Luhmann law as a social system pdf

And, like all forms of positivism, has a naturalist account of cognition. May ] Autopoietic Law cognition, but adds a new role for the legal system that is special to autopoiesis: its dynamism albeit debased, from my point of view.

Cognitive openness introduces asymmetries into the legal system. New cases present new problems of norm-application, hence norm- formation. New social conditions require different responses to old cases. Without new cases and new social conditions the autopoietic system would exist "as pure tautology in total indeterminability" p.

A legal system in which every new case is an old case and for which social conditions are absolutely stable would not be autopoietic. An autopoietic system reproduces its operations through its elements, not its elements through its operations.

The legal system, like any autopoietic system, cannot be unless it is in motion pp. The cognitive openness of the legal system, according to Luhmann, drives it into the constant adjustments that make it dynamic, hence auto- poietic. But the dynamism does not come from within the system. The self-motivation of the system serves the self-maintenance of the system, its autonomy. Internal reflection on norms serves only the purpose of consistency, or unity. Retreat The distinction between cognitive and normative and the func- tional confinement of the legal system within a subsystem of the social system detract from the force of the autopoietic paradigm for law for three reasons.

First, autopoiesis is a strong model of individuality, maybe too strong to be usefully applied to social systems. Before social science began modelling individuality in the era of Freud and Weber, the indi- vidual organism was available only as a metaphor for society. The individual organism makes a demanding model. Durkheim, for example, is least convincing when he describes society as an organism in The Division of Labor in Society.

It certainly sug- gests some version of the two ways scientists learn about organisms: structure anatomy and function physiology. The danger of the model is that it may lead theorists to identify structure with institutions institutionalism and function with the sur- Hobbes describes tbe "Leviathan" either as an "artificial creature" mechanism or as a metaphor. Social theorists must always be vigilant to use structure and function if they use them at all in a more "value-neutral" sense.

Thus Mark Gould has defined "struc- ture" as "patterns of social interaction, where violation of the pattern implies in the ideal case a negative sanction," and "function" as "consequences of [units'] actions for the system as a whole. Autopoiesis thus takes a position on the "conse- quences of [units'] actions for the system as a whole.

This is all well and good for the real biological individuals autopoiesis was originally meant to describe, but runs dead against the "value-neutral" definitions of structure and function which Luhmann still has a commitment to use. To accept autopoiesis as a model for social systems may involve adopting a cor- poratist or institutionalist politics and a teleological functionalism which Luhmann, for one, may not welcome. Luhmann could, of course, maintain his commitment to "value- neutral" definitions of structure and function were he to confine auto- poiesis to the individual actor in the social system.

There is no theo- retical reason why the autopoiesis of the individual could not be broadened to include speech and actions that sociologists ordinarily classify as social action.

Indeed, Hayek's version of autopoietic law does exactly this. Values are then part of the material substrate on which individuals autopoietically maintain themselves. But Luhmann does not wish to locate society in an account of values, which he believes require a level of cohesion that pluralist and conflict-ridden advanced industrial de- Nor, for that matter, may Luhmann's pre-autopoietic version of autopoiesis, his notion of "self-reflexivity," be consistent with a nonteleological functionalism.

Luhmann treads on especially dangerous ground when he applies "self-reflexivity" to function. May ] Autopoietic Law mocracies will not support. Norms - including legal norms - play the role in these theories of mediating between values, on the one hand, and individuals oriented toward values in concrete interactions, on the other.

Values for him are what the indi- vidual desires, rather than what is desirable. The self-reflexivity of communi- cation, communication about communication, replaces norms as the chief integrating mechanism of society. It is, dynamic, rather than autonomous. Second, assuming the propriety of the autopoietic model for soci- ety, it is difficult to imagine an autopoietic subsystem of an autopoietic system. GOULD, supra note 90, at I am grateful to Mark Gould for pointing out to me the difference between "desired" and "desirable.

See Luhmann's criticism of Durkheim's emphasis on the moral problem of sociology in id. Luhmann is quite clear that the role of the person in autopoietic law is to serve "merely [as] a point of allocation and address. This is the classic positivist notion of the person - a legal accounting device for reconciling the double entry accounts of action and sanc- tion. The autopoiesis of the social system hence legal system must serve higher levels of com- plexity reduction than the person, who, admittedly, has her own subordinate level of autopoiesis in "consciousness.

