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13 Cardozo L. Rev. 1419 (1991 - 1992)
Operational Closure and Structural Coupling: The Differentiation of the Legal System

handle is hein.journals/cdozo13 and id is 1441 raw text is: OPERATIONAL CLOSURE AND STRUCTURAL COUPLING: THE DIFFERENTIATION OF THE LEGAL SYSTEM Niklas Luhmann * I. Mainstream systems theory conceives of systems as open sys- tems feeding upon exchanges with their environment. These ex- changes can be structured and limited to the needs of the system by restricting it to inputs and outputs. This concept of open sys- tems has been the answer, first from biologists and then from sociolo- gists, to the laws of thermodynamics and to the probability of decay in the sense of vanishing differences. The problem was how to avoid this probability-that is, how to reverse this tendency towards en- tropy-and above all, how to explain a world which is obviously able to build up order and to maintain negentropy. Since thermodynamic law presupposes closed systems, open systems seemed to be the solu- tion. However, an annoying question remains: What is a system? Or more to the point: How does a system operate so that it can be called an open system? Or, if a system depends upon its environment, what prevents a growing confusion between system and environment and, again, thermodynamic decay? The earliest response, fashionable during the 1950s and accepted, for instance, by Talcott Parsons, was to formulate the problem as one of system maintenance or boundary maintenance.' The answer was that a system that cannot fulfill the requisite of system maintenance will dissolve itself and will no longer be available for investigation. This led to a revival of teleology (the new brand name was functional- ism) and again, as we know from the famous Moliresque calming power of opium, to a tautological reformulation of the problem. Hence, we stay with our question: What kind of operations produce the unity of the system with the effect that it can maintain itself, that is, continue to operate and maintain connections to its environment? How are we to understand that there is something that can select in- puts and outputs and survive irritating information about its environ- ment according to internal needs? * Professor of Sociology, Bielefeld University. 1 See TOWARD A GENERAL THEORY OF ACTION 108-09 (Talcott Parsons & Edward A. Shils eds. 1951). 1419

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