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Deposit Guide Contact: email CYBERNETICS AND CONTINGENCY, CODES AND PROGRAMS: AN ACCOUNT OF SOCIAL SYSTEM THINKING IN LAW AND LEGAL THEORY TODAY GIULIA BRYSON DOCTORATE OF PHILOSOPHY (PHD) IN LAW 2018 LAW DEPARTMENT, BIRKBECK COLLEGE, UNIVERSITY OF LONDON 1 I hereby declare that the work presented in this thesis is my own, except where explicit reference is made to the work of others. Giulia Bryson 2 ABSTRACT The thesis discusses aspects of current Social Systems Theory, with the main attention devoted both to the level of the compassing social system society and to that of function systems, especially law. Throughout, I refer to the version of social systems theory developed and presented as theory of social autopoiesis in Niklas Luhmann's mature work, while a lim- ited but important part of the thesis will explain this choice and serve as a comparative and genealogical guideline. Central will be the notion and idea of what Luhmann calls a Contingency Formula — term that both func- tions as a problem outline and that indicates how the problem can be solved, within the context of the Legal System. Equally centre-staged is the scientific, even the philosophical background the Contingency Formula is based upon. The reporting and explaining of this background, to which luhmannian Social System Theory is indebted in its initial inspirations as well as in its relentless efforts of ‘doing justice’ to every new empirical find- ing, involves, among others, elements of cybernetics, Boolean algebra, biology, and approaches to mathematics and topology - as well as of some pivotal concepts in philosophy (e.g. contingency). The Contingency Formula and the problematic of modern society in relation to Law and Justice of which it constitutes the pivot, constitute the focus of my PhD. They are approached through a comparison with tradi- tional theories of justice and pre-systemic views of society; as it is gener- ally the case of systems theory, the decisive difference-marker is provided by the notion of a function. The systemic narrative also involves the divide of coding and programming, and the claim that, in modern society, with its constant overproduction of complexity, these are part of its arsenal of modes of systemic reducing that complexity. It finally implies contingency formulas. These operate as system-immanent second-order observation devices that allow function systems to manage their steering dilemmas without unrealistically claiming to have access to a (function system tran- scending) first-order observation of its own interventions. I am addressing both the Contingency Formula as general concept and Luhmann's en- dorsement of Justice as Contingency Formula of the function system law (plus Teubner’s alternative offer of a Transcendence Formula Justice), up 3 to a compared analysis of modernity and post-modernity according to the social-systemist approach of modern society. TABLE OF CONTENTS ABSTRACT INTRODUCTION 1 - Mathematical Models, Heterarchy and Circularity: The Background of Social Autopoiesis. 1.1 - Cybernetics and Boolean Algebra: Old Models for a New Discourse. 1.2 - From Unity to Difference and from Hierarchy to Heterarchy. 1.3 - Circularity, code and re-entry. 1.4 - Internal Stability: Eigenvalues and Eigenbehaviour. 2 - Philosophy Contingency, and the Promise of Autopoiesis: A Phi- losophy of Socialised Contingency. 2.1 - The Philosophical Background. 2.2 - A Modern, Autopoietic Society. 2.3 - Describing Modern Society. 2.4 - Contingency and Justice. 2.5 - What is a System? 3 - Justice in a Postmodern Climate: Luhmann’s Gift to the Legal Sys- tem. 3.1 - Modern Conceptions of Society. 3.2 - Modern Pre-systemic Theories of Justice. 3.3 - Humankind, Injustice, and Positivisation of Law. 3.4 - Stratification to Functional Differentiation. 3.5 - Justice as Gift. 4 4 - Justice and the Legal System: The Situation Before and After “Kontingenzformel”. 4.1 - What is the Function of Law? 4.2 - Coding and Programming. 4.3 - The Contingency Formula: Contingency in autopoiesis and else- where. 4.4 -The Contingency Formula: Underlying the autopoietic intention. 4.5 - Justice - the suggestions of Autopoiesis and the legacy of positivism. 4.6 - Philosophical virtualities. 4.7 - Beyond bipolarity? 5 - Modernity, Postmodernity, and Contingency: Why the Law Needs a Contingency Formula. 5.1 - Modernity: a structural break. 5.2 - Postmodernity, Deconstruction and the Paradox. 5.3 - A New Dawn for Legal Sociology. 5.4 - Contingency in Decision Making. 5.5 - Common Values, Politics and Structural Coupling. Conclusions. 