5. THE NATURE OF THE JUDICIAL ESTABLISHMENT
5.4. As the Reproduction of the Law as a System
5.4.1. The Claim for Normative Closedness
How is all this possible? Well, participation in a legal event, i.e., performing a legal action, is qualified by its own reference to the legal system, declaring itself to be an event (or action) within the normative sphere of law, and also having this self-declaration accepted within the community. Analytically speaking, this is a series of performative actions taking place in an institutional context, in which events are constituting the law while they
reproduce the legal set-up in its continuity. Let us recall: "The legal system, too, consists only of communicative actions which engender legal consequences—it does not, for example, consist of physical events nor of isolated individual behaviour which no one sees or hears. It consists solely of the thematization of these and other events in a communication which treats them as legally relevant and thereby assigns itself to the legal system."1 5 In such a system, normative validity is transmitted step by step, from legal event to legal event, narrowing or extending the law's scope of action. That is to say, the law's practical action proceeds through its own reproduction, guaranteeing its continuity in time.
Law is nothing but conventionalized practice. It has no other form of existence; it has no physical property and no objective existence.
Social institutions as a function of human conventions can only exist communicatively, by way of exchange of meanings. Their existence is thereby derivative from social practice. "Every sign by itself seems dead. What gives it life?—In use it is alive. Is life breathed into it there?—Or is the use its life?"1 6 Obviously, institu-tions are the issue of practice that brings conveninstitu-tions to life and reproduces them in their continuity. With the advance of develop-ment, socialization will proceed not only as mediated by institutions but also as aiming at further institutionalization. One of its issues is that humankind, reifying its own practice, begins lo be related to the conventionality of its own practice as to something given by nature. Institutions start to have their own life as backed by their continued feedback in practice, by the reifying effect of this practice and also by the reifying acknowledgement of all this in practice. And all thai may eventually result in their becoming increasingly detached from the concrete-individual human and social medium which alone gave them life. In limiting cases and
,5 LUHMANN (1988), p. 19.
1 6 WITTGENSTEIN (1953), par. 432, p. 128.
at the level of individual mind, "this abstraction has the same ontological rigor of facticity as a car that runs you over".1 7
Let me remark that being bound to practice is a sine qua non of every connection, relational in the sense that "if [...] its posited character comes into force, then simultaneously also a subject will be posited to it".1 8 In consequence, any phenomenon which is bound to practice is process-like from the very beginning. As a matter of fact, the conceptualization of reality as a process is a well-known methodological choice offered by ontologies." In the ontology of social being, it is its process-like character that provides the key for general understanding. Accordingly, to exist will for a system (or context or totality) be synonymous with that which will result from the totality of interactions taking place among its components.
The system is autonomous. Each and every unit which operates as an element of the system is constituted by the system. The system is both self-referring and self-constitutive. Accordingly, its existence lies in the institutional practice of self-reference made by factors performing operations in the name of the system—a practice that finally reproduces the system in both its identity and unity.
This way, the system is also normatively closed. However, what is normatively closed is at the same time ("not as a contradiction but as reciprocal condition") open to its environment in order that the former can process the latter normatively.2 1 That is, its closed
1 7 LUKACS (1978), p. 40.
1 8 LUKACS (1965), p. 515.
" E.g. WHITEHEAD (1929).
2 0 Cf. LUKACS (1976) II, ch. 2 and III, p. 172.
2 1 LUHMANN (1986), p. 113. That in respect of which the system is open is, onlologically speaking, paramount to appropriation, namely to building it into the system's practice as a factor of this practice. Cybernetically speaking, this is openness for learning. It has nothing to do with any reflection of reality in an epistemological sense. In consequence, when LUHMANN (1972), p. 283 conceptualizes this duality as "normative closedness / cognitive openness", "cog-nitive" only stands for the functional differentiation usually made between
character will manifest itself in "normative control", i.e., in the way it accepts an event as a legal event and in the kind of self-reference with the help of which the system renders any event a constituent of itself. This way, I could even add: it is normative closure (manifested in normative control) that sets the framework for and limits of what is open. Therefore, I could also venture the statement according to which it is by way of closed self-reference and through a normative procedure that the system will carry over, into the sphere of law, all that it is open in and for. Indeed, this is the point where the selective effect of legal relevancy can be seen. This is the point whereby procedurality will determine the whole legal process by constituting its issue, and whereby facts become normatively transformed into a component of the legal domain.
Well, the statement according to which "even the ascertainment of the facts that a delict had been committed represents an entirely constitutive function of the court" gains its full meaning2 2 only in such a context. For the system is open to its environment only and exclusively in order to process it in a system-specific manner.
In any other respect, the system is closed. That is, no response can substitute the system's own response. Nothing except the system's own stimulus can start a process or perform an oper-ation in it. For the system functions as a "black box", observable only and exclusively in the normative declaration of that, one, the system takes its input from its environment and, two, its response with its output is calibrated by being addressed to its environment.
Or, to put it another way, the legal event is entirely system-constituted. "In juristic thinking the ascertainment of the fact by the competent authority replaces the fact that in nonjuristic thinking is the condition for the coercive act. Only this
ascerlain-"normalive / cognitive expectations" in sociology. Cf. LUHMANN (1972), pp. 3 2 - 3 3 ; SESONKE (1956).
2 2 KELSEN (1967). p. 239.
ment is the conditioning facL"2 3 This statement entails that "what the system, at the level of its operations, regards as reality is a construct of the system itself. Reality assumptions are structures of the system that uses them".2 4 All in all, anything that exists objectively or occurs on account of causal or logical necessity may become an element of the system only provided that it has been posited by the system in a normatively closed (and externally non-substitutable) way.
It goes without saying that the purely constituted representation of the environment by the system also applies to the "perception"
of the environment by the system and its sensibility. That is to say, operative closure will apply to the whole process of becoming an input as well. In principle, even in ideal cases, "for any system, only what is accessible for its own operations is accessible." This obviously reduces the (relative) totality of any event to its instru-mentally transformed representation at the most. For "everything that 'is' is formed through complexity reduction" in the system.2 5 The "black box" representing its functioning will display the same autonomy both in accepting anything as input and in issuing as output, for both of them are preconditioned by the structural coding of the system and the programming of its processes.2 6
5.4.2. The Openness of the Communication about Facts