Legal Forms and Reflexive Legal Forms: A New Approach to Reflexive Law

General background

Luhmann (2004, 59) proposed a socio-legal theory of law that aimed at bridging the gap between traditional legal theory and sociology by considering the internal and external observations of the legal system. According to Luhmann (2004, 60), external observation enables us to “take full advantage of its being an external description which is not bound … to respect … the premises of the understanding of its object.” However, this external description “should not lose sight of its object” and of its self-observing nature, meaning that “to acknowledge the fact that there are self-observations and self-descriptions of the object is the condition for a scientifically appropriate, realistic, and venture to say, empirically adequate description” (2004, 60).^[5]

This theoretical approach is based on the understanding that the legal system operates by combining self- and hetero-referential observations that serve “the coordination of this process with the system’s environment” (Luhmann 1988a, 20). In other words, self-reference always requires a “concurring” cognitive hetero-referential operation (Luhmann 2004). Moreover, “self-reference can neither be total self-determination nor be total (or even adequate) self-observation” (Luhmann 1988a, 20–21). This excludes the possibility of solipsistic self-determination in the legal system (Ubilla 2016a, Ch.6; Maturana 2006). Therefore, we cannot rely solely on the internal perspective for analyzing legal systems.^[6]

Closure and openness of the legal system

For Luhmann, the function of the legal system is the stabilization of normative expectations over time. The legal system performs this social function by combining “the closure of recursive self-reproduction and the openness of their relation to the environment” (Luhmann 2004, 19). The legal system performs this function by being simultaneously normatively closed and cognitively open. Luhmann (1986a, 113) explained that “following recent developments in systems theory, we see closure and openness no longer as contradictions but as reciprocal conditions.” The closure of the legal system is expressed in that “only the legal system can bestow legally normative quality on its elements and thereby constitute them as elements” (2004, 19). The legal system is also cognitively open, as “in each of its elements and in their constant reproduction it is dependent on being able to determine whether certain conditions have been met or not” (1988a, 20). The openness of the legal system is based on the self-referential closure of the system because it is through such normative self-reference that information is selected.

For Luhmann, closure and openness operate through the combination of the normative and cognitive orientations of the legal system. These orientations of the system are used simultaneously in each operation of the legal system. “The norm quality serves the autopoiesis of the system, its self-continuation in difference to the environment. The cognitive quality serves the coordination of this process with the system’s environment” (Luhmann 1988a, 20). Luhmann (1986a, 122) further explained, “All autopoietic systems have to live with an inherent improbability: that of combining closure and openness. Legal systems present a special version of this problem. They solve it by combining normative and cognitive, not-learning and learning dispositions.” These normative and cognitive orientations are two different forms of “uncertainty absorption” (1988a, 20) and “reflection” of complexity (2004, 113). Normative expectations are those that “do not need to be changed in the event of being disappointed” (1988a, 19), whereas cognitive expectations relate to a factual reference within legal meanings that are adjusted in the event that the corresponding facts are different. Therefore, the cognitive orientation of law also refers to its “adaptive requirements with respect to its environment” (1986a, 122).

If the operations of the legal system combine normative and cognitive expectations, the system may need to “face up to problems of compatibility of these divergent and perhaps even contradictory attitudes. Such combinatorial constraints may bring about limits to the growth and complexity of the system. Since closure and openness can be combined this is not a hopeless contradiction and not a real impossibility” (Luhmann 1986a, 117). It is through the consideration of these combinatorial constraints that we could eventually observe “symptoms of overstrain in the legal system” that may emerge as a result of an increasing political instrumentalization of law (1986a, 117). This “overstrain” could result from “a new primacy of the cognitive over normative considerations” (1986a, 113–14), risking the fulfilment of the societal function of law, that is, stabilizing normative expectations.

The first concern: the “overstrain” or endangerment of the function of law

Regarding the first concern – whether reflexive law “overstrains” or endangers the function of law, that is, whether it entails throwing the legal system back to cognitive learning, thereby weakening or eliminating the “normative stabilization of expectations” – Luhmann (1992a, 176) noted that attempts to respond to social complexity through legal programs, result in “vagueness, situation dependence and fluctuation.” However, Teubner (1983, 271) recognized that “[l]egal doctrine is still bound to the classical model of law as a body of rules enforceable through adjudication.” Thus, various reflexive mechanisms would still operate within a system of stabilized normative redundancies. In other words, applying Luhmann’s understanding of how the legal system combines its normative and cognitive orientations, reflexive legal forms would still be able to interact with the existing normative redundancies of the legal system in such a way that the new societal practices or legal communications – that will unfold as a result of the reflexive legal forms – will be understood in the context of those existing redundancies. Therefore, the stabilization of normative expectations will result from the interaction of the different normative elements of the legal system. New reflexive legal forms will be combined with preexisting normative redundancies, thereby producing new social communications and normative redundancies in the legal system. This process would contingently stabilize expectations at a higher level of concurrent normative redundancy and cognitive variety. In any case, this will become an empirical question to be observed.^[20]

However, the issue is that Teubner did not focus on the combination of normative redundancy and cognitive variety and even less on how such a combination could unfold. This is an important aspect of what the present article intends to contribute. The first question is whether new legal forms can combine a higher cognitive capacity with normative redundancy. As explained below, Luhmann did accept that such legal forms may unfold as a result of legal evolution. But then, a second question arises: can the development of reflexive legal forms be consistent with Luhmann’s understanding of legal evolution? We will focus on these questions in the sections on reflexive legal forms and legal evolution.

