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.