LIBRI DI RAFFAELE DE GIORGI

The Risk of Risk Society and the Limits of Law - What is represented as risk in the risk society? Does this question concern the operations of society’s structure, or does it concern the semantics through which society observes itself? And finally, can law reduce risk, or is it a risk-factor in itself? The theoretical perspective proposed in this essay is the one offered by Luhmann’s theory of society. Indeed, only this perspective enables us to deconstruct current representations of risk and the legal system and to advance a description more attuned to the complexity of modern society. The article’s main hypothesis is that risk is a structural feature of modern society’s complexity. Risk is built in the process of temporalisation of modern society, in its symbiosis with the future, in the paradoxical nature of the present, and in the ecology of non-knowledge. Both risk and law are techniques aimed at constraining time while reducing uncertainty and non-knowledge about the future. Modern society treats the future as a risk that depends on decisions. In turn, modern law’s self-recognition relies upon its capacity to control risk. However, the author argues that this process is highly problematic and risky. In fact, law cannot forbid, stop, or prevent risk: it can only resort to strategies aimed at reducing the riskiness of the juridical treatment of risk.

Sociological tradition has explained factuality by using normative suppositions. In so doing, since it lacked a theory of society, it has denied itself the possibility of explaining the normative nature of norms. This it has sought in the realm of Ought, which it has adopted as an a priori condition, while it was actually another de-nomination for the same problem. Sociology of law, too, has adopted this norma-tive point of view of normative nature and it, too, has claimed to describe the cur-rent world from that point of view.The author adopts an historical-evolutionary stance, the stance of a theory of evolution that enables modern society to be described as the result of the evolution of structures and of semantics that describe those structures. Action is one of those semantics. The historical-evolutionary observation of this semantic opens the way to the sociology of law. It may consider norms to be facts and elaborate a concep-tual approach that enables the fact that is the norm to be described from the point of view of the generalisations immanent to the factual production of meaning. This conceptual approach would in turn enable the sociology of law to observe and ex-plain those processes that typify world society today and show themselves in the tendency to expand and stabilise a cognitive style in the structures of social sys-tems and to restrict the normative style accordingly. A sociology of law of this kind may be able to describe the so-called reality of law using more refined tools of observation than the old distinction between law and society.