The second concern: the burdens of “reflexion” of its own autopoiesis

Regarding the second concern relating to the “burdens of reflexion” that may derive from the legal system identifying itself as an autopoietic system in a world of autopoietic systems, Luhmann (1992b, 393) questioned, “to what extent the theoretical apparatus of the legal system … is capable of perceiving and taking into account autopoietic systems in its environment”; he was unsure whether this is possible: “If [law] must make indications with the aid of this distinction [legal/illegal], then what limits are thereby imposed on insight into the autopoiesis of environmental systems?”

However, Luhmann (1986b, 186) also stated that law “as an autopoietic system observing autopoietic systems, it cannot avoid gaining information about itself.” Luhmann (1992b, 411–412) was concerned about “how in particular the legal system … will cope with the burdens of reflexion” and how this “reflexion confronts the system with the paradoxicality to which it owes its existence.” This is due to the fact that “if an observer … wants to observe the continuous deframing and reframing of frames, the autopoietic operation of observing systems (including himself), it will end up with paradoxical formulations. It would have to say that the different is the same, that the distinction of marked and unmarked is one distinction among others … Observation has to operate unobserved to be able to cut up the world” (Luhmann 1995b, 46). Simply, the “burdens of reflexion” would be the result of the overlapping of the observations of various observing schemas, which may even cause the legal system to operate with distinctions that are different from the legal/illegal code, causing contradicting observations of the same communications.

According to Paterson (2006, 33), although this is a major issue, it is important to remember that all social systems “develop strategies of deparadoxification,”^[21] He explained that Luhmann himself (paradoxically!) may provide an answer. Luhmann (1990, 137) stated that “it is not necessary to risk the glance into paradoxicality; rather, it is sufficient to develop thoughtful procedures for observing observation, with the special emphasis on that which, for the other, is a paradox and, therefore, cannot be observed by him.” Luhmann (1988b) referred to legal evolution as a historical process that could deparadoxify the paradox of reflexive law and alluded to the possibility of feeding legal sociology into the system through legal training. Therefore, it could be said that Luhmann himself accepted that socio-legal evolution could develop structural complexity to avoid or “unfold” the mentioned paradoxes.

It is possible to say that, in the same way that Luhmann recognizes that second-order observation of the legal system may feed from observations of and from legal sociology (social science), the same second-order observation may gain insight into the autopoietic nature of itself and of other subsystems. I believe this may specially occur through the legislative process, within which recursive observations on previous regulatory failures will be available. In the face of these regulatory failures the legal system may contingently learn about its own failed observations and, moreover, it is in this same legislative process that observations of other subsystems (especially politics) will normally transpire, showing how blind and self-referential the failed legal observations have been.

However, I also believe that the legal system as such does not need to identify itself as an autopoietic system to create learning processes that may facilitate the emergence of reflexive legal forms. This resonates with Luhmann’s (1990, 137) statement: “It is not necessary to risk the glance into paradoxicality.” Therefore, what the legal system needs is exactly to trigger or have in place learning processes. In this regard, Luhmann noted that what is missing is “[a] conceptual system oriented towards social policy which would permit one to compare consequences of different solutions to problems, to accumulate critical experience, to compare experience from different fields, in short: to learn” (Teubner 1983, 264, citing Luhmann 1970, 19).

However, this is not a theoretical objection to reflexive law but rather an empirical question, as Paterson (2006, 32) rightly noted. As mentioned, Luhmann (1988b; 1988c) referred to legal evolution as a historical process that could deparadoxify the paradox of reflexive law and alluded to the possibility of feeding legal sociology into the system through legal training. In simple terms, the feeding of legal sociology into the system could take place through socio-legal training and result in the legislative proposition of what we will call reflexive legal forms, which could operate as evolutionary mechanisms to the extent that the corresponding evolutionary conditions for historical change are present.^[22] Under this view, the legislative proposition of reflexive legal forms would be based on a socio-legal assessment of the corresponding regulatory area and serve as a mechanism for the nesting of reflexivity into the legal system,^[23] considering the relevant normative redundancies to be combined with elements that facilitate cognitive variety. The relevant normative redundancies of the corresponding legal form could provide the “structural complexity to dissolve our paradoxes” (Luhmann 1995b, 52) while interacting with the elements that facilitate the unfolding of cognitive variety.

Therefore, regarding the two concerns raised by Luhmann, I argue that they can be generally responded to by further elaborating and applying the notions of legal form and reflexive legal forms in a manner consistent with Luhmann’s socio-legal theory as follows: Regarding the first concern, the possibility of a reflexive law that does not endanger the function of law depends on the possibility of legal forms that duly combine normative redundancy and cognitive variety, that is, it depends on the emergence of reflexive legal forms in the legal system. Regarding the “burdens of reflexion” of its own autopoiesis, the possibility of reflexive law rather relates to the unfolding of learning processes, of processes that observe observation. This appears to be an empirical possibility that can be connected to the possibility of having legal sociology fed into the norm creation processes, and especially into the legislative process.