5 INTRODUCTION “I have a system!” claims, answering his wife's reproach to have lost the cover of a DVD that he had played, Larry David1. How should he have lost it indeed, as: “I have a system ! When I play a DVD I always put the cover on top of the DVD player”. A short time later in Heaven — it so happens that he has died in the meantime - Larry David is escorted by two snow-white clad, long-bearded guardian angels, who promptly inquire into the matter of the lost DVD cover (which much later will turn out to have slipped behind the furniture). "I never lose a DVD, he claims again, I have a system! I put the DVD cover on the DVD player!" But with the guardian angels Dustin Hoffman and Sasha Baron Cohen this goes down less well than it did at home at his lifetime. “That’s not a system!”, reprimands him a Dustin Hoffman promoting, for the occasion, a central postulate of luh- mannian systems theory. He explains: "A system, that would be: you have purchased a box of DVD jackets, just plain ones, ready in case you can't find yours. That’s a system!” A heated argument ensues, full of strong words, at the end of which Larry, deemed not yet ready to stay, is sent back to life on Earth. 1 In an episode of his TV series Curb Your Enthusiasm ('Fifth Season's Finale'). https://www.youtube.com/watch?v=yCwwqsdyAY0 (Last accessed 6 June 2018). 6 What is enlightening here is what the altercation teaches about the constitutive antagonism between modern and traditional systems thinking. Larry David presents traditional systems thinking - systematic thinking, as it could also be called. Traditional or systematic systems thinking is based on a strong notion of rule. Of a rule, to be more precise — such as the rule Always put the DVD cover on the DVD player - then you are safe. The rule might be successful, in which case everything will work out according to plan. Modern systems thinking — or systemic thinking, as it could also be called — distinguishes itself by the fact that it takes on board experience, specifically the experience that, whatever a rule might claim or impose, ‘stuff happens’. In other words, it is foreseeable already now that some- thing unforeseen and indeed unforeseeable, might happen. Something that thwarts the rule's effective ruling, or in other words stops it from exer- cising the ‘bite’ it intends to exercise upon actual events. The untheoretical simplicity with which the TV series, staging the opposition between tradi- tional and modern conceptions, shows how it is that things do not, gener- ally, behave the way we intend or expect them to behave, in life, politics, the economy, law or no matter which other sphere of social existence. We are asked to integrate this in our routines and procedures. This summar- ises the concern to which modern, ‘systemic’ systems theory ventures to offer an at least momentarily appropriate response, as opposed to earlier, ‘systematic' systems thought which, far from responding to a concern about effective happening, proceeded by imposing a once-for-all-times or- der or rule under the optimistic assumption that this suffices to perman- ently nonplus the vicissitudes of effective becoming. Exceptions, unexpec- ted events, mishaps, mistakes, misunderstanding, errors, losses - all of 7 these factually happen, randomly, contingently, in the absence of any cer- tain prediction, any pre-established order or in-advance guaranteed secur- ity (Providence). All happening in the world is left to chance and contin- gency, all rules involve an (unknown) fraction of exceptions. But one will hardly suppose that the dark enlightenment that is summarised in such a maxim, has reached many people's mind. One would rather suppose that most human lives are lived, consciously at least, in an intrinsically steady world, on the basis of the promise of things to be or to stay as expected, as long as they are not tampered with, and of a naturally felt faith in this promise and the protection it offers against any unexpected or contingent accident cropping up unwillingly-unwittingly. No wonder that the believer in the pre-modern, ontological world- view will be tempted to react as Larry David effectively does, namely by denial and resistance. Dustin, the guardian angel is, on the contrary, aware of the unsuspected collateral effects that anything we do is likely to trigger, and wary of the ever-fertile contingency of outcomes, as well as of the strict limits to which this subjects the traditional naïve confidence that all that happens is, always or more often than not, that which, a moment earlier, had been likely to happen.