CISLS Book Announcement | Bin Kai: Niklas Luhmann's Legal System Theory: A Second-Order Observation Approach

Title: Niklas Luhmann's Legal System Theory: A Second-Order Observation Approach

Author: BIN Kai

Publisher: Shanghai People's Publishing House

Publication Date: June 2025

Author Biography

Bin Kai, Ph.D. in Law from Peking University, Associate Professor at the Koguan School of Law, Shanghai Jiao Tong University, Council Member of the Society of Comparative Law of the China Law Society, Council Member of the Jurisprudence and Legal History Research Society of the Shanghai Law Society, Council Member of the Sociology of Law Research Society of the Shanghai Law Society, and Director of the Project Department at the China Institute for Social-Legal Studies, Shanghai Jiao Tong University. He has published over twenty papers in journals such as Jurist and Tsinghua Law Review, and led the translation of Niklas Luhmann's Sociology of Law.

Table of Contents

Part I

Chapter 1: From Husserl to Luhmann: The “Redescription” of Temporal Analysis

Chapter 2: From the Mesi Conference and Second-Order Cybernetics to Luhmannian Systems Theory

Chapter 3: From “How Society Is Possible” to “How Law Is Possible”

Part II

Chapter 4: Complexity Reduction and the Positivization of Modern Law

Chapter 5: The Operational Closure of Legal Systems: From “Function” to “Coding”

Chapter 6: Second-Order Observations of Sociological Systems Theory on Jurisprudence and Legal Sociology

Chapter 7: Judicial Adjudication from a Decision-Making Perspective

Chapter 8: Second-Order Observations of “Legal Argumentation” from Sociological Systems Theory

Part III

Chapter 9 Second-Order Observations on Technological Risks and Their Political-Legal Decision-Making

Chapter 10 Emergency Powers Under Systems Theory: Routinization and Decision-Making

Chapter 11 Toibner's Consequentialist Research Approach: From “Criticizing Luhmann” to “Moving Toward Luhmann”

Afterword

Afterword

This collection of essays marks a milestone in my two-decade-long research on Luhmann's social systems theory, as well as a turning point in my personal journey.

Luhmann once remarked that life is a chain of coincidental events. Consequently, he refused to write his own biography. This attitude toward existence embodies both the Buddhist transcendence of Buddhist Nirvana over Kantian rationality's negativity—a trait found in Schopenhauer's philosophy of will—and the affirmation inherent in Nietzsche's philosophy of the Übermensch, manifested through the will to power and eternal recurrence. Life is a paradox that unites “affirmation and negation,” “identity and difference,” “necessity and contingency.” From his early thirties until his passing in 1998, Luhmann continuously deepened his original social systems theory through academic writing. Writing was Luhmann's fundamental way of unfolding life's paradoxes, overcoming nihilism, and “existing in the world.”

Legal systems theory represents merely one of Luhmann's numerous monographs on social subsystems. In 1984, he completed his general systems theory description in Systems in Society. Thereafter, he embarked on a descent from the abstract to the concrete, testing the validity of his general systems theory in describing various social functional subsystems—including intimacy, economy, science, law, art, politics, religion, and more. Among his investigations into these subsystems, Luhmann exhibited a clear preference for law. This inclination stemmed not only from Durkheim's conception of “law as society's moral compass,” but more significantly because law provided Luhmann with the most empirically grounded social arena to test his general systems theory. Another reason lay in Luhmann's legal training: as a trained jurist, he possessed profound insight into the inner workings of legal mechanisms. Interpreting legal phenomena through the lens of social systems theory, he wielded his expertise with remarkable ease.

Around 2003–2004, I encountered Luhmann, who had passed away over a decade earlier. It was a chance encounter, a stroke of luck, and above all, the result of the reproduction of systemic social conditions.

Martha C. Nussbaum criticized Socrates's pedantic notion that “good people are not harmed” by arguing that life is full of chance and luck. Luhmann's reluctance to discuss self-made success narratives in biographical terms stemmed not only from considerations like Nussbaum's virtue ethics of luck, but more profoundly from his sociological perspective on “human beings” versus “individuals.” In Luhmann's systems theory, “human beings” are not independent entities but abbreviations for structurally coupled systems—physiological, cognitive, social, and more. Each of us is flesh and blood, capable of independent perception and thought, while simultaneously being constantly stimulated and reproduced by institutional conditions—all these aspects are indispensable. As for the “individual,” Luhmann devoted considerable space to elucidating the relationship between the ‘individual’ as a semantic construct and modern social structures, far surpassing Maine's “from status to contract” understanding of the modern condition.

