Tilburg Law School. Philosophy at the Interface of Law and Society: Luhmann's systems theory and the sentencing gap

Transcription

1 Tilburg Law School Philosophy at the Interface of Law and Society: Luhmann's systems theory and the sentencing gap Thesis Research Master in Law Ellen van Gessel (ANR ) Supervisors Prof. dr. G.C.J.C. van Roermund Prof. dr. A.C.M. Spapens

2 TABLE OF CONTENTS Chapter 1. Introduction Problem Social and scientific relevance Hypothesis Research questions Data and methods...9 Chapter 2. Theory: law and society as systems Systems theory Society as the overarching system Law as a differentiated subsystem Function of law in society Operation of law in society Relationship between societal subsystems: structural coupling Mass media as the mechanism behind structural coupling,,,,,,, Relationship between society and law Judicial decision-making Legislative law-making Chapter 3.From theory to practice: methodology A case study Data and sources Methods

3 Chapter 4. Practice: communication within and between systems The idea of mandatory minimum sentences in politics and law Communication on mandatory minimum sentences within politics : Cabinet Balkenende IV,,,,,,, : Cabinet Rutte I : Luhmann's perspective Communication on mandatory minimum sentences within law : Communications during cabinet Balkenende IV : Communications during cabinet Rutte I : Luhmann's perspective Conclusion: Luhmann's systems theory and the sentencing gap Chapter 5. Conclusion...33 Bibliography

4 CHAPTER 1. INTRODUCT ION In the summer of 2010 the Court of Den Bosch sentenced a 60-year old swimming teacher to seven years prison for sexually assaulting his pupils. The man was specialized in teaching mentally handicapped children to swim, and had assaulted dozens of girls during swimming lessons in a number of pools. 1 The verdict by the Court was met with feelings of anger and disappointment by the parents of the assaulted children, but also the general public showed its disappointment with the sentence. Unfortunately, this is not the only criminal case in which sounds of disapproval with the sentencing practice of judges are voiced in the public realm. 1.1 Problem Empirical studies that were undertaken over the last two decades have frequently shown that the public support towards the sentencing practice of judges is alarming. 2 These studies show that throughout the years the public has been invariably of the opinion that the sentences as imposed by the judiciary are too lenient. Based on the notion that crime is increasing and becoming a real problem in the Netherlands, the vast majority of the public feels a strong and consistent desire towards a more severe sentencing practice. However, there is no clear reason underlying this public desire as studies that have been undertaken over the same period of time show that the number of registered crimes has been decreasing, while judges have been imposing more severe sentences. 3 This empirically observed difference between actual crime and sentencing on the one hand, and perceived crime and sentencing on the other has been described as a gap between law and society, and has been the focus of many researches. 4 These researches have purported to spread light on the matter by defining and explaining the empirically observed gap. However, they have not been able to give any conclusive answers. 1 Court of Appeal s-hertogenbosch 26 May 2011, LJN BQ See e.g. Culturele Veranderingen in Nederland, The Hague: The Netherlands Institute for Social research ; K. Wittebrood & M.J. ter Voert, Netherlands Survey on Criminality and Law Enforcement I996: documentation of the survey, Leiden: Netherlands Institute for the Study of Crime and Law Enforcement, 1997; H. Elffers & J.W. de Keijser, 'Het geloof in de kloof: Wederzijdse beelden van rechters en publiek', in J.W. de Keijser & H. Elffers (Eds.), Het maatschappelijk oordeel van de strafrechter: De wisselwerking tussen rechter en samenleving, The Hague: Boom Juridische Uitgevers 2004, pp ; J.W. de Keijser, P.J. van Koppen & H. Elffers, Op de stoel van de rechter. Oordeelt het publiek net zo als de strafrechter? Research Memoranda 2006/2, p. 20; S. Ruiter & J. Tolsma, Taakstraffen langs de lat: Strafopvattingen van Nederlanders, Rechtstreeks 7, p. 27; and De sociale staat van Nederland, The Hague: The Netherlands Institute for Social research Criminaliteit en Rechtshandhaving: ontwikkelingen en samenhangen, Den Haag: WODC/CBS/RvdR ; and F. van Tulder, De straffende rechter, , NJB 2011, p See n. 2. 3

