The concept of environment in the systems theory of Niklas Luhmann has been much discussed. First of all, the environment exists as a constitutive entity for every individual system, each representing its own unique unity of the distinction system/environment. This, however, means that the environment remains undefined. Secondly, the environment exists as something defined, that is, as a result of the observations of a given system. In this sense, the environment is merely a product of the internal operations of the system. However, the very same system’s relations with its environment can be construed differently by a different system’s observations of the relations of precisely this system to its environment. This article argues that such second-order observation entails several possibilities for constructing another system’s relations to its environment. In his writings, Luhmann makes a distinction between two fundamental ways in which systems can internally construct the relations to their environment: either as a question of information or as a question of resource (Luhmann, 1984, pp. 252–253). This article contends that this insight allows not only for an understanding of the way that systems, in their reflection, are able to distinguish between themselves and their environment in two essentially different ways, but also that this distinction can be seen as forming the basis of second-order strategies for how to construct the relations of other systems to their environments. The possibility of thematizing the relations of other systems to their environments as a question of information or resource respectively depends on the ability of systems theory to cogently develop second-order concepts, which may specify this observation and give it meaning within the general theory of social systems. To this end, the article will present two well-known concepts from systems theory, that is, penetration and structural coupling. The article will seek to uncover a pattern in Luhmann’s writings in which the concept of penetration makes it possible to precisely thematize the relations of systems to their environments as a question of resources whereas the concept of structural coupling makes it possible to thematize the same relations as a question of information. Based on the identification of such a pattern, the article argues in favor of reserving the concepts of penetration and structural coupling for each their analytical strategy for how a second-order observer may construct the relation of other systems to their environment.

Excerpt: If one considers sciences such as biology, psychology or sociology from the distance of an uninvolved observer one might conclude that biology has to do with life, psychology with the soul or consciousness, and sociology with society. A closer look makes it apparent, however, that these disciplines have characteristic difficulties with concepts intended to designate the unity of their object. The concept of autopoiesis is addressed directly to this problem. It was originally introduced by Humberto Maturana with respect to life, but it may well be applicable to consciousness and to society. It is, however, a concept which plays almost no role in the daily business of these disciplines, so that we are left with the question, why is there this particular problem of designating the unity of the object of these disciplines by a scientific concept.

In this paper I contrast Hayek’s and Luhmann’s treatment of law as a complex social system. Through a detailed examination of Hayek’s account of law, I criticize the explanatory power of his central distinction between spontaneous order and organization. Furthermore, I conclude that its application to law leads to different results from the ones derived by Hayek. The central failure of Hayek’s failure, however, lies in his identification of complex systems with systems of liberal content maximizing individual freedom. Indeed, in this way, he can only account for systems-individuals and not systems-systems interactions. I introduce Luhmann’s theory of autopoietic systems, which I submit, can solve all the mentioned problems and seems a much more promising conceptual architecture to grasp social systems in the context of a complex society.

Key words: systems theory, luhmann, hayek, complexity, spontaneous order, legal theory