Both responses relate to legal evolution; therefore, they are both contingent and empirical matters. This implies that reflexive legal forms are contingently possible. This is what I meant when I said that it is possible to find a contingent and contextual common ground in the Luhmann-Teubner debate about the possibility of steering social change through law. It is a contingent common ground because it depends on the case-by-case empirical possibility that such reflexive legal forms unfold (that is, unfold and operate as such) in the process of socio-legal evolution. The notion of “steering” involved here, as pursued by Teubner and in this article, is not the traditional, direct, and linear understanding of guaranteed social control through the law; rather, it is an indirect and contingent increase of the probabilities of “coordination with other social systems” (Teubner 1983, 255).

In the following sections, I will present Luhmann’s general use and application of George Spencer-Brown’s (1994) laws of form to provide a general context for our subsequent elaboration of the notion of legal forms and further introduction of the notion of reflexive legal forms. Thereafter, I will further argue and explain how the understanding of the contingent possibility of the evolutionary emergence of reflexive legal forms provides a contextual common ground in the Luhmann-Teubner debate about the possibility of steering social change through law.

General remarks

Luhmann’s understanding of the way in which social systems “observe” the social environment is based on George Spencer-Brown’s (1994) laws of form.^[24] As will be discussed in detail below, George Spencer-Brown’s (1994) laws of form explain that any observation begins with the drawing of a distinction, which entails the setting of an internal boundary in a whole. A distinction “indicates” one side of the distinction, leaving the other side as “non-indicated.” (Spencer-Brown 1994, 4–5). The “form” is the result of the distinction, that is, it comprises both the indicated and non-indicated sides. Luhmann (1999) associated the functional differentiation of society, which implies a potential infinity of observer positions and perspectives, with Spencer Brown’s epistemology of observing and its concept of form. In this sense, in Luhmann’s theory there appears to be “multiple relations of adequacy between structural complexity of contemporary societies and the flexibility of a form-concept that is separated from the notion of matter” (Gumbrecht 1996, 580).

According to Roberts (1999, 28), Spencer-Brown’s laws of form are an inquiry into the paradox involved in all observation. For the world to see itself, “it must first cut itself into at least one state which sees, and at least one other state which is seen … Whatever it sees is only partially itself. We may take that the world undoubtedly is itself (i. e., indistinct from itself), but in any attempt to see itself as an object, it must, equally undoubtedly, act so as to make itself distinct from, and therefore, false to, itself” (Spencer-Brown 1994, 105). For Luhmann (1995b, 46) this is the foundational paradox of observation: “The world is observable because it is unobservable.”

This applies to every social system, as they are all observing systems. They unfold and differentiate in a process that can be seen as the world cutting itself to observe itself. Therefore, according to Luhmann (1999, 20), “[d]ifferent observers cut through the world in different ways, distinguishing differently, use different forms, and thus construct the world not as a universe but as a ‘multiverse’”.

According to Baecker (1999, 4), there are two reasons why social-systems theory adopted Spencer-Browns laws of form. The first is “the explicit inclusion of the observer in the operations he performs, together with the possibility of observing, by using the indication (i. e., distinction) of the “form” of his distinction”. The second is that “both the concatenation of the operations performed by drawing distinctions and observations of these operations performed by drawing other distinctions constitute a perfect example of communication”. In other words, as he further explains, “drawing distinctions and thereby creating the space of choice is exactly what communication does” (1999, 4). Further these two reasons are central to social-systems theory because taking ‘observation’ and the ‘observer’ seriously means at least three things: first, “the social realm is understood to be a realm of communications performing observations”, second, “these observations made via distinctions, if operative inside social systems, are themselves observed. Social systems emerge on the level of second-order observations” (1999, 4), and third, the sociological inquiry is itself carried out through distinctions.

Medium and form: Symbolically generalized media of communication

According to Luhmann (2012, 116), “[c]ommunication systems constitute themselves with the aid of the distinction between medium and form”. Then he adds, “when we speak of ‘communication media’ we always mean the operational use of the difference between medial substratum and form”.

This distinction “decomposes the general problem of structured complexity with the help of the distinction between loosely and strictly coupled elements” (2012, 117). Thus, “[a] medium consists of loosely coupled elements, whereas a form joins the same elements in strict coupling” (2012, 118), thereby making communication possible. This is the reason why he states that “it must be noted that it is not the medial substratum but only forms that are operationally connective in the system. The system cannot handle formless, loosely coupled elements” (2012, 120). Luhmann (2012, 117) also reminds us here that “by ‘form’ we understand the making of a distinction”.

It is based on the notion of medial substratum that Luhmann further presents the notion of “symbolically generalized media of communication”. He explains that “[s]ocietal communication produces various media/form depending on what problem is to be solved” (2012, 120). Symbolically generalized media of communication “gear communication in a given media area, for example in the money economy or the exercise of power in political office …”. Thus, “the differentiation of these media also drives system differentiation, providing occasion for the outdifferentiation of important societal functional systems” (2012, 122).^[25]

Symbolically generalized media of communication relate to “the problem of the improbability of communication” as they condition “the likelihood of acceptance or rejection” (Luhmann 2012, 190–1). So Luhmann (2012, 192) says that they are “symbolic” because “these media bridge the difference and supply communication with opportunities for acceptance”, and, therefore, also supply communication with opportunities for ‘self-reference’ that make possible the emergence of sub-systems (Luhmann 1995c, 453).

