Volume 2 issue 2 December 2014
Contingency and Surveillance: Framing the Risk of Taking RisksBernard Keenan
|
This article sketches one way that Niklas Luhmann’s social systems theory might structure research into the evolution of the legal system’s relationship to decision-making systems that produce information about risks rather than facts. The risk/fact distinction frames a re-structuring of the ongoing evolution of the legal system in its attempts to generate normative standards for deciding when an intrusion into privacy by state security organizations is legal or illegal. The contention is that the temporal difficulties presented by risk assessments force the legal system to reflect upon its own riskiness and vary its procedural norms. This leads inevitably to controversies about the legitimacy of legal processes themselves, particularly closed material. The system thus generates further procedural changes but leaves the key normative standard of ‘how much surveillance is too much’ undecided, and perhaps undecidable. In light of this, we may ask whether or not a stable distinction between privacy and surveillance is capable of being resolved by the law.
|