《法律与现代社会：基于系统理论视角的社会学分析（英文）》由会员分享，可在线阅读，更多相关《法律与现代社会：基于系统理论视角的社会学分析（英文）（24页珍藏版）》请在金锄头文库上搜索。
1、JOURNAL OF LAW AND SOCIETY VOLUME 29, NUMBER 2, JUNE 2002 ISSN: 0263-323X, pp. 25881Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems TheoryGert Verschraegen*This article argues that the systems theory of Niklas Luhmann prepares the ground for a genuinely socio
2、logical theory of human rights. Through a presentation of Luhmanns work on human rights, it describes the historical and sociological processes that make visible why human rights emerge as a central feature of modern society. It is argued that the emergence of fundamental freedoms and human rights c
3、an be related to the dominant structure of modern society, that is, functional differentiation. Human rights are considered as a social institution, whereby modern society protects its own structure against self-destructive tendencies. By giving inalienable and equal rights to all human beings, soci
4、ety ensures that the differentiation between different functional subsystems is maintained and at the same time institutionalizes specific mechanisms to increase stability and protection of the individual. The article first examines some features of the systems-theoretical framework that are used to
5、 describe and analyse the issue of human rights. Next, it presents a brief overview of the semantic evolution of human rights. This reconstruction focuses on the question how the modern semantics of human rights can be linked to a specific structural societal transformation. The second part of the e
6、ssay is devoted to the social function of human rights. After focusing on the general function, it makes a distinction between fundamental freedoms on the one hand, and the rights of equality on the other.258? Blackwell Publishers Ltd 2002, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Ma
7、lden, MA 02148, USA* Faculty of Social Sciences, Catholic University of Leuven, E. Van Evenstraat 2B, 3000 Leuven, BelgiumI wish to thank Michael King and Eva Brems for their comments on earlier versions of this article.I. INTRODUCTIONThe Universal Declaration of Human Rights is sometimes considered
8、 the last remaining Grand Narrative.1In our postmodern society the thirty articles of the Universal Declaration are increasingly seen as the building blocks of a universal ethical code. Although the implementation of the international human rights law is far from perfect, the human rights enshrined
9、in the Declaration are widely known and almost universally accepted. It is therefore surprising that up until now sociology has not paid much attention to human rights. Notwithstanding their great societal and symbolic importance, human rights are no favourite sociological theme, neither empirically
10、 nor theoretically. As a general rule, sociology has neglected the empirical issue of human rights and has not developed any general theory of social rights as an institution Bryan S. Turner remarks in one of the rare sociological articles on human rights.2This article argues that there is at least
11、one exception to this general rule. In my view, the sociology of law of the German systems theorist Niklas Luhmann prepares the ground for a genuinely sociological theory of human rights. Luhmann, who died in November 1998, is actually one of the few sociologists who did take up the question of why
12、human rights hold such an essential position in contem- porary society. Thus, my presentation of Luhmanns work on human rights has a clear objective: it tries to describe the historical and sociological processes that make visible why human rights emerge as a central feature of modern society. The a
13、rgumentation will be mainly based on an early book by Luhmann, Grundrechte als Institution (Fundamental Rights as an Institution) (1957).3My reading of Grundrechte als Institution will, however, be2591 See J.A. Lindgren Alves, The Declaration of Human Rights in Postmodernity (2000) 22 Human Rights Q
14、. 478. 2 B.S. Turner, Outline of a Theory of Human Rights (1993) 27 Sociology 489, at 489. 3 Grundrechte als Institution (1957) is one of the least known works of Luhmann. Within sociology the book has barely received any attention (exceptions are K.-U. Hellmann, Systemtheorie und neue soziale Beweg
15、ungen. Identita tsprobleme in der Risikogesellschaft (1996) 16877 and H. Tyrell, Zur Diversita t der Differen- zierungstheorie. Soziologiehistorische Anmerkungen (1998) 4 Soziale Systeme. Zeitschrift fu r soziologische Theorie 119). This can be partly explained by the fact that Grundrechte als Insti
16、tution has not been translated into English (or French). A more general aversion to systems theory in the post-Parsonian age was probably also responsible for the striking lack of interest in a systems-theoretical approach to human rights. In the field of ethics, the philosophy of law, and legal studies, however, the book found some response from German-, Dutch-, and French-speaking authors. See H. Van Eikema Hommes, Moderne Rechtsstaat en Grondrechten (1982) 47 Philosophi
