<b> The Law System's Coherence in Luhmann: an approach to the operational closing and to the cognitive opening of the judge's decision</b> <br> doi: 10.5007/2177-7055.2011v32n62p323

Abstract

In this work we propose to examine the goals of the judicial decision in the current Rule of Law Constitutional State using Niklas Luhmann’s systemic theory, wich highlights law as social subsystem, and therefore it must follow that the cognitive mechanisms for opening and closing operations of systematic structures, under penalty of the corruption of its elements, of deficiencies in its reproduction and inability to self-evolve and differentiate. Possible methods to carry out the law in judicial decisions are produced, currently, by garantism and neo-constitutionalism legal theories, which are examined here in order to verify probable matches of their claims with the movement of reproduction and evolution of the autonomous system theorized by Luhmann and to make it feasible to design a court ruling that substantiates effectively in a communicative operation particular of the legal system, suitable for its intended purpose: (re)affirmation, achievement and expertise of the legal system.