The construction and demolition of the Luhmann heresy

Law and Critique

Volumn 12, Issue 1, 2001, Pages 1-32

  King, Michael ^a  

^a BRUNEL UNIVERSITY   (United Kingdom)

Author keywords

Autopoiesis; Criticism; Jurisprudence; Responsibility; Social theory

Indexed keywords

EID: 34247743107     PISSN: 09578536     EISSN: 15728617     Source Type: Journal    
DOI: 10.1023/A:1011279815476     Document Type: Review

References (112)

1. H.H. Kogler, "Social Systems Review Article", The American Journal of Sociology 103(1) (1997), 271-273 at p. 271.
2. F. Vandenberghe, "Niklas Luhmann 1927-1998: Systemic Supertheorist of the Social", Radical Philosophy 94 (1999) (http://speke.ukc.ac.uk/secl/ philosophy/rp/biog/94luhmn.htm
3. R. Lempert, "The Autonomy of Law: Two Visions Compared", in G. Teubner, ed., Autopoietic Law: A New Approach to Law and Society (Berlin, New York: Walter de Gruyter, 1988), 152-190.
4. See H. Rottleuthner, "A Purified Sociology of Law: Niklas Luhmann on the Autonomy of the Legal System", Law and Social Review 23/5 (1989), 779-797;
5. H. Rottleuthner, "The Limits of Law - The Myth of a Regulatory Crisis", International Journal of the Sociology of Law 17 (1989), 273-285.
6. See M. King and A. Schutz, "The Ambitious Modesty of Niklas Luhmann", Journal of Law and Society 21/3 (1994), 261-287.
7. N. Luhmann, Social Systems, J. Bednarz Jr., D. Baecker, trans. (Stanford, California: Stanford University Press, 1995), at xli.
8. J.W. Harris, Legal Philosophies (second edition), (London: Butterworths, 1997) at 251.
9. Luhmann writes in Social Systems, supra n. 6, at 76: "One can speak of fact dimension' in relation to ... themes of meaningful communication (in social systems). Facts or themes in this sense can also be persons or groups of persons. The fact dimension is thereby constituted in the meaning that divides the reference structure of what is meant into 'this' and 'something else'. Thus the point of departure for a factual articulation of meaning is a primary disjunction which contrasts something as yet indeterminate to something as yet indeterminate." [emphasis in original]
10. Maturana offers the following definition of an autopoietic system: "A dynamic system that is defined as a composite unity as a network of productions that, (a) through their interactions recursively regenerate the network of productions that produce them, and (b) realise this network as a unity in the space in which they exist by constituting and specifying its boundaries as surfaces of cleavage from the background through their preferential interaction within the network, is an autopoietic system." See H. Maturana, "Man and Society", in P. Bensler, J.M. Heijl, and W.K. Kock, eds., Autopoiesis, Communication and Society (Frankfurt: Campus Verlag, 1980), 11-31 at 29.
11. I take issue with the idea that it is impossible to analyse autopoiesis in its own terms in my discussion (pp. 7-8) later in this essay of Zenon Bankowski's elaboration of this argument.
12. Harris, supra n. 7, at 251 [emphasis added].
13. Z Bankowski, "How Does It Feel To Be on Your Own? The Person in the Sight of Autopoiesis", Ratio Juris (1994), 254-266.
14. A. Beck, "Is Law and Autopoietic System?", Oxford Journal of Legal Studies 14 (1994 Autumn), 401-418 at 402.
15. A. Beck, "Is Law and Autopoietic System?", Oxford Journal of Legal Studies 1994 Ibid., at 402.
16. Ibid., at 409 [emphasis added]
17. . It is interesting from an autopoietic perspective that, in his insistence on labelling theoretical concepts as either "phoney" or legitimate (non-phoney), Beck employs a distinction in typical binary manner to observe observations about the legal system. Luhmann comments on this form of second order distinction between natural and artificial in Essays on Self Reference (New York: Columbia University Press, 1990) at 139: "The distinction natural/artificial can be utilized in such a way that an observation can interpret as artificial and contingent what the system itself assumes to be natural and necessary. For example, an observer may examine how a system creates the impression of its self-determinations being natural, necessary and lacking functional alternatives. He may then, for example, search for functional equivalents for the notion of God serving to deparadoxize the religious system. To use Heinz von Foerster's (1979) formulation, in this way an observer can see that the observed system cannot see that it is unable to see what it cannot see".