Hayek's is the model of an autopoietic theory that puts values and individuals, mediated by norms, at the center of social theory. Teubner has especially focused on this problem. I shall not try to wrestle here with Teubner's fascinating use of the "hypercycle," and his thesis that legal auto- poiesis suggests the internalization of the evolutionary mechanisms of law.

They are worth de- tailed study. See also pp. The func- tionally bound subgroup has an autopoiesis only if it constitutes a social system within the general society, much as the cell forms an organism within the larger organism made up of cells.

But the auto- poiesis of the subgroup could not operate solely over the functional thematization of the subgroup within the larger society. A "legal sub- system" has an economy, a power structure, etc.

The acid test of the subsystem will always be whether it is successfully meeting the functional demands of the social system. The subsystem earns money, gets power, by meeting functional demands. Even a highly differenti- ated legal subsystem cannot obviously maintain the absolute control over production and reproduction of the legal code that autopoiesis requires.

Communications can serve two mas- ters - "payment" can have both an economic and a legal significance pp. Luhmann is aware of the difficulty of imagining an autopoiesis of function-specific communications in the context of an autopoietic so- cial system p. Luhmann thus confines legal autopoiesis to main- tenance of a code, the integrity of a system of legal communications pp. The effects of the code on "nonlegal" actions and communications - actual decisions of cases, bargaining in the shadow of actual decisions, the content of the normative elements of the code - need have no integrity, since they do not affect maintenance of the code.

The legal system is normatively closed and cognitively open. Luhmann solves the subsystem problem quite cleverly by compressing law into language - legal communications. Actual decisions, bar- gaining in the shadow of decisions, the content of norms - everything we ordinarily regard as important about legal systems - is not law, May ] Autopoietic Law according to Luhmann, but nonlegal communication and action in the form of legal communication. Because Luhmann cannot allow legal autopoiesis to "disrupt" the autopoiesis of the social system, he must regard law as form only, the legal franking of a nonlegal, autopoietic social substance.

The positivism of Luhmann's autopoietic law is the autonomous code; the social substance the code bears is the natural law of the positivism. Third, even if one can conceive of an autopoietic subsystem of an autopoietic social system, Luhmann's assignment of law to a subsys- tem bristles with difficulties. The empirical test is whether any so- cial system in fact compresses law into the autonomous code that Luhmann's functionalism requires. If the answer is that no social sys- tem does, then Luhmann's characterization of the "legal system" as an autopoietic subsystem is a deliberate choice freighted with normative consequence.

We can surmise that Luhmann has exercised this choice in order to forward a program of suppressing the role in social theory of values and individuals, mediated by norms.

Modelling the "legal system" as a social subsystem is simply not an option for social theo- ries that put values and individuals, mediated by norms, at the center. The consequence for legal theory of de-centering values and individu- als is at once positivism and naturalism.

The consequence for social theory is a reification of legal institutions and an "evolutionary" pref- erence for the autonomy and unity of legal systems. For an empirical test whether functional confinement of the legal system is a necessary precondition of its autopoiesis, hence whether autonomy is a more important virtue for the legal systems of advanced industrial democracies than dynamism, we tum to the legal system of our advanced industrial democracy: common law.

Common lawyers are comfortable with the thought that the appropriate references for justifying legal decisions are prior legal decisions of the same order, and that every decision serves as a reference for future decisions. This is not a com- So far as I know, Luhmann is the only major social theorist who assigns the legal system to a subsystem of the social system.

Luhmann's is clearly the work of a lawyer. Habermas treats the legal system as part-system, part-lifeworld. McMurrin ed. It is thus a good candidate for empirical validation of Luhmann's insistence on functional confinement of the legal system to achieve autopoiesis. The conception of a self-generating legal system is as familiar to common lawyers as it is bizarre to lawyers trained in the Continental traditions of positivism and naturalism. Luhmann's work should be much more radical and surprising to his European colleagues than it is to us.

These latter traditions model law on the basis of sciences that have no room for self-production. Positivist or naturalist materials ultimately come from outside the legal system proper, through the aus- pices of legislation or natural reason, which in tum are based upon morals and politics, not legal materials.