5 Moreover, since the existence of a gap between law and society could affect the legitimacy of the legal system, which is necessary to achieve an effective degree of compliance, 5 ignoring the gap could affect law's capability of effectively carrying out its function in society. 6 It is therefore not surprising that the gap has been given a prominent position by government both in election- and policy-programmes. 7 This resulted in several governmental interventions, such as the introduction of the function of press officer in 1991; the publication of sentencing guidelines since 1998; the publication of sentencing requisition guidelines since 1999; the publication of journals on the sentencing situation since 2000; and the establishment of a judicial sentencing database in Initially, these interventions were based on the notion that by improving consistency and transparency in the process of sentencing, 8 the legitimacy of the sentencing system could be restored. 9 However, over the years the aim of these governmental interventions started to broaden. Instead of merely focusing on improving consistency and transparency, the government decided to focus on all possible aspects that could improve the legitimacy of the sentencing system. This led to interventions such as the introduction of the Council of the Judiciary in 2002; the introduction of section 359 (2) in the Criminal Code imposing stricter motivational requirements on the judge in 2005; the amendment of the Criminal Code and the Road Traffic Act re-adjusting several legal sentencing maxima in 2006; the introduction of the PROMIS-method for judicial sentencing in 2008; the amendment of the Criminal Code reducing the possibilities for imposing a community penalties in Nevertheless, it seems like all efforts to bridge the gap, and thereby restore the legitimacy of the sentencing system, have been in vain. The earlier mentioned studies as well as mass media reports show no notable improvement in the public opinion on sentencing. Apparently, we are still groping in the dark when it comes to understanding this empirically observed gap between law and society. Therefore, this research project purports to find out 5 See for a more elaborate discussion of the importance of the legitimacy of law: T.R. Tyler, Why people obey the law, New Jersey: Princeton University Press finding out law's function is one of the objectives of this research project, and will be further discussed in the following chapters. 7 See e.g. Criminaliteitsbeheersing. Investeren in een zichtbare overheid, The Hague: Ministry of Justice and Ministry of the Interior and Kingdom relations 2001; Parliamentary Papers II 2001/02, , nr. 2; Naar een veiliger samenleving, The Hague: Ministry of Justice and Ministry of the Interior and Kingdom relations 2002, Parliamentary Papers II 2002/03, , nr. 1 and 2; Veiligheid begint bij Voorkomen, The Hague: Ministry of Justice and Ministry of the Interior and Kingdom relations 2007; Parliamentary Papers II 2007/08, 28684, nr. 119; Vrijheid en Verantwoordelijkheid: Regeerakkoord VVD-CDA, The Hague 2010, Parliamentary Papers II 2010/11, 32417, nr A lack of transparency and consistency in sentencing is shown by i.a. J.P.S. Fiselier in Regionale verscheidenheid in de strafrechtspleging, Delikt en Delinkwent 1985, p ; and A.C. Berghuis in 'De harde en de zachte hand: Een statistische analyse van verschillen in sanctiebeleid', Trema 1992, p e.g. E.W. Oskamp, Computerondersteuning bij straftoemeting, Deventer: Gouda Quint

6 whether a more theoretical perspective on the manner in which law and society interact, can help us find a proper definition and explanation of this gap. 1.2 Social and scientific relevance Since the government has failed to render legitimacy to the sentencing practice of the judiciary, and researchers have not been able to explain for this failure, it is suggested that our current understanding of the interaction between law and society is seriously deficient. This is not the first time that feelings of failure to lend legitimacy to the legal order in place have emerged. When looking at the past, it seems that such feelings often emerge in the course of major societal change, such as the techno-industrial revolution at the beginning of the 19 th century, the economic depression during the first half of the 20 th century, and the Second World War in the second half of the 20 th century. These feelings have led to many theoretical efforts to review and revise the relationship between law and society. The emergence of legal pragmatism, legal realism and the modernized versions of natural law and legal positivism are cases in point. All these theories purport to offer an understanding of the phenomenon of law within society. Nevertheless, each theory gives a different account of what such knowledge entails. In this respect a division can be made between theories that are based upon the legal discipline, and theories that collapse the discipline of law into another discipline. Theories that are built upon the legal discipline tend to offer an internal perspective on the relationship between law and society meaning that they observe the legal system from within, regarding all events that they encounter as a set of pre-given facts; while theories that collapse the discipline of law into another discipline tend to view this relationship from an external perspective, meaning that they do not take into account law s own self-description but merely view the legal system from a certain higher point of reference that lies outside the legal system. However, in order to offer a comprehensive understanding of the relationship between law and society, both internal and external observations are of importance. Only from within the legal system can one give a genuine account of the normative essence of law, while an external view is required to critically observe the manner in which law perceives itself so as to ensure that law is not simply treated as if it were a collection of facts. Such a unique combination of both an internal and external perspective on the relationship between law and society can be found in Luhmann s systems theory. Luhmann finds a way to integrate both internal en external perspectives on law, thereby explaining both what law is and what law ought to be without subordinating law to some overarching objective derived from another discipline. As a result, 5

