Why Do Procedures Have Unexpected Outcomes?

According to a famous statement by Adam Przeworski, the difference between democracy and dictatorship lies in the fact that in a democracy the content of a political decision cannot be known in advance: democracy, not dictatorship, institutionalizes uncertainty. Sociology has largely ignored the institutionalized uncertainty thesis that follows from this observation. In particular, one has to be careful not to confuse Przeworski’s argument with that of Robert Merton, which has animated the sociological discussion about unintended consequences for decades. Merton argued, famously, that important factors exist, which may keep the outcomes of action from the sight of the acting party, yet he perceived unintended consequences of action as largely undesirable and non-institutional.

This paper attempts to contribute to both the discussion of Mertonian unintended consequences and to the developing of a legal sociology of institutionalised uncertainty, a la Przeworski. It aims to do this by translating the intuitions of both authors into the langue of Niklas Luhmann's systems theory. The particular field under investigation is akin to what Przeworski found remarkable: procedures and their outcomes. Yet, against Przeworski’s theses and some theories of procedural law and democracy, it is argued that procedures are not necessarily outcome-neutral and that they do contribute to certain outcomes of political and legal processes. Against Merton’s observations, but in accord with these of Przeworski, it is demonstrated that macrosociological and indeed deeply institutionalised factors exist, which contribute to the production of unintended consequences of individual actions. Finally, against theories of procedural justice in sociology and psychology of law, it is argued that procedures do not provide individuals with a sense of ontological security, but to the contrary, are but one form of “institutionalized uncertainty”

The paper has been published in Mica, Peisert, Winczorek (eds), Sociology and the Unintended. Robert Merton Revisited, Peter Lang 2012.