It sometimes seems as if Luhmann has used autopoiesis to rework the traditions in which he was trained in order to fit a common law model. However, with some notable exceptions, such as Karl Llewellyn, Americans have been shackled by the absence of an adequate model for the common law in positivism and naturalism.

The Continental tradition has always supplied the "high talk" of American jurispru- dence, the common law, its language of serious business. But positiv- ism and naturalism are high talk only. They completely miss the ceaseless self-generative, hence self-transformative, activity marking the common law above any other jurisprudence.

Autopoietic law, though another import, provides a clearer reflection of our jurispru- dence than do the older models. Yet Luhmann's functional confine- ment of autopoietic law does not provide an ab. For that we must tinker with autopoietic law using a tradition we have lost sight of in modem legal theory: law as revelation.

First, any fully autopoietic legal system must include the individual as such in the self-generating operations of the system. Second, any legal system that puts the individual at the center must resort to some version which we can specify of law as revelation. See supra text accompanying notes , Al- spach eds. Lempert too suggests a critique along these lines. He, by contrast, prefers to couch the critique in terms of the failure of autopoietic law to provide room for legislation.

Lempert emphasizes the importance in Anglo-American law of equal access to the legal system by individuals and the status neutrality of law among individuals pp.

Luhmann 's Invitation Though Luhmann's version of autopoietic law does not provide an absolutely clear reflection of the common law, Luhmann would never claim that it had to. Autopoiesis, first off, is not a model of the com- mon law alone, but of legal systems in advanced industrial democra- cies, most of which are not common law systems.

Bentham, Hegel, Weber - every heavyweight but Hayek who has considered the mat- ter has found it puzzling that the first industrial economy arose in a jurisdiction whose legal system is as barbaric and irrational as the common law. The scientific to Hayek, constructivist and autocratic! Luhmann could, if he wished, join Bentham, Hegel, and Weber by treating the common law as an exception to these requirements.

Luhmann is a scientist; auto- poietic law is a scientific model in the tradition of Weber. Only my emphasis differs from Lempert's. The link between our approaches is that once one has made individuals into tenants of their own legal system, then the law they make as individuals appears only as legislation.

The legal system necessarily regards legislation as unpredictable, external, foreign. Ronald Dworkin has recently tried to build a bridge between individuals and legislation through his notion of law as integrity.

Disseized individuals avenge themselves legisla- tively upon the legal system in at least three ways. Acting en masse through interest groups they enact statutes; as judges they make laws in the guise of deciding cases; they make contracts as personal legislation.

I prefer to couch the critique in terms of the absence of individuals rather than legislation, because I believe it brings us closer to understanding a real dynamic underlying modem legal systems that sociologists of law not fo mention legal theorists have neglected.

Though we can mince words on the subject, it is best to treat this dynamic in terms of its purest and most explicit historical expression, which is revelation. I am on Hayek's team. He answers the "English question" of political economy by exploring the exact means by which the common law supported the expll!

See 2 F. Weber understood and respected the common law as a political phenomenon, but did not, so' far as I know, grasp its connection with the development of the English economy in the century following the Bubble Act GOULD, supra note 90, at n.

The Bubble Act cut firms off from their formal connection with the sovereign through the regulated company, driv- ing them into a common law underground, which became the modem law of associations. Weber looked to the "Protestant ethic" rather than tp law for a transformation in patterns of capital accumulation.

The formula is: ,the common law is unpredictable unlike scientific legal systems , capitalistic enterprise requires a predictable legal system, the common law hindered rather than helped the development of capitalistic enterprise.

Hayek turns the formula upside-down: scientific legal systems may be predictable often as not they are wildly capricious , but their very "predictability" stifles enterprise. Ask Wall Street entrepreneurs whether they favor "predictable" legislation and administra- tion of financial transactions out of Washington over those last re. WEBER, supra note See also supra text accoi:ii-panying notes The ob- servers' understanding must, in tum, be comprehensible to the people observed, but may not simply restate their self-understanding.

The understanding must be an observation that the observed receive with their own understanding. Here social science mimics natural science, where the test of validity is universal agreement on the basis of com- mon observations. The difference is that universal agreement in social science includes agreement of the object being observed. The ob- served's understanding of the observers' understanding will have fresh insights about observers too! Luhmann uses autopoiesis to understand in a fresh way the fact that legal systems in advanced industrial democra- cies are at least partly self-referential, and the references of these sys- tems are never fixed, but constantly changing.

