Valentinov on “The Ethics of Functional Differentiation”

Through the establishment of human rights, the legal system can check the expansion of the political system, the economy, religion, science, and other function systems. But we might also talk about morality when dealing with behavior that isn’t treated within the legal system.

This is a very nice passage from Vladislav Valentinov (2017) “The Ethics of Functional Differentiation: Reclaiming Morality in Niklas Luhmann’s Social Systems Theory.”

Preventing the political system from overstraining the carrying capacity of the encompassing regime of functional differentiation means making this system bearable by individual persons who likewise belong to this system’s environment. This is by no means a trivial requirement. For one, functional differentiation cancels many social bonds which used to constitute the inclusion of individuals in the premodern society. It likewise demands guarantees that individuals have open access to the function systems. On top of this, it demands of the individuals to build up their personal identities that are no longer programmed by their social group and kinship affiliations, to communicate these identities, and to present themselves across a broad range of systemic roles with a reasonable degree of consistency. While the fulfillment of these requirements cannot be guaranteed, it can be facilitated through the institution of fundamental human rights. Fundamental freedoms and human dignity allow individuals to freely develop and communicate their personal identities; freedoms of speech, association, and religious association impose further checks preventing the political system from overexpansion;
economic property rights and freedoms of occupational choice install additional guarantees protecting the autonomy of the economy from the possible encroachments by the political system.

Of course, other function systems, particularly the economy, can also expand in ways that make life for humans and other life forms unbearable. As Valentinov writes,

while Luhmann’s (1965) work dealt primarily with the political system, current observers draw attention to the growing dominance of the economy.

This kind  of expansion poses a risk for the sustainability of the regime of functional differentiation because function systems such as the economy depend on having humans and other forms of life in their environment. This is what Valentinov means by the critical dependence principle. For instance, the economy depends on what it calls “natural resources”–drinkable water, breathable air, etc.

The invention of the democratic constitution is key here.

As argued by Verschraegen (2002, p. 272), ‘‘with the definitive breakthrough of functional differentiation, a new type of self-limitation therefore emerges in the form of the constitution. Constitutional rights emerge as a social counter-institution which restricts the colonizing tendencies of state politics. Via constitutionally guaranteed rights and freedoms, the political system defines the area of competence of state power and delineates it from all other, non-political social spheres.’’

Valentinov goes on to argue for importance of morality:

Whereas the intra-systemic rationality is geared to the fulfillment of systemic function, it cannot guarantee the sensitivity of the concerned system to the full range of its critical environmental dependencies. Luhmann (1989, p. 138) himself had similar intuitions and wrote that in the regime of functional differentiation, ‘‘system rationality increasingly loses its claim to be world rationality… To the extent that system rationality appears more realizable it becomes less world-rational and even less socially rational’’ (cf. also Luhmann 2002, p. 89). It follows that if the sensitivity of a function system to its critical environmental dependencies is at all possible, and if the structural adjustments required for attaining it go beyond the intrasystemic rationality, then these adjustments must activate further systemic  sensitivity channels which may be classified as morality.

Constitutional protections of human rights are key here. Luhmann’s

argument seems to be that the unrestrained functioning of function systems gives rise to their self-destructive tendencies which can be kept in check by protective structural devices, such as the constitutionally guaranteed human rights.

One might ask, why bring in morality? Why not just discuss human rights in the context of the legal system? It seems that is the legal system, rather than morality, that checks the overexpansion of the politics, the economy, and the other function systems. Morality, as such, lacks the teeth to protect human rights. 

Moral norms may be transformed into law. Modern society morally disapproves of child abuse, for example, so the legal system codes child abuse as illegal. Protection against child abuse is now a human right. There isn’t a mere moral preference against child abuse; there are laws. In contrast, there are things like rudeness, disloyalty, etc., that society codes are morally bad, but society doesn’t feel strongly enough about these things to bring them into the legal system.

Valentinov argues that morality operates structurally within operationally closed systems. These structures complement the amoral function of the system, and in this way system sustainability is enhanced. In other words, a system such as the economy or politics structurally constrains itself in order to enhance its own sustainability.

In social systems, structures are expectations. For instance: If X occurs, Y will occur.

Organizations, interaction systems, and morality:

Things like trustworthiness and loyalty fall into the context of morality but not law. Organizations have developed processes for disciplining behavior that is harmful to the organization’s autopoiesis. Organizations, including business firms, establish conditional programs–or “If . . . then” programs–to deal with things like disloyalty and cheating.

Interaction systems (another kind of social system) may also make moral distinctions, such as when esteeming honesty over dishonesty. Trust is necessary for the reproduction of interaction systems.

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Homo politicus, homo economicus, legalis homo, etc.