7 Luhmann is capable of providing us with a universally valid understanding of law which takes into account law s meaning towards society, without letting its meaning depend on society. Though there has been an increasing interest in Luhmann in action with the Dubrovnik conferences in 2007, 2009, 2011, and 2012, 10 no attempts have been made to apply Luhmann s systems theory to the empirically observed gap between law and society in the field of criminal sentencing. Therefore, this research project sets out to further explore the gap between law and society in the field of crime and sentencing, on the basis of Luhmann s systems theory, which will provide for a richer and corroborated insight into the relationship between law and society in the field of crime and sentencing, as well as an enlarged scope for engineering it in the field of policy- and law-making. 1.3 Hypothesis According to Luhmann s systems theory, society as a system can only deal with increasing complexity of its environment, by developing subsystems that each carry out a specific function with regard to society. The existence of subsystems thus depends on their ability to carry out a unique function with regard to society. For the legal system, this means that it must stabilize the normative expectations that exist within society. If the legal system is to carry this function against a background of a continuously changing and increasingly complex set of normative expectations, it must operate in a cognitively open, but normatively closed manner: the legal system may relate knowledge to its environment, but it may not introduce this knowledge as norms into the system. The legal system must view everything that happens in society from a legal point of view: it must only regard information of relevance to the system, if this information can be understood in legal terms. The system must then translate this information into legal norms, and finally embed these norms in the system. This means that the system creates its own (legal) meaning of events that take place within society, and thereby creates a difference between itself and its environment. Thus, on the basis of Luhmann s systems theory, the existence of the mentioned gap between what society wants and what the legal system entails, must be regarded as inevitable. If there would not be a gap between society and law, and law would thus be directly susceptible to influences from society, law would lose its capability of stabilizing normative expectations. Considering that law would then no longer be capable of providing society with the needed 10 See for contributions from experts in the field of sociology of law that were made during these conferences: A. Febbrajo & G. Harste, 'Law and intersystematic communication', Farnham: Ashgate Publishers

8 certainty, bridging the gap would mean the end of the legal system. However, on the other hand, if law becomes too much out of touch with society, it will also lose its right of existence since law is the product of society, and as such, must reflect the society it aims to serve. 1.4 Research questions The central research question in this project is: Can Luhmann's systems theory provide for a proper definition and explanation of the empirically observed gap between judges and the public in terms of preferred severity of sentences? In order to answer this central research question the project takes a 5 phase approach. Phase 1 describes the theoretical framework as provided for by Luhmann; phase 2 operationalizes the theoretical framework by translating certain key concepts of Luhmann s systems theory into testable variables; phase 3 entails a case study whereby empirical data will be described and subsequently analysed on the basis of the operationalized version of Luhmann s systems theory; and phase 4 applies the obtained knowledge to the issue before hand in order to come to a proper definition and explanation of the gap between judges and the public in terms of preferred sentences. Phase 1: Describing the theoretical framework This part describes Luhmann's systems theory on the relationship between law and society. The research questions that will be answered in this phase are the following: What is the relationship between law and society according to Luhmann's systems theory? o What is the function of law in society? o How does law operate in society? o How does law communicate with society? Phase 2: Operationalizing the theoretical framework This part will operationalize Luhmann's systems theory as outlined in the first phase by translating certain key concepts into a framework of testable variables in order to determine the descriptive adequacy and explanatory power of Luhmann's systems theory. The research question that will be answered in the second phase is the following: What framework of testable variables can be derived from Luhmann's systems theory with respect to the manner in which law operates within, and communicates with society? 7

9 Phase 3: Describing and analysing the empirical data This part describes empirical data on the manner in which law and politics communicate on an event that reflects the existence of the mentioned gap between judges and the public in terms of preferred severity of sentences: the idea of introducing mandatory minimum sentences in the Dutch criminal law system. The research questions that will be answered in the third phase are the following: In what manner have actors within the political system communicated on the idea of introducing mandatory minimum sentences in the Dutch criminal law system according to both Parliamentary documents and newspaper articles that were published between 2007 and 2012? In what manner have actors within the legal system communicated on the idea of introducing mandatory minimum sentences in the Dutch criminal law system according to publications of the Council for the Judiciary and newspaper articles that were issued between 2007 and 2012? In what manner is law's communication on the idea of introducing mandatory minimum sentences in the Dutch criminal law system influenced by the manner in which the political system communicates on the topic? To what extent does the manner in which law's communications have been influenced by communications of the political system form a reflection of Luhmann's systems theory, and thereby confirm its' descriptive adequacy and explanatory power? Does the empirical data on the manner in which actors within the legal system and actors within the political system communicate on the idea of introducing mandatory minimum sentences, reflect the manner in which law and politics operate and communicate according to Luhmann's systems theory, when looking at the testable variables that were derived from his theory? Phase 5: Applying the theoretical framework The final part will apply the knowledge that is obtained in phase 4 as to the descriptive adequacy and explanatory power of Luhmann's system theory when it comes to the relationship between law and society, to the issue of the gap between judges and the public in terms of preferred severity of sentences. The research questions that will be answered in this final part are the following: 8

