Formalism and Systems Theory
Check out A Defense of Formalism from a Systems Theory Point of View over at Law and Society Weblog. Here´s a taste:
- Legal systems are self-referential and self-replicating systems of communication. (Some writers have referred to such systems as autopoietic, but that term carries too much unnecessary baggage for my taste.) In other words, the elements of a legal system produce the elements of a legal system that produce the elements of a legal system, ad infinitum. In this sense, legal systems are closed. They contain nothing and consist of nothing but legal communication. Everything else, including judges, lawyers, courthouses, jails, minds, brains, the world at large, is emphatically not part of the legal system. That is not to say that the legal system could exist without its environment, of course it couldn’t. But the legal system and its environment do not merge. Explaining a legal decision as caused by its environment is similar to explaining thoughts (or other mental states) as caused by the brain. While the mind is structurally coupled to the brain, both operate independently and at no point do their operations merge.