The Change of Law as Institutionalization

Luhmann is interested in describing the changes in legal system through the concept of institutionalization. Due to its peculiar development in the Luhmann’s theory, this concept constitutes one of the biggest obstacles for a coherent composition of his sociology of law and for a differentiation theory according to this paradigm. Indeed, it can be argued that there exist two big obstacles, which appear at the first stage of Luhmann’s theoretical development, for this task: (1) the matrix: person, role, program, value; and (2) the confusion between the concept of institutionalization and the theories of the change in law. We will briefly analyze these two problems, before focusing on our subject.

Central to the writings of the first stage are the categories person, role, program, and value. Luhmann uses these concepts to refer to levels of social systems construction.

The scale goes from the most concrete (person) to the most abstract (value) and is crossed by the opposition static/dynamic. The external axis (person/value) would be

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the most static thing and the internal axis (role/program) would be the most dynamic aspect of the system (Luhmann 1987; 1974g).

Table 3 Levels of construction of Social Systems Static Dynamic

Concrete Person Role

Abstract Value Program

Source: Own elaboration based on Luhmann (1987)

Although these four categories, person, role, program, and value, are similar to those used by Parsons in relation to roles, collectivities, norms, and values (Parsons 1961a: 41;

1966: 19; 1965c: 71; 1971: 7), which are associated to the AGIL matrix, Luhmann does not link these abstraction levels with the formation of functional systems but with the attribution of expectations. Normative expectations may be directed to these four levels and, from them, may be generalized. This understanding of social systems based on abstraction levels is not deepened and appears briefly in Soziale Systeme (Luhmann 1991a: 429) in the same sense. Although these four concepts persist in different ways in the work of Luhmann, they don’t have the complexity of previous writings. The person reappears later in the concept inclusion/exclusion (Luhmann 1995c), programs are conceptualized within a cybernetic theory (Luhmann 1991a), roles are subsumed to differentiation theory (Luhmann 1977), and values acquire a new sense in the theory of generalized symbolic media (Luhmann 1997th).

In spite of this, the problems of both the levels of abstraction and the relative dynamism between these four concepts are not analyzed again. From these concepts, at this first stage, the idea of law as a system constructed at level of programs (Luhmann 1974g: 182ff), which is not continued or later deepened by Luhmann, also appears.

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The concepts of institution and institutionalization are ubiquitous in this stage. Much of Luhmann’s writings on sociology of the law prior to 1984 are focused on the problem of law as an institution and on its institutionalization. The latter is partly understood in a procedural way, as an equivalent to the concept of differentiation or evolution of law, and also as being related to the problem of legal legitimization.

The concept of institution allows for the observance of the strong influence of Parsons in this stage on the socio-legal ideas of Luhmann, since Parsons dedicates much of his theory to study the problem of the institutions and how these are generalized, which Luhmann assumes partially as a research program.

In Grundrechte als Institution (1974e), the problem of the institutionalization is explicit, although such refers only to the field of fundamental rights and assumes a thesis, which is later abandoned, i.e., that legal and political institutionalization are part of a wider process of “civilization of expectations” (1974g: 95). In Legitimation durch Verfahren (1983), the analysis of institutionalization focuses on the ways in which certain procedures become institutionalized to give legitimacy to the political and legal order. Nevertheless it is not until the Rechtssoziologie (1987) where a special treatment to the institution concept occurs.

The sociological problem behind the Rechtssoziologie (1987) is –based on the idea that the function of law is the stabilization of normative expectations- how an answer to disappointment is institutionalized. The expectations stabilize the disappointments and, depending on the type of expectation, emerge as a type of social system: a learning system or a non-learning system. The institutionalization of normative expectations of behavior meets evolutionary functions of selection and stabilization of procedural consensus in all the dimensions of meaning:

Institutionalization produces an evolutionary selection when by means of consensus normative projections usable in a society are chosen. The factual identification produces, meanwhile, an evolutionary stabilization of these acquisitions incorporating the norm in a coherent meaning relation, which remains

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so fastened and clear that she is capable of producing consensus qua interpretation and reasoning and of surviving to fluctuations in the mechanisms of institutionalization. (Luhmann 1987: 64)⁵⁴

The law would have also internally suffered a process of institutionalization, which would be probabilized by means of three evolutionary acquisitions: (1) the self-commitment to the “contract;” (2) the differentiation of “groups of reference”

specifics to certain expectations; and (3) the “institutionalization of institutionalized functions” in certain roles (Luhmann 1987: 74).