18. R. Cotterell, The Sociology of Law: An Introduction (2nd edition) (London: Butterworths, 1992) at 38.
19. D. Cornell, "Time, Deconstruction, and the Challenge of Legal Positivism: The Call for Judicial Responsibility", in J.D. Leonard, ed., Legal Studies as Cultural Studies. A Reader in (Post)modern Critical Theory (Albany: State University of New York Press, 1995), 231-266 at 251-252.
20. D. Cornell, "Time, Deconstruction, and the Challenge of Legal Positivism: The Call for Judicial Responsibility", in Legal Studies as Cultural Studies. A Reader in (Post)modern Critical Theory (1995), Ibid, at 234.
21. Ibid, at 236.
22. Ibid, at 234.
23. It is interesting to note here that Luhmann rarely use the term 'reality' and nowhere in his writings can one find anything resembling the notion that all reality is a construction and nothing exists outside the reality constructed by social systems. Reality does 'exist', but it is inaccessible and overlaid by the difference between system and environment which, for the system's communications, takes on the status of universal validity. "The difference between system and environment practised by a system presupposes and overlies a continuous reality ... A communicative social system arranges everything in its own communication as either internal or external and practices its own system/environment distinction as something universally valid, insofar as its own communication is concerned." See Luhmann, 1995, supra n. 6, at 178-179.
24. Cornell, supra n. 17, at 241.
25. Ibid, at 244.
26. Ibid., at 251.
27. For Luhmann anything may become meaningful and so 'real', but at the same time, the absence of a system capable of making certain distinctions results in the absence of reality insofar as meaning based on those distinctions is concerned: "Cognitively all reality must be constructed by means of distinctions and, as a result, remains construction. The conclusion to be drawn from this is that the connection with the reality of the external world is established by the blind spot of the cognitive operation. Reality is what one does not perceive when one perceives. All of this means that the fruits of the concrete operation of cognition, which issues from the use of distinctions -that is, the proliferation of combinatorial possibilities -is due to an instrument requiring an operational closure specific for the given system. If cognition demands meaning and meaning demands distinction then the final reality must be thought of as devoid of meaning." See Luhmann, supra n. 15, at 76.
28. See also N. Luhmann, "The Autopoiesis of Social Systems", in F. Geyer and J. van der Zouwe, eds., Sociocybernetic Paradoxes: Observation, Control and Evolution of Self-Steering Systems (London and Beverly Hills: Sage, 1986), 171-192.
29. N. Luhmann, "The Autopoiesis of Social Systems", in Sociocybernetic Paradoxes: Observation, Control and Evolution of Self-Steering Systems 1986), Ibid, at 251.
30. Everything in Luhmann's vision 'could be otherwise', including (one assumes) the autopoietic nature of social systems in the modern world Throughout his works he frequently stressed the contingent nature of the social world. For example: "Something is contingent insofar as it is neither necessary nor impossible; it is just what it is (or was or will be), though it could also be otherwise. The concept thus describes something given (something experienced, expected, remembered, fantasized) in the light of its possibly being otherwise; it describes the world as it is given, yet it does not describe the possible in general, but what is otherwise possible from the viewpoint of reality. In this sense, recently it has become customary to speak of the 'possible worlds' of one real lifeworld. The reality of the world is presupposed by the concept of contingency as its first and irreplaceable condition of possibility." See Luhmann, supra n. 15, at 106.