We denizens of common law systems understand in our own way Luhmann's under- standing. Autopoietic law need not be a perfect reflection of the com- mon law to pass Weber's test, only a recognizable one, and Luhmann's reflection is certainly recognizable. A recognizable reflection of a social phenomenon, according to Weberian science, invites the denizens of the phenomenon to respond to the understanding.

Let us accept Luhmann's invitation. He has suggested an insightful understanding of the legal systems of advanced industrial democracies that we common law denizens can understand. The common law strives in a manner we shall have to pin down to be This will, in tum, lead to self-knowledge on the part of the observer and further self- knowledge on the part of the observed.

Readers will recognize this as Habennas' integration of Freud's and Weber's scientific methods. Social science, Luhmann notes, has its own autopoiesis. The grand alternative to Habennas' synthesis of Freud's and Weber's conversational method stems from Marx. Marx's methodology retains allegiance to the Baconian tradition of experi- mental science - an effort to isolate the "laws of motion of capitalism" through the coincidence of a theoretical.

See supra text accompanying notes The danger, of course, of retaining allegiance to the methodology of mechanism is that it will slide into positivism. Marx's early writings maintained an allegiance to the other tradition of scientific knowing before the modem sciences of the individual: the observational method of species sci- ence his notion of "species being".

Mark Gould has argued that Marx avoids positivism and thus retains the species commitment of his early writings by insisting on proper experimental conditions for attaining knowledge in social science.

Gould describes the conditions in which valid social knowledge is possible as those of an "equitable society. GOULD, supra note 90, at xvii-xviii. May ] Autopoietic Law self-referential, and the common law constantly engages in self- transformation.

A Common Law Model Luhmann's account of autopoietic law does not show that he un- derstands the exact manner in which the common law is self-referen- tial. Perhaps he has not tried. It also does not show that he understands the reason the common law constantly engages in self- transformation.

He should want to know. Luhmann may not un- derstand these matters, I suggest, because he has not freed himself from the positivist and naturalist orientations his tradition requires. As a probable consequence of his dependency on physical or natu- ralistic models, Luhmann misses the method and motor of common law self-generativity: the role of individuals - ordinary legal persons - in generating legal norms, and the need of individuals to keep trans- forming them.

It is probable though not certain that inclusion of individuals in a model of law prohibits the functional confinement of law to a subsystem of the social system. Thus the common law exhib- its an expansive, world-filling dynamism constantly pressing to break the bounds of functional confinement.

Luhmann may have committed the noblest sin of social science: constructing an illu- minating ideal type of a general phenomenon the legal systems of ad- vanced industrial democracies and confusing the general phenomenon with a particular version of it. But the best social scien- tists, like Luhmann, commit sins precisely in order to have denizens correct them. The common law reflection of autopoietic law starts from the no- tion of law in common law systems. An anchor of the idea that law is application is the doctrine of precedent: legal norms cannot exist apart from spe- cific applications.

Law as application is a profound and far-reaching notion with four immediate consequences. First, one who wishes to know a legal norm can start knowing it only by studying prior applications of the norm. Thus, reports of See Jacobson, Legal Plenum, supra note The common law is one of three dynamic jurisprudences, sharing a host of characteristics that set them against the two static jurispru- dences, positivism and natural law.

The most striking characteristic of the dynamic jurispru- dences is that, unlike positivism and naturalism, they do not require a stable correlation of rights with duties. They are "correlation-breaking. For a more elaborate account of these ideas, see id. Cases sometimes state "rules," but rules are not norms, only a way of talking about the formulation of norms in cases. The norm is the rule-anchored-in-cases.

A rule applied in a prior case was the rule for that case, and the doctrine of precedent demands only that it be considered in subsequent applications. Second, one can know a legal norm completely only once one has completed one's own application. Common law norms are the proce- dure for their own application. The legal norm is procedurally thick and substantively indeterminate. To know the norm one must study a book of cases rather than a treatise setting forth general statements.

The legal norm thus changes as those who are applying it in transac- tions proceed with their application. At the beginning of a relation- ship the "rule" component of the norm may be all the guidance law can or should supply to the parties in the relationship. The relation- ship itself is of a level of abstraction coordinate with the rule.

