Evolution of Law

79

correspond to a different explanatory domain. The theory of evolution in this sense has a greater explanatory scope, but lacks the conceptual elements that do provide the theory of system differentiation.

From this, we note that for our study we understand the differentiation of law as functional differentiation of law and exclude therefore the too general treatment of the concept of differentiation. The focus of our research is the reconstruction of the functional differentiation of law based on an evolutionary study with regard to the process. For this reason, it becomes necessary to understand the evolution concept.

80

If mechanisms for production of variety, selection and stabilization in the area of law are sought, can be distinguished three functional areas, as: (1) enrichment and production of conflict of normative expectations, (2) decision procedure and (3) regulatory formulation of valid law (Luhmann 1999a: 16).⁵⁸

According to Luhmann, the variation ability in legal system comes from the formation of normative expectations, whose diversity may increase. Crucial to this process is the invention of writing and its respective symbolic formalization. From an evolutionary standpoint, writing enables the duplication of meaning in the form text/interpretation (Luhmann 1995a: 256ff) an only secondarily the contents fixation. Thus, writing appears as an element that promotes first the variation of the system and not its fixation. Normative expectations can be more easily confronted with its disappointment (with past expectations) and a normative overproduction can be generated. Although the three evolutionary functions affect all dimensions of meaning, it can be argued that the variation that allows the writing has its greatest impact on the temporary dimension. It is precisely the possibility of recurring to writing, as a memory condensed on texts, which enables the extension of expectations in a wider temporary horizon. Based on writing, it is possible to confirm a normative expectation in the present, contrast it with the past, and test its congruence or the need for change. Thus, the variation of elements of the system appears first as a temporary problem of maintenance or change.

Variations, as mutations in living organisms, may be capable (or not) of prevailing.

For its continuity, the function of selection becomes necessary. For the function of selection, the law specifies formalized procedures of decision, independence from social influence of the strata, and arguments based on this dimension of meaning: “Thus,

58 “Sucht man im Bereich des Rechts nach entsprechenden Mechanismen der Erzeugung von Varietät, der Selektion und der Stabilisierung, so stößt man auf drei Funktionsbereiche, die sich (1) als Reichhaltigkeit und Konfliktsträchtigkeit normativer Erwartungen, (2) als Entscheidungsverfahren und (3) als regulative Formulierung des geltenden Rechts unterschieden lassen.”

81

social structures outside the law, specially strata-related status and familial relationships, friendships, and patronage are prevented from having an excessively direct influence on the administration of law” (Luhmann 1995a: 263).⁵⁹ The function of procedures is, from the perspective of the dimensions of meaning, distinctly social. The procedures allow the system to become detached from social relations of support of those that are affected in the conflict, which may shortcircuit the search of a resolution. For this, the system uses the principle of “[s]ome for all”

(Luhmann 1995a: 262),⁶⁰ that is to say, from a few who represent the law and execute the procedures, the fiction of a generalized consensus is maintained and the conflicts are isolated into a functionally specialized social system.

Finally, stabilization comes from the hand of the differentiation of regulatory formulations of the valid law, or more precisely, from a proper legal dogmatics (Luhmann 1995a: 274). Dogmatic functions enable the formation of stable structures for reproduction of normative contents, the capacity of self-observation of law, and its binary coding. As previously noted, the legal system owes its operational closure, to a great extent, to the formation of a legal dogmatics, which also performs functions for the evolution of law. In the dogmatics, the main problem is factual, i.e. the content to be taken into consideration for the law and the continuity of the system from its own operations.

In addition to these above-described three functions in the evolution of law, a set of

“evolutionary acquisitions” appears (Luhmann 1997a). These acquisitions have a higher degree of development at the moment of appearance and later allow structural linkage with other communications.⁶¹ Although the list of evolutionary

59 “Denn damit ist ein allzu direkter Einfluß von außerrechtlichen Sozialstrukturen, vor allem natürlich: von schichtbedingtem Status und Zusammenhängen der Verwandtschaft, der Freundschaft, des Klientelismus, auf den Rechtsbetrieb abgewehrt.”