We may reduce the complexity of the human condition by highlighting one function system, such as the politics, as in Aristotle’s claim that man is a political animal (homo politicus), or we can follow John Stuart Mill speak of Homo economicus. We might also focus on law, again with reference to Aristotle’s Politics: “For as man is the best of the animals when perfected, so he is the worst of all when sundered from law and justice” Aristotle (Pol. 1.1253a). Black’s Law Dictionary uses the term legalis homo, the lawful man. Finally, in the contemporary so-called information or mass media age, we can might use the term homo medialis.

But we lose a great deal when we attempt to reduce the complexity in this way.  Human beings are far more complex that homo politicus, homo economicus, legalis homohomo medialis. But rather than focusing on human beings, we can think of different kinds of communication that society produces—political communication, economic communication, legal communication, mass media communication, scientific communication, etc. Society produces and reproducing all of these kinds of communication, and more—and no single communication system can steer or dominate global society.

The term legalis homo seems very obscure, but it was not so uncommon in the 18th century. This Google Books Ngram indicates that homo economicus has been the most commonly used of these three terms since 1950.


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Ego, alter, and black boxes

The concepts of ego and alter should leave open whether they concern psychic or social systems . . . (Social Systems, p. 106)

When Luhmann refers to ego and alter, as in discussions of double contingency, it is easy to assume that he means psychic systems as in interaction systems of two people. But ego and alter also refer to other kinds of social systems, including function systems and organizations. So in the structural coupling or irritation (perturbation, resonance) between economy and politics, these systems can be considered ego and alter. The communication events that occur within each system are doubly contingent. In other words, these two function systems are “black boxes” to each other, just as two psychic systems are black boxed to each other. The economy cannot know what is happening in the political system, and vice-versa, just as one person cannot know what another person is thinking or feeling. Each system just makes guesses about what is going on in the other system.

Earlier in Social Systems, Luhmann writes,

The social dimension concerns what one at any time accepts as like oneself, as “alter ego” . . . (80)

All one system can do is assume that another system is like itself. So I assume that a person sitting next to me on a park bench can see and hear what I am seeing and hearing. I assume that we are perceiving the same world, even though we are not. Thus we can communicate even though we do not perceive the same world.

In an interaction system, such as a conversation between two people, the system (not each psychic system separately) selects meanings from a horizon of possible meanings. Each communicative event, which passes away in the same moment is emerges, must serve as the premise for the next event if the system is to continue its autopoiesis.

The ego-alter concept can be confusing, however, because two psychic system can come together, so to speak, to produce an interaction system. A new system emerges as communication. This might lead to the conclusion that a third system, the interaction system, emerges between the two psychic systems and that the two psychic systems somehow share this interaction system.

But if two function systems, such as politics and economy, mutually irritate each other, a third system does not emerge between the two because that would require a mixture of codes. But in an interaction system, a new system does not exactly emerge between two psychic systems either. The interaction system exists in the environment of the psychic systems, and each psychic system has its own (unshared) environment. Any change that occurs in the thinking or feeling of a psychic system during communication only happens in that psychic system, not in the interaction system (because interactions systems do not think or feel; they communicate). Similarly, any change that occurs in the economy or the political system occurs only within the respective systems, not somewhere in-between the two systems. There is nothing shared or experienced in common between the two systems.

Anything said to exist in-between could only be observed by a third observer. This might be the liminal space discusseded by Paul Stenner.

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The Harmonious Society

In Law as a Social System, Luhmann wrote,

A functionally differentiated society is anything but a harmonious society with inbuilt guarantees of stability. (481)

One could argue that the Chinese Communist Party’s emphasis on the “Socialist Harmonious Society,” which is a slogan first promoted by President Hu Jintao in 2005, is a response to the challenges of functional differentiation. Since the 1980s and the Deng Xiaoping reforms, the economy and mass media have gained increasing autonomy, challenging the hegemony of the political system. The harmonious society ideal has especially picked up in this century. Here is  a Google ngram for the Chinese terms for harmonious and harmony.


The reasoning here is that functional differentiation causes social disharmony, or the loss of absolute control by the political system. Under stratified and centralized forms of social differentiation, the political system (monarch) or the religious system (or those two combined) usually has ultimate power. The harmonious society is the dream of any government, particularly an autocratic one, because it means stability for the government.

What’s sort of interesting is that Hu Jintao introduced the slogan in 2005 but the Ngram rise starts in about 2001, and about half of the rise happens between 2001-05. So Hu didn’t invent the idea but apparently picked it up from somewhere else, probably from New Confucianism. And of course, the idea of China as a harmonious society goes back to Confucius. The rise for harmony+harmonious begins in the mid-1970s.

