Luhmann: Law, Justice, and Time

Luhmann: Law, Justice, and Time

Richard Nobles • David Schiff

� Springer Science+Business Media Dordrecht 2013

Abstract Time is central to Luhmann’s writings on social systems. Social systems,

as systems of meaning, operate within three dimensions: factual, social and temporal.

Each of these dimensions entails selections of actualities from potentialities (or

contingencies) within horizons. Whilst the factual dimension involves selections

based on distinguishing ‘this’ from ‘something else’, and the social distinguishes

between alter and ego (asking with respect to any meaning whether another experi-

ences it as I do), the temporal dimension operates with the primary distinction of before

and after. In the temporal dimension, everything is ‘ordered only according to the

when and not to the who/what/where/how of experience and action’ (Luhmann in

Social systems. Stanford University Press, Stanford, 1995, p. 78). In this paper, we

explore the connection between the temporal dimension of meaning within the legal

system and its connection to justice. We begin by setting out succinctly the role played

by justice within the legal system, as presented by Luhmann, particularly in his book

Law as a social system (2004). From this beginning, we move on to consider the

relationship between law, justice and time, taking two examples. The first is the

temporality of judicial decisions. The second concerns the relationship between the

temporal meaning of law’s own operations, and the presumption of innocence.

Keywords Justice � Time � Luhmann � Systems theory � Judicial decisions �Presumption of innocence

1 Justice

Justice according to Luhmann is the legal system’s formula for contingency [11, ch

5, and Introduction, pp. 22–24]. All social systems involve contingencies because

R. Nobles � D. Schiff (&)

Department of Law, Queen Mary University of London, London, UK

e-mail: [email protected]

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Int J Semiot Law

DOI 10.1007/s11196-013-9325-x

all meaningful selections involve other potentialities that are not selected. The

possibility of generating stable meaning is not due to selection being determined by

a system’s existing structures, but because so many selections are rendered unlikely

or impossible. ‘Thus structure, whatever else it may be, consists in how permissible

relations are constrained within the system…. Only by excluding almost all

conceivable linkages can there be something like: ‘‘Would you give me a refill?’’

‘‘You’ve forgotten to clean the back seat of the car!’’ or ‘‘Tomorrow at three at the

movie theater ticket office!’’’ [10, p. 283]. Systems establish the contexts in which

communications occur, and thereby restrict the possibilities of what could be

meaningful. When observing on selections (second order observation) which can

also only occur through communications, a system compares the communications

selected with other communications selected before (the system’s memory) and the

possibilities of future selections. It is this process of comparison which produces

what systems theory identifies as systems’ formulae for contingency.

Justice is the formula for contingency in the legal system, whilst the management

of scarcity provides this formula within the economy. Whilst the legal system

observes on communications which code legal/illegal, the economy observes on

communications which code payment/non-payment [11, p. 214]. In the process of

observing systems generate eigenvalues. Eigenvalues are not values imposed on a

system from outside, but created from within through the endless process whereby a

system’s communications generate further communications. An eigenvalue is ‘… a

value that is constituted by the recursive performance of the system’s own

operations and one that cannot be used anywhere else’ [11, p. 125 (emphasis in

original)]. Observed from outside a system it is possible to see that each system,

through the application of its unique code, and the inter-connecting of its own

communications (all of which explicitly or implicitly lead to the application of this

code) generates its own environment. But the system will regard the environment

which it creates in this manner as an environment outside itself, and the self-identity

which it creates at the same time as an entity which is itself. At its most general

level, the eigenvalue that is justice is best expressed by the criteria of legal

reasoning adopted nearly universally within modern legal systems, and discussed by

many legal theorists: ‘like cases should be treated alike’. Although this seems like a

substantially empty formula, it is the foundation on which the legal system builds up

its complexity. This endless process of comparison generates law’s programmes.

Justice is not a programme of the system, but operates throughout the system. Thus,

there is no ‘law of justice’ whilst there is, of course, a law of contract, tort, etc. In all

its operations, and in drawing all its distinctions, the legal system constantly

articulates the basis on which it has applied its code as a process of comparison: if

situation A is legal, what distinguishes this from situation B which is illegal? The

vacuous requirement to treat ‘like cases alike’ like the tautological nature of the

system’s code (a situation that is illegal is not legal) is given meaning by the endless

applications of the code and the process of observing on those applications. The

limits of justification are established by the implications of treating A as like, or not

like, B. These implications, both for the system and its environment, are established

by checking what meanings are generated, and more importantly, what loss of

meaning is generated, if A is asserted to be like, or not like B.

