II. Background discussion

Whilst the study of legal doctrine has dominated the teaching of substantive law in law schools (despite the advent of considerations of ‘policy’, to a greater or lesser extent, in Anglo-American legal education, as opposed to the continued focus on doctrine on the Continent), the sociology of law has often identified its concerns in contrast to this dominant practice. The study of doctrine within law faculties invites students to consider the meaning, implications, coherence and consistency of statutes, codes and legal decisions (an activity that duplicates the manner in which doctrine is applied and produced by courts), whilst most of those involved in the sociology of law have deliberately adopted a perspective that is external to this. Doctrine for them is not something to be organised by reference to sociological knowledge, but is rather an object to be challenged, both on the basis that law is more than doctrine and on the basis that the doctrinal understanding of legal decisions is something that, in many ways, hides the truth of how legal decisions are reached (Tamanaha, Reference Tamanaha1997, Chapter 6, esp. p. 191).

Roger Cotterrell (Reference Cotterrell1998) and David Nelken (Reference Nelken1998, another leading socio-legal theorist) have had a long-standing debate concerning the difficulties of interpreting legal doctrine sociologically. This is not the place to reproduce every part of their disagreement, but two aspects of their engagement are particularly relevant. As mentioned above, Cotterrell believes that the information about law generated though sociological approaches can feed into legal practice with beneficial results. He argues that greater knowledge of the rest of society and sociological knowledge of the nature of law, if incorporated into legal practice (via the intermediary of the ‘Jurist’), would increase the ability of law to sustain the solidarity of the various forms of community that exist within society. Nelken is unconvinced of this. This is not due to a belief that the knowledge generated by sociology would be unable to be incorporated into law, but from a concern that such insights would transform law in ways that made it less able to operate beneficially within society. If one moves from asking sociology to adopt legal concepts as objects of study to asking law to adopt sociological concepts within legal practice (Nelken, Reference Nelken1998, p. 408), does one improve legal practice in some way, or risk undermining legal processes and the values they embody, making law too much like policy science?Footnote ¹³ Nelken's concern is that sociology will be ‘blind’ to the manner in which law constructs itself and, by foisting sociological concepts and knowledge onto law, it will impede rather than improve legal processes. A second disagreement relates to the ability of Luhmann's systems theory to provide the basis for an integration of legal and sociological scholarship, or sociological knowledge and legal practice. Nelken (Reference Nelken and Teubner2009) has acknowledged that systems theory represents a new paradigm within the sociology of law – one that offers concepts capable of being used to discuss relationships between law and the rest of society without needing to divide behaviour into what is, and what is not, legal. It thus overcomes the objection raised in relation to much law and society scholarship that law is not separate from the rest of society but actually constitutes organisations and practices throughout society.Footnote ¹⁴ Nelken (Reference Nelken, Febbrajo and Nelken1993) has also utilised systems theory in order to firm up what is at stake in the amalgamation of sociological knowledge and understanding and legal practice, writing about the differences between ‘law's truths’ and the truths that appear to those who observe on law via the communications of other social systems. Cotterrell, however, has been less willing to engage with systems theory within his own writings and has been more critical.Footnote ¹⁵ Arguing in 2006 that ‘an adequate understanding of legal ideas … is impossible without adopting a sociological perspective, a perspective informed by social theory’, he expressly rejected the use of Luhmann's systems theory for these purposes. The grounds for this rejection are the ‘impenetrable abstraction’ of the theory and that:

Reservations on the use of systems theory to achieve the project of ‘taking jurisprudence seriously’ are not limited to those who have rejected the use of the theory for undertaking socio-legal research. Michael King (Reference King, King and Thornhill2006), who, alongside Gunther Teubner, is probably the person most responsible for introducing English-speaking legal academics to Luhmann's theoretical writings, has expressed grave reservations against the use of the theory to achieve the kind of changes sought by Cotterrell. King argues that the use of systems theory to provide a critical framework for the analysis of legal decisions (exactly what Baghai offers in her book) is an approach that ‘detracts from the originality of the theory and for the possibilities that it opens up for seeing things differently’ (p. 41). But King's concerns require some teasing out. King is not here objecting to the increased use of systems theory within the legal academy, since he believes that those who recognise the original interpretations of social events offered by systems theory ‘have some responsibility for ensuring that they are understood and disseminated rather than abandoned or forgotten’ (p. 50).Footnote ¹⁷ There is nothing within the theory that prevents it from being used to observe on legal decisions. Nor is there anything within jurisprudence as a practice that prevents it from being able to engage with systems theory as an alternative to more philosophically inclined approaches that observe on or relate their observations to legal practice. Most of King's objections are directed to the kind of project Cotterrell identifies with his figure of the ‘Jurist’ – that academic writings that adopted systems theory would eventually find their way into legal practice, with beneficial results. King is sceptical, on common-sense and systems-theory grounds, about the ability of those writing legal, sociological or socio-legal theory to change the way that present or future judges and lawyers communicate. Law will execute its operations, including appeal court decisions, using whatever communications about society enable those operations to be executed. And such approaches, built on pragmatism, offer considerable resistance to the incorporation of concepts or observations generated by a general social theory such as Luhmann's. However, King does not go so far as to claim that the legal system could never incorporate any systems-theory observations or concepts into its operations – that these would paralyse legal decision-making.Footnote ¹⁸ But he may well be correct to conclude that, where such incorporation occurs, it will represent a diminishing of the theory. This occurs whenever any system reproduces the semantics of another system within itself, for that is a routine feature of what it means to be a system – the operations of a system are always less complicated than the environment in which it operates. Thus, King has good reasons to assume that those who advocate the incorporation of systems-theory concepts or empirical observations into legal decision-making can have only the most speculative possibility of seeing this occur. But we would argue that the smallness of this possibility, or even its absence, is no reason to desist from the use of systems theory to observe on the legal system, including legal doctrine. Legal theorising, whether philosophically or sociologically oriented, does not need to have policy science outcomes in order to be justified within the academy; it has only to increase our understanding of the world. That said, King's other objections go to what he sees as the misapplication of the theory within legal theorising, in order to claim specific advantages for its application within the legal system. These ‘misapplications’ include suggestions that systems-theory-educated persons might alter the possibilities of legal decisions that he sees as an attempt to make the human actor central to the possibilities of communication, rather than the system in which they play a role, and a willingness to treat the legal system as being in control of the rest of society.