As the relationship evolves, the fullness of prior applications of the norm be- come more relevant to the parties, precisely because their own applica- tion has more materials to compare to prior applications. Third, the legal norm is the product of the prior applications and the present application. Hence the norm must change with every fresh application. Every application, no matter how routine, must be added to the book of cases.

Even an application "on all fours" with prior applications contains the valuable information that the norm has not changed despite changes in the world since the prior applications.

Fourth, the legal norm may change only in certain directions in the fresh application. The common law constraint on changes in norms stems from an overriding common law norm that derives from the definition of law as application.

Individuals using norms to con- duct relationships must not behave as if the rule-component of the norm protects them, no matter how bad the consequences. We traditionally classify the revisionary power of the common law under the rubric of "equity. Since the joinder of equity and law, the revisionary power has unambiguously been the province of common law judges. I do not believe, in any case, that the development of a separate equity jurisdiction in the Middle Ages was adventitious.

The English legal system included both equity and law, and I refer to the entire system as the common law. Lest Luhmann complain that my account of reciprocity in the common law constitutes a naturalistic "super-norm" p.

In any case, Luhmann himselfbases the legal theory inA Sociological Theory ofLaw, supra note 44, hence by implication in his autopoietic works, on the notion of reciprocity contained in the conception, "expectations of expectations" - a naturalistic super-norm underpinning Luhmann's positivism.

See also supra note Individu- als must always impress judge and jury that they have the character of acting reciprocally in their dealings. Respect for the latent rights of individuals who appear to be losers under the rule-component of a norm is an essential component of that character.

Common Law Autopoiesis The model of the common law as application suggests a motor for the ceaseless self-transformation of legal norms in common law juris- dictions. The same motor almost certainly applies generally to the legal systems of advanced industrial democracies. The common law motor - the need of individuals as moral beings to engage in constant transformation of law defined as application - supplies a more satis- factory explanation for the perpetual motion and transformation of legal systems than Luhmann's, which reduces to tautology rescued by utilitarian functionalism..

The model also suggests the exact manner in which the common law is self-referential. The norm includes orientations toward the norm of each individual applying it. Common law self reference re- quires reference to the selves disclosing themselves through prior appli- cations. This latter reflection, I suspect, is less clearly responsive to Luhmann's model in terms that would be useful or meaningful to the- orists working in his tradition. Only they can say. The role and needs of the individual in common law systems link the motor of transformation in the common law with the manner in which the common law is self-referential.

Luhmann's focus on auton- omy and order misleads him into eliminating or suppressing the role of the individual in autopoiesis. The elements of autopoiesis in his model are legal communications; the elements in common law, individ- uals revealing themselves in norm application understood as norm cre- ation.

Because Luhmann focuses on the autonomy of legal systems and the contribution of legal systems to order, he contracts the legal system within the social system to the point where the individual as such is not a recognizable part of it. The common law both serves and breeds very different sorts of individuals. The realm of the social does not disappear in the common law has described the pragmatic restraints on judges' freedom.

D'Amato argues that the popular perception of the Realist formula, that law is what the official in charge of enforcing it will do, needs correction.

The enforcing official will pay close attention to the predictions of what she will do, since to depart surprisingly from the predictions would diminish her power. Hence the correct formula is that of Holmes: law for judges as well as lawyers is a prediction of what the judge will do.

First, individuals figure in the common law only in the character they display through interaction oriented toward the values expressed in prior applications of norms.

The individuals applying norms may have hosts of attitudes personality, emotion toward the application. The attitudes do not matter: only the display of character in interaction matters.

Second, the prior applications of norms to which individuals orient themselves necessarily include the characters expressed by other indi- viduals in exemplary interactions. These prior expressions of charac- ter are themselves orientations toward values expressed through interaction. Hence the individual looking toward prior applications necessarily orients herself toward values expressed in prior applica- tions.

The values remain values, even though they include references to character. Third, the overall orientation of persons living in common law sys- tems - reducing the uncertainty of the application of norms through reciprocity of application - creates communities of norm application, congeries of persons conspiring to set parameters of application. The common law frees individuals to form partial and shifting communi- ties defined by the mutual interest of individuals in specifying law construed as application for these communities.