R. Nobles, D. Schiff

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This process is not unlike Dworkin’s account of ‘law as integrity’ [4, chs. 6 and

7]. But what Dworkin has claimed to be an objective process of balancing

justificatory values with a level of internal consistency, Luhmann described in terms

of the loss of ‘redundancy’ involved in novel communications. In particular

Luhmann described the nature of redundancy and its role within legal argumentation

[11, ch. 8]. Redundancy is the necessary background to communication, as

redundancy (meaning that remains the same) must be subtracted from a

communication in order to identify information (meaning that is new). Established

categories, or structures, generated via the process of treating like cases alike, form

the mutual basis for opposing arguments over particular examples of what is like, or

unlike. So, for example, whilst Dworkin has argued that the concept of

Parliamentary Sovereignty is given weight within legal argument by the political

principles which support it, analysis which focuses on redundancy would point to

the current improbability of accounting for the jurisdiction of a particular court, the

role of a judge, the formation of a legal issue or the processes by which a cause of

action becomes a trial using communications that deny the authority of Parliament

to create statutes and the status of those statutes as authorities.1 Attempts to make a

legal argument of this form would suffer from a lack of connection to the

redundancies which make billions of complex legal communications meaningful,

i.e. such an argument would be legally meaningless. Meaninglessness is established

through the same processes that establish meaning and, as such, is never ‘achieved

by the negation of meaningfulness’ [10, p. 62]. (This is not, however, to say that

denial of Parliamentary Sovereignty will not have meaning as a communication

within another system of communication, such as the political, that is not focussed

on legal meaning but rather political controversy).

2 Time

In constructing itself through treating like cases alike, law has to locate itself within

time. As everything which happens, happens in the present, time has to be created

within meaning. Law has to create its self-identity and its environment: the

dimension of facticity. This distinction re-enters the system as a social dimension:

the articulation within law of what other observing systems (psychic and social

systems) understand as the law. And it has to establish meanings within the

temporal dimension; whatever is recognised by law as part of itself has a temporal

meaning. Law has to attribute parts of itself to the past, and to the present, and to

anticipate itself coming into being in the future.2 And in the case of the present, this

cannot be the actual current moment in which everything occurs, as this is past at

the moment when it is observed through communication. In creating this temporal

1 See Nobles and Schiff [17] for a critique of Dworkin’s interpretive account of law which utilises

systems theory and the concept of redundancy.2 Luhmann demonstrated how the basic temporal distinction is that between before and after [13, Ninth

Lecture] with the distinction between past and future not necessarily as prominent as the way we use it

here to observe on legal communications. For a discussion of a wide range of approaches to the study of

law and time, see Melissaris [14].


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dimension of meaning law has to make its selections through a process of treating

like cases alike, a process in which the formula for contingency is justice. What now

follows are two major but distinct examples of this process.

3 Time and Justice Before and After the Development of Modern Formsof Legislation

Law, prior to the arrival of modern forms of legislation, was timeless, in the sense of

being considered a universal guide to regulate the community that required no

enactment, and therefore had no date for its commencement. This is the idea of law

that from the eleventh century informed both what has become known as the civil

law and the common law systems. The timeless nature of this idea of law,

articulated as always present, nevertheless allowed law to evolve. The self-

description of law from this time (how law described itself to itself within the legal

system) took a Natural Law form.3 Natural Law offered a hierarchy of universal

principles, or precepts, which was superior to the particular rules of any community,

whether those particular rules had their origins in custom or the enactments of a

ruler. Whilst the political meaning of Natural Law was that of a guide to rulers and a

limit on their authority, the internal experience of Natural Law within the legal

systems of Europe was as a mechanism to update the law. In the absence of answers

to legal questions, or in the presence of former answers to questions that no longer

seemed just under current circumstances, the higher law, Natural Law, was

available to form the basis of more appropriate answers. At a time when law was

understood, or at least understood itself, as a means to resolve disputes justly, rather

than a mechanism for social engineering, the understanding of law as being rooted

in justice, and justice being identified with reason, allowed the law to be changed

without any recognition, at the moment of such changes, that change had actually

occurred. Take the classic Natural Law statement of St. Augustine: ‘lex iniusta non

est lex’ (an unjust law is no law at all), which is often attributed to St. Thomas

Aquinas in terms of an unjust law being a corruption of law, and which much quoted

statement (for example, in Martin Luther King’s letter from Birmingham Jail, 1963)

is now regularly used to express the potential dispute between a Natural Law and

Legal Positivist argument about the nature of law. As part of law’s internal self-

description that statement can be understand as grounding the process of legal

evolution. For in ceasing to follow a law found to be unjust a court is not changing

the law, but rather better recognising its status as (not) law.

This process of evolving law without acknowledging change was not, either on

the continent with the civil law system, or in England and Wales with the common

3 See [15, ch. 3], for a more detailed historical account of the evolution discussed here. That chapter

discusses law’s changing self-description, from natural law to legal positivism, but not the implications

for law’s construction of itself within time. For a sociological account of the paradoxical role played by

natural law forms of reasoning in spreading and legitimating the use of positive law within the political

systems of Europe from the medieval period onwards, see Thornhill [23]. Thornhill argues that various

forms of natural law played this role within the political system, just as we are arguing here, that the

various forms of natural law played a common role in allowing the evolution of the legal system.