Luhmann, in his last book analysing law (Reference Luhmann and Ziegert2004), discussed the relationship between legal and social theory.Footnote ¹⁹ He expressly offered systems theory as a means to move beyond what he saw as the opposition between sociological and juristic approaches: ‘Sociologists observe the law from outside, and lawyers observe the law from inside’ (p. 59).Footnote ²⁰ A sociological theory ‘would only be an adequate theory if it described the system as a system that describes itself’ (p. 59). Whilst acknowledging that a sociological theory of law is not bound to respect the ‘norms, conventions, and premises of the understanding of its object’, it should also ‘not lose sight of its object’:

Summing up the exchange between Cotterrell and Nelken, the reservations expressed by King and the ambitions articulated by Luhmann provide us with a number of questions to which we can subject the enterprise undertaken by Baghai in this book. Can the theory be presented in a manner that allows it to be engaged within legal theorising, or legal practice? Is there a problem of complexity, leading to a sense of impenetrability, or, as Nelken has suggested, are there differences between law and sociology that sociology, even in the form of systems theory, cannot, or should not, bridge? Will the theory enable us to interpret contemporary legal change in the light of social theory, to explore the details of law's discursive character and explain how law responds to regulatory problems? Or will it inexorably be seriously misapplied and thereby its significance minimised with any attempt to adapt it to understanding legal doctrine?

III. Baghai's thesis

Whilst Baghai demonstrates a comprehensive knowledge of systems theory, the sociology of law and sociology in general (evidenced by the first chapter introducing the theory, her bibliography and the references to system theory works throughout the book), the linchpin for her analysis is Luhmann's concept of functional differentiation.Footnote ²¹ Given its centrality to the book's analysis, it is necessary to provide a brief introduction to this conception here and its implications for legal doctrine.

Modernity, for Luhmann, is a world in which distinctions between systems (the legal system, the economy, the mass media, science, art, religion, etc.) have replaced distinctions between estates or classes, as the basal distinction within society. This is not to say that classes and estates (which produced stratified societies) or even tribes (which formed the basis of segmented societies) play no role in structuring modern society. But their role is now secondary. This is not a claim that particular individuals may not continue to experience a domination organised around family, tribe, caste or class. But it does point to the increased difficulties faced by such forms of domination. Within a feudal society, most of the population acquired access to what today we term religion, politics, science, wealth, etc., as a consequence of the status afforded to them at birth. This is not an exact correlation – individuals could rise or fall from their status at birth – but it was sufficiently correlated for such societies to generate a dominant description of themselves in terms of such arrangements being or reflecting a ‘natural order’. This self-description is both generated by the hierarchical order established through birth and operated to sustain that order. For example, not only was rule by aristocracy a fact within such a society; it could also be presented, plausibly (i.e. with a comparatively low risk of rejection), as something that was inherently right.Footnote ²² The evolution of modern society has seen an erosion in claims that anything social is part of a natural order. This has been replaced by a very different idea of hierarchy. There is no society-wide sense of hierarchy. Instead, hierarchy has been displaced into the separate realms (Baghai, following Luhmann, would say systems) of the legal, economic, religious, political, etc. The criteria of what it means to be a good or successful actor (or even an actor at all in terms of being a litigant, voter, consumer or whatever!) are established separately within law, politics, the economy, religion, science, the mass media, etc. This separation (differentiation) of systems of communication has altered the plausibility of what can be claimed. So, for example, those who are aristocrats cannot now make plausible claims that the identity of their parents equips them to be priests, rulers, military leaders, scientists, lawyers, etc.

Functional differentiation leads to what Baghai describes as a problem of ‘system-reference’. This relates to the starting point used by different systems to identify what is relevant to their own operations. What is legally relevant is different from what is politically relevant or scientifically relevant or economically relevant, etc. Most important of all, for the purposes of the developments Baghai describes, is that the criteria for inclusion in systems – the allocation of roles – are determined separately by each system for its own operations. What makes someone able to fulfil the role of doctor, lawyer, administrator, journalist, scientist is established by the health, legal, political, mass media, science systems, respectively. With perhaps even more significance, each system identifies what is relevant to those practising these roles and does so with what, in comparison to what occurs within a stratified or tribal society, are universalistic criteria. To the health system, all human bodies are equally objects for the cure or prevention of disease. To a differentiated legal system, all persons are capable of establishing legal claims, inheriting property, making contracts, committing crimes, etc. The economy establishes what constitutes wealth, and views the principal capacity of persons to enter into transactions solely in terms of their wealth, rather than their birth status.Footnote ²³ These developments diminish the plausibility of claims of right organised by reference to birth status, such as those linked to aristocratic title, family or tribal membership, or race and, whilst such claims decrease in plausibility (becoming open to increasing contestation and rejection), other kinds of claim gain plausibility and acceptance. The inability of human beings to depend on a social position established by birth and the need for them to acquire the characteristics established by these systems as qualifications for roles within them create a situation in which every human can have a biography and describe their life (or have it described) in terms of choices. These developments give additional meaning to values such as freedom, individualism and equality. Equality is given substance by each system in its own way: all human beings qua human beings are equally capable of being patients, pupils and consumers. They all have the potential to be managers and administrators. And, with the recruitment of humans from low social positions (as seen from within a society organised via stratification) to high positions within each social system, on what basis is the aristocrat's right to rule to be defended? Under these conditions, where society has become functionally differentiated, the right of all adult human beings, regardless of their birth status to be citizens, as Tom Paine so ably argued, is self-evident. Indeed, it is the converse of the self-evident weakness of the aristocracy's claim to a monopoly of political power.

Whilst the claims, actions and actors generated by every social system within modern society operate to weaken the plausibility of claims based on the social order that has been displaced, they also lead to conflicts between social systems. For example, whilst a functionally differentiated society is a society in which it becomes plausible to claim that all persons are equally capable of rule (a claim that in turn lends support to democracy as a form of rule in which all participate), there is nothing in the concept of democracy to limit what that rule might consist of. In this situation, human rights are the political system's recognition of the universal claims generated by other social systems. They are the right to be included as an actor within these other social systems: the right to be a receiver or generator of information within the mass media (free speech); to have access to religion (freedom of religion); access to education, etc. The political system's recognition of these inclusion claims is given a concrete and technical form through the legal system within constitutions, conventions, treaties, statutes and through the ability of the legal system to identify some laws and political actions as unconstitutional breaches of fundamental rights. Human rights operate to restrain human beings from being excluded from systems, other than on the basis of the criteria of relevance established within that system. And, when analysed in terms of the historical conditions accompanying functional differentiation:

Whilst the relationship between functional differentiation and human rights is central to Baghai's book, and presented by her with exceptional clarity, this is not her original contribution. The sociological analysis of human rights as inclusion rights arising under conditions of functional differentiation is one of Luhmann's most significant contributions to legal theory, first set out in 1957 in his book Grundrechte als Institution [Fundamental Rights as an Institution]. This work has been ably represented to English-speakers by Gert Verschraegen (Reference Verschraegen2002, Reference Verschraegen, Madsen and Verschraegen2013). Further, Gunther Teubner (Reference Teubner and Rawlings1997, p. 161) has invited us to re-conceive disputes between institutions and individuals as collisions between systems and discourses and human rights as the semantics through which systems communicate a need to restrain their imperialism and acknowledge the claims of other systems, as well as a semantics that law can utilise to adjudicate upon these rival claims.Footnote ²⁴

