Regulation and Transparency as Rituals of Distrust: Reading Niklas Luhmann Against the Grain

In contrast to the course of ritual, which is without alternative, it is characteristic of procedures that the uncertainty over their outcome and its consequences and the openness of alternative behaviors are included… Niklas Luhmann, Legitimation durch Verfahren (1969) Whenever something scandalous unfolds in public life today, calls for tighter regulation and more transparency are part of the routine reaction by journalists and politicians. Both demands are coupled with the promise of more comprehensive procedures that will help to restore public trust and prevent similar scandals in the future. In this sense, regulation and transparency are advocated as different means for similar ends. This chapter shares the view of a functional equivalence between regulation and transparency. However, it argues that their functioning is to be seen less as a set of procedures to rebuild trustworthiness than as a set of rituals to express systemic distrust. In other words, this chapter suggests that regulation and transparency perpetuate and aggravate the problems which they are supposed to resolve. The argument is made through a critical reading of two dated yet seminal studies published in quick succession by the German sociologist Niklas Luhmann: Vertrauen (1968; translated into English as Trust and Power) and Legitimation durch Verfahren (1969 [Legitimation Through Procedure]).