The common law sets up parameters of interaction under which individuals have an in- terest in constructing communities. The "social" in the common law appears as community, not structure. Common law jurisprudence is not the only jurisprudence under- scoring the fate and needs of individuals as members of communities. The common law interest in individuality - the display of character in interaction - is not the only possible interest. Other sorts of juris- prudence historically have emphasized different interests in individual- ity with a different vision of the social associated with each interest.

One interest, for example, has been the self-perfection of individuals, usually found in jurisprudences emphasizing the duties of legal per- sons over their rights. The vision of the social associated with the interest of self-perfection is the cult, the society of members united in a quest for self-perfection.

Another interest has been the liberation of individuals, emphasizing the rights of legal persons over their du- ties. These other interests are certainly found alongside common law jurispru- dence in the American legal system. For example, American constitu- tional law emphasizes the interest of liberation.

Nonetheless, the common law makes only one interest and its associated vision of the May ] Autopoietic Law social thematic: the display of character in interaction and communi- ties of norm application.

The distinction is not even theoretically conceivable, which is the most Luhmann claims for it. Every normative reference absolutely requires cognition of the behavior of the legal person applying the norm in interaction.

Every cognition of action is steeped in normative refer- ence. The institutions of the common law facilitating this absolute unity of the normative and cognitive are quite elaborate, and bear careful scrutiny. The contributions of the jury, for example, have been inestimably important in warding off the tendencies of bureaucratic legal personnel to degrade the common law to a mixture of positivism and naturalism.

The struggle over the directed verdict is only one pro- cedural manifestation of the battle against the degradation of the com- mon law. The jury has also undoubtedly stiffened the resolve of the bureaucratic personnel to use equitable criteria even where litigants do not have a right to trial by jury. Another example is the extraordinary success of constitutionalism in the United States and Great Britain, which almost certainly depends on a substructure of common law liti- gation and a common law understanding of the nature of right.

These examples, unfortunately, exceed the scope of this essay. The emphasis in the common law, which is at once intensely indi- vidualistic and communal, is more likely to support the operations of advanced industrial democracies than legal systems whose structure opposes amoral, want-seeking creatures to a social structure function- ally designed to funnel and bridle the depraved activities of these crea- tures. The first modern industrial system did not arise in a common law jurisdiction by accident.

Common Law Revelation Neither Luhmann nor the common lawyers have been without materials in the very core of Western jurisprudence with which to un- derstand the role and needs of individuals as such in legal systems.

Though neither positivism nor naturalism does the job, Luhmann's tradition, in common with ours, offers a third model of law, law as revelation, in which the role and needs of individuals as such are cen- tral.

Revelatory law is a model that legal theorists and sociologists have tried very hard to ignore, but it is worth understanding in the interests of science. Only the revelatory tradition, not positivism or naturalism, contains strong models of individuals that help us under- stand the motor and method of common law self-generativity.

For a more elaborate account of the three individualist jurisprudences, see Jacobson, Legal Plenum, supra note The theorists of legal autopoiesis, like virtu- ally all their scientific forebears, are guilty of the Enlightenment crime of excessively hating religion, to the degree that they refuse to theorize it. What is at stake in the banishment of revelation from the scientific approach to law is the career of the individual.

Though autopoiesis gives the individual more of a role in the legal system than either posi- tivism or natural law, the legal person of autopoiesis very much re- mains either a want-choosing cipher as in mechanism, or the bearer or instrument of the system as in the old biology of species. A strong doctrine of individualism must have reference to some form of revela- tion - God speaking to or through persons.

The consequence of not taking seriously or recognizing the revelatory moment in legal systems is that Luhmann's construction of autopoietic law lacks a strong doc- trine of individuals, which the common law, in common with a wide range of both secular and religious legal systems, at once cultivates and requires. The ordinary meaning of revelation requires some version of God speaking directly to or through a legal person or persons. I accept the ordinary meaning, with the caveat that it is incumbent upon the receiver of revelation to say what she means by "God.

Sociology can then trace the value-neutral, analytic continuation of terms left undefined by doctrine back into the heart of doctrine. Thus reworked, the soci- ologist is able to understand the relations between doctrine as an ex- Not all have been guilty, however. Montesquieu, whose relations with the Enlighten- ment were ambivalent, to say the least, invented the sociological method of spirit "esprit'?