The originality of this book lies in Baghai's application of this analysis to particular doctrinal issues within US and European human rights law. She offers it as an alternative to the kinds of investigation which, at least in the US, have dominated political science and sociological analysis of the US Supreme Court. Typically, such work has taken a predictive approach, seeking to identify statistically significant factors that can account for decisions. The focus has been on judicial behaviour, namely the ability to identify likely votes for or against particular issues by reference to what is known about the values and attitudes of each of the Justices. More recent analyses may have given greater weight to the argumentative frameworks within which Justices make their decisions, but only as an additional factor in predicting decision outcomes (pp. 28, 35). Baghai moves the focus from votes to doctrine. It is not what the Justices have done or are likely to do, in terms of their advancement or repression of issues largely identified in political terms (pro-abortion, anti-gun control, pro-gay rights, etc.), that interests her. It is rather the ‘how’ of the Supreme Court – how it has developed its doctrine on human rights and what systems theory can tell us about this. To quote her: ‘What tends to be ignored is the significance of conceptual distinctions, tests and doctrines in regulating the internal complexity of the legal system and, by that token, its relation to its environment’ (p. 28).

Her analysis is, as she admits, necessarily a simplification. US equal protection doctrine (built on the Equal Protection Clause of the 14th Amendment to the US Constitution) addresses the constitutionality of exclusion via a highly complex set of subquestions, which are themselves the result of doctrinal development. And, in addressing those questions, the Court reviews a varied network of interconnecting legal texts (judicial opinions and decisions, statutes, constitutional provisions, regulations, arguments) on each occasion. Nevertheless, every time the Court struggles with this complexity, it decides not just the case at hand, but also the direction in which doctrine moves (though the movement achieved is not established by the decision itself, but only by its further interpretation as doctrine by lower courts, public officials, lawyers and later cases brought to the Supreme Court). In deciding the direction of doctrine, an appeal court is not so much steering events in the rest of society (economy, politics, etc.), but first and foremost it is steering the law itself – selecting which way the law will develop within the complexity of that network of interconnected texts.Footnote ²⁵ Her purpose in selecting and analysing Supreme Court decisions is not ‘to produce a comprehensive account of the Court rulings, but to make them intelligible from a systems-theoretic perspective, without violating their internal meanings for the legal system’ (p. 41, emphasis added).

The idea of system-reference is key to Baghai's analysis of legal doctrine. Throughout the four chapters dealing with substantive law, she seeks to present legal cases in terms of disputes over the appropriate system-reference. The premise of this argument is twofold. First, it represents a claim that persons willing to engage with systems theory can use the idea of system-reference to observe on the development of legal doctrine. Secondly, it is a claim that, at least on some occasions, the Justices of the Supreme Court and the European Court of Human Rights (ECtHR) have given opinions that recognise that they are not merely or primarily deciding between different interest groups or individuals, but also, and perhaps more fundamentally, deciding which system is to be preferred as the primary reference for understanding the significance of the event in question.

IV. Functional differentiation vs. race

Baghai's discussion of race cases before the US Supreme Court can be used to illustrate this approach, and explore its strengths and weaknesses. Let us start with an example of the kind of analysis she is hoping to supplement – analysis of the factors that sway Supreme Court Justices that make little or no reference to the development of doctrine: Jack Balkin's analysis of Brown v. Board of Education. Balkin (Reference Balkin2004) argues that US Justices are members of a national elite, which favours majoritarian politics over local politics and local elites. The story he tells is one of national majorities and elites adopting liberal views that conflict with local majorities and elites, and the Court favouring the national viewpoint. This also involves a willingness to support Congress over the states. The readiness of the Court to take on local elites and majorities is tempered by the recognition that the courts cannot deliver welfare policies within the separate states, due to the lack of adequate levers to control behaviour. Balkin produces various kinds of evidence to support the argument; for example, the fact that educational segregation was practised only by a minority of states at the time Brown was decided supports his claim that the national majority was not in favour of segregated schooling. Balkin's piece is a classic presentation of law as a continuation of politics: the US Supreme Court decisions should be understood as the result of the institutionalised political views of its members – a continuation of the views of the section of society to which they belong and who chose them.Footnote ²⁶

Compare this analysis with a systems-theory approach using ideas of functional differentiation and system-reference. We can start at a more general level than Baghai herself: the majority viewpoint relied on by Balkin has a sociological explanation. As society's separate subsystems develop, the ability to justify discriminatory treatment by reference to race diminishes; it loses plausibility. So, there is a sociological explanation for the decreasing majoritarian tolerance of the direct discrimination identified by Balkin. But, if we remain at this level of generality, we are offering only the most broad-spectrum analysis of, and explanation for, the development of legal doctrine. Such analysis supplements the work of Ronald Dworkin, by providing a sociological explanation for the erosion of the ability of judges to justify their previous decisions. Dworkin consistently argued, through the many stages of his theorisation of law, that the law is an interpretive process whereby interpretations have to be justified by reference to their moral appeal as well as their fit with existing precedents. Thus, as the moral plausibility of distributing resources by reference to racial categories has diminished, interpretations that rely on the acceptance of these racial categories lose plausibility too.Footnote ²⁷ But we have not journeyed far from an external description of the legal system – doctrine alters as the communications available to the law for selection as justifications alter. Or, to put this in terms of our presentation of Baghai's ambitions, it has not told us very much about the ‘how’ of doctrinal development.

Baghai analyses racial exclusion in the US by reference to the doctrines that allowed it to continue from the end of the Civil War to the second half of the twentieth century, reinterpreting that doctrinal development in terms of the idea of system-reference. In principle, ‘state action doctrine’ marks the limits of state responsibility. If something is not a ‘state action’, it falls outside the equal protection requirements of the 14th Amendment of the US constitution. A restricted interpretation of state action, and the correspondingly expanded view of what constitutes private action, resulted in African-Americans being excluded from participation in Democratic primary elections in southern states. The racial segregation of public transport and education facilities involved other doctrines. By restricting its review of conditions placed upon access to public facilities to what was ‘irrational’ (the doctrine of rational review) and limiting the federal government's ability to interfere through a restricted reading of the US Constitution's Commerce Clause, the Court avoided offering a constitutional challenge to the discriminatory laws introduced by state governments after the Civil War.

In order for these legal racial exclusions to be removed, the relevant doctrines had to be reinterpreted. This takes us to the ‘how’ of legal evolution. Whatever the internal motivations of Supreme Court Justices, these changes could not have occurred without the Court successfully developing doctrine: expanding the doctrine of state action to include the ‘private association’ of the Democratic party with respect to the conduct of Presidential Primaries; the reinterpretation of interstate commerce to allow the federal government to require non-segregated transport and public accommodation in the southern states; and the extension of the Equal Protection Clause to the provision of public education. Baghai rightly points out that these changes were not the work of individual Justices. To use a metaphor, this is to mistake the persons moving the lever for the lever to be pulled. It is the Supreme Court, acting in its role as an institution within the legal system (itself a matter of doctrine and doctrinal development) that reconfigures doctrine in these cases. A sociology that seeks to observe legal change needs to take account of the manner in which this occurs within the legal system, and not only seek to reduce all action to the intentional behaviour of individual human beings, even when those individuals play key roles within the institutions that affect legal change.