10 How can the empirically observed gap between judges and the public in terms of preferred severity of sentences be defined according to Luhmann's systems theory? How can the empirically observed gap between judges and the public in terms of preferred severity of sentences be explained according to Luhmann's systems theory? 1.6 Data and methods In order to further explore the relationship between law and society in the field of crime and sentencing in terms of Luhmann s systems theory, a case study has been undertaken to map out the dialogue that takes place between society and law. Note that I refer to a case study as a method that is often used in social sciences, rather than the study of legal cases as often done by doctrinal legal scholars. The methodological choices that were made in this respect are based on both the available empirical data and the manner in which Luhmann chose to elaborate his theory; his choice of abstract concepts as well as topics of focus. Further details on the data that were gathered, and the method that was used to analyse the date are outlined in chapter 3. 9

11 CHAPTER 2. LAW AND SOCIETY AS SYSTEMS 2.1 Systems theory According to systems theory all phenomena consist of different components that are related to, and interact with each other in a structural manner. These components have emergent properties which are only present when the components are part of the phenomenon. The fundamental character of phenomena is determined by the manner in which the individual components of the phenomenon are structured. Therefore, studying the single components and structures of which the phenomenon is comprised, cannot provide for a comprehensive understanding of the phenomenon. To understand the whole, we must not only understand the single components, but also their relation to each other and to the phenomenon as a whole. Many phenomena in the real world are complex: they are made up of multiple components which are interrelated and influenced by the environment in which they operate. Systems theory is then based on the notion that this complexity needs to be reflected in the disciplines and methods that are used to study the phenomena in order to obtain a comprehensive understanding of the phenomena. Systems theory is a general, interdisciplinary theory which purports to offer this comprehensive approach to the study of all sorts of phenomena by viewing them as systems. By reducing complex phenomena to systems, it becomes possible to understand them. Systems theory abstracts from the different components and structures of which a phenomenon is comprised, and focuses on the relations that exist between the different components and their relation to the phenomenon as a whole. The main assumption underlying systems theory is that that there is a difference between the system and its environment which is created by the fact that the system performs a unique function with regard to its environment, and that it operates in a self-(re)producing manner Society as the overarching system In order to understand our complex society, Luhmann suggests viewing society as a system which is comprised of different subsystems. These subsystems are made up of communications which each entail a process of selection, transformation, and embedding of information from the environment by the system. First, external information is selected from the environment, which 11 A. Laszlo & S. Krippner, Systems theories: Their origins, foundations, and development, in: Systems Theories and A Priori Aspects of Perception, Amsterdam: Elsevier Science 1998, pp

12 is then transformed into internal relevant information, and finally embedded in the system as a basis for further communications. Such communications are regarded as closed events through which the system maintains its autonomy, and creates a difference between itself and its environment. This closure also allows the system to reduce the complexity of reality. Only information that is selected by the system itself, on the basis of its own internal criteria, is translated into internal relevant information, and embedded in the system. This means that each system creates its own version of reality which serves a specific function and thereby brings order to the complexity of society. Moreover, this also means that one single event or phenomenon can have a different meaning in each differentiated subsystem Law as a differentiated subsystem So, according to systems theory, for law to exist as a differentiated subsystem of society, it has to perform a unique function with regard to society, and it has to (re)produce itself in an autonomous manner Function of law in society Although law can perform many functions with regard to society, there is only one function that is unique to law and which justifies the existence of law as a separated subsystem, namely maintaining and stabilizing normative, behavioural expectations in the face of disappointment. A clear example of a normative, behavioural expectation that is protected by law is the expectation that if one buys a product in the store that one will become the owner of that product, or that if due to one s fault a car accident occurs one will have to pay for the damages caused. The legal system protects such normative, behavioural expectations by converting them into legal norms. Law thus makes it possible to know which normative expectations will meet with social approval, and which will not. Thanks to its autonomous position, the legal system is most suited to carry out this function since its norms can maintain a much higher degree of stability and consistency than other norms that are more directly susceptible to influence from (other subsystems of) society Operation of law in society 12 N. Luhmann, Das Recht der Gesellschaft, Frankfurt: Suhrkamp 1993, pp ; and N. Luhmann, Law as a social system (trans. Klaus A. Ziegert), Oxford: University Press 2004, pp N. Luhmann, Das Recht der Gesellschaft, Frankfurt: Suhrkamp 1993, ; and N. Luhmann, Law as a social system (trans. K.A. Ziegert), Frankfurt: Suhrkamp 2004, pp