Symbolically generalized media of communication “require a uniform code (central code) for the entire media field. A code consists of two opposing values …” (Luhmann 2012, 215). These media of communication “develop to the full only where the system of society is functionally differentiated” (2012, 214), because only then their central binary code is fully developed. Symbolically generalized media of communication “coordinate selections that cannot be linked without difficulty and therefore, initially exist as loosely coupled set of elements … They achieve strict coupling only through the form specific to the given medium …” (2012, 192).

The ‘form’ of the ‘binary code’ of the legal system

It is in this sense that we will also understand the general importance of legal forms in the case of the legal system. In the symbolically generalized media of ‘legality’ connectivity of communications is only achieved when the ‘distinction’ of a central binary code of the legal system unfolds. That is, when “[t]he system is able to specify the two sides of the form of its code” (Luhmann 2004, 183). So then, the “law uses a binary scheme in order to structure its own operations and to distinguish them from other facts” (2004, 182). All further communications that apply this central legal/illegal code, are legal communications. These communications are also ‘communications performing observations’, which therefore also entail ‘distinctions’. In other words, legal communications are also – always – ‘legal forms’.

Luhmann’s two versions of formality

Luhmann makes an important distinction between two understandings or versions of formality, which appears to be commonly overlooked.^[26] He first referred to forms that are tautologically valid as rituals or restricted codes that contain no external reference (Luhmann 1988a, 23). However, he then referred to modern law and a second understanding of formality, stating, that because of the coexisting closure and openness of law “no developed legal system can rely entirely on forms” (understood as rituals or restricted codes) (Luhmann 1988a, 23). And he importantly adds that “[s]elf-reference is not only practiced simply as self-reference. Its symbolization through forms is transformed into a simultaneous practice of self-reference and external reference”. So here Luhmann is referring to a different idea of form, where he says: “This does not mean that forms become superfluous but they can now be related to the fact that the connection between closure and openness must be guaranteed. This is ultimately why formalism in law is equated with conditioning and logical schematization” (1988a, 23). Therefore, these modern forms, through hetero-reference, are cognitively coupled with the external events, with the social environment.

Then, he connects this idea with the use of ‘conditional programmes’ which include normative self-reference and cognitive hetero-reference (i. e. references to social – moral, political, etc. – and ecological facts). So Luhmann (1988a, 23) explains: “Our task is to arrive at a more precise idea of how the continuous simultaneous processing of normative and cognitive aspects of meaning is achieved as a system” and then adds “In the legal system such conditionings are deployed with the additional, special function of combining closure and openness, normative and cognitive expectations. […] This is why the structure of the legal system – in so far as it takes de form of decision-making programs – consists of conditional programs, which establish an ‘if a/then b’ relation between the conditions (which have to be cognitively ascertained) and the conferment of norm quality” (1988a, 24).

The consideration of the “special function of combining closure and openness, normative and cognitive expectations” that Luhmann (1988a, 24) emphasizes (for modern legal forms and for conditional programs as a paradigmatic example of modern legal forms) is a central element of the notion of legal forms presented in this article.

Modern legal forms and legal evolution

In a different context, Luhmann also refers to the evolution legal forms, and to analyse this subject he applies the distinction between redundancy and variety – which will be discussed later. Luhmann interestingly enough explains that different legal forms have a different potential to combine variety and redundancy. So, he states: “In the course of the evolution of law it happens from time to time that new legal forms are found which realize a higher potential for combinations” (2004, 321).

If we consider all these Luhmannian ideas, and particularly three of them, that is, first, the idea that ‘modern legal forms’ involve ‘a simultaneous practice of self-reference and external reference’; second, the idea that ‘conditional programmes’ exemplify this simultaneous practice by combining normative self-reference with cognitive hetero-reference; and third, the idea that legal forms combine redundancy and variety, the joint consideration of these ideas allows us to come to the general notion that modern legal forms are distinctions that operate as mechanisms that have the function of combining closure and openness, normative redundancy and cognitive variety, on the basis of the legal system’s binary code.^[27]

This brings us, lastly, to what Luhmann refers to as the “mechanisms” that combine the normative and cognitive orientations of the legal system. He explained that these mechanisms operate on two different levels: general and specific. At the general level, the system uses the fundamental technique of conditioning through which certain events (legal effects) are activated only when other events are realized. This conditional program mechanism is what we generally understand as a norm that defines a generic conditional premise (deviant behavior) and the legal consequences that derive from it (Luhmann 1986a). This notion applies not only to rules but also to other normative standards, such as principles, where the conditional premise and legal consequences may not be fully established descriptively.

The application of a conditional program requires cognitive hetero-referential operations, as the program “relies on the capacity to handle information and to learn whether certain facts are given or not” (Luhmann 1986a, 118). The cognitive orientation of law refers to hetero-referential observations performed by the law with respect to social events or observations from various social spheres that relate to the meanings included in the conditional premise, which may also relate to normative expectations from different societal spheres. The normative orientation of law refers to the self-referential observation of the legal system’s prior legal communications (1986a; 2004).