31. Cornell, supra n. 17, at 251.
32. Lempert, supra n. 3, at 154.
33. Ibid., at 155 [emphasis added].
34. Ibid.
35. P. Kennealy, "Talking about Autopoiesis - Order from Noise?", in G. Teubner, ed., Autopoietic Law: A New Approach to Law and Society (Berlin, New York: Walter de Gruyter, 1988), 349-368 at 363.
36. Ibid.
37. For a full discussion of this issue see D. Nelken, "Changing Paradigms in the Sociology of Law", in G. Teubner, ed., Autopoietic Law: A New Approach to Law and Society (Berlin, New York: Walter de Gruyter, 1988), 191-217.
38. A. Jacobson, "Autopoietic Law: The New Science of Niklas Luhmann", Michigan Law Review 87 (1989), 1647-1689.
39. N. Luhmann, "The Unity of the Legal System", in G. Teubner ed., Autopoietic Law: A New Approach to Law and Society (Berlin, New York: Walter de Gruyter, 1988), 12-35.
40. Jacobson, supran. 34, at 1651-1652.
41. Ibid., at 1647.
42. Jacobson refers here to pages 14-15. Luhmann does not, however, mention law on these pages, but is concerned more generally with the nature of autopoietic systems. What he writes is that: "An autopoietic system... constitutes the elements of which it consists through the elements of which it consists. In doing so it sets limits which do not exist in the substructure complexity of the environment of the system." Luhmann, supra n. 32, at 14. As for "decomposing" into the forces that affect them, Luhmann's only mention of decomposing on these pages is in relation to the limitations of action theory as revealed by Parsons' inability to find an answer to "the constitution of the 'unit act'", He writes: "The decomposition of action and the conception of the emergent unity of action based on it was an act which could only be performed by an outside observer. This presents a problem, since the unity did not come from the system itself." Luhmann, supra n. 32, at 15.
43. Jacobson refers here to Luhmann, supra n. 35, at 21. Luhmann does not use the words "rationally expressible essence" or anything similar on the page referred to by Jacobson. The nearest he comes, and it is not very near at all, to Jacobson's notion that the legal system has an essence is to point out the circularity in law "in terms of normativity... of the relationship between the rule and its application."
44. Jacobson refers here to Luhmann, supra n. 35, at 13-14, 18 and 23-26.
45. Jacobson refers here to Luhmann, supra n. 35, at 18.
46. Jacobson, supra n. 34, at 1649. This is a misstatement of what Luhmann wrote. Luhmann is writing on page 18 about 'society' and not about the legal system. Nevertheless, it is the case that the legal system too "cannot derive its operations from its environment nor pass them on to that environment". This does not, however, result in 'autonomy' in the way that Jacobson suggests, that is autonomy at the expense of dynamism.
47. For example, Luhmann writes: "For operative purposes, differentiation is oriented not simply towards the function of law but towards the antithesis of legal/illegal. The legal system must accordingly be understood as the unity of legality and illegality or more precisely as the control by this antithesis of its autopoiesis with the result that every operation of the system must be conditioned by the system itself." Luhmann, supra n. 35, at 25 [emphasis added].
48. The only other reference to "control" in this part of the essay comes on page 15 where, writing of self-referential systems generally, Luhmann states that "the system, with every operation, controls its own possibilities of negation" (Emphasis in original).
49. Jacobson, supra n. 31, at 1649.
50. Ibid.
51. Ibid.
52. Ibid.
53. Ibid.
54. Ibid., at 1650.
55. Ibid.
56. Ibid., at 1651.
57. Ibid., at 1652.
58. Ibid., at 1653.
59. Ibid., at 1661.
60. But this ignores or does not appreciate the difficulties which Luhmann identifies in his discussion of "decomposition of action". Luhmann, supra n. 35, at 15.
61. Jacobson, supra n. 34, at 1678.