In presenting this doctrinal history, Baghai is expanding what sociologists need to observe when describing legal change. They need to include, within their descriptions, the operations that affect the changes they wish to describe. As part of this, they need to be aware of the contingencies of the selections that are available, in particular the doctrines that need to be altered for changes to occur, the linked changes that occur as part of these changes and the conditions that limit access to the institutions (such as Supreme Courts) whose decisions trigger those changes. And, in undertaking this task, sociology needs to understand that doctrine, whilst it may not focus on the role played by the consciousnesses and motivations of judicial actors, is not thereby rendered ‘ideological’. Doctrine is the ‘stuff’ that needs to be changed for the law to change.

This is clearly a call for sociology to take a different view of the context and outcome of judicial decisions: one that would give far more attention and meaning to the autonomy of the legal system, and give concrete meaning to concepts like ‘path dependency’. But is there a danger here of the kind identified by Nelken, but for sociology rather than law? Will sociologists, in striving to make sense of the manner in which legal change is achieved, end up simply describing doctrinal histories, essentially repeating the kind of descriptions that lawyers might give of legal change achieved through Supreme Court decisions? Is this a supplement, a joining-together or a surrender? There is still some external analysis, at a very general level, of the historical conditions that have made racial classifications less plausible over two centuries, but is this all that systems theory can add to an otherwise essentially internal description of legal evolution?

It is here that we need to consider further the role played within Baghai's description of doctrinal development by the idea of system-reference. Decisions are analysed in terms of the Court's choice of system: which system is the appropriate context for the issue being decided? This again contrasts with the usual analysis of Supreme Court decisions by political scientists, where the choice will be seen in terms of the interest groups affected or favoured, or the ‘political’ attitudes adopted. So, in the case of racial exclusion, the choice for political scientists will be between pro or anti-African-American interests, or in terms of liberal or conservative or federal or pro-state attitudes. But, while these political science categories may, or may not, reflect the internal selections made within the minds of individual judges, they are not the choices made within doctrine.

Baghai redescribes the doctrinal choices made by the various Courts, applying systems theory, in terms of the system that is preferred. It was not open to the Supreme Court, after the Civil War, to justify its decision by reference to the superiority of one race over another.Footnote ²⁸ Stratification of that kind has been displaced by the development of social systems. These systems generate universal claims. All children can benefit equally from education. All those who have the fare can benefit from travel (the economy). All people are equally competent to participate in politics. These claims are no longer capable of being plausibly resisted, within the law, by interpretations that rely on inherent hierarchies of race. If they are to be resisted, it has to be through alternate system-references. In the case of the discriminatory laws enacted after the Civil War, the Supreme Court was able to select two system-references that justified its finding that these laws were constitutional. The first was the political system, at the local level – a finding that it was appropriate for individual states to decide what laws should be applied, providing only that these did not amount to overt attempts to establish a racial hierarchy. The second system-reference requires us to introduce the reader to a further element of systems theory: the different kinds of systems of communication that operate within society. Social subsystems such as politics, law, etc. operate right across society. But other systems operate at a more local level. An interaction is a social system, as is an organisation. In the case of the exclusion of African-Americans from participation in Democratic Primaries, the organisation was treated as the part of the environment relevant to the decision on state action – it was the internal affair of a private institution. In the case of public transport, the system chosen was the interaction – it was not appropriate to force Blacks and Whites to travel in close proximity with each other and, in the case of accommodation required for travel, such as hotels, to occupy it together. A combination of these system-references allowed the Supreme Court to restrain federal attempts to integrate public transport, by accepting that the right of individual states to insist on segregation took precedence over the federal right to protect interstate commerce. This was a selection of interactions and local politics over federal politics and the economy as the appropriate reference for the Commerce Clause.

Having described these ‘discriminatory’ decisions in terms of system-reference selections, Baghai describes their undoing in similar terms. Here she is reminding us that, in making these ‘discriminatory’ decisions, the law looked out from its procedures at the rest of society, and identified private actions and political decisions as local in nature. As such, the ‘reversal’ of these decisions is not achieved by the admission that the judges who took these decisions were racist, or conservative, etc. The reversal required a reappraisal of earlier judgments on the relationship between constitutional provisions and how law sees its environment. Was it still plausible to describe the role played by the Southern Democratic Party, in excluding African-Americans from Primaries and thereby reducing their ability to elect the president, as a private matter? With the intervening erosion of state rights and the corresponding expansion of the responsibilities of the federal government, plus the increasing anomaly of racially segregated facilities within not only the US, but an increasingly functionally differentiated world society, how plausible was it then, or is it now, to typify official segregation as the justified protection of private intercourse, personal activity and local politics?

In undertaking her analytic exercise, Baghai is taking us beyond the general changes in attitudes that accompany functional differentiation. She is inviting us to observe law's environment, the world that law constructs and brings into comparison with its norms, and to see that environment in terms of the relevant systems that are addressed and preferred. This is not the assimilation of sociology by law and jurisprudence. Sociological concepts, here the identification of systems, are being used to observe the law. These sociological concepts are being used to organise our understanding of what the law ‘sees’ when it looks out to society in order to interpret its norms. In addition, there is no requirement to deny that judicial attitudes make a difference. The fact that legal judgments do not refer to the ‘political’ views of those who construct them does not mean that those attitudes have no effects, and should not be studied by methods, such as statistical studies, which can make them visible. But, by using systems theory, sociology can do more than seek to identify what law ignores. It can consider what, within the legal system of communication, enables law to ignore empirical data that seem obvious to other observers, such as the relevance of the ‘political attitudes’ of those who occupy its most senior positions.

The task of steeringFootnote ²⁹ the law requires the interpretation of legal provisions in a manner likely to lead doctrine to develop in one way rather than another. This involves the interconnection of an enormous variety of legal texts. Attempting to include references to the attitudes of all the participating individuals into these communications disrupts the connections that make doctrine possible. Doctrine is a form of communication that integrates the decisions of courts as institutions, just as statutory construction integrates the decisions of legislatures as institutions. Law cannot turn Supreme Court decisions into doctrine without looking at Supreme Court decisions as interpretations of what the law requires, and approaching them as both authorities and exercises in persuasion, just as law cannot integrate the output of legislative bodies without abandoning attempts to take account of the particular views and attitudes of all the individual members responsible for enacting each separate provision. Thus, if sociology takes on board the conditions that legal communications need to meet if the law is to be steered through the development of doctrine, it will have a different explanation for the absence of any acknowledgement of the role played by the ‘personal’ values of the various actors involved than the claim that judges and lawyers generally routinely misrepresent ‘reality’, and particularly ‘legal reality’.