13 In order to offer this certainty of normative expectations against a background of numerous different, but also continuously changing normative expectations that exist within our modern society, law has to maintain a certain distance with regard to society: law needs to operate autonomously, and independently. This means that the legal system needs to filter the information that is directed towards it by society. Only by blocking access to information that does not meet particular criteria, and translating the remaining information in such manner as to ensure that it can be embedded in the existing structures of the system, can the legal system reduce the complexity of society and ensure stability and consistency. The legal system filters information from society by acknowledging only that information that can be understood in terms of its own unique language that consists of the binary code legal and illegal. Only that information that is regarded by the legal system as being legal, becomes internally relevant or, in other words, legally valid. This process of filtering is clearly shown in case of an occupational accident. Although this event may result in serious health problems, a disrupted social life, mass media attention for the underlying poor working conditions etcetera, such information is not regarded of relevance to the legal system. As long as the mentioned consequences cannot be regarded in terms of being either legal or illegal, they will not be considered by the legal system. However, the following questions as to the responsibility, liability, and compensation for the damages caused by the accident, can be answered by the application of a legal norm, namely section 658 of Book 7 of the Dutch Civil Code, and can thus be regarded as relevant to the legal system. When information that is directed towards, and subsequently also selected by the legal system as internally relevant, it becomes a communication between society and the legal system. The system will then label such communication as legal when it expresses a normative expectation that conforms to the legal norms, while a communication that expresses a normative expectation that violates the legal norms is regarded as illegal. Since decisions as regards the legality of behaviour need to contribute to the legal system s stability and consistency, they should not break with the existing rules and structures of the system. They need to fit within the existing body of law. The responsibility of ensuring that decisions fit within the legal system is placed with the courts. The courts take this responsibility by deciding cases in a structural manner on the basis of programs, which can be derived from legislation, case law, common law etcetera. Programs ensure that the court s decisions can be embedded in the legal system, and will contribute to the unity of the system. The courts will thereby have to determine which characteristics are distinctive for the structure, and use this knowledge to determine whether certain behaviour is either legal or illegal. So, in case of the previous mentioned occupational accident, the courts will have to decide whether the 12

14 circumstances of the case beforehand meet the conditions as set out in section 658 of Book 7 of the Dutch Civil Code, thereby making the employer legally responsible for the damages caused. In order to ensure that their decision fits in the existing body of law, they will need to interpret the case beforehand in light of the conditions as set out by the legal norm as well as the decisions that were made in previous cases. By studying both sources of law, the courts will be able to reveal the decisive circumstances that determine whether legal responsibility can be established in concrete cases, and thereby ensure that their decision fits in the existing body of law. Although the system is operatively closed from society through its programs unique language, the system still remains open to influences from society. The system can coordinate and co-evolve with society, without losing its stability and consistency, by changing the structures that guide the decision-making process. Therefore, the legal system can remain stable and offer certainty through the process of coding, while at the same time adaptive and responsive to society through its programs that determine how the code is to be applied. For example, section 658 of book 7 of the Dutch Civil Code determines under what conditions an employer is legally liable for damages caused by an occupational accident. However, these conditions can be altered due to societal developments that call for a different approach to the issue of employer liability. Nevertheless, such changes to the law will not affect the stability or consistency of the legal system as they will result in a structurally different manner of deciding futures cases. So, on an abstract level you can say that law is continuously engaged in a process of selecting external information from society, transforming this information into internal relevant information, and embedding these new information from society into the system. Through this process, the legal system is capable of reducing the complexity of society and thereby continuously engaged in the creation of a difference between itself and its society. The legal system creates its own version of reality and thereby creates a difference between itself and its society. This differentiation between society and the legal system is not only necessary for the legal system to reduce society s complexity, but also to maintain itself and its boundaries when society is changing. If the legal system would not differentiate between itself and society, it would not be capable of remaining a stable set of legal norms and ensuring legal certainty N. Luhmann, Das Recht der Gesellschaft, Frankfurt: Suhrkamp 1993, pp ; and N. Luhmann, Law as a social system (trans. K.A. Ziegert), Frankfurt: Suhrkamp 2004, pp

