In The Birth of Biopolitics, Foucault describes a transition from a form of government oriented toward justice—however justice is defined by the sovereign—to one based
Penality would then appear to be a way of handling illegalities, of laying down the limits of tolerance, of giving free rein to some, of putting pressure on others, of excluding a particular section, of making another useful, of neutralizing certain individuals and of profiting from others. In short, penality does not simply ‘check’ illegalities; it ‘differentiates’ them, it provides them with a general ‘economy’.
“In diverging from the classical biological view of the immune system as the part of the organism that defends it against external attacks, Luhmann closely follows developments within biology itself. He orients towards a systems theoretical form of biology that arguably escapes the oft-criticised biological reductionism – of which Durkheim and Parsons stand accused – that would model sociology so problematically upon biology.”
If a product comes with a warranty, a legal obligation enters. The structural coupling between economy and law changes things by adding the temporal dimension, which is the duration of the warranty. Without a warranty or a return option, an economic transaction is an event with no duration. It begins and ends in the same moment. The temporal dimension doesn’t come into play. In a “pure” economic transaction, only the factual dimension comes into play–not the temporal or social dimensions. An example of pure commercial transaction would prostitution.
Luhmann argued that the legal system does not seek justice; as a self-referential social system, the legal system doesn’t have a goal other than its own reproduction. Justice is a value, but modern function systems are not undergirded by values. Ethically or morally just outcomes are not important. All that really matters is following established procedure, or due process.
In modern society, there is a division of labor between the legal system (the law) and the prison (or maybe penal) system. The law has