The use of systems theory to observe on law displaces many alternative presentations of what is involved when judges choose between different legal interpretations. Personal preferences for race, class, gender and even interest groups are displaced as explanations for the basis of selection. Again, there is no reason why decisions cannot be analysed in terms of the benefits or costs to individuals grouped according to these categories. But understanding society in terms of functionally differentiated social systems, and understanding law's autopoiesis within the appeal courts as the connection of events via doctrinal analysis, provides an analytical framework that can go some way to explaining law's evolution. Once again, Baghai provides good examples of this, this time in her second chapter dealing with race, which addresses the Supreme Court's treatment of positive discrimination programmes.Footnote ³⁰

Affirmative action programmes that seek to establish substantive equality between races in terms of access to higher status roles find themselves in conflict with the ideas of equality and universal access generated by functionally differentiated social systems. This is clearest in cases involving quotas, which represent a commitment to select persons for system roles without reference to their relative ability to fulfil system criteria. As with the racist laws discussed earlier, Baghai suggests that these racial selections are constructed by the Supreme Court by reference to system criteria. In the leading case of Bakke,Footnote ³¹ both the challenge to affirmative action and the basis of its continued acceptance are located within the education system. Equal treatment in selecting candidates for tertiary education is, of course, based on educational achievement, which does not recognise race as a rational component of the decision. But the Supreme Court was able to uphold affirmative action as a worthwhile educational practice on the basis that seeking to ensure racial and other diversities within the student population is an acceptable educational goal.Footnote ³² Even here, the institution should not seek to achieve this goal via quotas, as these imply that an individual might be included without reference to educational ability, which is not a plausible ranking of educational goals and values. Instead, preferential treatment could only be applied once a pool of able students had been identified using conventional criteria of academic merit.

As with the earlier Jim Crow laws, attempts to justify the use of racial discrimination via system-references suffers from the fact that, while the formal equality that operates across all the functional systems remains constant (the insistence that roles within a system are established by reference to the criteria generated by that system), the plausibility of system-references used to resist these equality claims are less stable. The defence of affirmative action on the basis of the educational value of diversity has been undermined by educational research that throws doubt on claims that diversity contributes to academic achievement. Perhaps more importantly, attempts by educational establishments to achieve diversity through selection procedures that make no reference to race throw doubt on any claim that the goal of a diverse student body needs racial classifications to form any part of the processing of an individual's application. This institutional development was incorporated into doctrine in Fisher,Footnote ³³ with a requirement that educational institutions seeking to use racial classifications as part of their admissions procedure would have the burden of proving that no race-neutral criteria or procedures could achieve the same result – a burden difficult to discharge in the presence of other institutions who pursue this goal without applying racial classifications to each individual's application. The Supreme Court showed a similar willingness to question the necessity for affirmative action programmes within employment, striking down state actions that have an affirmative discrimination goal, when a less overtly racial selection between individuals could have been used to pursue the same goal. Baghai's conclusion is that:

This is a good point to refer back to the Cotterrell–Nelken–King debate on the possibilities for increasing the role played by sociological analysis within law and legal theory. Baghai is not here claiming that law needs systems theory in order to recognise the presence of systems and to respond to them. Societal systems are an empirical reality – a key characteristic of modern society. Thus it is not that law needs systems theory in order to recognise systems, but that law, in observing on society, cannot but observe the presence of systems. Law has difficulties in organising its decisions in terms of inherent characteristics of individual human beings (e.g. race) in a world society that organises itself in terms of complex interconnected societal systems, with individuals and organisations needing to be located within one or more of these different systems. Law does not ignore this empirical reality. It engages with it through its own categories and their further development. In the examples just discussed, the central constitutional legal doctrine is that of ‘strict scrutiny’. The decisions involve a repeated examination of the necessity for a particular institution to engage in a particular practice. But, in seeking to consider such necessities, law has to organise its own comparators. And here systems make themselves felt. The claimed necessities of organisations ordered around the provision of education should only be observed by reference to the practices of education, which are not reducible to an organisation or an individual or any number of individuals or organisations. Education as an empirical social reality is trans-organisational and transindividual and trans-interactional.Footnote ³⁴ Law, when asking itself doctrinal questions about the necessities of an educational institution, has already recognised society's functional differentiation and the location of individuals and organisations within separate systems.

V. Law and intersystem conflicts

The idea of system-reference may help us to observe on how law makes its selections and evolves its doctrine, but can it help law make these selections? What would be gained from law moving beyond the application of distinctions such as ‘political’, ‘religious’, ‘educational’, etc. in its description of actors, organisations and issues, and adopting systems theory to flesh out what is identified by these references? Could it adopt such an approach without paralysing its ability to connect events via doctrine? And what might lead the law to evolve in this way – how could such a change introduce itself into the legal system? Baghai's chapters on religion and privacy provide a case-study that we can use to address these questions.

Baghai examines Supreme Court decisions on the religious provisions of the First Amendment of the US Constitution, which she describes as a ‘tangled’ doctrine. Most of her discussion focuses on cases that involve the education, religious and political systems. The constitutional prohibition against laws respecting ‘an establishment of religion’ have led to a body of decisions regarding what public funds or resources can be made available to religious bodies, particularly in the context of education. And the prohibition against laws that ‘prohibit the free exercise’ of religion has led to litigation over what exceptions should be made when general laws inhibit minority religious practices.

The difficulties of identifying system-references are complicated by the relationship between individuals, organisations and systems. An individual will be included as an actor within different systems – a patient in the health system, a voter in the political system, etc. Similarly, organisations will also be actors within these different systems. Individuals deal with this through their consciousnesses, which can couple with different systems in turn (think like a lawyer, voter, etc.). The organisation combines these different systems internally through its decisions, which allow it to assign values to the communications of different systems and bring them into a relationship with each other (to decide what could not be decided by an individual social system) and by the formation of separate internal departments (legal, marketing, etc.), which can mirror these external systems internally. The result is a society in which organisations and individuals operate as actors, currently and sequentially, in more than one system.

Take then the example of the First Amendment prohibition against the establishment of religion. Is the provision of public funds or resources to private religious schools a breach of this provision? Is the state here supporting religion, or education? Well, clearly, by supporting an organisation that is an actor within both systems, it is providing resources that will increase the communications of both systems. As with the choices faced by the Supreme Court over African-Americans' inclusion in Democratic Primaries, identifying the appropriate context involves choices between system-references. The actors and events being observed through the law belong to both systems. How then is the selection made and, perhaps more importantly for our purposes, how is the selection made to be described? One can describe the decisions on this theme through a doctrinal history that records the tests being applied and their displacement by other tests (as Baghai does) but then one is hardly engaging sociology, for one is describing (observing) legal operations using the same concepts by which lawyers describe such events to themselves. Or one can redescribe these selections as choices between systems, which takes us slightly further into sociological engagement, as one is then imposing a sociologically informed structure onto legal references and to activities being ‘economic’ or ‘political’, etc. But can one go further and, using systems theory, identify how such decisions ‘ought’ to be decided?

