Lyana Francot

This article seeks to illustrate the relevance of social theory for the study and practice of law. As social theory reports on changes that influence societal structures, the question for lawyers is how these changes affect law and what this means for its role and function. To this end, the article draws on Ulrich Beck’s theory of the risk society and reflexive modernization to provide the relevant perspective. This theory reports upon and explains the so-called side effects of modernization that take the shape of environmental, industrial and political risks. It is these side effects that constitute the problem in risk society and dealing with them demands a reflexive approach towards modernization. The article seeks to highlight the relevance of this theory for law by placing it in the tradition of social contacts theory. It does so by reformulating the central problem of the risk society and by identifying the main social actors who would be party to a “new” social contract. The article then identifies and formulates the instruments of negotiation, at which point it becomes clear what the role of law may be. It concludes with a tentative indication of what the main terms of the social contract could look like.

In the last decade, the changing role of time in society has once again taken centre stage in the academic debate. A prominent, but surely not the only, aspect of this debate hinges on the so-called acceleration of time and its societal consequences. Despite the fact that time is fundamental to the way in which law and politics function, the influence of the contemporary experience of time on law and politics remains underdeveloped. How, for example, does society¿s structural acceleration impact on justice? Does law actually offer stability and predictability in an ever-changing global world? How can legal and political institutions function in the wake of ever-increasing uncertainty? Both law and politics employ time to order society but they are also limited in what can be effectuated by time. It is this very tension between temporal possibilities and limitations that the contributors to this collection ¿ drawn from different fields of law, as well as from other disciplines ¿ examine.

This article seeks to illustrate the relevance of social theory for the study and practice of law. As social theory reports on changes that influence societal structures, the question for lawyers is how these changes affect law and what this means for its role and function. To this end, the article draws on Ulrich Beck's theory of the risk society and reflexive modernization to provide the relevant perspective. This theory reports upon and explains the so-called side effects of modernization that take the shape of environmental, industrial and political risks. It is these side effects that constitute the problem in risk society and dealing with them demands a reflexive approach towards modernization. The article seeks to highlight the relevance of this theory for law by placing it in the tradition of social contacts theory. It does so by reformulating the central problem of the risk society and by identifying the main social actors who would be party to a "new" social contract. The article then identifies and formulates the instruments of negotiation, at which point it becomes clear what the role of law may be. It concludes with a tentative indication of what the main terms of the social contract could look like.

The starting point of my analysis is the complexity of contemporary society. Complexity here refers more in particular to social complexity: the type of complexity that emerges from the relationships between human beings and the myriad of options and possibilities that exist in our society. A systems theoretical account of complexity elicits that this ‘social abundance’ necessitates selections. One way of enabling selections, and hence the reduction of complexity, is the formulation of norms. The central thesis of this account follows from this observation: social complexity is a source of normativity, in the sense that social complexity generates - among others - normativity. Dealing with social complexity requires selections and a considerable range of selections, at their turn, require norms. From a somewhat different angle, we could say that social complexity entails both freedom of choice and force of choice. It is this combination of freedom and force that confronts our society with a profound problem. It translates, so to speak, social complexity into uncertainty: how to deal with all these options and possibilities, how to shape our interactions? An important aspect of the problem is the abundance of colliding heteronymous norms and a simultaneous lack of ethical norms that do not compromise our individual autonomy. The analysis of this ethical state of affairs draws upon the work of Zygmunt Bauman. The paper tentatively seeks to outline the social theoretical requirements of an ethic that takes issue with the uncertainty of choice.

The starting point of my analysis is the complexity of contemporary society. Complexity here refers more in particular to social complexity: the type of complexity that emerges from the relationships between human beings and the myriad of options and possibilities that exist in our society. A systems theoretical account of complexity elicits that this 'social abundance' necessitates selections. One way of enabling selections, and hence the reduction of complexity, is the formulation of norms. The central thesis of this account follows from this observation: social complexity is a source of normativity, in the sense that social complexity generates – among others – normativity. Dealing with social complexity requires selections and a considerable range of selections, at their turn, require norms. From a somewhat different angle, we could say that social complexity entails both freedom of choice and force of choice. It is this combination of freedom and force that confronts our society with a profound problem. It translates, so to speak, social complexity into uncertainty: how to deal with all these options and possibilities, how to shape our interactions? An important aspect of the problem is the abundance of colliding heteronymous norms and a simultaneous lack of ethical norms that do not compromise our individual autonomy. The analysis of this ethical state of affairs draws upon the work of Zygmunt Bauman. The paper tentatively seeks to outline the social theoretical requirements of an ethic that takes issue with the uncertainty of choice.

This article seeks to illustrate the relevance of social theory for the study and practice of law. As social theory reports on changes that influence societal structures, the question for lawyers is how these changes affect law and what this means for its role and function. To this end, the article draws on Ulrich Beck's theory of the risk society and reflexive modernization to provide the relevant perspective. This theory reports upon and explains the so-called side effects of modernization that take the shape of environmental, industrial and political risks. It is these side effects that constitute the problem in risk society and dealing with them demands a reflexive approach towards modernization. The article seeks to highlight the relevance of this theory for law by placing it in the tradition of social contacts theory. It does so by reformulating the central problem of the risk society and by identifying the main social actors who would be party to a "new" social contract. The article then identifies and formulates the instruments of negotiation, at which point it becomes clear what the role of law may be. It concludes with a tentative indication of what the main terms of the social contract could look like

The rule of law offers legal certainty, laying down boundaries to the state's playing field. The precautionary approach stipulates that the absence of scientific certainty is no reason not to act to prevent harm. Here, uncertainty frames action. The precautionary approach potentially expands the state's playing field, and this expansion might well undermine the precepts of the rule of law. The certainty-uncertainty axis exposes a tension between the rule of law and the precautionary approach in what Ulrich Beck has termed the world risk society in second modernity. It is this tension that is the focus of analysis in this article