The Functional Differentiation of Law

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century, causes a change in the form of differentiation of the law, but the relations between law and politics.

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Being a problem usually treated in the science of law and marginally seen by the sociology of law, it is necessary to add some thoughts on this. The discussion concerning the autonomy of the law in Chile is old. This discussion focuses on a traditional vision of the autonomy, or rather of independence, according to which, it is necessary to encourage this aspect in judges and lawyers (Luhmann 1995a: 63). The relevance of the concept of autonomy to describe the modern legal system is due to the specification of the law as a social system with capacity to distinguish and operate in a unitary way (Luhmann 1995th: 62). The autonomy appears as a result of the operational closure of the legal system.

Unlike the usual understanding of autonomy, we distinguish strictly between questions of causal dependence or independence (which can be judged by an observer in any or other way, depending on its selection of causes and effects) and questions of reference that always involves the system as observer. (Luhmann 1995a: 77)

These issues of ‘dependence’ or ‘independence’ refer to the indication of the system or to its environment as a point of observation, that is: self-reference or hetero-reference. It should be noted that the autonomy of a system means that this operates as a unit and has ‘self-limitation,’ which in turn means that operational closure is a determinant of this situation and not its cause (Luhmann 1995a: 63).

These problems of dependence or independence can be treated in at least two ways:

from the function (operation) and from the coding (observation), respectively. In this sense, the self-reference – from the perspective of the system - refers to the self-limited maintenance of the normative expectations in spite of its disappointment, while the hetero-reference refers to the self-limited possibilities of learning of the system, i.e. doctrinaire or legislative learning. This produces the operational closure and cognitive openness of law (Luhmann 1995a: 77; 1987: 356f).

The autonomy of the system refers, in short, to the conditions under which legal procedures are properly limited from their own operational closure. A system is not

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autonomous when it operates in a state of autarky, but when the system is determined by its own structures (operational closure) and its influence limits are self-determined. The problems of autonomy in the system happen when these limits are somewhat altered, jeopardizing not only the structure decision of the system but also its legitimization, as the generalization of expectations about its procedures is affected.

This autonomy of law does not mean, of course, the triumph of functional differentiation over stratification. As noted by Robles (2006), and we agree with his diagnosis, the Chilean functional differentiation has not completely overcome its class structure, in spite having functionally differentiated systems as economics or politics. The law seems to belatedly react to these differentiations and only from the interference of the international human rights law is it geared towards the universal inclusion as principle. For this same reason, the full validity of human rights by the end of the twentieth century characterizes the functional differentiation of law and thereby shows its openness to the law of world society.

In the case of Chile, the differentiation of various social spheres has increased, from a modernization process whose tendency, although it has been of economic-liberal character, has separately plausibilized the differentiation of other social systems. The differentiation of autonomous social systems is a direct expression of the modernization process in Chile and its effects extend not only to the State, as an institutional axis, and to economics, but also to other communications, as for instance communications on sport, religion, education, environment, etc. The expansion of the communications via electronic social networks has increased these differentiations, making more complex politics, family, etc. All these phenomena show the tendency to differentiation of communications on specific problems of reference.

The differentiation between law and politics was not achieved, as in the formal diagnosis of Luhmann (1990b: 179f) by means of constitutions only, which began in

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the nineteenth century. Constitutions were rather a pre-adaptive advance on further differentiation. Indeed, in 1980, during the period of repression of the military dictatorship a new constitution was issued, which is in force until today, in spite of the deep political changes of the country. This constitution has rather had, in a certain way, a “symbolic power” (Neves 1992) and has been, in various aspects, an obstacle for the differentiation and diversification of politics and law. For this motive, it is not possible to identify constitutionalism as a source of differentiation between law and politics, but this occurs rather in the center of the legal system, that is, in the decisions of the courts.

In summary we can indicate that the change in the form of differentiation towards functional differentiation involves a change in the principle of legal inclusion.

In a stratified society the problem of inclusion and exclusion comes from privileges of strata. In a society with the form center/periphery this problem is based on the duality between a highly bureaucratized urban law and a rural law based on relations of confidence between the landowner and its dependents.

Meanwhile, in the functionally differentiated society with class structure, the politicization of law permeates this inclusion and the law tries to re-introduce, by means of “social laws” and other types of acts, the disadvantaged social classes.

Nevertheless, the political patronage and its influence in the decisions of the law make it difficult to see a universalist principle of inclusion in the system.

Only with the rupture of the impunity for human rights violations and its prosecution in courts does the law demarcate a boundary with regard to politics and its influences. From there, the problem of the law is managing its own procedures and the counterfactual use of legal arguments as the figure of the “permanent kidnapping” that we have discussed previously.

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Table 9 Forms of Differentiation in Chile, Law and Evolutionary Acquisitions

Form of

Differentiation Types of law Inclusion/Exclusion Evolutionary Acquisitions Stratified society

and of center/

periphery

Stratified and

dual law

(urban/rural)

Strata privileges and

residence Subjective

rights,

Bureaucracies Functionally

differentiated society with class structure

Politicized law Economic functions

and political patronage Constitutions

Functionally differentiated society

Functionally differentiated law

Legal procedures and

principles Human rights

Source: Own elaboration

While it is somewhat artificial to place the types of law parallel to evolutionary acquisitions, since they rather constitute intermediate thresholds, it is possible to indicate that the main evolutionary acquisitions of the stratified and dual law corresponds to its early structuring in organizations and under the principle of subjective rights. These two acquisitions allowed a further development of the legal bureaucracy and the expansion of the inclusion in the law. We have seen, however, that both acquisitions were limited in scope. The rural law never achieved stabilized organizations within the haciendas, and subjective rights functioned only as an abstract principle of inclusion.

In a society functionally differentiated with class structure, constitutions are those that present an advance with regard to the differentiation between law and politics.

By means of these constitutions, a differentiation between politics and society is achieved, and from them, the organization of the State is made possible.

Nevertheless, the law remains tied to political caprices and the constitution only gives form to structures in its political side, considering law as a mere administration of justice.

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The figure of permanent kidnapping, that allows the prosecution of human rights violations, is located in the transit from the politicized law and the functionally differentiated law. From this, the legal system is capable of treating political complexity through legal procedures. The closure of the system with regard to politics is produced and the autonomy of the law is problematized.

A functionally differentiated law is not a “better” law, in the sense of an advance, progress or perfection of a system. The functional differentiation of law has, as a result for the system, the challenge of dealing with its own complexity, without being able to resort to politics as support for its operations. This means a release of the political structures, but simultaneously, the deployment of new complexities.

This new law has to deal now with self-created problems that made the system more complex in its own operations. New problems and paradoxes are created. Before we discuss subsequent tendencies, problems, and contemporary paradoxes of Chilean law deals, we must briefly review the remarks of the Chilean sociology of law concerning the concept of legal culture. Why had the Chilean sociology of law only paid attention to the “culture of law” and not to its structural changes?

4.3. Excursus on the semantics of the Chilean sociology of law: the legal