Problematic Aspects of a Systems-Theoretical Approach to Fundamental Rights

Abstract

Abstract The article – using the example of scientific freedom – critically examines selected systems-theoretical assumptions and, in particular, Niklas Luhmann’s systems-theoretical understanding of fundamental rights, as essentially set out in his 1965 work. Specifically with regard to the field of fundamental rights, it is argued that the application of such perspectives entails considerable deficits: first, the systems-theoretical categorizations – namely “expansion tendencies” and “structural couplings” – are characterized as unconvincing, distorting, and simplistic. Secondly, it is criticized that the concept of “expansion tendencies” would de facto implicitly attribute responsibility for violations of fundamental rights to a system instead of to concrete individuals. Thirdly, a problem inherent in systems-theoretically guided interpretation is identified in connection with the conceivable scenario in which the interests of the system deviate from those of the concrete individuals.