‘Ought’ in the above sense is suspect within sociology, and systems theory is no different in this respect. In principle, as a social science, sociology is supposed to provide ‘facts’, leaving other systematic forms of communication to determine what normatively ought to be done about them. But the ‘ought’ offered at this point in Baghai's analysis is what law needs to do if it is to develop doctrine that can give consistent answers to the legal issues that are being litigated, and thus avoid decisions that are understood, even within the law, as particularistic. She identifies two such needs. The first is to circumvent result-orientated or purposeful tests. The second is to take a systems-theory-informed approach to system selection.

The systems theory underlying the first of these needs is as follows. Luhmann identified the manner in which legal communications combine to create stable normative expectations. One important aspect of this is the manner in which law handles time. It applies its norms to events that have occurred in the past. However difficult this may be, it is much simpler for law to do this than for it to condition the application of its code (legal/illegal) by reference to events that have yet to occur. If, for example, the legality of an act is made conditional upon all the results that follow from it (if those consequences turned out to be good or bad, beneficial or costly, etc.), then the same act could constantly flip from legal to illegal as events unfold. This would not only make the legality of that individual act uncertain, but it would impede any doctrinal development of the original decision. Doctrine links by drawing distinctions such as event A was illegal because of x, therefore event b, which cannot be justifiably distinguished from A, is also illegal. But if numerous As and Bs are constantly flipping between legal and illegal, then these kinds of iteration and distinction are simply not possible. This observation led Luhmann to argue that law's code had to be applied primarily by reference to conditional programmes that take the form ‘if A (an event in the past) then B’.Footnote ³⁵ Purposeful programmes, which aim at the achievement of future states of affairs, are compatible with the manner in which the political system seeks to connect its communications, but not so in general for law. Where they occur, they have to be nested within a wider programme that takes the normal ‘if A (a past event) then B’ form.

Applying this analysis to Lemon v. Kurtzman,Footnote ³⁶ Baghai argues that the basis of the decision contributed to the instability of later Supreme Court decisions. The majority in the Lemon Court found that legislative or administrative action that involved religion would not be constitutional unless: (1) the provision had a secular purpose, (2) did not have the primary effect of either advancing or inhibiting religion and (3) did not result in an excessive entanglement of government with religion. The first condition does not cause the problems that Luhmann identified with purposeful programmes within law. Whilst it may not be easily ascertainable judging whether a political or administrative agent acted with the purpose of supporting a system other than religion, this question does not lie outside of the conditional programmes normally required within law. One establishes the goal that an agency intended to achieve as a past event on evidence. The results do not alter the legality or illegality of the goal sought to be achieved when the action was undertaken. By contrast, the results-orientated second and third conditions are likely to lead to instability – taken literally, they invite a wait-and-see approach to the application of the code, legal/illegal. Perhaps more importantly, ‘the Lemon test only facilitated speculation and disagreement about anticipated outcomes of disputed provisions and permissible and impermissible entanglements between Church and State’ (p. 87).

Facilitating further appeals allows the appeal courts to revisit their doctrines. These are evolutionary opportunities. Doctrine that stimulates appeals can lead to decisions that lead to further distinctions. But the opportunity differs depending on the kind of doctrine that is being re-examined. The consequentialist reasoning of Lemon invited particularistic appeals – arguments that the results typified in Lemon would not apply to a new scenario. But the eventual overturning of Lemon by Zelman Footnote ³⁷ created a different kind of incentive. Zelman kept the first Lemon condition, a secular purpose, but then opted for a test of neutrality: provided the measure (here vouchers given to students attending public, private and religious schools) was given on equal terms to all, it was constitutional. This is a more easily applied rule than Lemon. But this does not mean that it will not attract litigation. Appeals will arise that seek to build on this decision. If the only requirement is a secular purpose and neutrality, what is to stop all religious schools being fully funded by the state, just as public schools are? As Baghai rightly observes, what will be required, if this evolution is to be averted, is a legal principle capable of distinguishing the neutral provision of funds in the form of vouchers from other neutrally provided resources.

Returning again to the debate on the bringing-together of sociology and law, one can at this point hypothesise a question that could be asked by other sociologists who have observed the evolution of law on the constitutionality of state support for religion:

Would those sociologists be able to accept Baghai's answer: ‘a principle’? If they do not, are they refusing to take seriously how appeal courts construct their doctrine, which is a refusal (or inability) to recognise what the institution they are studying needs to limit the effects of its decisions. But, if they accept this answer, could one argue that they are once again surrendering to lawyers – as only those familiar with legal argument will know what kind of principle could possibly achieve this limiting effect? And, with reference to the more general analysis of conditioning programmes, could a lawyer understand this analysis of doctrinal possibilities? Certainly, lawyers would understand the possibilities presented by reasoning like that in Lemon. Those with clients seeking to justify public support for religious schools would seek evidence and arguments that their client's particular circumstances would not lead to the consequences described. And pointing out the likely consequences for litigation of one's own or one's opponent's interpretation of legal texts is a standard legal argument. Whether a lawyer would understand Luhmann's theoretically informed account of the problems caused for law by consequential reasoning is less certain, although those who are willing to engage with legal philosophy, which typically seeks to generalise from legal practice, should be able to manage this. Finally, would the law itself be able to learn the ‘lesson’ of Luhmann's analysis of law's conditional programmes? Could the external observation on legal practice represented by this analysis become an internal analysis – a self-observation within the legal system that prevented, or restrained, the use of consequential reasoning when interpreting legal texts? The answer here is probably ‘no’. Consequential reasoning will continue to be a feature of legislation (Luhmann's focus for his analysis) and, as Lemon indicates, some Supreme Court decisions. By and large, the law manages to cope with this problem, even without a general prohibition against it (which would have knock-on effect problems for statutory interpretation). The internal expectation that ‘like cases be treated alike’ runs throughout the legal system, and operates here to reduce the possibilities for consequentialistic reasoning. The role of a Supreme Court is to iron out differences of interpretation, and thereby reduce the scope for lower court judges to decide according to their own perceptions, values and beliefs. As Baghai shows with her legal history of decisions on the religious clauses of the First Amendment, a judgment or statute that provokes inconsistent interpretations lays the ground for its own reconsideration.

Turning to the second need, that of system selection, identified by Baghai, this is offered as a sociological basis for the kind of ‘principle’ required if Zelman is not to lead to a progressive erosion of the state and religion separation required by the First Amendment. Her argument here is that:

There is an important difference between this use of the idea of system-reference and that presented in connection with the evolution of doctrine on racial classifications. In the latter case, the idea allowed us to recognise the kind of choices that were being made within law, and this illuminated what might make some choices more plausible than others, with those conditions changing over time. Here, by contrast, Baghai is offering the idea of system-reference in order to improve the Supreme Court's ability to reach justifiable decisions. This requires some careful assessment.