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law system, an unrestrained process of bringing morality to bear on legal questions.

On the continent, the sense of context, of what could be compared to what to

consider what was legal or illegal, was observed through the provisions of the Ius

Commune (including justice and other invariant legal principles). The Ius Commune

(a combination of cannon law and the codification of Roman law by the Emperor

Justinian: the Corpus Iuris Civilis) and the commentaries which it generated, formed

the context, which included the legal issues to be decided and the answers that might

prove acceptable. Novelty involved possible loss of redundancy.4 Exceptions and

distinctions which provided just outcomes without loss of redundancy were

preferable to those which did not. But exceptions and distinctions could build into

issues that required selections to be made between major categories: situations in

which the costs in terms of a loss of redundancy had already occurred (the

exceptions had already emptied the primary category of its status as a major source

of redundancy).

A similar process occurred in England and Wales with the Common Law, only

here, in a self-conscious distinction which distanced English law from the Ius

Commune on the continent, the higher law was not articulated as Natural Law, but

as custom. Custom, like universal principles of justice, has no settled beginning, and

its present applicability requires no process of enactment. But custom, if assumed to

be historical practices imbued by their participants with normative content, is an

unpromising basis from which to obtain answers for novel legal questions generated

by social change. This was not however a problem for common lawyers, as they

claimed that the Common Law was an accumulation of remedies to wrongs

recognised in the past and, as such, was itself the best guide to what English custom

required. Whilst the civil lawyers considered what justice required through the lens

of the Ius Commune, common lawyers considered what custom required ‘through

the lens’ of the existing Common Law [2, p. 32]. Was this claimed wrong like, or

not like, the other wrongs which English law had recognised? And as the decisions

of judges were only the best evidence of what English custom required, and not at

this time seen as determinate sources of law in themselves (the decisions of the

courts ‘‘have a great weight and authority in expounding, declaring, and publishing

what the law of this Kingdom is’’ [6, p. 90]), this process of comparison could even

lead to earlier decisions being declared to be mistakes, and no longer followed.

Within this form of legal argumentation the construction of time is inseparable

from the construction of justice. Law is articulated within legal practice as having an

existence outside of legal practice, to which legal practice is only an approximation.

Because law is justice, the existing state of the law, as previously recognised in legal

practice is not a barrier to the continual evolution of the law in response to changing

perceptions of law’s environment. Through the ability to move back and forth

between legal practice as evidence of the law, and the idea that law is the expression

of a justice that lies outside and beyond existing legal practice, legal practice could

be altered to give affect to a law through communications that acknowledge the new

law as already existing.

4 See Sect. 1 above for references to Luhmann’s sustained use of this conception.


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However, what also occurs within these forms of legal argument is that the

enactments of rulers, what we have come to know as statutes, have a problematic

relationship to those forms of legal argument. Statutes have a known beginning, and

thus a challenging relationship with forms of law developed through legal

argumentation which treats law as universal and unchanging. In the case of the

common law, historically statutes had both a superior and inferior status. Parliament

was treated, like the courts, as a forum which created remedies for existing wrongs

(i.e. acts contrary to existing custom). It was superior in the sense that statutes were

treated as having a higher authority than the common law, in the same way that we

would today say that a higher court has a higher authority than a lower one: statutes

had to be applied even if they contradicted the common law. But they were also

inferior in that Parliament, as a forum for politics, was less likely to make a true

identification of a pre-existing wrong. As such, statutes were much poorer evidence

of what justice required than the decisions of the judges. And, unless accepted as

evidence of what justice required, by being integrated into the ‘substratum of the

common law’ [19, p. 26] they would not form part of the basis of comparison which

generated new remedies in response to new claims as to what was wrong. This

interpretation of statute allowed the politics of Parliament to be accommodated

within the legal system without displacing the dominant form of legal argument, or

the temporal meaning of that argument, which regarded the law applicable to

disputes as both already existing, and having existed from an ancient but

indeterminate past [18, chs. II and III].

This form of legal argument, and the temporal meanings that went with it,

evolved in response to the huge increase in the amount and nature of legislation, not

only in England, but throughout Europe, which occurred between the sixteenth and

nineteenth centuries. Whilst the period when this began and the reasons for it varied

from state to state, its general trend was consistent. Vast amounts of legislation,

often technical and self-evidently intended to advance particular interests, could not

be incorporated within forms of legal reasoning which presupposed that existing law

was an approximation of a pre-existing universal and timeless law. In the case of the

United Kingdom, the fiction that Parliament, like the common law, provided a

remedy for an existing mischief (but with less reliability given the dangers of

sectional interests) was abandoned in the face of an ever increasing amount of law

which had no basis other than its authority: it was law because Parliament had

decided that it should be so. As increasing amounts of law became statute based it

was no longer possible to treat statute as something which was not itself law, but

only poor evidence of an ‘unwritten law’. And once statutes were themselves

considered to be law, rather than part of an existing state of law, then the common

law had no referent outside itself to which it could attribute the source of its own

decisions. Deprived of this external referent by the example of statutes, common

lawyers began to attribute the law created in judgments to the judgments

themselves. Thus the declaratory theory of the common law, the claim that law

existed outside of the decisions of judges waiting to be found was gradually

acknowledged, even within legal communications, to be a ‘fairy tale’ [21].