Similar to Luhmann's perspective on the individual, a branch of contemporary sociology known as “Life Course Sociology” focuses on the trajectory of an individual's life from birth to death. It examines how social structures (such as the education system and labor market) and historical changes influence choices and experiences during specific life stages (e.g., education, employment, marriage, retirement), emphasizing the shaping power of “historical time” and “social position” on life trajectories. Of course, Luhmann's systems theory differs from life-course sociology. Once Luhmann situates humans within the environment of social systems, they cease to be mere puppets of society; they possess autonomous consciousness and physicality. We cannot solely emphasize society's shaping of individual consciousness; the participation and stimulation of individual consciousness also transform society.

As a member of modern society, my encounter with Luhmann and his systems theory involved both luck and personal ambition. Yet I am more compelled to understand the enabling and constraining forces of the underlying social institutional conditions.

In 2002, I—a demobilized soldier who nearly joined the judiciary—ultimately enrolled in Peking University's Law School. Shortly before that, Professor He Weifang of Peking University's Law School had published a renowned commentary criticizing the practice of military veterans entering the judiciary. Around the latter half of 2003, my mentor Professor Gong Xiantian introduced me to a seminar on “Complexity Science and Modern Philosophy” hosted by Peking University's Philosophy Department. This seminar was initiated by Professor Zhao Guangwu, then retired former Deputy Head of the Philosophy Department. The keynote speakers included disciples of Qian Xuesen and students who had graduated under Professor Zhao's guidance—some already accomplished academics, others just beginning their careers. Professor Zhao embodied the spirit of a traditional Chinese scholar and remained a steadfast believer in Marxism. Though seventy-six years old, his mind remained sharp and his energy unwavering whenever philosophical topics arose. He was particularly supportive of young scholars, encouraging me to prepare a topic for discussion. I was perplexed. While I had some understanding of philosophy, my knowledge of complexity science was limited to a cursory reading of the three theories—systems theory, information theory, and cybernetics—that were popular in the 1980s and 1990s.

Suddenly, I recalled that Professor Shen Zongling had written a book on modern Western jurisprudence. Within it was a short passage introducing Luhmann's legal philosophy, which mentioned complexity and systems theory. Professor Shen seemed to hold no fondness for Luhmann, adopting a primarily critical stance. Reflecting now, I suspect Professor Shen hadn't actually read Luhmann himself, merely relaying others' interpretations. Coincidentally, I had an English edition of Luhmann's Sociology of Law, purchased secondhand from Peking University's bookstore. I picked it up and plunged into it, only to find myself lost in a fog of confusion—a painful reading experience. The seminar discussion ended hastily, yet it ignited my determination to pursue a doctoral topic. I informed Professor Gong that I intended to study Luhmann's legal systems, and he gave his approval. After wrestling with the English edition of Sociological Theory for a month or two with minimal progress, I considered abandoning the project. My advisor gently admonished me: “When you encounter difficulties, you must confront them head-on.” After that, I had no choice but to push through. The following year, while visiting my wife who was doing her postdoc in the US, I discovered the newly published English edition of “Law in Society” in the University of California library system. Overjoyed, I purchased a copy online and read it voraciously through the night. My doctoral roommate, Liu Zhong, witnessed fragments of these experiences.

Had I not entered Peking University Law School for my doctorate, had Professor Zhao Guangwu not established the “Complexity Science and Modern Philosophy” seminar, had Professor Shen Zongling's writings not guided me, had Luhmann's works not been available in English translation—and so on—I could never have entered Luhmann's legal systems theory.

According to Luhmann's classification of social systems, these systems are divided into three categories: interaction, organization, and social function subsystems. The seminar is an interaction system, Peking University is an organizational system, academic communication belongs to the social science subsystem, and so on. The coupling of these systems—the institutional conditions that brought me together with Luhmann—was the culmination of countless favorable circumstances.