If the majority had adopted the views of the dissent in Everson,Footnote ³⁸ one of the earliest relevant Supreme Court decisions, then Baghai's test of primary system-reference (whether or not a court used this term) would have considerable relevance. The dissent took the view that one cannot support religious schools without thereby supporting religion and, on that basis, would have held all state aid to religious schools unconstitutional. If this were the law, then the key issue in all subsequent cases would have been ‘is this a religious school’? Schools receiving aid would be expected to downplay their religious features (at least in legal argument!) and any court would have to determine which schools were, or were not, religious. And, in deciding whether a school was religious, courts would most likely do exactly what Baghai describes. They would look at the basis of access, and treat the limitation of access to persons who practise a particular religion as an important, if not determining, indicator that the school is religious. If schools attempted to evade the restriction by opening up their entry to children from other faiths or no faith, a court might have to consider how many of the decisions within the school linked back to a particular religion (e.g. decisions on collective worship, codes of conduct, curriculum, etc.). So, if the constitutional issue requires the court to ask itself ‘Is this a religious school?’, then this approach (whether or not systems-theory terms are used) would be appropriate.

But the legal issue in Lemon and Zelman did not take this general form, because the majority in Everson decided that being a religious school was not an automatic bar to receiving public support. Instead, the question became: ‘What kinds of assistance to religious schools are unconstitutional’? And, in addressing this question, while the later courts did not concern themselves with the ‘primary system-reference’ of the organisations in question, they did concern themselves with system-references. They recognised the different premises used for the various decisions taken within the particular schools. This allowed them to see that the schools were schools – that they did execute an educational function. They could also see that this educational function duplicated the educational function of secular public schools.Footnote ³⁹ They felt able to separate the educational elements of the schools from their religious ones. For Baghai, this is a mistake – not because it cannot be done, but because, if one approaches religious schools in this manner, it becomes very difficult to maintain a rule against state support for religious schools. So, when she claims that systems theory assists us to identify the principle that can prevent the further erosion of the establishment of religion, what we believe she is really saying is:

Pointing to earlier or more general legal provisions and using this point of reference to claim that particular decisions are mistakes is a common feature of argumentation in both academia and legal practice. But is this sociology, or systems theory? Using systems theory to clarify the nature of the selections that courts are making when they contextualise legal issues is one thing. Using systems theory to demonstrate how selections might be improved in order to achieve particular goals seems quite another.

To make these concerns clearer, consider a further example provided by Baghai to support her argument that identifying the primary system-reference of an organisation can improve legal decision-making. In Hosanna-Tabor,Footnote ⁴⁰ the Supreme Court found that a ‘minister’ was not covered by the federal antidiscrimination provisions. Baghai thinks this was correct: with regard to ministers at least, the appropriate system-reference was religion, and not the economy. The system-reference, she observes, was not decided ‘arbitrarily’ (p. 91). One can accept this observation – law observes on other systems and there are limits to its ability to describe something plausibly as religious or not religious in the course of such observations. It is hard to claim that the appointment of a minister is not a religious matter, and similarly implausible to claim that, by controlling the procedures by which ministers are selected and retained, the state is not exercising control over religion. But fine-tuning this assessment through systems theory is problematic. The exemption for ministers was established prior to Hosanna-Tabor. The actual issue in the case was whether the employee was a minister. In Hosanna-Tabor, the person claiming disability discrimination was employed to teach children. Her duties were little different from the secular teachers at the school (most of the decisions constructing those duties were educational and not religious in character). The Supreme Court could, plausibly, have followed the Court of Appeals and have decided that she was not a minister, and therefore outside any exemption under the First Amendment. The approach adopted by the Court of Appeals could have been presented as an application of systems theory, as it was based on tracking communications within the organisation and seeing whether they had predominantly religious or educational references. But the Supreme Court decided to treat her as a minister because the Church gave the title of ‘minister’ to those teachers who were Lutherans and who undertook a Lutheran theology course. It did not wish to question the Church's own classification of the employee's role.Footnote ⁴¹ In reaching this decision, for these reasons, the Court signalled its unwillingness to entertain appeals on the extent of duties that do or do not qualify persons as ministers, and thus avoided the danger of apparent partiality in the designation of employees of different churches, mosques, etc. Can systems theory tell us whether the Court's failure to fine-tune its identification of system-reference (in order to protect the system-reference represented by the ministerial exemption) was incorrect, or not?

VI. System conflicts, privacy and using law as a long stop

As discussed earlier in connection with the issue of racial classifications, what is plausible, indeed thinkable, changes with society's increasing functional differentiation. Unlike the generally automatic and birth-based status assigned to individuals within stratified societies, inclusion within each functional system is contingent. Individuals can fail to gain inclusion and, having been included, may then be excluded. Baghai argues that the ability of individuals to negotiate these possibilities of inclusion and exclusion generates demands for restrictions on the manner in which one system can re-use information generated by another. The contention here is that privacy conflicts arise when an event in one social system becomes relevant, arguably without justification, to the selection and connection of communications in another system – such as when love affairs become thematic in evaluating professional competence, health conditions become relevant to securing a bank loan, or sexual orientation becomes relevant to employment (p. 123).

In explaining privacy as a problem generated by functional differentiation, Baghai is making an original contribution to the sociology of human rights. She is also offering a sociological explanation for some of the difficulties faced by those who attempt to analyse privacy and privacy law using political theory and legal philosophy ‘to clarify such ambiguities by devising valuable taxonomies and typologies, addressing conceptual differences between privacy and other rights' (p. 116). Those attempts are thwarted by the fluidity of what they seek to describe:

The complexity of this issue is due not only to the myriad ways in which society's subsystems develop interdependencies (structural couplings) through the re-use of information generated by the systems in their environment, but also by the relationships formed between societal subsystems and organisations, and between both of these and interactions.

Baghai offers a sociological account of the difference between privacy and other human rights. Human rights reflect the universal claims for human beings to be included within society. Privacy, by contrast, is a response to the difficulties faced by individuals and organisations through their participation as actors within each separate system. Drawing in particular on Simmel, Baghai points to the problems facing individuals under conditions of functional differentiation. Individuals have to develop multiple personae, whilst each system deals with only one aspect of what is necessary for the individual's well-being, and only references these other personae to the extent that is relevant to its own operations. (One example of this is the current discussion of ‘work/life’ balance – typically experienced by people, mostly women, as a huge pressure to meet the uncompromising demands arising from employment and family life.) Dealing with these demands, of these different systems, whilst still experiencing a sense of a unified self leads to the call for respect for privacy, defined as restrictions on the ability of social systems to utilise information generated by other social systems. (So, for example, employers who allow home working but monitor it through CCTV would further undermine the ability of people to cope with work and family life.) Human rights understood as claims to include or be included within systems generate the need for privacy.