The general mechanisms of conditional programs are accompanied with specific mechanisms that combine the cognitive and normative orientations of the legal system. These are “more subtle, subcutaneous ways to infuse cognitive controls into normative structures” (1986a, 118). In this regard, Luhmann referred to the judicial application of norms to specific cases: “Judges are supposed to have particular skills and contextual sensitivities in handling cases. They apply norms according to circumstances, and, if necessary, generate exceptions to confirm the rule.” Subsequently, Luhmann (1986a, 119) argued that “other learning processes take place at the dogmatic level of legal concepts” because “the conceptual framework of legal doctrine adapts to changing conditions and changing plausibilities, and it may reflect and control its own change because concepts are not yet normatively binding decisions.” In summary, the combination of the normative and cognitive orientations of the legal system occurs through the operation of these “mechanisms”: rules, principles, decisions, and legal concepts.

If we again connect this Luhmannian understanding about the ‘mechanisms’ with the previously proposed general notion of modern legal forms, we can conclude that each of these ‘mechanisms’ is constituted by one or more distinctions or legal forms, which in turn are the smallest units of selection that combine the normative and cognitive orientations of the legal system on the basis of its binary code. In fact, as will be explained, a form can be subject to a re-entry, and further distinctions may unfold. For instance, an original distinction between personal right/property right gives rise to other distinctions like ownership property right/limited property rights, and this one gives rise to other distinctions for specific kinds of property rights related to specific ‘standard incidents’ (Honoré 1961, 109), attributed to or included in each kind or type (e. g., use/non-use, enjoyment/non-enjoyment, disposal/non-disposal, servitude/non-servitude, encumbrance/non-encumbrance, affirmative/restrictive right, and so forth) (Ubilla 2016a, Ch.7 and 8). Strictly speaking, each distinction is a form, a legal form, that can be expressed as – or be part of – a rule, a principle, a decision or a concept.

Therefore, in order for us to be able to observe the specific interactions between law and society, we should observe how specific legal forms – included in communication^[28] – combine closure and openness, normative redundancy and cognitive variety. This will also open the way to the observation of what we will call ‘networks of redundancy’ – networks of legal forms – and the potential variation that takes place through or in connection with them. In general, and in simpler terms, I argue that if we want to observe the interactions between law and society – including the reflexive evolutionary processes of the legal system – our observations should be directed to the operation of the corresponding legal forms and their interactions with other legal forms, and with forms of other systems of society.

Legal forms and the laws of form

As explained, according to Spencer-Brown (1994, 76) the world makes itself distinct from itself by means of a distinction. So, he states that: “We take as given the idea of distinction and the idea of indication and that we cannot make an indication without drawing a distinction.” In other words, observation entails the distinction between – and operative unity of – distinction and indication (the “distinction/indication” distinction).

Spencer-Brown (1994) explains how any “cognitive” act begins with the drawing of a distinction, which entails the setting of an internal boundary in a whole. A distinction indicates a state distinguished from the “non-indicated.” The unmarked or non-indicated side remains indeterminate (Luhmann 2000, 65; Spencer-Brown 1994, 4–5). The form is the result of the distinction; it comprises both the indicated and non-indicated sides. A distinction can be a simple setting of a boundary between an object and an indeterminate “other” (x/other than x), between an object and its opposite (x/contrary to x), or between the terms of a binary coding (legal/illegal, private/public). Once the world, as an “unmarked state,” is severed by a distinction, a boundary is drawn between the marked and unmarked (Spencer-Brown 1994, 29). Only then can further distinctions be drawn within the space of either the marked or unmarked. The latter distinctions reproduce the original differences between marked and unmarked spaces. The latter operation is also called the “re-entry,” meaning that the original distinction is re-introduced into the indicated side (1994, 65).^[29]

Moreover, the distinction establishes or presupposes an observer, which can only be observed by a second-order observation.^[30] First-order observation uses a distinction; however, it cannot observe (it conceals) the second distinction it uses between observer and observed. “Whoever observes forms observes other observers” (Luhmann 2000, 57). Here, we must distinguish between the observer who draws the distinction and one who observes the form used by the first observer. This is the basic distinction between first- and second-order observations mentioned above. Regarding first-order observations that draw the distinction, Luhmann (2000, 57) said that “the act of observing, along with the difference of the observation that constitutes it, escapes observation.” The first-order observer only sees the indicated side. Therefore, only the observer of the form – second-order observer – can see how the observer is observing.

We must distinguish the distinction/indication distinction as an “operation” from the “object” to which such operation is referred, that is, from what is indicated/distinguished. “Every operation distinguishes something to which it refers, yet at the same time generates the distinction between the operating system and that to which the system refers” (Esposito 1999, 78–79). In other words, the fact that any distinction presupposes an observer can be described as a complex structure that includes two distinctions: between distinction and indication and between self-and hetero-reference. The first distinction allows us to consider the distinction as an “operation,” whereas the second distinction allows us to consider the distinction as an “observation.” The first distinction is focused on “connectivity,” that is, on the connection of indication with further distinctions within the indicated side, whereas the second distinction is focused on the issue of “reference,” that is, self- and external (or hetero)-reference (1999, 83). The two distinctions are directly related to two fundamental principles of the autopoiesis of observing systems: connectivity of operations (distinction/indication) and autonomy or differentiation of a given system (self-/hetero-reference). Both distinctions are circularly connected, as “operations can only be connected with other operations of the same system if the required distinction between inside and outside is maintained” (1999, 83).