This acknowledgement opened the way for a much stricter form of judicial

precedent, a doctrine of strictly binding precedent. If the law was no longer


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something which existed outside of judges decisions, then those who disagreed with

those decisions could not lay claim to be giving effect to the law when they failed to

follow them. ‘… once the traditional, declaratory theory of the Common Law was

seen to be a mask for the pervasive fact of judicial legislation—once it became

second nature to call the rules of the common law ‘judge-made law’—a process

which began in the eighteenth century cumulating … in the 1890s—it was no longer

possible to leave the judges uncontrolled in the exercise of this legislative power.

Thus the strict doctrine of precedent was the natural result …’ [19, pp. 209–210] But

alongside these admissions that law is a creation of judges, we find communications

which have continued to construct the law as something available to be found,

which has existed prior to the decisions which establish it. The necessity for this

ongoing construction of law as already existing prior to decisions that establish it,

and the creation of this construction through selections justified by reference to

justice, law’s formula for contingency, and especially treating like cases alike, is

captured in the following passage by Lord Goff in the case of Kleinwort Benson:

It is in this context that we have to reinterpret the declaratory theory of judicial

decision. We can see that, in fact, it does not presume the existence of an ideal

system of the common law, which the judges from time to time reveal in their

decisions. The historical theory of judicial decision, though it may in the past

have served its purpose, was indeed a fiction. But it does mean that, when the

judges state what the law is, their decisions do, in the sense I have described,

have a retrospective effect. That is, I believe, inevitable. It is inevitable in

relation to the particular case before the court, in which the events must have

occurred some time, perhaps some years, before the judge’s decision is made.

But it is also inevitable in relation to other cases in which the law as so stated

will in future fall to be applied. I must confess that I cannot imagine how a

common law system, or indeed any legal system, can operate otherwise if the

law is to be applied equally to all and yet be capable of organic change. [1999]

2 AC 349 (HL), at 378-9

The Kleinwort Benson case required the court to consider the implications of

moving from the earlier version of common law precedent (where judges’ decisions

were communicated as evidence of a law outside the legal system) to a more strict

form of precedent (where the legal system communicates about court decisions in

terms of their authority to determine the law on any matter). In the context of this

form of precedent, the decision to overrule a long standing authority raises issues of

injustice: how is overruling different from a legislature passing retrospective

legislation? But this injustice has to be considered in terms of all the other injustices

that will arise if the decision is not applied retrospectively. And selections between

these injustices also involve considerations of redundancy and possible loss of

meaning. Recognising the retrospective effects of overruling common law decisions

as new law, and limiting their applications to a prospective effect will generate

litigation over whether authorities have been overruled, or merely distinguished.

Ameliorating the injustice that becomes apparent once the fiction that judges merely

announce the law in common law cases leaves unresolved the injustices that arise in

cases of statutory interpretation, where overruling long standing authoritative


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interpretations of statutes has the same retrospective effects as with the common

law. (What resources (memory) does the legal system have for limiting the

retrospective effects of statutory interpretation which does not undermine the

redundancies generated by treating all statutes as deciding the law from the moment

of their enactment?5).

The legal system can achieve consistency and coherence by treating all

overruling in the same way i.e. by treating all earlier overruled precedents as never

having been law for any purposes [25]. This gives a single temporal modality for all

of the legal communications involved in adjudication.6 Communications about the

existing state of the law, both statute and common law, are available to generate

interpretations of the law for a common present, in a form that describes this present

as a continuation of the past, and generates the same entitlements for all those

placed in a similar position (treating like cases alike). Postema has used the

metaphor of music to explore this. Legal interpretation, like musical appreciation,

involves an experience of the present as a continuation of the past and an

anticipation of the future [20]. Communications of what rights parties enjoy are not

separated from communications about the appropriate remedy. All parties with the

same substantive rights can expect the same remedies. This treatment of time within

law also makes it easier to unfold the consequences of any decision.

