Sessar Porto Problems criminology has with criminal law

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“self-regulating existence that then provides the elements out of which it continuously reconstructs
itself”; this is called autopoiesis or the autopoietic principle of the social system
(Milovanovic 2003, 155, 167). Furthermore, by constituting and organizing itself selfreferentially,
a line is drawn between the system and its environment; for instance, the environment
of law would include all other functional systems as well as society itself. Every exchange
that takes place between the systems, for instance about moral questions, is an exchange
through communication; moreover, those questions are generated only through communication
(see Nietzsche). The problem is that “function systems structure their communication
through the use of binary codes that divide the world into two values” (Bednarz 1989,
xiv), for example “true/untrue” in the case of science, “legal/illegal” in the case of law, etc.;
Luhmann 1989, 44-50). Thus, if science interacts with law or politics, completely diverse
codes of perception, cognitive and normative structures, semantics and moral positions meet.
Morality - with its distinction between good and evil - is no longer a kind of “supercode”
which binds the functional domains to a set of universal moral rules. Rather it is linked to the
function systems, thus forming systems-specific (economic, scientific, juridical, political etc.)
modes of morality (Luhmann 1990). For scientists as scientists it is therefore often hard to
understand the “legal habitus” (Bourdieu 1987) and the normative rigidity of law just as, on
the other side, lawyers fear the complexity of scientific results as they may undermine their
closed normative principles.
This theory of self-referentially closed and thereby open social systems entails considerable
problems. Firstly, the reductions in communication dictate how the world will be viewed; law
will view it according to the aspect of justice and science will view it according to the aspect
of scientific truth. Secondly, no system can adopt the standpoint of another system; science,
for example, cannot view the world through the eyes of the law (of course a social scientist is
free to partake in legal discourses; however in so doing he has crossed the border to the other
system). Thirdly, this means that if one system desires to be “heard” by another system then
its knowledge, experiences, impulses, demands, warnings, etc. must be converted into the
modes of communication of the other system; the law must make scientific findings legally
legible in order to understand and possibly adopt them.
At this point a citation taken from Pierre Bourdieu’s “Méditations pascaliennes” will prove
invaluable in helping to clarify some key points of his (and Luhmann’s) work, though it is to
be noted that Bourdieu does not speak of “systems” but of “fields” (champs):
“The process of differentiation of the social world which leads to the existence of autonomous
fields concerns both being and knowledge. In differentiating itself, the social world produces
differentiation of the modes of knowledge of the world. To each of the fields there corresponds
a fundamental point of view on the world which creates its own object and finds in
itself the principle of understanding and explanation appropriate to that object. To say … that
‘the point of view creates the object’ means that the same ‘reality’ is the object of plurality of
representations that are socially recognised but partially irreducible to each other – like the
points of view socially instituted in the fields which they are the product – although they have
in common a claim of universality. … The principle of vision and division and the mode of
knowledge (religious, philosophical, juridical, scientific, artistic, etc. ) which prevails in a
field, in association with a specific form of expression, can only be known and understood in
relation to the specific legality of that field as a social microcosm” (Bourdieu 2000, 99).
These forms of relative closure are not new, they now however form an intrinsic part of systems
theory. Bourdieu quotes Blaise Pascal that “la loi, c’est la loi, et rien davantage” , adding
that it is “irréductible et incommensurable” with the principles “d’un autre champ et au régime
de vérité qu’il impose”. This is similar to sayings such as “l’art pour l’art” or “les affaires
sont les affaires”; we are dealing in other words with tautologies (Bourdieu 2003, 139-