Hegel fashioned Montesquieu's discovery into a powerful analytic tool of general applicability in his Phenomenology of Spirit "Geist" is "esprit'?. Hegel's intricate studies of the worlds created by spirit or ideology, in Marx's view are scientifically unsurpassed. Hodgon ed.

May ] Autopoietic Law pression of values and the system of interaction instantiating the values. American jurisprudence has overt revelatory moments, such as the doctrine of the Founders in constitutional law. Covert revelation is embedded in the structure of common law pragmatics: the status of the person vis-a-vis the norm and the norm vis-a-vis the person.

Norms are revealed to decisionmakers through ordinary interaction ordinary persons too are decisionmakers. The source of revelation is character manifest in interaction; the text of revelation is case law, understood as a record of exemplary interactions.

Common law reve- lation thus has two moments: the orientation toward the norm of each individual applying it, and the reference in the norm to the selves dis- closing themselves in prior applications. Revelation can thus be found in the focus of the common law on the individual case and in the char- acter of persons making each case individual.

Either scientific models themselves cannot fully convey the potential of law for governing human relationships or the autopoietic lawyers have not sufficiently mastered the epistemologicaJ subtleties of the new science from which they draw their model. I am not sure which is the case, since the new sciences of biology, psychology, and physics today are themselves similarly affiicted by terrible uncertainty. One point is clear. If Luhmann wishes to be consistent with the methodological premises of autopoiesis, he should not want to claim validity for autopoietic law on the ground that it describes some legal system somewhere, just as the common law describes a possible legal system.

His death in triggered a wider general interest in his work, and its susceptibility to reception in cultural theory has been clearly registered. His debates with such theorists thus place him close to the centre of widespread discussions on the nature of politics, on political legitimacy and the law, and on the theoretical preconditions of political humanism.

Against this background, this essay has three primary intentions. First, it seeks to give an account of the political-philosophical foundations of systems theory. It is complex because modern society itself is a mass of complexities, and Luhmann saw the task of a social theorist as observing complexity for what it is and avoiding simplified or reductionist accounts of the social world. No theory, not even closed systems theory or autopoiesis, can have the last word or give an exclusive or true account of what society, in its totality, is and how it operates.

He fully realized that one could never completely escape reductionism, since any attempt to address and understand events socially necessarily involves selection, rejection and interpretation. What he did accept as feasible, however, was a theory which embraced the possibility of infinite theories, accounts or interpretations of society or beliefs about society.

To browse Academia. Skip to main content. By using our site, you agree to our collection of information through the use of cookies. To learn more, view our Privacy Policy. Log In Sign Up. Seeing law as a social system means to characterize law as a dependent variable of the society just as the society is also a dependent variable of law.

In other words, law evolves in relation to the development and changes of society and the rules are created as a demand from the society in order to solve social problems. But it also signifies that the changes that have occurred within the legal system impact the evolution of the society.

In a very basic sense, law is autopoietic and always contingent. What society does is only give accidental impulses, which causes variations and innovative selections. This assumption leads to the conclusion that when law is reproducing itself — a process named as autopoiesis — it is actually also reproducing the entire social system.

To perform this ability, law resorts to forms of communication that can be understood outside its own sphere. Law is both dependent and independent from society. This means, in the theory of social system, that law depends on its environment — that is, society — to grow, but, at the same time, it is autonomous when its own operations are concerned, which means that the legal system decides for itself what is legal and what is illegal and, to do that, it must appeal to its own operations.

According to Luhmann , p. Is the concept of law as a social system open to feminist contentions? Moreover, the structural elements of this patriarchal system can be identified in different sub-systems described by Luhmann and are all of them, to varying degrees, connected to the legal system, via some kind of regulation or even non-regulation.

Let me clarify this point in a more detailed manner. By using the term social structure she wants to both banish any possibility of patriarchy being read in a biological determinist perspective and to establish that neither is every man nor is every woman, respectively, in the position of oppressor and oppressed.

Still according to Walby, patriarchy can be assessed from two different levels, one more abstract and another less abstract.

The identification of these six different bases of patriarchy is important because it guarantees the necessary analytical instrument to assess a reality that is increasingly complex and thus avoids reductionism and essentialism. They also vary in time and space and must be analyzed in a deep way according to different contexts.