15 2.4 Relationship between societal subsystems: structural coupling For the legal system to perform its unique function with regard to society, while operating in a self-(re)productive manner, a combination of operative closure and cognitive openness has been introduced. The closure is represented in the system s operation of coding, while the openness is provided for by the system s programs. At the level of its programs, the legal system remains open to and capable of communication with other societal subsystems, such as politics. According to Luhmann s theory, structural couplings are recurrent events through which the differentiated societal subsystems communicate at the level of their programs. Systems determine through their programs how their code must be assigned to behaviour and events that take place in society. Systems then become dependent on one another when the same events are recognised by the programs of both systems as being internally relevant; i.e., as the basis for further self-(re)production Mass media as the mechanism behind structural coupling The mass media system is a functionally differentiated subsystem of society, just as law. The mass media system must therefore also be regarded as having its own unique function with regard to society, and operating autonomously through its own binary code. Mass media s function is to create the conditions for further communication within and between all other subsystems of society. These conditions are made up of common assumptions that can be regarded as given and known, no longer in need of justification within each communication. These conditions provide everyone within society with a common background of information about reality. Mass media performs this function through the application of the binary code information / non-information to behaviour and events that take place within other societal systems. The system assigns these codes on the basis of news criteria such as actuality, relevance, identification, sensation etcetera, which determine whether certain behaviour or events are to be regarded as newsworthy information, or are to be ignored as irrelevant noninformation. These criteria form the system s programs and ensure that the system remains related to society, while also representing the system s observation of itself as opposed to its environment: they guide the operation of coding and thereby coordinate the manner in which the system draws the difference between itself and its environment. These criteria serve the structural couplings of the mass media system with other subsystems of society. Since the mass media system is constantly engaged in producing new information, it must also be structurally coupled to a high degree with other subsystems of society: only through its structural couplings with other systems can the mass media system develop and co-evolve alongside these systems 14

16 in such manner as to offer an up-to-date description of society as a whole. However, it must not be forgotten that thanks to its operative closure, what appears in the mass media as the current state of society, is simply mass media s own construction of society. Still, this image of society as portrayed through mass media coverage is used by other subsystems to reproduce themselves. It is for this reason that when discussing the relationship between society and law, mass media has to be taken as the point of departure: mass media provides an image of society that is used by other subsystem as the basis for communication Relationship between society and law Structural coupling between law and society takes place through several events, i.e., private contract drafting, legislative law-making and judicial decision-making. Although these recurrent events take place in law s environment, they are structurally recognized by the legal system as internally relevant. This means that these events form the basis for communication between law and society. They allow the legal system to alter the normative expectations it aims to protect, and adjust its legal norms to reigning normative expectations that exist within society. 16 Since this research is concerned with the manner in which law and society interact in the field of criminal sentencing, which domain is mainly submitted to rules that are laid down by both the legislator and judiciary, only judicial decision-making and legislative law-making will be discussed in the following paragraph Judicial decision-making The courts play an important role in stabilizing normative expectations in the face of disappointment, and thereby maintaining the existence of the legal system as a differentiated subsystem of society. Each time the courts are confronted with a case of conflicting normative expectations, they are given the task of determining the boundaries of the legal system. They decide on which normative expectations are recognized by the legal system as being legal as opposed to illegal, and are thereby granted the protection of the legal system. Since the courts are responsible for offering certainty of normative expectations, it is of the utmost importance that they are both obliged and adequately equipped to make a decision in each case that is 15 N. Luhmann, The reality of the mass media (trans K. Cross), Oxford: Polity Press 2000, p. 66; and A. Pernille, The interaction between the political system and the media system: A structural coupling or a new system? paper presented during the Conference "Luhmann in Action: Empirical Studies of Structural Couplings, Dubrovnik IUC N. Luhmann, Das Recht der Gesellschaft, Frankfurt: Suhrkamp 1993, pp ; and N. Luhmann, Law as a social system (trans. K.A. Ziegert), Frankfurt: Suhrkamp 2004, pp

17 presented to them. This is why the burden of compulsory decision-making is accompanied by a limitation on the type of disputes and arguments that can be brought to the attention of the courts, and why the courts are not obliged to reach a decision that is carried by consensus. However, this also means that society s influence on law through the judiciary is minimal: only when conflicts arise which are then presented to, and recognized by the legal system at the level of the courts as being internally relevant, can the courts decide on the assignment of the code taking into account merely legal arguments, and thereby adjust the legal system. The fact that the legal system has to perform this specific function, also creates a difference between the manner in which the legal system and the mass media system operate. The mass media system does not need to produce binding decisions in order to offer stability to society. It is therefore perfectly equipped to take into account all possible interests as it does not have to produce binding decisions or stabile information. The mass media must alter its version of reality every single moment, based on new information it derives from its environment through its many structural couplings with other subsystems. Because of its function, the mass media system is therefore much closer related to society. This difference between the legal and mass media system is then further enlarged by the fact that the legal and mass media system select, transform and embed information from society on the basis of their own distinctive code and programmes, and are thus engaged in the construction of a different memory of operations, and a different version of what reality entails. Although the mass media system, through its many structural couplings with all other subsystems of society is able to influence the manner in which other systems perceive reality, this is different with regard to the legal system. Since the legal system s operations are characterized to a much higher degree by closure, the legal system is much less susceptible to influences from the mass media system: many attempts by the mass media system to influence the legal system fail. However, as mentioned above, this does not mean that the legal system is completely closed off from the mass media. It merely means that the legal system itself determines in what manner and to what extent information that is provided by the mass media will influence the system. This becomes apparent in high profile criminal cases, where the judge takes into account the fact that the perpetrator has been stigmatized by the media, and therefore applies a lower sentence. Both systems structurally couple in the event of judicial decision-making, meaning that the event is acknowledged by both systems as being internally relevant information, the event is transformed and embedded by both systems in a different manner, through the application of a different code. Thereby, the same event is given a different meaning within each system. Thanks to this difference in the operation of coding both systems can benefit from each other. They can rely on each other for 16

