In 2010, the European Court of Human Rights (ECtHR) endorsed long-standing claims of the potentially discriminatory effect of the suspicionless stop and search powers within s.44 of the Terrorism Act 2000. This paper applies principles of social systems theory to propose an explanation for the empirically evidenced racial effect of the s.44 police powers. Through observations regarding communicative barriers apparent between the law-making and policing subsystems, the paper argues that each subsystem's understanding of the expectations of the other, pertaining to the nature and use of the s.44 powers, contributed to their deployment in a way that diminished the effectiveness of the safeguards intended to guard against their misuse. Mismatched subsystem expectations meant that the powers were implemented by the police without the statutory protections, the operational self-restraint, or the type of intelligence-led judgment expected by the legislature, giving rise to misuse of the powers and, in particular, their deployment in line with race-based profiles.

Non-conviction-based (NCB) asset forfeiture is a relatively recent addition to law enforcement's armoury in the fight against organised crime in the UK. It allows for criminal assets to be forfeited to the State even in the absence of criminal conviction, the stated objective being to undermine the profit incentive of criminal activity. Until now, NCB asset forfeiture has principally been critiqued from a criminological point of view, specifically concerning the Packer models and the civil/criminal dichotomy – aside from this, however, it remains rather underdeveloped theoretically. This paper addresses this lack of legal theoretical engagement with NCB asset forfeiture by providing an initial contribution from a systems-theoretical perspective. This contribution makes use of systems theory's unique insights to critique the perceived ‘failure of law’ that gave rise to the NCB approach, and challenges the legitimacy of that approach in terms of procedural rights.

The legal requirements of transracial adoption of children in England changed in 2014. An amendment to the law removed a requirement that due consideration be given to the ‘child's religious persuasion, racial origin and ethnic and linguistic background’. This change was motivated by the belief that to do so would increase the number of transracial adoptions and thus decrease the number of children in care awaiting adoption. The likelihood of this change being successful is examined through a combination of critical race theory and systems theory. The combination of these theories permits an investigation into the communications between the political, legal and child welfare systems. This paper offers an enriched evaluation of the interactions of the child welfare, legal and political systems that should be of use to those who work in those systems, as well as providing a basis for understanding why this legal amendment will not achieve its objectives.

This paper uses the last few decades’ developments in the area of shared parenting to explore power within the framework of autopoietic theory. It traces how, prompted by turbulence from the political subsystem, family law has made several unsuccessful attempts to solve the perceived problem of post-separation dual-household parenting. It agrees with Luhmann and Teubner that closed autopoietic systems’ developments are limited by their normative and cognitive frameworks, and also argues that changes which have occurred in family law show that closed social systems do not function in total isolation. It considers power as ego's ability to limit alter's choices. In our functionally differentiated society, with its recent proliferation of communication, power appears more diffuse and impossible to plot into causal one-way relationships.

In this paper we examine the concept of vulnerability as it relates to the materiality of systems, the exclusion of human physical corporeality, and social exclusion in Luhmann's theory of social autopoiesis. We ask whether a concept of vulnerability can be included in autopoiesis in order to better conceptualise social exclusion and the excluded, with a view to understanding how, if at all, the dangers posed by this exclusion are mitigated by autopoietic processes. We are emphatically not returning to the human subject over operational systems, but seek instead to develop an understanding of the embodied nature of humans and their vulnerability within an autopoietic framework. We argue that the awareness of the risks to social functional differentiation posed by unmanaged exclusion – disenchantment, disassociation and, most drastically, dedifferentiation – provided by our analysis indicates why hyper-exclusion must be mitigated.

This paper uses the example of civil disobedience to explore Luhmann's description of the constitution as structural coupling between law and politics. Civil disobedience highlights the paradox of constituent and constituted power. The claims made for constituent power provide a basis for challenging the current configuration and expression of constituted power. This paradox is first avoided in the legal system through that system's inability to recognise a legal right to disobey law. In turn, a political system that has, under conditions of modernity, increasingly second coded power as legality, has an ever decreasing capacity to include communications that acknowledge a right to disobey law. Civil disobedience is only able to operate within the political system in the form of protest, and is accommodated through the exercise of discretionary powers. However, juridification of those powers has the capacity to threaten this accommodation.

This paper analyses sovereignty as part of multiple power operations and the self-referential semantics of positive law and politics regarding the concept of popular sovereignty. The interplay between power structures and the self-description of society as democratic polity with popular sovereignty reflects on the typically modern tension between democracy as a contingent form of government and democracy as an imagined stable form of social totality. Using autopoietic social systems theory, the author reformulates the concept of sovereignty as the specific semantics internally constructed by the functionally differentiated systems of politics and law beyond the image of Leviathan and its socially integrating force, and independently of state organisation and its limitations.