This consistency represents an enormous amount of redundancy within the legal

system. We can have a sense of this if we consider the alternative possibilities. What

if every legal practitioner (judge, barrister, solicitor, etc.) who considered that they

were addressing an issue which was not settled law proceeded to alter the nature of

their communications, ceasing to make statements as to what the law currently is and

proceeded to marshal arguments as to what the law should be in future. Such

imaginary arguments might resemble communications from the political system

(policy, ideology, etc.). Or they might form one of the two aspects of Dworkin’s law

as integrity: community morality. But how would they be integrated within the rest of

the legal system? By what communications would the legal system establish what is

settled law, and when it is appropriate to move to this future orientated form of

communication? If there were a clear and obvious indicator that separated settled law

from what would be new law, then indeed it might also be possible to limit all

decisions which created new law to a prospective effect, giving them the same

temporal meanings as most statutes. But in the absence of such an indicator the

prequel to any move to communicating in terms of what the law ought to be in future,

would be an argument as to whether the point in question was, or was not settled law.

The kind of change to legal communications which we are imagining here would

also create difficulties for time binding within the legal system. The legal system

draws communications from the past (its memory) into its current operations (its

present) to provide normative expectations as to how law will be decided in the

future (its present future). As things currently operate, the legal system’s

5 For a sense of the lack of resources available to a court seeking to limit the temporal effects of deciding

the meaning of a statute, see the various judgments in H.M. Treasury v Ahmed [2010] UKSC 2.6 There are links between the temporal mode of overruling and its semantic form as a constative rather

than a performative statement. Dunn [3] attributes this choice of semantic form to the need to preserve a

court’s legitimacy.


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construction of the law in terms of a pre-existing present allows for these different

temporal modalities to be connected to each other. Arguments in the system’s

memory about what the law is can be connected to current arguments about what

law is, which in turn provide a new store of arguments which can be applied in some

future present as to what the law currently is. But if the judgments which make new

law and the arguments which generated them took the form of communications

about what the law should be then a disruption would occur between the system’s

past and its future presents.7 An earlier decision justified on the basis of what, at the

time of that decision, ought to become law (rather than what is law) invites

reconsideration, on the basis of arguments that circumstances have altered, or if

unchanged, that in the previous decision they had been incorrectly understood or

reacted to. If the present future, at the date of that reconsideration, is not the same

future present envisaged at the date of the earlier decision, then the earlier decision

could be observed as a mistake. Settled law, in this form of communication, only

occurs when the present future at the time of a decision is re-observed within the

legal system as the same future present that was observed at the time of the earlier

decision. Even if a strict system of precedent ensured that this ability to reconsider

precedents was always reserved to a higher court than the one that made the earlier

decision, on what basis would that higher court prevent appeals to itself whenever

there was a perception that its ability to decide anew what the law ought to be would

provide a different answer than that previously decided?

There are links here between these observations on the temporal dimension of

meaning within some of these crucial examples of the legal system’s communi-

cations, and much jurisprudential debate. Hart claimed that the judicial practice of

communicating as if the law was always there to be found was a ‘familiar rhetoric’

which was not to be taken seriously [7, p. 274]. Dworkin based his early claims that

law offered right answers on the contrary basis i.e. that the manner in which judges

communicated referred to an underlying and pre-existing reality. ‘If lawyers all

agree that there is no decisive law in hard cases, then why has this view not become

part of our popular political culture long ago? Why do losing as well as winning

judges co-operate in the deception? There is no evidence, in actual judicial opinions,

that when lawyers and judges seem to be disagreeing about the law they are really

keeping their fingers crossed.’ [5, p. 12] Our observations suggest that the ‘familiar

rhetoric’ to which Hart alluded is crucially tied to the temporal modality of law. The

presentation of law as something which exists prior to judicial decisions, and the

construction of counsels’ arguments and judges’ judgments in these terms, do not

produce right answers, or eliminate law’s contingency. But it does produce different

answers, and different contingencies, than would present themselves if the law

communicated through communications which recognised that law was being

established, and not found, during the procedures which construct judicial decisions.

The nature of the required changes can be illustrated if we consider the example of

statutes. Statutes are treated as decisions by a Parliament, which decisions change the

law. In Razian terms they have authority—they are taken to have decided something.

But, of course, they have to be interpreted, and that interpretation is never a

7 For an analysis of the distinction between future presents and present futures, see Luhmann [9].


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self-application of the statute. Judicial interpretations of statutes create law,

something which is at its most obvious when earlier interpretations of statutes are

over-ruled in later cases. At present, the interpretation of a statute, even in the case of

an overruling, is treated as an interpretation of the statute which has always applied,

from the date of enactment. Exceptionally a court may claim that an altered

interpretation of what a statute requires is justified by changing social circumstances

which alter the accepted meaning of the words used, but even this does not involve an

acceptance that the court has authority to decide what a statute ought to mean in

future. In giving effect to the interpretation of a statute, courts continue with a form of

communication which parallels their earlier approach to the common law: judicial

decisions do not establish the law, but merely give effect to a law which already exists,

in this case as an intention attributed to the legislature. This is no less of a fiction than

the earlier claim that judges do not establish the common law but merely find it. But it

is one that is difficult to abandon. An admission that Parliament has not decided

something clears the way for a court to decide what ought to occur, but at that same

moment, it also removes the ability to use the intention of Parliament as an authority

for the court to decide what needs to be decided. And unless courts were allowed to

assume that Parliament never decided anything, a preliminary issue to any exercise by

a court of its ‘discretion to decide what the law ought to be in future’ would be

arguments as to what had not been decided. Once having decided this negative, the

court would have to construct the basis of its authority to decide what Parliament had

failed to decide, including what values and purposes it could consider in filling in the

gaps, and what application (prospective or retrospective) its decisions should have.