For legal systems, the fundamental distinction that allows differentiation and connectivity is the law/non-law distinction, in which law is marked space and non-law is unmarked space, with the latter referring to any communications from other spheres or subsystems of society. Any matter related to the law by that sole fact immediately selects that marked space. For instance, a decision that makes a distinction between private and public law selects the marked space of the law and reproduces the difference between law and non-law (Luhmann 2000). This understanding applies to the various legal forms that integrate the legal system, namely conditional programs, judicial decisions, and dogmatic legal concepts.^[31]

The understanding of the laws of form is essential to the understanding of legal forms, as it allows us to consider the distinction(s) that constitute those forms and, consequently, the interconnections that are made possible between different forms and the observational references that are implied. Therefore, to understand specific forms, we need to observe them, which means that we need to consider legal forms at the level of observation. Moreover, under this approach, to understand legal forms and analyze how they process social complexity, it is also necessary to consider how they are produced and reproduced through “communication.”

Legal forms at the level of observation

As we find the self-/hetero-reference distinction in every form, it can be said that the operation of a form is always simultaneous observation (Luhmann 2012, 22–26). Therefore, to understand a legal form, we need to consider the different manners in which observation occurs through – or is facilitated by – legal forms. As such, we need to observe forms, that is, observe observation. As mentioned, observing forms implies observing observers (Luhmann 2000). In the case of legal forms, we must observe how the legal system and other social spheres observe legal forms. The observation of forms is important because it is through self- and hetero-reference that the corresponding legal form – and the legal system – combine normative closure and cognitive openness.

Self-referential observations of the legal system

The first step should be to consider the self-referential observations of the legal system in relation to the corresponding legal form to grasp the distinction(s) being used by the corresponding form. In other words, we should first consider how the legal system observes its own observations – its own forms; and, for this purpose, we may observe the distinctions that are recursively and redundantly applied by the legal system through the legal form. To do this, we should observe the widely used concepts and paradigmatic cases that are considered in relation to a given legal form.

Moreover, it is important to note that the legal system’s self-referential observations may apply traditional distinctions to observe its own legal forms – and their elements – such as the form/substance or form/function distinctions (Summers 2005).^[32] This may well be the first step to grasp the distinctions that are relevant to the operation of the corresponding legal form. These self-referential observations of the legal system, however, do not focus on observing the dynamic and complex (non-linear) interactions between the legal system and other spheres of society.^[33] Consequently, to properly grasp legal forms as operations of observation, it is also necessary to consider the hetero-referential observations of the legal system and of other spheres of society.

Hereto-referential observations of the legal system

Thus, the following step is to consider the first and second order hetero-referential observations of the legal system, and particularly the second order observations of the observations of other social spheres, such as political, moral, aesthetic, and scientific spheres, in relation to the corresponding legal form (Luhmann 1989; 1992a, 2000). In this way, we may observe the interactions between the legal form and the operations of other spheres. To conduct this broader socio-legal assessment and observe how specific legal forms “operate in society,” we must be able to observe how other spheres or sub-systems of society observe the distinctions deployed by the corresponding legal forms. This means that we must observe the basic distinctions used by other spheres of society, starting with their binary codes, to observe the legal system and the corresponding legal forms.

This enables the observation of how the distinctions used by other social spheres interact with the internal distinctions of the legal system. In other words, this entails at least two levels of observation: first, observing how the hetero-referential observations of other social spheres observe the internal distinctions of the legal system; and second, observing how the legal system hetero-referentially observes the hetero-referential observations of other social spheres in relation to the legal system.

Moreover, it is important to note that the observations of other social spheres differ not only in their social perspective but also in their time dimension (Luhmann 1995c, 78–79). Traditional discourses and legal forms may not be well placed to adapt to high-speed economic, scientific, technological, or ecological processes. Thus, certain legal institutions that apply distinctions that appear to be justified by a purported legal, moral, or political social function may turn out to be ineffective or even counterproductive with respect to the corresponding regulatory objective (Ubilla 2016a, Ch.4). Therefore, we must consider not only the hetero-referential observations of other social spheres but also how a given legal form dynamically performs through time in such interactions.

Legal forms at the level of communication. Application of the redundancy and variety distinction

To further understand – and observe – the dynamic operation of legal forms, it is necessary to analyze how their corresponding “distinctions” are produced and reproduced through “communication,” that is, through “legal communication.” Moreover, in this way we can also observe how legal forms process social complexity through communication.