This is an original and thought-provoking reinterpretation of privacy as a social phenomenon. In terms of socio-legal studies, it allows us to observe the environment of the legal system, compare this with the construction of that environment by the legal system and see how law's understandings of privacy match or differ from these sociological presentations. But can one go further? Is it possible to utilise this frame of reference to increase our understanding of how the law evolves in response to functional differentiation? Baghai claims that this is possible, discussing examples from cases from the US Supreme Court and the ECtHR that ‘illustrate the relationship between functional differentiation and judicial determinations of the meaning of privacy’ (p. 125).Footnote ⁴²

Baghai looks at decisions on the constitutionality of US states to criminalise sodomy, ECtHR cases on discretionary powers of stop and search, and some ECtHR cases on freedom of expression. These decisions are presented as examples of courts considering functional relevance, which she sees as a ‘universal, albeit implicit, emerging standard in judicial account-giving across diverse privacy conflicts' (p. 132). In the cases she presents, the courts are not weighing up the interests of particular groups or numbers of individuals, but instead considering the appropriate boundaries of different kinds of activity. Here the courts are presented with some imperialistic system claims of government (i.e. the political system) claiming sovereignty over: intimate relations (the sodomy cases) in the name of public morality; freedom of movement (stop-and-search cases) in the name of public safety; and the right to determine what can be published in the name of privacy. Meanwhile, the press (mass media) claim an unrestricted right to publish, and those who argue for the de-criminalisation of intimate relations (family system/love system) offer no basis on which to exclude adult incest or prostitution from their claim (other than the kind of political judgment of morality or harm that they are seeking to deny justifies criminalising homosexual sodomy). In assessing these system claims, the appeal courts have had and continue to have to use and develop doctrine. By limiting themselves to ‘rational review’, the courts offer relatively little resistance to even the most imperialistic of claims. In order to give substance to human rights, the courts have had to use more challenging criteria when assessing claims made by the political and other systems. In the US, this involves a move towards ‘strict review’ where the importance of the claim to the system, the necessity of the chosen means of implementation and its effects on individuals in their relations to other systems can be interrogated. In the case of the ECtHR and more widely, this kind of approach is captured by the concept of ‘proportionality’.Footnote ⁴³ These are the kind of doctrinal changes for which Baghai can give an explanation in terms of functional differentiation. The need to compare the incommensurable, which others have interpreted by reference to incompletely theorised agreements, or the role of practical reasoning she attributes to the kind of collisions between social systems identified by Teubner (Reference Teubner and Rawlings1997; Reference Teubner2012, especially Chapter 6)Footnote ⁴⁴ and others. Whilst the likes of Finnis (Reference Finnis1980, Chapter VIII) seek to explain human rights in terms of different aspects of individual human flourishing, Baghai is pointing to the different systems in which individuals exist as actors, and the need to prevent the demands of one system from undermining the operations of another or the ‘health’ of the human being when required to occupy partial roles within any of them.

But, whilst functional differentiation may provide a sociological explanation for the existence of legal conflicts that transcend particular individuals, organisations, groups or interests (a transcendence also implicit in the claim that there are rights applicable to all humans) and account for some of the more general doctrinal developments, can it provide an insight into particular cases? At this point, Baghai's privacy analysis seems to break down because the cases she cites as examples of privacy do not seem to fit within her own sociological description of what privacy involves.

She posits a distinction between human rights as claims for inclusion in social systems and privacy as the need to restrict the information generated by one system from being used within another. And the examples she provides (e.g. insurance companies asking for medical records) provide clear illustrations of the latter situation. But do her chosen ‘privacy’ cases match up to this typology? Consider the sodomy cases. Are these examples of information generated by one system being misused by another? Systems theory treats the police investigation of a homosexual act as a communicative event within the political (administrative, prosecutorial) system and the legal system, as well as a communicative event in the interaction that involved the act. So there is a relationship between an interaction and at least two social systems. The interaction is not able to establish its meaning within society solely by reference to the meanings that it has between the parties present. The contested meanings of the illegal acts also gain their referents from the family system, the love system and the religious system. Now we have relationships between an interaction and possibly five social systems. The complexity of all this is a long way from the clarity of Baghai's examples. It also has the implication that every criminalised act involves issues of privacy. Indeed, every communicative event that involves a system observing on other social systems in its environment is a re-use of information generated by another system, so, if we apply systems theory to Baghai's definition of privacy, every system observation on its social environment is a potential privacy case.

The situation gets even more complicated if we consider the stop-and-search cases, particularly Gillan and Quinton v. UK.Footnote ⁴⁵ There, the ECtHR was considering the human rights implications of a counter-terrorist power (an order) to stop and search all persons within the area covered by a given police authority without specific reasonable cause. This involved the political system (an executive decision) and considerable numbers of potential interruptions of interactions and the activities of various social systems within the locality for the time covered by the order. This ECtHR decision is an example of law challenging the imperialistic claims of another system – here the political/administrative/executive system. And one can see that what the Court did was to assess the claimed system-references of the political system (its need to do what it did in the manner it did and the implications for other systems). But it is difficult to describe this case as an example of information generated by one system being misused by another (except in the formal and rather unhelpful sense that all system observations on society involve information generated by other systems). If one turns to the judgment of the ECtHR, the recognition of privacy arises from the engagement of Article 8 (the right to a private life) and a consideration of the possibilities that search might involve some degree of interference with personal autonomy through the removal of clothing. This legal situation involves a consideration of the individual human being (in systems-theory terms, a psychic system and, in scientific terms, a biological system) and a recognition that social systems can inflict pain and distress on human beings, which may well need to be resisted via human rights, thus fitting within Teubner's account of the role, purpose and horizontal effect of human rights (Reference Teubner2012, especially Chapter 5), but it is less clear whether it involves a privacy issue as set out by Baghai.

VII. Using systems theory: taking doctrine seriously

We have analysed Baghai's thesis at some length to enable it to be considered in the context of long-standing debates about the appropriate role of sociology and sociology of law in legal studies, jurisprudence and more general theorisation about law and, in particular, the evolution of legal doctrine. So much legal scholarship is built on an understanding of law's internal operations, especially the evolution of its doctrines, without recourse to alternative observation of the details of that evolution. However, so much sociology of law pays scant regard to the importance of such ‘internal’ developments.

Baghai's book, correctly in our opinion, recognises that modern society is functionally differentiated and that such a recognition has implications for how one approaches understanding each of its parts and how they work together. But, even in that ‘working together’, each system will operate with its own system-bound logistics, including its observations of the operations of the systems in its environment. With such an analysis, an academic observer has undoubtedly potential standpoints that may offer novel, or at least alternative, understandings. And, relying on such an analysis, Baghai offers system-reference as a crucial determinant of the evolution of some key, far-reaching constitutional legal doctrines or, as she prefers to call it, jurisprudence. She certainly seems to succeed in shedding some alternative sociological light on the evolution of these doctrines. However, we continue to question the range of that light and whether it can retain its focus when faced with the ever-greater complexity of multiple system-references and, somewhat inevitably, long-standing questions concerning its usefulness within legal practice.