Since autopoietic theory underpins the observations made in this work it is appropriate to begin by exploring that theory and how it can be applied to law. Although we shall leave highlighting how it impacts upon the area of capacity building and technology transfer to a suitable place in the text, it is hoped that holding this body of theory in mind will facilitate the reader in tracing the author's argument.
Autopoiesis in General
As a theory autopoiesis was first posited in the biological sciences to differentiate between the living and the non-living (Varela & Maturana, 1974). It is an explanatory theory of how entities develop and govern themselves. The influential scholar Luhmann (1986) accomplished an interesting “theory transfer” into the world of sociology; he posited the idea that self-organising and self-reproducing social systems (autopoietic systems) reproduce and maintain their structure not because of the characteristics of individuals, the demarcation of specific roles, or even through deliberate acts but via their process of communication. This is particularly interesting when one is considering that this means that systems can be self-referential. In other words they can communicate about their communications and develop themselves reflectively in that way.
In relation to social systems autopoiesis allows us suggest that all that can ever accurately be observed is the system's communications and that through this observation, by learning to understand its language or, to use Luhmann's preferred term, the “code” it employs we can work out what a system's function is. This “code” can then develop into a “program” (a series of expressions in that language) which expand and solidify it, making it possible to do things with the code. Finally, when we examine this program we can determine what effects it has in practice, what Luhmann calls its “efficiency”. Ultimately, the largest and most successful social systems outgrow simple language expressions and develop their own sphere or “medium” of communication. To give a simple example, law could be said to have the function of allowing us to order our lives by enabling us to predict the outcomes of actions to which societal norms are applied. Thus, I know if I pay for my chocolate bar in the shop I will be free to enjoy it (at least legally, my doctor may say otherwise!) because our law has clarified our social norm about possession. Using Luhmann's terms, law's code could be said to be the language of legality/illegality; its program the body of laws in place and its efficiency the regulation of conflict and behaviour. Additionally, law being a particularly large social system can be said to have its own sphere or medium in the concept of jurisdiction (Krause, 1999 p. 36).
Social systems, such as law, form part of society as we experience it and are both influential upon and influenced by their surrounding social systems. However, they can also be said to be independent from them since they depend upon their own code and media for interpreting (or perhaps more correctly creating) their own environments and their own organs. Thus, what we commonly call society is made up of open yet also discrete social systems. This discreteness is often described as meaning that the system is operationally closed, in other words, that the “realness” of anything within the system depends on its absorption or adherence to the code of that system. So, for example, if I go back to the sweet shop mentioned earlier my doctor or dentist might well happen to be on the scene to disrupt my quiet enjoyment of my chocolate bar for health reasons but any communication coming from them will not affect the legal medium. They will not have legal jurisdiction (the ability to label my actions as legal or illegal) unless they as communicators have already been absorbed into the legal realm. This is a very important distinction. Luhmann himself highlights it:
I think that the theory of autopoiesis and the theory of autopoietic systems...are underestimated in the radicalism of this approach. This radicalism goes back to the hypothesis of operational closure. This hypothesis implies a radical shift in epistemology, and also the ontology it supposes. If one accepts it and also relates it to the concept of autopoiesis and treats the latter as a further formulation of operational closure, then it is clear that it also breaks with the epistemology of the ontological tradition that assumed that something of the environment enters the understanding and that the environment is represented, mirrored and imitated or simulated within a cognizing system. In this respect the radicalism of the new approach can hardly be underestimated (Luhmann, 2002, p. 114).