Society’s Legal System

Abstract

Defining terms may seem a pedantic and unnecessary exercise, particular where the terms in question are used repeatedly and without apparent confusion both in popular parlance and academic texts. Yet the combination of subtle changes in concepts resulting from German to English translation, on the one hand, and the very specific meanings that Luhmann gives to terms such as ‘system’ within his theoretical scheme, on the other, makes it necessary for us to make it clear from the outset what he means by Rechtssystern, which we have translated by ‘legal system’. It would perhaps be helpful from the outset to state what he does not mean. The ‘legal system’ for Luhmann is not those institutions — legislative chambers, courts, tribunals, lawyers’ offices and chambers — which have a physical existence and are part of an organizational structure. Nor does it consist of all those people professionally engaged in the operation and administration of the law. Indeed, it does not consist of people at all. People are, of course, necessary for the operation of the legal system, but das Rechtssystem does not refer to their personal characteristics or even to the roles that they perform within the courts and other legal institutions. Neither does it consist of ‘organized legal practice, that is mainly practice in the courts, parliaments and also occasionally in administrative organizations which make law based on delegated powers and law firms which channel legal access to the courts’.1