WG Social and Legal Systems
Chair: Germano Schwartz | UniRitter
Discussant: João Pedroso | CES
Maciej Pichlak | University of Wroclaw
Doubled Reflexivity of Law: The Condition and the Limit of Reflexive Regulation
The paper analyses selected preconditions of reflexive regulation as a dominant approach in the present regulatory debate. In its first part, it introduces the concept of ‘doubled reflexivity’; in the second part, it examines relations between alternative interpretations of this concept and various strategies of regulatory policy.
The first part of the paper builds on the main contributions to the sociological theory of reflexivity (Luhmann, Teubner, Selznick, Beck, Giddens). All the differences between these theories notwithstanding, there is a common thread among them: the idea of ‘doubled reflexivity’. In other words, all these theoretical projects assume that reflexivity of a legal system is grounded on, and conditioned by, reflexivity of its social environment (and/or other systems in its environment). Thus, reflexivity of law is possible only insofar as it builds relations with other reflexive structures. Paradoxically, this condition of law’s reflexivity determines also the limited nature of this reflexivity: the law cannot exercise a full reflexive control over effects it makes on other reflexive social structures. The latter respond to legal interventions according to their own reflexive logic.
This general consensus of the substantially diverse theories of reflexivity is worth pursuing in itself; still, it does not deny differences between them. The second part of the paper considers one of the most important of such disagreements – the one which concerns a question, what is a specific relation between law and other reflexive systems. With only slight simplification, I distinguish three basic models in that respect: ‘responsive’ (Selznick), ‘autopoietic’ (Luhmann, Teubner), and ‘dialectical’ (Beck, Giddens). These theoretical standpoints find their practical implications in alternative policies of reflexive regulation: the first inspires the so-called ‘Responsive Regulation’ and ‘Principles-Based Regulation’; the autopoietic model leads to strategy of ‘Meta-Regulation’ or ‘Self-Regulation’; last but not least, the dialectical model may offer a theoretical depth to ‘Risk-Based Regulation’ policy. The paper, exploring in details differences between the above models, offers a case-study of a kind: it illustrates how strategic choices of legal policy may be interpreted by a reference to the findings of the sociological theory of law.
Loreto Quiroz Rojas | Universidad de Santiago de Chile
Lynching in Chile, an expression of the relationship between laypersons and right
I understand lynching as instances of public use of violence outside juridical institutions by citizens against different groups. These events are often observed in Latin American countries in practices such as bashing of alleged criminals, detention and immediate punishment of suspects. Lynchings are evidence of the particular relationship laypersons and right that exists in the Latin American societies between.
In particular in Chile they demonstrate different possibilities of relationship between law and lay persons. These actions sometimes involve forthrightly transgression of the law, but also can imply a demand state enforcement of the law, in particular to the system of administration of justice.
Liberal political philosophy understands law as a limit to violence; consequently it conceives the distance between law and social practices in terms of deficits and/or cultures of transgression. However these readings do not help to understand the relationship between layman’s and law. They lead in the direction of simplifying dichotomous answers, for instance, civilization versus barbarism.
These conventional responses do not take in to account the right as a social construction where legal norms that derive from the principle of legal legitimation, the institutions that put into action those rules, the operators of these institutions and their forms of operation are to be conceptualized dynamically in their interaction. Understanding the law in this will allow us to understand the actual forms of the relationship between social practices and the legal norms present in the lynchings in Chile.
Shin Teramoto | Kyushu University, Faculty of Law
Yuriko Haga | Kanazawa Universiry, Faculty of Law
The Essential Role of Objections from Outsiders in Improving the Quality of Information that is Curated and Disseminated by Websites
This paper discusses a practical way to improve the quality of information distributed by websites that curate and disseminate knowledge (hereinafter, “CCWs”, an abbreviation of Content Curation Websites).
It is reasonably considered that CCWs greatly contribute to enhancing citizens’ knowledge of medicine and healthcare, when CCWs disseminate correct and qualitative information (Teramoto, S. and Haga, Y., 2017, Informed Consent in Building Big Data in Healthcare:The Essential Role of Hubs in Curating and Disseminating Knowledge, RJSH Vol. 4, No. 2, July - December 2017, pp. 69-75).
Unfortunately, the quality of information disseminated by CCWs is not necessarily guaranteed. However, obviously, the viability of prescreening such information is limited. If prescreening is too strict, it is likely to hinder the dissemination of knowledge, while if it is too lax, it is likely to allow the dissemination of low quality information.
For the purpose of improving the quality of information disseminated by CCWs in a practical way, the authors propose utilizing the objections or negative comments raised against such information by ordinary citizens or professionals independent from the editors and distributors of CCWs. Also, the authors propose that CCWs can contribute to improving the information disseminated by peer CCWs and/or Social Network Services (hereinafter, “SNSs”) by means of the curation and dissemination of such objections or comments.
The authors assesses the viability of these proposals from three perspectives -- (i) a social network applying graph theory; (ii) empirical discussion; and (iii) comparison with the legal practices utilizing objections from citizens and industries to achieve better results. By these means, the authors found that curating and disseminating objections to existing disseminated information is viable in improving the quality of such information, and CCWs and SNSs are helpful in such activities.