But that alone was insufficient. Approaching Luhmann required another type of institutional condition: the communication medium. Luhmann distinguished communication media into linguistic media, transmission media, and success media. At that time, I could only access English-language works, knowing not a single word of German. Moreover, having worked for years before pursuing my doctorate, my English reading was far from fluent, forcing me to consult dictionaries frequently. Language became the bottleneck constraining my deep dive into Luhmann's work. To draw closer to him, I enrolled in German language classes at Peking University for several consecutive semesters. Even after joining Shanghai Jiao Tong University, I continued studying German alongside undergraduates. Language was a pain point. I even gritted my teeth and fantasized that if I could master German fluently, I would be willing to pay a million yuan for it—even though my monthly income at the time was only a few thousand yuan. As for communication media, Luhmann divided them into three categories: oral, written, and printed. Shortly before his death, he had already keenly foreshadowed the advent of electronic media, but he could only glimpse the mast of the approaching giant ship. My initial exposure to Luhmann's theories relied primarily on printed texts. Obtaining any of his original works or secondary literature was arduous. Mainland libraries had limited collections, so I had to photocopy materials at university libraries during trips to the United States and Taiwan. I also relied on friends and classmates abroad to photocopy or photograph documents for me. My junior colleague Ou Shujun once photographed an entire book at the Chinese University of Hong Kong and sent the images to me, providing much-needed relief. The internet existed then, but digital resources on Luhmann were scarce. It wasn't until over a decade later, when several massive free book websites emerged overseas, that Luhmann's works and research materials became almost universally accessible, finally providing me with adequate research conditions. In recent years, these websites—which brought immense joy to scholars—have been shut down one after another due to compliance issues. Nevertheless, today's young scholars, even those researching Luhmann within mainland China, enjoy vastly superior conditions. I witnessed a promising young scholar using artificial intelligence to read Luhmann's German works, dramatically boosting research efficiency. Recalling over a decade ago when my junior colleague Zhao Chunyan and I translated Luhmann's Sociology of Law, it was such a laborious linguistic endeavor. Now, regarding successful mediators. Luhmann argued that in a functionally differentiated modern society, power, money, truth, law, and so forth all serve as successful mediators that enable people to swiftly accept rather than reject each other's claims within complex social contexts, thereby facilitating communication. I was fortunate that by the time I pursued my doctorate in the early 21st century, China had undergone over two decades of reform and opening-up. Chinese society had entered a phase of functional differentiation aligned with global standards, where mediators like power, money, truth, and law gradually separated. Otherwise, I doubt I would have possessed the social conditions to study law—one of society's subsystems—within an academic system mediated by truth, let alone encounter Luhmann.

In 2006, my doctoral dissertation, Second-Order Observation, Paradox, and the Systemic Construction of Law: A Study of Luhmann's Sociological Theory of Law, was freshly published. As China's first doctoral thesis on Luhmann's legal systems theory, it quickly caught the attention of Professor Gao Hongjun from Tsinghua University's Law School. Professor Gao invited me to discuss it at the “Zui Ai” restaurant near Tsinghua's gates. His earnest encouragement has sustained my subsequent research. From then on, I also formed connections with Professor Gao's disciples, among whom Pan Weijiang, Lu Yufeng, Lu Nan, and Zhang Wenlong have successively become leading figures in China's legal systems theory research. The first chapter of my dissertation, “How Law Is Possible: System Construction Through Second-Order Observation,” was selected for publication by my junior colleague Hu Ling, then working at the Peking University Law Review. This marked my first appearance on the academic stage.

Over the subsequent two decades, my output on Luhmann's work remained limited. This was partly due to my own procrastination, but also because domestic academic journals—especially those in the field of law—showed little interest in Luhmann's highly abstract theories. Furthermore, the policy emphasis on developing an autonomous knowledge system undoubtedly created institutional constraints on expanding Luhmann's social systems theory into the realm of social communication. I have published about thirty articles intermittently over the years, and I am deeply grateful to the editors and journals that accepted my manuscripts with compassion.

This volume collects seven previously published articles, including: “From ‘How Society Is Possible’ to ‘How Law Is Possible’” (originally titled “How Law Is Possible: System Construction Through Second-Order Observation”) “Complexity Reduction and the Empiricism of Modern Law” “The Operational Closure of Legal Systems: From ‘Function’ to ‘Coding’” Judicial Adjudication from a Decision-Making Perspective, Second-Order Observation of “Legal Argumentation” from Social Systems Theory, Second-Order Observation of Technological Risks and Their Political/Legal Decision-Making, Emergency Powers under Systems Theory: Routinization and Decision-Making.

Additionally, this volume includes four previously unpublished articles: From Husserl to Luhmann: “Redescribing” Temporal Analysis, From the Mesi Conference, Second-Order Cybernetics to Luhmann's Systems Theory Second-Order Observations on Sociology of Law and Legal Sociology from Social Systems Theory (rewritten from the translator's preface to the Chinese edition of Luhmann's Sociology of Law) Toiber's Consequentialist Research Approach: From “Criticizing Luhmann” to “Moving Toward Luhmann” (this article is forthcoming in the journal Rule of Law Discourse).