In order to address the question posed at the beginning of this paper, I will relate each of these elements of the patriarchy system to the legal system, aiming to show the problems that emerge from treating the latter as self-referentiated and thus not impacted by the first.

As many research reports have demonstrated such as Hausmann, Tyson, and Zahidi, , women are, even when they dedicate themselves to some type of paid job, the ones responsible for the major part of the housework and caretaking. How does this then relate to the legal system, since household labor happens inside the private sphere and does not seem not to be an issue for legal regulation?

The second element, patriarchal relations within paid work, is explained by Walby , p. The relationship between this element of the patriarchal system and law seems to be clear. With this statement, she aims exactly to show that when labor law claims a gender neutral approach — which seems to be the Luhmannian perspective — it actually embraces a male standpoint, for it does not admit that sexual differences play an important role in the labor place.

In this sense, there is a tense relationship between labor law and patriarchy: some advances from a feminist perspective can be pointed out in this branch of law, but they occurred only in those circumstances that the patriarchal conceptions which dominate this legal field, as asserted by Conaghan, were explicitly recognized and addressed. The third structuring element of the patriarchy system pointed by Walby , p.

The connection of this element and law seems to be explicit: for Luhmann, law is positive law, which means, law is that body of norms produced by the state according to a previously established procedure. If this is so and if the state has a patriarchal bias when planning and executing its policies and actions, the legal system will, to a lesser or greater extent, embody this same bias, in the way feminist legal scholarship has demonstrated MacKinnon, In this issue, law definitively plays a very important role.

It should be noted that for quite a long period of time, violence against women was not even deemed a legal concern. There was no specific regulation on this matter and, for this reason, many women lost their lives. After many years of feminist struggle, different countries around the world passed acts expressly directed at confronting violence against women and, just as the affirmative action acts mentioned before, they are not gender blinded.

Moreover, they represent the result of a strong social movement pressuring the state in order to produce such type of norms. Once more, the relationship between this element of the patriarchal and the legal systems seems to be very clear. In different countries of the world, there is an ongoing struggle of the LGBT lesbian, gay, bisexual, transsexual and transgender movement to pass laws which enfranchise same-sex couples with the right to marry.

This vindication is necessary because most of the Western democracies only recognize the right to get married to different-sex couples. Why so? In a gender perspective, the answer is no. This norm actually incorporates, or better said, legalizes a compulsory heterosexuality norm that guides the Western patriarchal society and that is why pressures from outside the legal system have so little acceptance.

These institutions play a very important role in shaping subjectivities which are gender-differentiated or, in other words, they create some standards of what it means to be a man and what it means to be a woman and, by doing this, they help to maintain the patriarchal system as whole. The relationship between them and the law can be established in the following way: the standards created by those institutions inform the production of law — just remember the cases of labor law and violence against women — and law can function both as a tool which reinforces or challenges them.

Once demonstrated the relationships each of the different elements of the patriarchy system establish with the legal system, it is necessary to cla rify that the theorists of patriarchy do not state it is an unchangeable entity. As an example of these type of changes is the fact that wages and education gaps between men and women have decreased in almost all western democracies due to, firstly, a strong struggle of feminist and 1 According to Walby , p.

Then, what is problematic in the Luhmannian approach? If in earlier times, women could not even establish civil contracts with their own names because they were not entitled basic civil rights, today Western legal systems have changed and guaranteeing that women can take part in the life of democratic polities as citizens. The suffrage, and more recent reforms such as the participation of women on juries, equal-pay and anti-discrimination legislation, reform of marriage and rape law, decriminalization of prostitution, are all seen as allowing women to become citizens like men and owners of property in their persons like men Pateman, , p.

From the ethical-political perspective, it states that biological differences were misused to produce a social differentiation among people and designated women to a subordinated, oppressed and despised place. In this process, law functions as an important mechanism for producing and reproducing gender inequality. And, finally, considering methodology, feminist legal theory does not assume a dogmatic attitude 2 toward its object.

On the contrary, it is characterized by a critical scrutiny of law and legal practices, made possible by the always present linkage between theory and practice. Hence, academic law feminists conduct their research in a manner that is capable of showing how law is both gendered and not neutral, seeking to demonstrate the existing link between law and the condition of subaltern woman, in order to promote social change.

In this theoretical field, law is seen as a byproduct of the social construction of reality.