60 “Einige für alle.”

61 In this sense Luhmann refers to these acquisitions as “preadaptive advances” (Luhmann 1981c:

191).

82

acquisitions of law is difficult to synthesize, the existence of some of them as support in the evolution of law can be indicated. One of these acquisitions is the universalization of “subjective rights” (Luhmann 1995a: 291; 1999e), since they allow the formation of normative expectations based on the protection of freedom by negation, that is, through the possibility of denial of the freedom. Another evolutionary acquisition of importance for the differentiation of functional systems, such as law, has to do with the differentiation of roles. Differentiation would have, in the social dimension, the differentiation of roles and its complementary expectations as a precedent. By extending and generalizing these expectations, a process of differentiation of functional systems would begin. The function becomes gradually relevant first for these “complementary” or “limits” roles and then for the rest of society (Luhmann 1976a: 291; 1977: 35; 1999e: 367). Additionally, the emergence of “conditional programs” (Luhmann 1995a: 196), legal procedures (Luhmann 1995a: 209), “property,” and “contract” (Luhmann 1995a: 459) must also be understood as acquisitions of this nature.

These three mechanisms, along with certain evolutionary acquisitions, support the evolution of law. This evolution can be characterized by a new kind of evolutionist approach that considers not only environmental factors or solely internal factors.

That is, social evolution presupposes “structural coupling” – or in the old parsonian terminology of Luhmann, “Interpénétration” (Luhmann 1991a: 294) or “double interchanges” (Luhmann 1999f).

The relations with politics are certainly a key element of the evolution of law. Not only because politics support variations in law, but also because political proceduralization of law reinforces its selections (Luhmann 1988c). The common element between both systems is the use of the same symbiotic mechanism, i.e., violence. Based on this mechanism, however, two different generalized symbolic media are differentiated and two different functional systems can take the form of the rule of law (Luhmann 1999f: 158).

83

From internal conditions of the system and its ability to deal with its own complexity, the emergence of certain evolutionary acquisitions and the structural coupling with other subsystems, law produces that specific case of structural change called evolution.

Luhmann understands the evolution of law as a circular process of structural change in the system. In this sense, this concept has been criticized for having a strong ontogenetic accent, that is to say, for focusing in changes of the state of an individual without considering the collective character of evolution, i.e. the phylogeny. Hendrik Wortmann (2007; 2012) has argued that the theory of social evolution of Luhmann is based on a “cladogenetic” fallacy (Wortmann 2012: 377), since it only considers changes inside an organism (legal system), without considering the collective character of the evolution of populations. Although his reflections on the applicability of social sciences of concepts of “allopatric speciation” (Wortmann 2012) and “reproductive isolation” (Wortmann 2007) are very interesting and with undeniable projections for a theory of social evolution,⁶² his criticism of the evolution concept based on the dichotomy individual/group or organism/population is based on an evolutionary theory belonging to the old paradigm of system theory, i.e., whole/parts. This kind of questioning in a theory of the evolution of social systems based on meaning finds serious problems when it tries to explain – in lax terms - the populations as social systems, which Wortmann himself recognizes when he decides to adopt the vague concept of “social forms” (Wortmann 2012: 380) to explain the evolution as allopatric speciation. On the other hand, if the very theory of evolution of populations is followed, the evolutionist explanation of Luhmann is

“morphogenetic” (Luhmann 1991a: 481ff.), which is compatible with the population theory postulated by Wortmann.

In this sense, the theory of evolution of law is a theory that seeks to explain structural changes in the system based on variation, deviations, or mutations, which

62 In fact, we will discuss some of these ideas later.

84

are subsequently selected without prior planning, based on random events that allow later the reproduction of the system unit.

The differentiation of law is associated with this kind of structural exchange, as the

‘final’ step inside the evolutionary changes and is therefore a product of social evolution itself. This way, functional differentiation of law describes the emergency of a social system dedicated to a function, but whose genesis is due to specific evolutionary factors.