It is worth summarising our arguments at this point. The manner in which the legal

system locates the law within time allows for its communications about the basis of its

selections of meanings to be systematically interconnected, with past communications

being drawn up to establish what law applies in the current present, and as an

ingredient of that connection, to identify what law will be applied in the future. This is

part of law’s ability to bind time, and what allows it to generate normative expectations

(meaningful communications about the law in a future present). The communication

of law as always already existing, even within procedures where the law is self-

evidently being changed (as with cases that overrule earlier authorities) is not an

accidental feature of this ability to generate meaningful normative expectations, but

the manner in which this is currently achieved. Law’s own blindness to what is decided

within judicial decisions at the moment of decision (they establish new law), is a

necessary condition of law’s ability to make those decisions in a manner consistent

with the prior generation of the structures (rules, authorities, etc.) within its memory.

In this way the legal system constructs judicial decisions that can be observed, within

the legal system, as the treatment of like cases alike; that is, in accordance with justice.

Before leaving this discussion, we would like to add some comments on what

maintains the consistency in the temporal dimension of the legal system’s

construction of law. First, there is the structural coupling between the legal system

and its actors, with their consciousnesses or psychic systems. Legal actors seek to

make successful legal communications i.e. to make utterances which will be

recognised within the legal system and produce the responses they desire. In other

words, they have to be able to identify what is meaningful, and predict the meanings


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likely to be generated. In so doing, they have to become familiar with the

redundancies of the system in question. This applies to judges and counsel alike.

Judges who felt unguided by settled law, and wished to communicate honestly that

their decisions were acts of legislation, guided only by their personal senses of what

is appropriate, would be aware of the difficulties of making this break with the

established ways of constructing judicial decisions. Secondly, the system itself has

mechanisms which can be expected to react to attempts to abandon redundancies.

For example, judges who invited counsel to cease to articulate their arguments in

terms of the law that currently exists, and invited counsel to argue solely in terms of

the law which ought to be created, or who based their judgments on arguments

about what the law ought to be, instead of what it currently is, would generate

appeals. This is an opportunity for the redundancies which judges may be seeking to

abandon to be re-utilised and re-affirmed. Lastly, there are opportunities for the

legal system to evolve new understandings of its temporal dimension, but these have

to be developed through its formula for contingency—they have to be constructed

through communications which treat like cases alike. In the case of attempts to

move from the articulation of law within adjudication as something pre-existing,

and limit the application of law to a prospective effect, we cannot say that such

things are impossible, as they have occurred. But as the experiment with prospective

overruling by the United States Supreme Court demonstrates [22, 24], a court that

attempts to do this begins a process of articulating when this exception is to apply. It

does this in the knowledge that failing to apply its decisions retrospectively to the

parties in the case before it removes the incentives for parties to commence any case

which requires the application of new law for them to succeed. And then, as Lord

Goff stated (see quote above), it has to articulate how it can be just to apply the law

retrospectively to the parties before it, but not to others who are in the same position

at the same time. And in seeking to incorporate this novel communication into law,

a court which goes down this route stimulates litigation as to which facts will or will

not result in the limitation of a decision to its prospective effect—a process which

gives repeated opportunities for the experiment to end (as occurred in the USA).8

4 Time and Justice as Implicit in Legal Values and Standards: ThePresumption of Innocence as a Substantive Example of Law’s Temporality

Law’s construction of time not only runs through its forms of legal argumentation,

but explains so many of its basic values and standards that seem implicit in its

8 The Supreme Court decision in Mapp v Ohio 367 US 643 (1961) extended the exclusion of illegally

obtained evidence from Federal cases to those tried in state courts, potentially undermining thousands of

state court convictions. The initial remedy, adopted when the implications of Mapp were considered in

Linkletter v Walker 381 US 618 (1965) was to assert the Supreme Court’s right to limit its decisions to

prospective effect. After numerous decisions that attempted to articulate when prospective overruling

would apply, the original problem was solved by a much narrower rule (which maintained more

redundancy): that the right to exclude illegally obtained evidence was only available to persons whose

rights of appeal before the state courts had not been exhausted. Time limits on the right to appeal, like

time limits generally, operate to limit the effects of retrospective judge make law, allowing the court more

freedom to evolve the law.