18 the production of stable expectations: the mass media can rely on the legal system for the stabile production of new facts and information, which it uses to create its own version of reality. While the legal system can rely on the media system for the creation of news, through which the legal system can inform society on the normative expectations that will be protected by the legal system, and which will not. However, this difference also has consequences for the manner in which both systems perceive of each other. Within the legal system, a judgement is regarded as a decision by the court that certain behaviour is either legal or illegal, and as such is embedded in the legal system as a basis for future decisions, thereby stabilizing normative expectations. However, within the mass media system, a judicial decision is regarded as news representing the current state of affairs in society. This difference in the meaning of a judicial decision, that is created by the systems different operation of coding, can result in critique from the mass media system towards the legal system: where the judgment is regarded as a fact within the media system, the same judgment in the legal system is regarded as a contingent decision that is susceptible for alteration by the same or a higher court in order to ensure that the decision fits in the system and thereby contributes to law s function of stabilizing normative expectations. This means that in the mass media system, a successful appeal is perceived as a failure of the legal system in establishing facts with regard to the legality of certain behaviour. This difference in the manner in which a criminal conviction is perceived within both systems has led to the earlier mentioned introduction of the function press officer, the publication of sentencing guidelines and sentencing requisition guidelines, the publication of journals on the sentencing situation, and the establishment of a judicial sentencing database. So, although the mass media system and the legal system regard each other as a source of stabile expectations that can be used for further self-(re)production, the fact that they each aim to fulfil a different function and communicate on the basis of a different code also means that they will each give a different meaning to the same event Legislative law-making Society s influence on law is more noticeable at the periphery of the legal system. The periphery is formed by all other areas of law which are not subject to compulsory decision-making, such as legislation. For this reason, it is through the event of legislation that the legal system is more equipped to communicate with other subsystems of society; only in case of legislation can interests of all kind be taken into account and demands for consensus be given a prominent position. Moreover, the relationship between mass media and politics is also much more a relationship of reciprocity, than the relationship between mass media and law. Within the 17

19 political system, mass media is regarded as a manner to reach voters. For that reason, political actors will put in much effort to communicate with the mass media system (be mentioned in news reports). The legal system on the other hand, does not accord as much importance to proper communication with the public. Law s function of offering stability and certainty to normative expectations requires a much higher degree of independence and closure with regard to society. 17 Society is therefore better capable of indirectly influencing the sentencing practice of the judiciary through the event of legislation, than directly through the event of judicial decision-making. Legislation allows both law and politics to structurally couple: through the event of passing legislation both systems are able to interact. However, as politics and law are different subsystems of society, the meaning of legislation is different within each system: for the political system, passing a law is regarded as the end of a lengthy process that is aimed at achieving consensus; for the legal system, passing a law is regarded as the introduction of a change as to which normative expectations are to be stabilized and protected, and which are not. This means that the legal system can be influenced by society through communication with the political system. The political system, being a differentiated autonomous subsystem of society, has its own function with regard to society which it fulfils with the help of its own codes and programs. Whereas the function of the legal system is to stabilize normative expectations in the face of disappointment which it fulfils by applying the codes legal and illegal on the basis of programs such as equality, freedom, security etcetera, the political system aims to achieve collectively binding decisions by applying the codes majority / minority on the basis of programs, the source of which can take the shape of elections, forums, succession etcetera. Accordingly, the symbol that is used by the legal and political system to observe and refer to itself differs. For the political system, the symbol of recognition is state, while in the case of the legal system this symbol is validity. The separate operational existence of politics and law supports their respective existences. Politics benefits from the fact that the coding of legal and illegal takes place outside its own system as this allows politics to take into account a diverse set of interests in its pursuit to arrive at collectively binding decisions that are based on consensus. Moreover, due to its relatively close position with regard to society, decision-making in politics is subordinated to time pressure which can affect the quality of political decisions. The existence of law as a separated system ensures that potential defects or omissions in political decisions are then intercepted by the legal system where the issue can be given due attention. Law on the other hand, benefits from the fact that the coding of majority and minority takes 17 N. Luhmann, Das Recht der Gesellschaft, Frankfurt: Suhrkamp 1993, pp ; and N. Luhmann, Law as a social system (trans. K.A. Ziegert), Frankfurt: Suhrkamp 2004, pp