Luhmann drew from information and communication theory to observe how a given system processes social complexity, that is, to observe the interactions between a system and its social environment. In the case of the legal system, he focused on observing how the system combined the normative and cognitive orientations of law through communication (Luhmann 1986a; 1995c; 2004). In order to observe communication, Luhmann (1995a; 2004) first applied the redundancy and information distinction. Redundancy refers to a meaning that repeats or remains unchanged, while information refers to a meaning that is new or previously unknown to the system. As redundancy is the necessary background from which information emerges, the two sides are closely linked. According to Luhmann (1995a, 292), “[w]ithout redundancy, no information would be recognizable, since it would not be distinguishable from other information.”

Luhmann (1995a, 292) explained that when applying these ideas to systems theory, it is necessary to replace the overly general concept of information with the concept of variety,^[34] as “variety provides a measure of complexity, namely the number and multifariousness of events which set off information within the system.” The redundancy/variety distinction was originally developed to explain how communication and communication systems process complexity – how order unfolds from noise (Atlan 1972). Consequently, the redundancy/variety distinction can be applied to analyze how legal forms process social complexity through communication. In simple terms, this distinction can be used to observe the meaning(s) “indicated” in various legal forms, allowing us to grasp meanings that have stabilized and those that vary or allow for variation and adjustment.^[35]

For Luhmann, the redundancy/variety distinction is directly related to the internal structure of communication, which includes information, utterance, and understanding.^[36] Redundant information can generate variety in terms of utterance and understanding.^[37] Redundancy or variety of a given communication can be observed from a self- or hetero-referential perspective (Stichweh 2000). From the self-referential perspective, this distinction makes it possible to observe not only specific legal forms but also different ways in which different stabilized meanings of different legal forms – the indicated side of the applied distinctions – are combined and linked, which can be understood as networks of redundancy. By further observing these networks of redundancy, we can observe ways in which various redundancies interact and, eventually produce new variety.

From the hetero-referential perspective, this distinction facilitates the observation of how redundancies in the legal system interact with observations from other social spheres.^[38] All these remarks help us understand how this approach allows for a multi-perspective observation of meaning and the observation of the dynamic interplay between law and society.^[39] This dynamic interplay is expressed in the fact that redundancy can enter processes of variation, and variation can become stabilized, giving raise to redundancy.^[40]

Moreover, as mentioned, the redundancy/variety distinction allows us to clearly see the non-linear relationship between the normative and cognitive orientations of law, as it makes possible the observation of not only situations of possible binary contrast, in which the increase of normative redundancy entails the reduction of cognitive variety, but also potential situations of concurrent higher combination, in which greater normative redundancy can co-exist with greater cognitive variety – greater capacity to process new information (Luhmann 2004).

General background

In this section I present a specific case in which the understanding on “legal forms” and “reflexive legal forms” developed in the present article was applied: the case of the conservation property right or “conservation right” which was enacted as law in Chile in 2016.^[52] The conservation right is a property interest in the environmental patrimony of a certain property or real estate. The law defines it as a right to conserve the environmental patrimony of a certain real estate – or the attributes or functions of said patrimony. In contrast to traditional notions of easements or covenants, which by definition represent restrictions on property, the conservation right is an affirmative right over the “environmental patrimony” – or the “attributes” and “functions” of such patrimony – of a particular real estate.

The legislative vision that led to the enactment of this new legal institution was not simply the creation of a property right that would facilitate the creation of private protected areas. The challenge was to develop a new “type” of property right that would tackle the regulatory trilemma of biodiversity conservation by facilitating the emergence of new social practices or social communications in all areas and spheres of society concerning biodiversity (Ubilla 2016a, Ch. 4). The following subsections contain a summary of the central aspects of the research that applied Luhmann’s theory for the proposal and final drafting of the legislation that enacted this new property right (Ubilla 2023).

The regulatory trilemma of ecosystems conservation

The first step of the research was to analyze the regulatory strategy applied in Chile to implement the principles, objectives, and measures of the Convention on Biological Diversity (CBD). This regulatory strategy focused on the creation of protected areas through a combination of traditional property rights (i. e., ownership and easements) and administrative rules. This traditional strategy caused various regulatory failures which were analyzed under the three forms of the regulatory trilemma, as developed by Teubner (1987).

Regarding the first form of the trilemma, the research showed that the traditional approach was “indifferent” to broader social complexity. The basic consideration was that traditional property rights separate land from the surrounding ecosystems and social communities, blocking cooperation and communication, in direct contradiction to the “ecosystems approach” of the CBD.

Regarding the second form of the trilemma, it was observed that the use of traditional property rights could also be considered a case of juridification of social spheres – or a mechanism of social disintegration through law – in the sense that in many occasions, they appeared to cause the relocation or displacement of people from their original habitat as well as a dislocation of the corresponding social web of relations and knowledge.

Regarding the third form of the trilemma, it was observed that the use of traditional property rights could trigger legal disintegration through society in the sense that they could orient or change the “selectivity process of law” solely toward traditional economic rationality. This would prevent the unfolding of social practices required to generate cooperation, communication, and knowledge sharing around – and in connection with – the corresponding ecosystems (Ubilla 2016a, Ch. 4).

An analysis of the legal form of traditional property rights

As a second step, the legal form of traditional property rights was analyzed. The main conclusion was that, from the internal perspective of the legal system, and regardless of the different conceptions of private property, the basic distinction that appeared to constitute the modern form of ownership was between exclusive/non-exclusive access, use, and control of material resources (Ubilla 2016a, Ch. 9). Under this distinction, the form of ownership indicated the affirmative side of the distinction and, consequently, the limitations and obligations imposed on ownership – whether deriving from restrictive property rights or from the “social function” of property in the civil law tradition – indicated the negative side of the distinction.

