JUDICIAL REVIEW

When the connection is not clearly stated in the language of the law, how do we determine that a specific law pertains to a specific case? Remember, that in cases where the link is obvious through the wording of the law no problem exists. The existence of controversy about the applicability of a specific law to a specific case is an incident of incongruent communications. On the other hand, since laws must be considered only as arbitrary choices out a larger variety of possibilities, the most stable criteria for that choice must be the preservation of congruency. This problem is not necessarily the result of laws with arbitrary meanings or laws that lack sufficient reason for their existence. It arises because given any legislative intent; there are more different ways of formulating laws than there are laws that will be passed. Laws chosen by the legislature in order to overcome problems of incongruency achieve stability only through the recognition by the members of the society that they help to restore congruency. This can only be accomplished In a heterogenous society by keeping the wording sufficiently broad that it does not alienate any specific part of the society. Therefore the existence of controversy for the Judicial inevitably concerns differences of opinion concerning the applicability of a law to a specific case.

In a modern legal system hard cases typically arise, not because there Is nothing in the rule book that bears on the dispute, but because the rules that are In the book speak In an uncertain voice

Hierarchical constraint, as I have been maintaining, is the nature of all complex systems from the simplest atom to the most complex international organization for the freedom of any one level of the system to be constrained by the level above in order to achieve criteria set by the higher. The freedom of the use of combinations of letters in an alphabet, for example, is constrained by language to Increase freedom of communication. The purpose of a set of laws is to improve the freedom of interaction among members of a society. The hierarchical levels that Luhmann uses in his discussion of social systems have been mentioned before, they are roles, rules, programmes, and values.

The lowest level of the legal system, as in any social system, consists of people, acting out roles which deal with the problems of life that can be solved through the legal system. That level of a society's legal system which serves the purpose of Luhmann's level of rules is the community's laws. The purpose of a set of laws is to provide the social system with a common normative structure which, by reflecting the inner ideals that the members of the society hold, will serve to constrain the activities of the society so that It emerges Into one which the members can assimilate into their own inner worlds. If the set of norms which are established in a society are chosen from a set of possibilities by the selective exclusion of some, then the normative character of the society will be determined by that choice. An internally controlled system, as we have already seen, is one for which the choices from the horizon of possibilities are made by forces within the system. An externally controlled system is one where these same choices are dictated by forces in its environment. If members of a society In general feel that they actively participated In the selection of the normative structures then they will envision the structure as an Internally controlled system of which they are an integral part. On the other hand, if the members of a society see the normative structure as imposed on them then they will consider the structure as part of their environment.

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