Below in the Ngram for harmonious society:


The slogan was primarily a response to the growing wealth gap that resulted from Ding Xiaoping’s opening up of the Chinese economy. In other words, the economic function system had begun to irritate the political system–as people protested the wealth and privilege gap–and the CCP responded by de-emphasizing wealth accumulation.

Perhaps more significantly, this shows that the Google Ngram Viewer does in fact show historical trends. This isn’t just random, and it confirms the value of the global brainwave research of Roth, et al.

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International Law in a Post-Post-Cold War World

This post is related to previous posts on the legal system, as well as the political system.

Notes on “International Law in a Post-Post-Cold War World—Can It
Survive? Current Challenges to International Law” by Alison Pert (2017). All quotes are from the Pert.

If there can be such a thing as an international atmosphere (as in mood), then the last 5 years have seen some extraordinary changes in that atmosphere. There have been a number of different moods since the end of the Second World War. For a short period during and after the drafting of the United Nations Charter in 1945, there was a feeling of hope and optimism for the future development of a world society. The League of Nations had been a useful experiment, requiring a radical adjustment of member states’ willingness to compromise their sovereignty in the quest for a better world achieved through multilateral cooperation. The lessons learned from that experiment were applied in the design of the League’s
successor, the United Nations. In the United Nations Charter, all forms of interstate violence were outlawed, and the central enforcement body, the Security Council, was empowered to order corrective or punitive measures against errant member states, ranging from economic sanctions to full military force. The fervent hope of those creating the United Nations was that war would finally be made illegal and therefore, if not eliminated from international relations, at least greatly reduced in likelihood.

The inherent flaw in the new collective security structure was the veto: the requirement that all non-procedural decisions of the Security Council be supported, or at least not expressly opposed, by the five major victorious powers that were granted permanent seats on the Council (the ‘P5’).

Asia & the Pacific Policy Studies, vol. ••, no. ••, pp. ••–••
doi: 10.1002/app5.174

The goal of finally making war illegal would represent the victory of the legal system over the political system. But the five major powers, by insisting on the veto power, refused to allow  that.

In the first two decades of the United Nations’ existence, the veto was used over 80 times, on all but four occasions by the USSR, and often on matters unrelated to international peace and security. Thereafter, the US became a frequent employer of the veto, and altogether during the Cold.

During the 45 or so years of the Cold War, international tensions rose and fell with each crisis, and on occasion there were genuine fears of a new world war or a nuclear conflict, such as during the Cuban missile confrontation. But paradoxically, and perhaps assessed with the benefit of hindsight, there was an element of stability or at least predictability in the relations between P5 members.

From a system-theoretical perspective, the predictability is important. Complexity is greatly reduced if the decisions are limited to a binary choice:  veto/no veto. After the end of the Cold War, expectations rose.

Suddenly, it became thinkable that the Security Council might operate as originally intended, and indeed it did for a while. Many more peacekeeping operations were authorised, and the use of the veto plummeted to just nine instances in the 1990s. The paradigm example of this new flowering of cooperation was the international response to the first Iraq War in 1990, when the Security Council authorised member states to use all necessary means (Security Council code for military force) to remove Iraqi forces from Kuwait.

Since 2000, Vladimir Putin has pushed back against this multilateralism. Putin

is an avowed nationalist apparently intent on, among other things, reclaiming—or at least maintaining Russian influence over—as much as possible of the former Soviet satellite states and restoring ‘Great Russia’.

NATO’s expansion into Eastern Europe likely provoked Putin. Then came the invasion of Iraq.

The invasion of Iraq in 2003 led by two of the P5 members, almost universally agreed to have been a clear violation of international law because it lacked Security Council authority, did not help. Nor did NATO’s overreach in its 2011 intervention in Libya, when Security Council authority to use force to protect civilians caught up in the civil war was exceeded, and resulted in régime change. That overreach has been referred to by Russia in its serial blocking of Security Council resolutions that even hint at criticising the Assad régime in Syria.

But it has really been in the current decade of the twenty-first century that serious cracks have started to appear in the post-Cold War structure. The first of these to become obvious was Russia’s covert invasion and subsequent seizure of Crimea in 2014.

China’s military build up in the South China Sea is another example of a state disregarding the UN’s authority. China has refused the bound by the United Nations Convention on the Law of the Sea (UNCLOS).

China uses the ‘three warfares’ of legal, media and psychological operations to
distort legal reality.

Pert cites  Peter Navarro, “China’s Non-Kinetic ‘Three Warfares’ Against America,” The National Interest, 5 January 2016.

These events involving Russia and China in part illustrate a retreat to placing the national interest above all, even international law. It reflects, or is related to, a swing to the right (or, perhaps more appropriately for states such as Russia and China—towards nationalism) that has become apparent in other countries: the Philippines, Europe (France, Netherlands, Italy, the United Kingdom), Turkey, India and even Australia. And now Donald Trump has been elected President of the United States. All illustrate a turn inwards rather than outwards, a retreat from multilateralism, the placing of national interest above all else.

