Scaling the social dynamics of useful rule breaking–a transfer of Luhmann's concept of “functional illegality” to the societal level

This article revisits Niklas Luhmann's concept of “functional illegality,” originally developed for organizations, and shows that it can be extended productively to the level of society. It argues that rule-deviations within function systems are not signs of institutional weakness or pathologies, but recurrent and, under certain conditions, functional responses to tensions generated by differentiation itself. Illegality is understood here in a non-juridical sense as deviation from system-internal programmes and standards. The article discusses three explanations for the systematic emergence of such deviations and then focusses in particular on “auxiliary codes” as semi-legitimate supporting structures. The article concludes by taking a look at the problem of distinguishing functional from non-functional illegality.