20 place outside its own system as this secures a higher degree of compliance with legal norms through the possibility of enforcement. However, in order to profit from the benefit of each other s existence, both the legal and political system need to respect one another: law as the enforcement of politics is only available to the political system if it lets law be law, and does not violate legal norms by applying force illegally; while politics as the enforcement of law is only available if the legal system lets politics be politics, and does not decide cases contrary to the will of the government N. Luhmann, The reality of the mass media (trans K. Cross), Oxford: Polity Press 2000, p. 66; and A. Pernille, The interaction between the political system and the media system: A structural coupling or a new system? paper presented during the Conference "Luhmann in Action: Empirical Studies of Structural Couplings, Dubrovnik IUC

21 CHAPTER 3. FROM THEO RY TO PRACTICE: METHODOLOGY 3.1 A case study Regarding the explorative nature of the research questions as well as the fact that the issue of the gap is a real-life phenomenon, a case study was chosen as the most appropriate method for this research project. 19 The idea behind a case study is to generalize its findings, and thereby determine the descriptive adequacy and explanatory power of Luhmann's systems theory in general. The focus of this case study is the idea of introducing mandatory minimum sentences in the Dutch criminal law system. The idea of restricting the judicial discretion and obliging judges to impose a certain minimum sentence has been discussed many times in the public realm. In 2002 the idea was first translated into a legislative initiative and it has remained a recurrent topic on the political agenda since then. Due to its long parliamentary history, and the fact that the topic has also attracted the attention of other systems such as law, science and mass media, this single case study will allow for an in-depth investigation and rich description of the manner in which social systems interact in the field of crime and sentencing. By describing and analyzing the manner in which the legal system communicates with politics on this topic, it will become clear to what extent Luhmann's systems theory offers an accurate and comprehensive description of relationship between law and society, and can thus also be used to describe and explain the phenomenon of the gap. To determine how the political and legal system communicate, certain choices had to be made as to the data to be gathered, and subsequently the methods to be used to analyse this data. 3.2 Data and sources The choices that were made in this context reflect a balance between on the one hand undertaking a qualitatively good research in order to produce valid findings, and on the other hand limiting the research scope and aim as to ensure that the research fits within the context of a master thesis. Therefore, several limitations had to be placed on the amount and type of sources and data that could be used. The most important limitation to this research project, follows from the choice to undertake a literature search based on data that could be derived from already existing, publically accessible data sets. Although interviews with the actors that operate in the different 19 Reasons for undertaking a case study are further outlined by R.K. Yin, Case Study Research: Design and Methods (applied social research methods), Los Angeles: Sage

22 systems of law and politics would allow for a more extensive and accurate description of how the different systems communicate on the topic, such research would be to extensive given the limited time that is available for the project. This also means that although communication between actors within the political and legal system takes place through both formal and informal means of communication, the scope of the research has been limited to formal means of communication. As a result, this research as to the manner in which the legal and political system communicate on the idea of mandatory minimum sentences is based on the following data over the period : publications from the Council for the Judiciary, which can be obtained through the website Parliamentary documents, which are accessible through and Newspaper articles from the NRC Handelsblad, Trouw, and Volkskrant, which are accessible through The reason to include newspapers as a source of information on how the political and media system communicate, is based of their informative, rather than entertainment function. This means that their articles are expected to inform us on the manner in which politics and law communicate. Finally, it must be noted that communications take place through actors which are usually not exclusively bound to one system. Rather, they operate within multiple systems. Therefore, it is of great importance to differentiate their communications in accordance with the different capacities in which they communicate on the topic. Moreover, the boundaries of the topic are grey since communication on the concept of mandatory minimum sentences does not always take place in an explicit manner, but is rather placed against the background of a more general social phenomenon. This means that when analysing the data, the background against which the topic is discussed is of great importance in determining the meaning that is given to the topic. 3.2 Methods The mentioned data will be analysed on the basis of Luhmann's systems theory as outlined in chapter two. To briefly recapitalize, Luhmann describes law, politics and mass media as functionally differentiated subsystems of society that exist because they fulfil a unique function with regard to society in a cognitively open, but operatively closed manner: by filtering and processing information and events from their environment on the basis of their own unique code, law, politics and mass media ensure their existence as separated subsystem of society. For 21