62. See supra n. 83.
63. A. James, "An Open or Shut Case? Law as an Autopoietic System", Journal of Law and Society 19/2 (1992), 271-283, at 275 [emphasis in original].
64. See supra n. 38.
65. "The theory of self-referential systems maintains that systems can differentiate only by self-reference, which is to say, only insofar as systems refer to themselves (be this to elements of the same system, to operations of the same system, or to the unity of the same system in constituting their elements and their elemental operations." Luhmann, supra n. 6, at 9.
66. See M. King and C. Piper, How the Law Thinks about Children (2nd edition) (Aldershot, U.K.: Arena, 1995).
67. M. Murch, "The Cross-disciplinary Approach to Family Law - Trying to Mix Oil and Water", in A. Bainham and D. Pearl, eds., The Frontiers of Family Law (Chichester, UK: Wiley, 1995), 195-207 at 195.
68. King and Piper, supra n. 57, at 25-26.
69. M.D.A. Freeman, Lloyd's Introduction to Jurisprudence (6th Edition) (London: Sweet and Maxwell, 1994).
70. Freeman, supra n. 60, at 549.
71. Ibid., at 548.
72. Ibid.
73. G. Teubner, "The Two Faces of Janus: Rethinking Legal Pluralism", The Cardozo Law Review 13/5 (1992), 1443-1462.
74. W.T. Murphy, "Systems of Systems: Some Issues in the Relationship between Law and Autopoiesis", Law and Critique V/2 (1994), 241-264 at 243 [emphasis added].
75. Kennealy, supra n. 31, at 349.
76. J. Habermas, The Philosophical Discourse of Modernity. Twelve Lectures (Oxford: Polity Press, 1987);
77. J. Habermas, Between Facts and Norms, W. Rehg trans. (Cambridge: Polity Press, 1996).
78. Habermas, supra n. 72, at 373 and 385;
79. Habermas, supra n. 67, at 342.
80. Bankowski, supra n. 12.
81. Ibid., at 259.
82. G. Teubner, Law as an Autopoietic System (Oxford: Blackwell, 1993).
83. G. Teubner, Law as an Autopoietic System (1993). Ibid., at 261-262 [emphasis in original].
84. R. Cotterell, "Viewing Legal Discourses Sociologically", in G. Skapska, ed., Prawo w Zmieniajacym Si Spółczenstwie (1993) 55-70 at 68.
85. E. Goffman, Asylums (Harmondsworth: Penguin, 1968).
86. See e.g. S. Milgram, Obedience to Authority: An Experimental View (London: Tavistock, 1974).
87. See e.g. Z. Bauman, Life in Fragments (Oxford: Blackwell, 1995).
88. Luhmann, supran. 15, at 139.
89. "...the concept 'man' (in the singular!), as a designation for the bearer and guarantor of the unity of knowledge, must be renounced. The reality of cognition is to be found in the current operations of the various autopoietic systems. The unity of a structure of cognition (...) can only lie in the unity of an autopoietic system which reproduces itself with its boundaries, its structures and its elements... There are now approximately 5 billion psychological systems. It has to be asked which of these 5 billion is intended when a theory of knowledge employing a psychologicl reference system relates concepts such as observation and cognition to consciousness. If no answer is forthcoming, such a theory has to be characterized as practicing socio-communicative observation. And the suggestion would have to be made that it would be better if this practice were reflected upon." N. Luhmann, "The Cognitive Program of Constructivism and a Reality that Remains Unknown", in W. Krohn, G. Kuppers, and H. Nowotny, eds., Self-Organization, Portrait of a Scientific Revolution. Sociology of the Sciences Yearbook (Dordrecht: Kluwer, 1990), 64-85 at 78.
90. Luhmann, supra n. 6, at 186.
91. N. Luhmann, 'Observations on Modernity', in T. Lenoir and H.U. Gumbrecht, trans., Writing Science (Stanford, California: Stanford University Press, 1998), at 109. Luhmann also writes: "no system can advance into the future faster than others and thus lose the simultaneity required for contact with the environment... The difference between system and environment can only be established simultaneously. Thus the ongoing linkage between system and environment presupposes a common chronology... Yet temporal autonomy is an indispensable condition for autonomy in questions of fact. If a system always had to react to environmental events the minute they happened, it would have little chance of selecting its mode of reacting." Luhmann, supra n. 6, at 185-186. Above all else, they cannot assume that other systems' notions of time, the distinction of past and future, will correspond with theirs. Any distinction of this kind has to occur with each system.
