Question 1: Niklas LuhmannNiklas Luhmann considers law to be of social character. However, the law is also distinct from the environment (Banakar & Travers 2002, p. 173). As a social entity, the forms of communication in law must not be so abstract as to be removed from regular intelligible meanings. The case study involving the fining of Courier Newspapers presents an example of how the language used in law is a reflection of social reality. In the Courier Newspapers legal case, the publishers were fined a total of $6,825 for discriminating against a female employee because she was a woman.
The publisher of the newspaper was found to have violated the NSW Anti-Discrimination Act by the victimization of Christine Thompson. The female employee was treated less favorably than the other employees because of her sex. The words used by the tribunal reflect the social setting in which the law is being applied. In other words, the law is interpreted so that its implications can be understood in a social setting. Additionally, the judgment, according to the tribunal is meant to be a lesson to other corporations where discrimination practices are widespread. The character of the law being distinct from the context in which it is applied is clearly demonstrated in the ruling.
The tribunal asserted its authority to determine what is lawful and what is not. For instance, the court held that it was unlawful for employees to view pornographic images of women in a workplace setting. For purposes of fitting the law into the social environment in which it was being applied, the tribunal gave reference to women only. The ruling, by not being overly illustrated represents the importance of adapting the law to the social context in order for everyone in the society to understand it.
This conforms to Niklas’ view that the law should be interpretive in order to succeed in its pragmatic and functional role. As an agent of social revolution, the law was used in the Thompson v Courier Newspapers to show that adiabatic systems can be used bring about social change through constructing and altering structures. Question 2 Legal Pluralism (classic and new)Legal pluralism refers to the existence of many legal systems within a single geographical area, especially in many post-colonial societies, where the law of the former colonial power may exist alongside traditional legal systems.
In these societies, the main idea for allowing legal pluralism is that certain issues, such as commercial transactions would be adequately covered by the existing colonial law. On the other hand, other issues such as family and marriage would be covered using traditional legal systems. However, within societies where legal pluralism exists, people have developed a tendency to choose the legal system that they would want to be subject to, depending on the nature of their complaints (Banakar & Travers 2002, p.
243). In the context of the Thompson v. Courier Newspapers case, it is clear that both the new and classical pluralist approaches to the law were adopted. The issue of gender discrimination may be addressed within either new or classic or new legal pluralism. In the context of new legal pluralism, emphasis is on the corporate setting in which the breach of the NSW Anti-Discrimination Act occurred. In the context of classical legal pluralism, emphasis would be on the moral aspect of gender discrimination in the society within which the corporation operates.