This week’s French presidential election offers hope for slowing this neo-nationalist movement.

The election of Rodrigo Duterte in the Philippines in June 2016 is another issue. Duarte’s position toward China seems to place economic interests over national pride. So the economic system is clearly a factor, or irritant, here as well.

He effectively reversed his predecessor’s policy and appeared to disavow
any interest in pressing the Philippines’ claims in the South China Sea . . . During his state visit to China in October 2016, Duterte famously announced his country’s ‘separation’ from the United States, and that henceforth the Philippines would be aligned with China, making it clear that trade and financial support (from China) were far more important than resolving sovereignty disputes.

And, of course, we have Trump.

. .  .  there are clear and worrying signs that under Trump, the US may not maintain its role of seeking to uphold (admittedly selectively, given its record of foreign military interventions and dubious military detention practices) the rule of international law.

Russia and a few African countries now oppose the Rome Statute establishing the
International Criminal Court.

. . . international law relies on state compliance for its moral authority. If that is lost, we are back to the nineteenth century world of might is right.

If we observe from a moral perspective–making the distinction good/bad (or respectable/disrespectable)–we might say that the political system is wrong to assert itself over the legal system and politics should abide by international law. But in terms of science, it is what it is. This is what systems do.

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Resonance capability, continued

This post continues a line of thinking from previous posts on affect and resonance capability.

Affect is all about resonance capability. For instance, in teaching we say we want students to “relate to” or connect with the course content. We want them care about the subject matter or see some connection to their own lives or something that already interests them. In other words, we want the course material to resonant with the students.

For example, in everyday life, if there is a famine in South Sudan and we want other people to care about this problem and, if possible, do something, this means we want to famine is South Sudan to resonate with people. If something resonates with a psychic system, this means the person will have some kind of reaction, as in thinking about it–processing information about the famine. Expectational structures or programs may change, which means learning has happened; new expectations are formed. For example, a student who develops a passion for Dante’s Divine Comedy after being introduced to it in a class (or anywhere) experiences a systemic change. S/he is now able to be affected by anything having to do with The Divine Comedy. The person might even say something like “The Divine Comedy changed my life.” He might travel to Florence to feel closer to Dante. Dante’s poem produces a “difference that makes a difference. ” The opposite of resonance is alienation, or the sense that the world no longer speaks to us; nothing moves us anymore (Hartmut Rosa).

Events like a famine can also resonate with other social systems, such as organizations–humanitarian organizations, government organizations, religious organizations, etc. If there a disaster somewhere in the world and the United States government ignores it, this means the event has not resonated with that organization. There is no sense that a decision needs to be made.

Affect increases or decreases a system’s responsiveness. Brown and Stenner write,

Affect, as an emergent property of the encounter, takes the form of either an increase or diminishment of the finite individual’s power to act. This is described in the basic distinction between affects of “joy” or “euphoria” (laelitiae) that increase power or those of “sorrow” or “dysphoria” (tristitiae) that decrease power. What takes place as an affect (an emotion) is an ordering of the relations between bodies and between ideas that shows forth as a decision or a determination for action.

But we are more likely to think of affect as something that moves us, rather than something that diminishes the power to act. We tend to think of despair as the lack of affect.

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The Legal System and Property Rights

This is more global brain wave research.

When looking deeper into the legal system, in addition to human rights, another 2-gram we can look at is property rights. Rights and property were among the five terms used to chart the legal system in Roth, et al. (2017), the other three being law, laws, and Court. Here is the English-language Ngram for property rights:


The rise begins in 1871, falls slightly in the 1920s, rises again, falls again to 1920s levels, and then rises sharply from 1968-2000. According to the OED, property-right first appeared in print in 1837.

1837   Woolmer’s Exeter & Plymouth Gaz. Suppl. 13 May   I venture to express an opinion, that Church Rates, as well as Tithes, were ‘given’ or ‘bequeathed’ at first, and that, consequently, this property-right did originate in a ‘bequest’.

French–droits de propriété:


The French and English terms show the same steep rise after about 1980, then a drop off in the early 2000s.



The German trend line resembles the English, with the rise beginning in the 1870s and the drop off after 2000. The French, in contrast, does not take off until 1914, the start of WWI; the after 1921 it drops back to its pre-1914, staying there until the late 1970s.

The Russian trend line is interesting. The Russian term for property rights, I think, is имущественные права. It rises from 1913-24, falls and rises from 1924-1980s (the start glasnost and perestroika and the beginning of the end of the USSR), then rises very sharply.


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