92. The closest Teubner comes to an issue of moral conflict is in his discussion of Antigone's disobedience of Creon's law forbidding her from burying her brother. Teubner remarks: "One should not see this purely as a conflict between divine and secular law, but as an insoluble paradox. Antigone maintains that Creon's laying-down of what is legal or illegal is itself illegal. It is at this point that the radical nature of Sophocles' critique of the law becomes clear. It is not, as contemporary critique would have it, individual legal norms, principles or doctrines that lead to antinomies and paradoxes. Rather it is the fact that law itself is based on a fundamental paradox which even alternative versions of a communal law cannot escape." Teubner, supra n. 70, at 7.
93. See e.g. N. Luhmann, "The Code of the Moral", Cardozo Law Review 14 (1993), 995-1009;
94. and N. Luhmann, "Politicians, and the Higher Amorality of Politics", Theory, Culture and Society 11 (1994), 25-36.
95. Luhmann puts forward his systems theory as a complete departure from Durkheimian sociology with its preoccupation with morality and presents his theory as a new form of sociology. "The answer to the question 'How is social order possible?' can no longer be given with reference to the bare fact of morality or the collective consciousness. Without the reality or relevance of moral questions being denied, such Durkheimian concepts are replaced by concepts such as symbolic generalization, selective or local consensus, the reduction of social complexity, and communication codes". N. Luhmann, "Differentiation of Society", Canadian Journal of Sociology 2/2 (1977), 29-54, note 3 at 31.
96. Luhmann, supra n. 6, at 387.
97. A more complete account of this aspect of Luhmann's theoretical writings can be found in his book, Risk: A Sociological Theory, R Barrett trans. (New York: Aldine de Gruyter, 1993). Whether or not you agree with his account, Luhmann, in his writings on risk, at least recognizes these complexities.
98. P. Antze and M. Lambec, eds., Past Tense: Cultural Escapism, Trauma and Memory (New York/London: Routledge, 1996) at xxi.
99. See also E. Showalter, Hystories. Hysterical Epidemics and Modern Culture (London: Picador, 1997).
100. See M. King, "Comparing Legal Cultures in the Quest for Law's Identity", in D. Nelken, ed., Comparing Legal Cultures (Aldershot: Dartmouth, 1996), 119-134.
101. Teubner, supra n. 69.
102. Murphy, supra n. 70, at 248.
103. Ibid.
104. Teubner, supra n. 63, at 1445.
105. See M. King, A Better World for Children? Explorations in Morality and Authority (London: Routledge, 1997), at viii.
106. S. Fish, Doing What Comes Naturally (Oxford: Clarendon Press, 1989), at 437.
107. S. Toulmin, "The Construal of Reality", in W.J.T. Mitchell, ed., The Politics of Interpretation (Chicago: 1982).
108. See Fish, supran. 97.
109. Fish, supra n. 97, at 437.
110. See Knorr-Cetina, "Zur Unterkomplexität der Differenzierungstheorie", Zeitschrift für Sociologie 21/6 (1992), 406-419.
111. M. Schillmeier, "Observations on Modernity (Review)", The Sociological Review 47/13 (1999), 617-618, at 617.
112. If one wanted to engage in the kind of word play in which Nabokov (and Kimbote) indulge, one could draw attention to the closeness of Luhmann to the English word 'luminary' which has the figurative meaning of "a source of intellectual light... a person of 'light and leading' " (Oxford Shorter English Dictionary), but conveniently, when given its literal meaning of "source of light" may be used to refer to the morning star and hence to Lucifer (Microsoft Bookshelf-Thesaurus). Luhmann indeed ironically referred to himself as 'the devil' which adds spice to the reference to 'the Luhmann heresy' in the title of this essay. But this nonsense leads us nowhere....