From Husserl to Luhmann: A “Re-Description” of Temporal Analysis is an article I hold dear and particularly recommend to readers. This paper originated from the Sixth Annual Conference on Chinese Legal Sociology, initiated by the Institute of Chinese Law and Society at Shanghai Jiao Tong University in 2021. The conference theme, “Law and Social Theory: Focusing on Husserl's Phenomenology and Luhmann's Legal Systems Theory,” was determined after consulting Professor Ji Weidong, Dean of the Institute. Professor Ji, a pioneer in Luhmannian systems theory research in China, consistently offers selfless guidance to younger scholars. This conference brought together leading domestic scholars in systems theory jurisprudence and Husserlian phenomenology, aiming to bridge legal sociology and phenomenological philosophy. Special thanks go to phenomenology expert Professor Cai Wenjing for her pivotal role in organizing the event—she even secured the participation of Professor Gao Xuan Yang, who published China's first monograph on Luhmann. At the conference, I presented my paper “From Husserl to Luhmann: The ‘Re-Description’ of Temporal Analysis.” Professor Gao Song, a phenomenology expert, offered incisive critiques that proved immensely valuable. This paper serves as both a badge of honor and a certificate confirming my capacity to navigate Luhmann's social systems theory with confidence. Luhmann's early theories bear a profound phenomenological imprint, guiding his evolution from Parsons' structural functionalism to functional structuralism. Later, he reinterpreted Husserl's phenomenology through Spencer-Brown's formal analysis. The internal trajectory of Luhmann's theoretical movement is evident in his repeated engagement with the sociology of time. The path from Husserl's inner time consciousness to Luhmann's temporal analysis offers a key to grasping the underlying code of Luhmann's social systems theory. Once this is fully grasped, Luhmann's seemingly obscure theories immediately become lucid.

The article “From the Mesias Conference, Second-Order Cybernetics to Luhmann's Systems Theory” actually resonates with the preceding discussion, exploring the academic foundations underpinning Luhmann's theory through another thread. This thread traces the historical development from first-order cybernetics to second-order cybernetics. Cybernetics can be summarized with one key concept: circular causality. The scientific realm's exploration of circular causality mechanisms emerged almost simultaneously with philosophical breakthroughs by Husserl, Heidegger, Derrida, and others that transcended the subject-object dichotomy—a coincidence it is not. Second-order cybernetics achieves a higher degree of dual closure within circular causal systems, serving as the information processing mechanism enabling advanced artificial intelligence, life, consciousness, and society. To date, Luhmann remains the sole sociologist to coherently explain social phenomena through the principles of second-order cybernetics. As Luhmann stated in his magnum opus Society's Society, only second-order cybernetics (second-order observation) can overcome the “epistemological barrier” and provide the most rigorous definition of “society.” Even a thinker as profound as Habermas remained trapped outside the gates of second-order cybernetics, mistakenly believing he could critique society from a position external to it.

Beyond temporal analysis and second-order cybernetics, another thread traces the underlying code of Luhmann's theory: Spencer-Brown's formal analysis. Grasping the formal analysis in Spencer-Brown's *Laws of Form* is crucial for unimpeded reading of Luhmann's later works. Luhmann admitted he had no particular scholarly interest in works like Laws of Form, which deal with logic and foundational mathematics. He selectively extracted only the “creating something from nothing” self-referential logic within it—this self-referential logic became the foundational algorithm for constructing his communication sociology. Laws of Form is a mere 20,000 words, yet I spent over a decade repeatedly pondering it. This exquisitely crafted booklet represents Spencer-Brown's profound dialogue with Boole's An Investigation of the Laws of Thought (note the title's connection to The Laws of Form), Russell and Whitehead's Principia Mathematica, and Wittgenstein's Tractatus Logico-Philosophicus, all through the lens of her unique symbol “┑”. Chapter 12 reveals that when an operational function self-applies, “time” emerges through oscillations within space—precisely the key concept Luhmann needed to unblock the impasses of social systems theory. I look forward to writing several articles introducing The Laws of Form and elucidating its connections to modern philosophy and Luhmann's social systems theory.

This brief afterword makes no mention of law. One primary purpose of this book is to assist readers in grasping the foundational framework and underlying logic of Luhmann's theory—precisely the areas where I myself encountered bottlenecks during my prolonged study of his work. With this scaffolding in place, understanding Luhmann's general social systems theory and his more specific legal systems theory becomes a straightforward task.

Too many individuals deserve acknowledgment—teachers, friends, colleagues, students, and family—to list individually. Here, I extend my most sincere gratitude to all who have supported and assisted me!

Additionally, I am grateful for the vertical research funding that contributed to the book's institutional conditions:1. 2014 Shanghai Philosophy and Social Sciences Young and Middle-aged Scholars Program Project: " Research on Niklas Luhmann's Theory of Legal Systems“ (Project No.: 2014FFX001); 2. 2023 National Social Science Fund General Project: ”Research on Fundamental Propositions in Systems Theory Jurisprudence" (Project No.: 23BFX007).

The final completion of this book would not have been possible without the endorsement of Director Zhao Wei of Shanghai People's Publishing House and the meticulous, professional editorial work of Editor Wang Xiaoxiao. Special thanks are extended to them!