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structures (practices, procedures, rules, etc.). The example of the presumption of

innocence can be given because it both represents law’s temporality, but also

explains how so much of the procedure and practice of law that appears to

incorporate law’s values (e.g. so many of its principles) are dependent on that

temporality. What is the justice of criminal procedure, and what are the rights

associated with the criminal process, both pre-trial and trial? What is the justice that

holds together these disparate and complex ideas, as represented in so many

substantive and procedural rules of the criminal process? An internal understanding

that gives some answer to these broad questions is that the linking idea of justice is

that a person is presumed innocent until proven to be guilty. Why presumed—

because law needs to construct the space for its meanings, and why proven—

because law needs to express those constructions. The selection of those

constructions is implicit in law’s temporality.

The nature and operation of the presumption of innocence can be analysed from a

systems theory perspective utilising Luhmann’s observations on the nature of

decisions [12]. To be communications, decisions have to be interpreted. Utterances

that are not interpreted are not communications, and communications cannot be

decisions unless they are interpreted as such. Communications that are interpreted

as the working out of prior premises, such as logical conclusions, are not decisions,

as they involve no element of contingency. For a decision to be interpreted as such,

the interpretation must include recognition that some possibilities have been

excluded, i.e. not chosen. To be interpreted as a decision a communication must also

alter expectations, by providing a new basis for connection to further communi-

cations, including further decisions [1]. The need for this recognition also means

that decisions are only established as decisions retrospectively. And their

recognition as decisions must also take the form of a decision, as there is no

absolute basis for something to constitute a decision. The possibility that a

communication did not decide something is excluded by later decisions which are

connected to earlier decisions which establish what was decided. A good example of

this is the agreement of the minutes, which is commonly the first decision of a

committee meeting, which decides what the earlier meeting had decided. Decisions,

like other communications, have a temporal dimension. A decision, with respect to

what is decided, divides the world into a before and an after.

These observations on the nature of decisions have implications for criminal and

civil proceedings. Verdicts, in both civil and criminal cases, are decisions.

Constructed by the legal system as decisions, they must be interpreted to exclude

alternative possibilities. Not only must they exclude something, but they cannot be

given the meaning of decisions without this also having a temporal dimension,

which is that whatever they decide had not been decided prior to the decision. In the

case of a criminal verdict of guilt, this decision can only exclude the contingency

that the defendant was innocent, and thereby establish them as guilty, if the

condition prior to the verdict is given a meaning that includes the possibility that

they were innocent. This is the non-excludable basis of what is described both

within the legal system, and by other systems which observe on the legal system

(such as the mass media) as the presumption of innocence. In Scotland, where the

verdicts open to a jury are guilty, not guilty or not proven, the condition prior to the


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decision remains that one has not yet been found guilty. And if one accepts

Luhmann’s analysis of decision, the inclusion of the not-proven alternative is not a

different decision from the not-guilty one, within the legal system. This is because

no further decisions within the legal system are premised on the difference between

not-proven and not-guilty. The fact that we are dealing with a tautology—that

something cannot have the meaning of a decision which establishes the fact of a

person’s guilt without also generating a temporal meaning that before the verdict

they could also have been found not guilty—does not make it insignificant. The

presumption is understood, both within and outside the legal system as something

which has a positive value, that value being justice.

Procedures for trials differ between different jurisdictions, and differ within

jurisdictions at different times, but the presumption of innocence—the state of not

being guilty until the verdict, and the need for that verdict to be constructed as a

decision within the legal system—is common to all jurisdictions, despite their

different procedures. If a person is condemned in the media and by politicians, and

is punished without going through whatever procedures the legal system has

constructed as pre-conditions for the verdict of guilt, then that punishment remains,

for the legal system, a punishment of someone whose guilt has not been decided i.e.

it remains unjust. Law can resist trial by media, or condemnation by politicians

through the time it takes to complete its operations.

The presumption of innocence gains in significance from another quality that

Luhmann attributed to decisions: decisions decide the undecidable. ‘Only those

questions that are in principle undecideable, we can decide.’ [12, p. 86, quoting Von

Foster] All systems involve the taking of decisions for which there are no good

(absolute, incontrovertible, better, etc.) reasons for having decided one way rather

than another. However, the time taken to reach decisions, including the procedures

that precede decisions, defer or delay (in systems theory terminology ‘unfold’) this

paradox. The system’s code, a binary distinction which has no inherent meaning

(the legal is not illegal, the illegal is not legal) becomes meaningful through

secondary observations (communications) which account for earlier applications of

the code through the drawing of distinctions. There is no ultimate basis for a legal

system to account for what makes something legal rather than illegal. And the

distinctions which are used to unfold this paradox will generate their own difficult

cases—where the distinctions that have been drawn in the past still provide no good,

better or incontrovertible reasons for applying one side of the code rather than

another. Luhmann identified procedures that lead to decisions as a further means for

systems to avoid being paralysed (unable to continue communicating) in such

situations [11, pp. 205–208].