This constitutive distinction was also observed from a hetero-referential perspective of different social spheres, and it was deemed that it implied – and applied – the distinction between affirmative rights/restrictive rights, particularly when considering the relationship between ownership and other property rights that constituted burdens or encumbrances over it. It was also noted that traditional property rights were most directly influenced and determined by the observations of the economic system (that traditionally attributed economic value to the tangible aspects of assets; Luhmann 2015). It was further noted that the observations and normative expectations of ethics, science, aesthetics, and other spheres could only have operational contact with certain peripheral and restrictive elements of the right of ownership, such as the limitations and obligations deriving from the “social function” of property.

Finally, traditional property rights, including “restrictive property rights,” were analysed as communication operations through the redundancy/variety distinction. It was concluded that the normative redundancy of the form of ownership was expressed – in the civil law tradition – through the normative elements known as facultas or potestas (i. e., ius utendi, ius fruendi, ius abutendi), which presented high stability. These facultas or potestas were only subject to negative restrictions either through the notion of social function or through restrictive property rights. In turn, the potential for cognitive variety of the form of ownership was limited, as the elements that presented some capacity to generate social variation were structured as negative or restrictive elements. These negative or restrictive elements distorted the original normative expectations coming from society with respect to nature, because it transformed the corresponding affirmative attributions of value of nature (from science, ethics, aesthetics, etc) into negative or restrictive representations within the system of property rights (i. e., reductions of value).

The proposal and creation of a new property right

In order to tackle the regulatory trilemma of ecosystems conservation that derived from the limited reflexivity of the traditional property rights system, the research proposed the creation of a new “reflexive” property right. Thus, the conservation right was structured as an affirmative right by applying the affirmative right/restrictive right distinction and by indicating the affirmative side of it. This was achieved by proposing the creation and combination of two innovative elements. The first one was the creation of a new affirmative or permissive normative element, the “right to conserve,” which in continental law was expressed as a new facultas or potestas to be known as the “faculty to conserve” or “ius conservandi.” The second one was the creation of a new legal object – the ‘object’ of this new right –, which includes the overall “environmental patrimony,” as well as specific “attributes” and “functions”, so that the conservation right could be general or particular depending on the case (i. e., conservation right over the whole environmental patrimony of a real estate or conservation right over the carbon sequestration function of a forest).

The indication of the affirmative side – of the aforementioned distinction – facilitated an increase in the reflexivity of this legal form with respect to the observations of other sub-systems of society – such as ethics, science, aesthetics, education, and others –, because these sub-systems accord an affirmative value to nature. In other words, the affirmative form of the conservation right allowed for various “value observations” from different social spheres to be considered/internalized by the legal system in their original affirmative form. Likewise, the reference to new legal object(s) made it possible for the various discourses to further recognize the affirmative value of the conservation of the environmental patrimony and its corresponding attributes or functions (i. e., ecosystem functions, that also encompass socio-cultural functions).

The “conservation right” combined a high potential for normative redundancy expressed in the “right to conserve” that takes the form of a traditional proprietary facultas or ius – which brings with it the well-established understanding of such traditional normative structures – with a high potential for cognitive variety, expressed mainly in the intangible attributes or functions of the environment, that can be the object of the right (Ubilla 2023). These attributes or functions provide a high reflexive potential of the observations coming from different spheres of society that recognize the value of those diverse attributes and functions. The design of the conservation right entailed a search for a “reflexive middle” between the opposing perspectives of private and public interest, autonomy, and heteronomy, as it involves an understanding of private interest that takes into consideration normative orientations and expectations traditionally related to social heteronomy (Ubilla 2016a, Ch. 9; 2016b; 2023).

Since its inception, the conservation right has been applied to the most diverse situations and circumstances, for conservation initiatives led by the private sector and by state agencies, for the conservation of specific ecosystem functions (e. g., water basin regulation function, carbon sequestration function or CO2 projects, landscape function), for the conservation of Indigenous sites, for the recovery of contaminated sites, for sustainable rural settlements (i. e. eco-villages), for the conservation of green urban areas, among others. It is also being considered for unique applications, such as the conservation of darkness for astronomical observation and the conservation of silence in areas or spaces dedicated to spiritual practices (Ubilla 2023).

These developments in the few years since enactment appear to demonstrate that this property right is adapting to a great variety of social and ecological circumstances. This may indicate that the property rights system is internalizing a broader range of social interests and observations, increasing the probability of unfolding further legal evolution in the form of new social practices with respect to land and the corresponding environmental patrimony. Even though the long-term social consequences and steering effects of this new legal form would need to be confirmed by proper empirical studies, the practical applications of the conservation right also indicate that it can facilitate the reflexive encounter between the opposing perspectives of private and public interest, autonomy and heteronomy, as it seems capable of creatively coordinating private interests with normative orientations and expectations traditionally related to social heteronomy or public interest regulation (Ubilla 2016a, Ch. 9; 2016b; 2023).