THE EFFECT OF POWER COMMUNICATIONS
|The above, of course, assumes a freedom of communications about politics, a sense of
responsibility for existing legislation, and active control of the legislature by the citizens. The
substitution of power for congruency communications results In two conflicting mechanisms,
both attempting to develop the same normative structures. The problem is that each of these
mechanisms Interacts with a different part of the environment and has different goals. As a
criterion for normative choice, power communications acts by reducing the alternatives of those
subject to the power in order to achieve the goals of the power holder. This reduction of choice
results In the elimination of possibilities that might be required for the goals of the subject. It is
a major cause of emotional trauma occurring between the legal system and the citizen because
the elimination of needed opportunities enhances the effect of simple incongruence. Lack of
congruence, on the other hand, means only that the members of the society hold a variety of
views concerning the system. For public opinion to become roused against a legal system there
must be a congruency of opinions on the incongruency of legal norms. There must be, In other
words, a catastrophic change in the pattern of consensus to one which rails against the system. It
is a case where the patterns of incongruency become the dominant force, possibly by being
twisted out of proportion by the stress of power communications. This is why in non-democratic
systems where the primary communication is power rather than congruency great disparities In
congruency develop. In other words, more democratic systems change their laws more often but
less dramatically than less democratic systems.
The Implications of this mechanism are broad. For example, given the dialectical opposition between variety and congruency, variations between perceived goals of a system and those coded into it by the legal system result in differences of opinion about the application of laws to difficult cases that at times tend to be drastic and irresolvable. Of course those who administer Justice and those who legislate are different people with very different outlooks on the system. In archaic societies where the chief of the tribe or the council of elders might both legislate and administer such a problem would never exist. However, archaic systems do not contain mechanisms which would maintain stability faced with the variety of problems common to a modern society. The separation of legislative and Judicial functions is an effective means for achieving stability. It is a social system which selects from a variety of possibilities that is expanded by its own structure those which successfully solve problems that are chosen by Its own differentiation. That means it creates structures of laws by choosing from a wider variety of possible laws in order to solve problems that society determines through the development of the legal system are normative.
The point I am trying to get at is that the larger and more complex a society is the greater the variety and the less likely is it that there exists any set of norms that would achieve complete congruence. Where there is a lack of consensus on the validity of a particular law, Its existence or non-existence tends to depend on the role of power communications which may either support or oppose the law. The Judiciary, on the other hand, is faced with decisions concerning issues that arise out of the vagueness that comes from laws which emerge out of compromises between competing Interests. The set of normative disappointments that the legislature faces Is a fuzzy set of all possible disappointments that the legislators consider at the time of enactment. The set of normative disappointments that the Judiciary must wrestle with emerge from the failure of the application of enacted legislation when applied to specific cases. Thus the two systems see different parts of their environment as important. The Judicial system acts to limit the range of valid law created by the legislative system in order to insure its own stability. The raw material for the legislative system Is the variety of norm possibilities and the need for congruence In norm structures. The feeling of congruency may be enhanced by belonging to a political party, a group of others who espouse similar political philosophies. The communications developed through these organizations emerge Into simplifications that can be construed to confirm the way members feel Internally even at the cost of gross distortions. This forms a kind of power communications that provides a consensus that does not really reflect the Inner feelings of the parties members but does reflect the way they will react to normative disappointments, The congruence thus attained Is stronger, though It may be less stable, than that which can be realized through Inadequate congruency communication alone.
This Is the point where Luhmann's sociology of law leaves us, yet if we follow this same trend of thought from the point of view of complexity theory, we find that the structure of the legal system must extend beyond positivity. Once again we must leave Luhmann and apply the same Ideas, this time to the thought of Ronald Dworkin to show how this thinker's Ideas compliment and In turn are reinforced by both Luhmann's ideas and our conception of complexity theory.