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The notion that the risk problems confronting contemporary society are trans-scientific in character - that is, that while they can be posed to science, they cannot be solved by science alone - has gained currency since Alvin Weinberg coined the term over thirty years ago. His prescription in such circumstances - that recourse must be had to legal procedures in order to find an answer - perhaps invests law with more ability than it actually possesses to deal with such issues. What is it about law that ensures that such problems are not also trans-legal? This article considers this question by examining the relationship between science and law, between the realms of the factual and of the normative, in order to determine what happens when the two come into contact, or communicate, in the context of regulation or of litigation. Focusing on this crucial interface leads to the conclusion that traditional - formal and substantive - paradigms of law are ill adapted to cope with risk issues and that a procedural orientation of law is preferable. The question is then to choose among the leading alternatives available: Habermas's procedural paradigm based on the theory of communicative action or Teubner's reflexive law based on the theory of autopoiesis.

Defence date: 28 June 1997 ; Supervisor: Prof. Gunther Teubner ; First made available online on 24 May 2017 ; Throughout the history of the North Sea as an oil province, the regulation of health and safety at work has proved both difficult and contentious. Successive regulatory approaches have been introduced ranging from an initial formal system in which there was no substantive state intervention, through detailed prescription to the present goal-setting and auditing approach but in each case the law has eventually been accused of being part of the problem rather than the solution. Subjected to the scrutiny of economic and capture theory analyses, the industry and its regulators present an easy target and the economic and power relations revealed tend to favour the lough enforcement of detailed prescriptive regulation. The Piper Alpha disaster in 1988, however, seemed to suggest that this was precisely the sort of approach that was inadequate in the context of an industry as complex as offshore oil. The new regime introduced in the aftermath of that disaster which was intended to meet these difficulties has, however, recently been characterised as deregulation and has produced calls for the reintroduction of prescription. The danger of a vicious circle here is clear. This thesis employs a different understanding of regulation and its relationship with the regulated area to reveal the ways in which the prescription/deregulation debate and the models of law which underlie it can mask important features of the regulatory landscape. Drawing on the theory of autopoiesis, the notion that the study area is best understood as being composed of operationally closed but cognitively open communicative systems is taken seriously. The ideas of the system-specific construction of reality according to fixed codes and of self-steering according to variable programmes of difference- minimisation are considered along with their implications for regulation. From this understanding, a methodology based on cognitive mapping is developed which allows the processes of the different systems to be presented in such a way as to allow a second-order observation - that is to say, an observation of what it is that each system can and cannot observe. This approach is used to examine in particular the systems of industry management and of engineering throughout the history of the North Sea as an oil province, as well as the world constructions of politics and of the regulators. Significant among the findings which emerge from this approach are the difference-minimising programmes to which industry management and engineering have operated at various periods. Operating to a programme of the minimisation of economic risk by means of rapid production during the 1970s, for example, industry management was unable to observe the technical and occupational (and, paradoxically, ultimately economic) risks this programme produced. Similarly, the technical risk reduction programme of conservative determinism by which engineering steered itself during the same period served to mask a variety of important factors relevant to the integrity of offshore installations which served in turn to increase costs and thus the economic risk of oilfield developments. In the light of this understanding, the regulatory expectations of politics are revealed as hopelessly inadequate and the full extent of the regulators' difficulties in the context of a prescriptive regime becomes clear. A similar examination of the 1980s, reveals tentative moves in both industry management and in engineering towards more risk-aware programmes followed by their eventual abandonment in favour of drastic programmes of cost-reduction in the aftermath of the 1986 price collapse - the setting for the Piper Alpha disaster. This leads into an assessment of the new approach to the regulation of health and safety offshore which was introduced following that disaster. By revealing the constructivist and self-steering aspects of the communicative systems of which the regulated area is composed, this approach highlights the difficulties facing prescriptive regulation as well as the dangers of any deregulation. This understanding also reveals the reflexive potential of the new regulatory approach, however. That is to say, its ability to harness the risk-aware programmes in the industry and encourage an ongoing confrontation with the assumptions underlying its operations. The importance of such an approach is demonstrated by an examination of possible risks arising out of new industry management programmes of economic risk reduction - programmes which superficially mark a step change from previous determinism. It is suggested that only by understanding the new approach as an example of reflexive law can the possibility of a vicious circle returning ultimately to prescription be avoided. Only in this way can the masking effects of management and engineering models and of standard legal models be avoided.

Abstract: In view of a rather one‐sided recent debate, "managerialism" in bureaucracy calls for a defence. The alternate paradigm, which is said to turn on legal as opposed to economic rationality, has not been systematically dealt with by the anti‐managerialists. The functions to which it refers have always in practice been only a small element of public sector activity. The new artifacts of administration are properly viewed as a public sector reflection of wider thought on organisations and quality of working life. They have some common origins with contemporary private sector practice rather than being derived by copying the private sector. Management and policy skills are not mutually exclusive; indeed the contrary is true. Finally, in relation to broadly accepted ethical norms, modern public administration compares well with that which has gone before.

Abstract: Many interactions between adjacent elements of public administration are "resolved" by a weak form of bi‐lateral and non‐hierarchical coordination. There are quite intractable obstacles to achieving a good fit between bi‐lateral resolution and higher order aims of government. Formal limits to the results that can be achieved by coordination may be derived from the requirements for optimality in the "Decomposition Model" of decentralised administration. Limits to human capabilities are widely recognised in contemporary computer software that is designed to be "user friendly", yet in the design of systems of statute and administration the limits of human rationality are commonly ignored. Proper statutory definition of functional boundaries can harness innate strengths in the "bounded rationality" of which mere mortals and their institutions are capable, and partially guard against the unwanted effects of its weaknesses. Three main classes of interactions may be defined, and can be dealt with respectively by (a) an external and superior source of statutory power, (b) the use of temporary concurrence powers, and (c) statutory plans. The trick is to be clear about which applies in the circumstances.

Superficially at odds with the idea of empirical research, autopoiesis is shown on closer study to demand a fundamental reconsideration of the empirico-theoretical relationship. This idea is developed firstly in the context of a possible methodology and secondly in the application of that methodology to a particular regulatory situ ation. The aim is to arrive at a more adequately complex understanding of the regu latory process - as well as of the process of legal sociological research itself.