Applying this analysis to the nature of a criminal trial one can observe that the

legal system routinely finds that persons did commit the acts which constitute the

crimes of which they are accused. Such decisions do not mean that another system

would repeat this conclusion. For example, it does not mean that science, the social

subsystem which codes in terms of true/not true, and generates knowledge, would

reach the conclusion that persons had carried out the acts described in the relevant

charges. And within the legal system, verdicts, even ones reached on the basis of

‘beyond a reasonable doubt’ do not mean that they would be re-established if the


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trial was repeated (indeed, as this would require a new verdict, a decision to hold a

new trial has to generate a meaning that includes the possibility of acquittal, as is the

case with all retrials). Verdicts are therefore decisions which might be expected to

be routinely rejected, both by social systems that observe on the legal system (such

as the mass media and politics) and by the human beings who are affected by them.

Rejection occurs when a communication is understood but not accepted as the basis

for further communication, as where a person receives no reply to their statement

when one was expected. Rejection and the interpretation of a communication as a

decision cannot occur simultaneously, as a communication cannot be interpreted as

a decision without the difference attributed to the decision being accepted as the

starting point for further communications. Introducing procedures as pre-conditions

to verdicts lowers the possibilities of such rejections by introducing further

uncertainties into the system.

The usual approach to proceedings is to see them as a means to improve the

quality of the decisions reached: a teleological perspective. But Luhmann sees

procedures as a means by which the organisations which operate within systems

increase their authority by creating uncertainty and then absorbing it as the

procedures are carried out [12, pp. 96–99]. One can think of this in terms of a

comparison between a short summary procedure, and a complicated and extensive

trial. The former takes less time, and involves less contingency, but raises more

challenges for the authority of a decision maker—more likelihood of the decision

being rejected. The extensive trial involves more decisions—choices of witnesses,

questions, arguments, etc. All of these decisions leave open the final decision: the

verdict, which remains in the future and is contingent. But they also make that

decision dependent on the contingency of these further decisions. And in the case of

law procedural decisions can be justified (observed within the system) by reference

to non-teleological grounds, such as fairness and rights.9 This increased contin-

gency—the repeated possibility for decisions which contribute to the final decision

being different—contributes to the authority (in the case of law an authority self-

observed as justice) of the final decision.

Only the code – which allows for the attribution of values legal and illegal, but

leaves their attribution open – can produce the uncertainty on which

proceedings feed. They, in turn, use this uncertainty as a medium for their

own autopoiesis. They use it in order to call for contributions, encourage

participation, offer opportunities (but not results) and thus invite participants

to cooperate, that is, to acknowledge acceptance until they finally become

prisoners of their own participation who have only the slightest prospects of

contesting the legitimacy of proceedings after they have run their course.’ [11,

p. 206]

In the case of the criminal trial this all adds to the eigenvalue of justice, which is

principally articulated within the legal system as the presumption of innocence: ‘all

9 For a more developed description of the manner in which procedures which are communicated in terms

of rights compensate for the legal system’s lack of authority as a means to establish the ‘truth’ of events,

see [16].


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the norms and measures which assist the proceedings also serve the presentation of a

‘‘not yet’’. They make it clear that the proceedings are not yet over and that the

result is still uncertain—until the proceedings have finally declared themselves to be

completed.’ [11, p. 207]

5 Conclusion

Law, like everything else, exists only in the present. Its existence is continued

through communications that have to establish connectivity from moment to

moment. ‘Redundancies’ establish expectations of possible connections. They limit

the potentialities from which an actuality may be selected: the horizon. Temporal

meanings are one dimension of such expectations. Meaning constituting systems use

the actuality of their operations as a starting point and connecting point to further

references that extend in the past and the future [8]. In our first example, we have

shown how the meaning of time constructed within adjudication aids this

connectivity. In the second example our focus has been on the temporal meanings

generated by a system’s interpretations of its own communications as decisions

about the presence of facts. The system cannot interpret its own operations as

decisions which determine the presence of facts without simultaneously generating

the meaning that before these decisions such facts had not been decided. The self-

understanding of this non-excludable meaning, and the contingency which it

represents, is again understood as justice. Here, the justice of the presumption of

innocence. Until the trial is completed or law articulates why any particular trial had

been completed in the absence of the usual procedures, guilt remains undecided and

justice unattained.

These two examples also point to the inconsistencies of meaning that operate

within law. Law cannot interpret its operations as decisions, without affirming that

the decision made a difference. In the case of adjudication within appeal courts,

recognising these as decisions ex post affirms the presence of a contingency that was

excluded. Yet ex ante, in constructing these decisions, there is no recognition that

the decision will make a difference. In the case of appeal court decisions, what

allows these inconsistencies in meaning to exist is time, the time taken to reach the

decision, which avoids such conflicting meanings from arising at the same moment.

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Documents

Luhmann: Law, Justice, and Time