simple (and typically nonlinearly) interacting units that are endowed with the ability to evolve
and adapt to a changing environment.’ Quote (emphasis added) taken from one of the books
contributors, J.B. Ruhl, ‘Law’s Complexity: A Primer’ (2008) 24 Georgia State University Law
Review 885, 887, fn 7. For those unfamiliar with complexity theory and how it may operate
within the social sciences, see D. Byrne, Complexity Theory and the Social Sciences: An Introduction
(London: Routledge, 1998).
662 C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited.
(2020) 83(3) MLR 661–685
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