Communication, Niklas Luhmann, and the Fragmentation Debate in International Law

This chapter offers a critical examination of Niklas Luhmann’s “systems” approach for our understanding of law. Although law has been traditionally understood as a system of rules or norms, Luhmann’s emphasis on autopoiesis and on communication—whereby the system creates its own elements—represents, at first blush, an interesting extension of the research program since it systematically incorporates what in other systemic approaches remains exogenous and dealt with under the heading of “interpretation” and “law application.” Furthermore his emphasis on codes allows us to treat the system as open while also bringing its operational closure into focus so that the system’s identity—in this case the “proprium” of law—does not get lost. This seems an advance over the usual attempts of dealing with “unorthodox” norms, that is to say those that can no longer be traced back to a traditional authorized “source,” or are conceptualized along a metaphorical “hard/soft” continuum. But several problems remain, and while we can treat them as open questions, I think they need to be asked. There is first the heterogeneity of the sources that inspired his “open systems” thinking. Luhmann’s “mega-theory” evolved over the years by borrowing from such different sources as cybernetics, general systems theory, biology, symbolic interactionism, thermodynamics, and artificial intelligence, among others.