2Legal theory

Legal Forms and Reflexive Legal Forms: A New Approach to Reflexive Law

The article provides significant contributions to the understanding and application of legal sociology, specifically concerning reflexive law.

1. Contextual foundation

• Niklas Luhmann is one of the most influential sociologists of the 20th century. His work redefines society as a complex, self-referential system of communications, where each subsystem (law, politics, economy, etc.) operates according to its own rationality. His theory of law intends to be a bridge between traditional legal theory, which focuses on the “internal point of view”, and traditional sociological approaches that only consider the “external point of view”.
• Since the 1980s and 1990s, an essential debate in legal sociology has focused on the capacity of law to steer social change, a concern that ties into broader questions about the “failure of law”, the “regulatory trilemma” and the “legitimation crisis”. Three prominent approaches emerged in response: responsive law (Philip Selznick), procedural law (Jürgen Habermas) and reflexive law (Gunther Teubner). Reflexive law was based on the general concepts of Luhmann's systems theory. However, Luhmann opposed its views, arguing that law cannot be used to steer social change, as Teubner argued.
• Of the three approaches, reflexive law is the most used and accepted until today: in environmental law, labour law and the regulation of cryptocurrencies, among others. However, most applications of reflexive law do not consider or deal with Luhmann's concerns about reflexive law.
• Until today, the disagreement between Luhmann and Teubner has not been seriously approached, and no theoretical solution had been developed. The article is a serious attempt at solving this dispute.

2. Theoretical innovations

• Legal forms. Grounded in George Spencer-Brown's laws of form and presented as an addition to Luhmann's legal theory, legal forms are the fundamental “distinctions” that function as minimal units of selection within the legal system, forming the building blocks of legal norms. If legal norms are akin to molecules, legal forms can be understood as the atomic structures that constitute those molecules. They show how the legal system identifies, processes and resolves fundamental oppositions and tensions: private and public interests, autonomy and heteronomy, universality and particularity, legality and law, among others.
• Reflexive legal forms. Legal forms that have higher learning dispositions and are, therefore, better prepared to steer social change. They facilitate the legal system's capacity to adapt and engage in learning processes, enabling it to respond to complex societal challenges and regulatory failures.
• Socio-legal evolution. The application of Luhmann's theory of socio-legal evolution confirms the possible emergence of reflexive legal forms and their potential to generate and propagate variation and socio-legal evolution.
• A new approach to reflexive law. The notion of reflexive legal forms entails a new approach to reflexive law that, while addressing the concerns raised by Luhmann, focuses on the legal mechanisms that may facilitate the evolutionary learning processes of the legal system.
• Resolution of the dispute. The article therefore proposes a theoretical solution to the longstanding disagreement between Luhmann and Teubner regarding the steering capacity of law.

3. Practical implications

• The theory of legal forms allows us to observe and analyse both the interaction between law and other spheres of society and the processes of socio-legal evolution.
• The theory of reflexive legal forms enhances legislative strategies, increasing the probability of regulatory success and enabling the observation of global normative trends.
• The article offers the example of the conservation right in Chile (Law No. 20.930, 2016) as an application of legal forms and reflexive legal forms.

4. Impact and relevance

• The reviewers of Soziale Systeme, the leading journal of the social systems academic community, considered the theory of legal forms an “addition” to Luhmann's legal theory and a new position on reflexive law.

5. Broader contributions

• Beyond resolving a theoretical dispute, the article emphasises the centrality of legal forms in observing law's interaction with society, offering a fundamental tool for legal theory and for regulatory design. The author is preparing related research on global law.

Read the article (De Gruyter)Academia.eduBlog The New ReflexivityVersión en españolJaime C. Ubilla — home