A selection of Niklas Luhmann’s articles published in English and loosely arranged into categories. Where no abstract is provided the first paragraph is given instead.
Legal Argumentation: An Analysis of Its Form
Luhmann, N. 58(3) The Modern Law Review (1995) 285
Most theories of legal argumentation are concerned with the justification of legal decisions. That argument is concerned with justification is something which for lawyers (as for almost all who use the term) is determined in the very concept of argument and requires no further explanation. This is also the starting point for the considerations which follow here. We will not, however, seek to offer those engaged in argument further assistance in the search for sound, convincing grounds. No doubt there is good sense in justifying decisions and distinguishing between more or less convincing arguments. After all, where decisions are concerned, it cannot really be disputed that any decision could have been made differently. Given this contingent nature of decision, it is no doubt appropriate to adduce reasons for one possibility of deciding rather than the other. What follows is not, then, a revival of that old scepticism which endeavoured (successfully) to disclose the fact that grounds cannot ground. Instead, let us start with a paradox: that grounds are needed which cannot be grounded; that is, grounds which are not grounds. The point will then be to ‘develop’ this paradox through the observation and description of the conduct of those trained in handling argument. …
The Third Question: The Creative Use of Paradoxes in Law and Legal History
Luhmann, N. 15(2) Journal of Law and Society (1988) 153
A recent book of Henri Atlan with the suggestive title A tort et à raison (wrong and right) begins by telling a famous story, allegedly of talmudic origin. A teacher was asked about his judgement on a question disputed by some of his students. The first student explained his point of view. After a long reflection the teacher answered “You are right.” Then the second student, who had not been heard so far, protested and gave his reasons. And the teacher answered again, “You are right.” Now, other students butted in, objecting that he could not accept both opinions if they contradicted each other. And the teacher, after a long reflection, once more said “You are right.” The third question, too, received a friendly answer.
This feeling had been shared, it seems, by Tristram Shandy’s father.” ‘Tis a pity”, he said, “that truth can only be on one side, brother Toby – considering what ingenuity these learned men have all shown in their solution.” Hence, in spite of binary coding there seem to be good reasons to give both sides their due and to accept the binary code of truth as well.
Law as a Social System
Luhmann, N. 83(1-2) Northwestern University Law Review (1989) 136
In the classical division of labor between jurisprudence and sociology, jurisprudence is concerned with norms, and sociology, in contrast, with facts. The jurist’s task is to interpret norms and apply them. The sociologist may concern himself only with the existing context of the law, with its social conditions and consequences. But this classical view was already out of date, if not anachronistic, even at the time when Hans Kelsen gave it its most precise formulation. “Social-engineering” approaches and the jurisprudence of interests had tied the application of law to facts that had not been taken into account in formulating norms but instead had to be ascertained subsequent to the formulation of the legal text. Pragmatism had postulated that all practical application of the law should consider how different constructions of the law would affect legal outcomes; it was concerned not only with the impact on future decisions within the legal system but also with controlling actual consequences within social reality.
Society, Meaning, Religion – Based on Self-Reference
Luhmann, N. 46 Sociological Analysis (1985) 5
Sociological theory in its present Alexandrian phase seems to be preoccupied with the interpretation of its classical authors. Doing sociology of religion means doing empirical research on presumably religious persons or institutions; and it means returning to Emile Durkheim or Max Weber for theoretical inspiration. Religion, then, is supposed to work as an integrative factor on the level of total societies and as a motivational factor on the level of individuals. At both levels it supplies the meaning of meaning, a meaningful ‘ultimate reality’. All symbols and values that operate at this highest level of last resources can be qualified as religion – and be it a civil religion in the sense of Rousseau or Bellah.
We also know the objections. Religions can stimulate debates and fights. They also have disintegrative effects. Their motivational effect may well be a questioning of religion itself. It may be a social activity, but also a retreat. Statements about the function of religion resemble proverbs. They always need counter-proverbs to be operationally useful.