The law is, in this stage, a social structure that owes its ability to guide action to institutionalization processes. This institutionalization makes law relevant and allows its social reproduction:

Law must be seen as a structure that defines the boundaries and selection types of the societal system. Of course, it is not the sole societal structure; apart from law, we have to take account of cognitive structures, the media of communication, such as, for example, truth or love, and particularly, the institutionalisation of the scheme of societal system differentiation. However, law is essential as structure, because people cannot orient themselves toward others or expect their expectations without the congruent generalisation of behavioural expectations. This structure has to be institutionalised at the level of society itself, because it is only here that we can build beyond preconditions and create those establishments which domesticate the

54 “Institutionalisierung leistet evolutionäre Selektion dadurch, daß über Konsensbildung ausgewählt wird, welche Normprojektionen in einer Gesellschaft- brauchbar sind. Und sachlich-sinnhafte Identifikation leistet evolutionäre Stabilisierung des so Errungenen dadurch, daß die Norm in einem konsistenten Sinnzusammenhang aufgenommen, befestigt und so klargestellt wird, daß sie nun ihrerseits qua Auslegung und Begründung Konsens zu erzeugen und Schwankungen der institutionalisierenden Mechanismen zu überdauern vermag.”

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environment for other social systems. It therefore changes with the evolution of societal complexity. (Luhmann 1987: 134)⁵⁵

In this juncture, his “evolution of societal complexity” refers to two forms of differentiation, namely: segmentation and functional differentiation. The evolutionary problem of law is then characterized by the treatment of temporary complexity by means of selectivity, to the emergence of procedures to generalize social validity and to the capacity for factual abstraction of normative expectations in the system.

In this first sociology of the law the concepts of differentiation and evolution are constantly related to institutionalization. However, there is no clear definition of each explanatory field. Meanwhile, the evolutionary theory is not developed beyond the evolutionary acquisitions. Also, the theory of system differentiation only provides an opposition between segmentation and functional differentiation, which only seems to replicate the dichotomy of two solidarities of Durkheim (2001).

Luhmann later abandons the institutionalization concept and this has no subsequent connections either to his sociology of law or to his theory of society. Unlike the theoretical transit from action to communication, which is properly argued (cf.

Luhmann 1982; 1991a), the abandonment of a theory of institutionalization occurs

‘silently.’ It is possible to hypothesize however that the loss of a theory of

55 “Das Recht muß demnach als eine Struktur gesehen werden, die Grenzen und Selektionsweisen des Gesellschaftssystems definiert. Es ist keineswegs die einzige Gesellschaftsstruktur; neben dem Recht sind kognitive Strukturen, Medien der Kommunikation wie z. B. Wahrheit oder Liebe und vor allem die Institutionalisierung des Schemas der Systemdifferenzierung der Gesellschaft zu beachten. Aber das Recht ist als Struktur unentbehrlich, weil ohne kongruente Generalisierung normativer Verhaltenserwartungen Menschen sich nicht aneinander orientieren, ihre Erwartungen nicht erwarten könnten. Und diese Struktur muß auf der Ebene der Gesellschaft selbst institutionalisiert sein, weil nur hier ins Voraussetzungslose gebaut werden kann und jene Einrichtungen geschaffen werden können, die für andere Sozialsysteme die Umwelt domestizieren.

Sie wandelt sich deshalb mit der Evolution gesellschaftlicher Komplexität.”

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institutionalization is due, to a great extent, to the development and deepening of the concepts of differentiation, evolution, and to the theory of generalized symbolic media, all of which have their maximum expression in Die Gesellschaft der Gesellschaft (1997a) but is part of a development that redesigns a theory of differentiation of law without reference to a theory of institutionalization.