Autopoietic Law: A New Approach To Law And Society

388 Pages·1987·13.148 MB·English

by  Gunther Teubner

EUI - Series A - 8
Teubner (Ed.), Autopoietic Law: A New Approach to Law and Society
European University Institute
Institut Universitaire Europeen
Europäisches Hochschulinstitut
Istituto Universitario Europeo
Series A
Law/Droit/Recht/Diritto
8
Badia Fiesolana — Firenze
Autopoietic Law:
A N ew Approach to Law and
Society
Edited by
Gunther Teubner
W
DE
1988
Walter de Gruyter · Berlin · New York
Library of Congress Cataloging-in-Publication Data
Autopoietic law.
(Series A — Law ; 8)
Includes index and bibliography.
1. Law — Philosophy. 2. Sociological jurisprudence. 3. Order
(Philosophy) I. Teubner, Gunther. II. Series.
K235.A97 1987 340M15 87-30301
ISBN 0-89925-3903-0 (U.S.)
CAP- Kur^titelaufnähme der Deutschen Bibliothek
Autopoietic law — a new approach to law and society / ed.
by Gunther Teubner. — Berlin ; New York : de Gruyter, 1987.
(European University Institute : Ser. A, Law ; 8)
ISBN 3-11-011459-3
NE: Teubner, Gunther [Hrsg.]; Istituto Universitario Europeo
<Fiesole>: European University Institute / A
© Copyright 1987 by Walter de Gruyter & Co., Berlin.
All rights reserved, including those of translation into foreign languages. No part of this
book may be reproduced in any form — by photoprint, microfilm, or any other means —
nor transmitted nor translated into a machine language without written permission from
the publisher.
Dust Cover Design: Rudolf Hübler, Berlin.
Setting: Arthur Collignon GmbH., Berlin. — Printing: Gerike GmbH., Berlin
Binding: Verlagsbuchbinderei Dieter Mikolai, Berlin.
Printed in Germany
Preface
This book grew out of a conference held at the European University
Institute in Florence. Legal theorists and legal sociologists from different
countries had been asked to discuss the potential of the theory of autopoiesis
for the analysis of law. Contributions that deal with issues of legal theory —
legal system, autonomy of law, legal evolution and cognition in law — are
presented in this volume. Contributions that deal with law's relation to
politics and the economy will be published in a second volume, entitled
"State, Law, Economy as Autopoietic Systems" (de Gruyter, Berlin, 1988).
I would like to thank Joyce Reese for her precise and thorough editorial
assistance, Ian Fraser for his sensitive translation of complex texts, and the
Institute's Publications Officer, Brigitte Schwab, for her helpful activities
in coordinating the publication.
November 1987 Gunther Teubner

Table of Contents
Preface V
GUNTHER TEUBNER, Bremen, Firenze
Introduction to Autopoietic Law 1
NIKLAS LUHMANN, Bielefeld
The Unity of the Legal System 12
FRANCOIS EWALD, Paris
The Law of Law 36
JEAN-PIERRE DUPUY, Paris
On the Supposed Closure of Normative Systems 51
FRANCIS OST, Bruxelles
Between Order and Disorder: The Game of Law 70
HUBERT ROTTLEUTHNER, Berlin
Biological Metaphors in Legal Thought 97
HANS-GEORG DEGGAU, Hannover
The Communicative Autonomy of the Legal System 128
RICHARD LEMPERT, Ann Arbor
The Autonomy of Law: Two Visions Compared 152
DAVID NELKEN, London
Changing Paradigms in the Sociology of Law 191
GUNTHER TEUBNER, Bremen, Firenze
Evolution of Autopoietic Law 217
KARL-HEINZ LADEUR, Bremen
Perspectives on a Post-Modern Theory of Law: A Critique of Niklas
Luhmann, 'The Unity of the Legal System' 242
VIII Table of Contents
THOMAS HELLER, Stanford
Accounting for Law 283
PATRICK NERHOT, Montpellier, Firenze
The Fact of Law 312
NIKLAS LUHMANN, Bielefeld
Closure and Openness: On Reality in the World of Law 335
PETER KENNEALY, Firenze
Talking About Autopoiesis — Order from Noise? 349
Authors' Biographical Sketches 369
Name Index 373
Subject Index 378
Introduction to Autopoietic Law
GUNTHER TEUBNER
Bremen, Firenze
Is the practice of legal reasoning bound to end in "strange loops", "tangled
hierarchies", and "reflexivity dilemmas" (Hofstadter, 1979: 692; 1985: 70)?
Is the legal process nothing but a closed cycle of recurrent legal operations:
"computation of computation of computation..." (von Foerster, 1981: 296)?
And are the social dynamics of the legal system based upon the "paradoxes
of self-reference" (Wormell, 1958; Quine, 1976)? Up to now, the intricate
problems of self-referential relations have not been part of the discourse
of lawyers; they have been discussed outside the law, in logic, linguistics,
cybernetics and general systems theory. Now the theory of legal autopoiesis
is importing the logic of self-referentiality into the legal world. Legal
autopoiesis breaks a taboo in legal thinking — the taboo of circularity.
Legal doctrine, legal theory and legal sociology have all regarded circularity
as a subject not to be broached. Circular arguments have been viewed as
petitio principii forbidden by the iron law of legal logic. Legal autopoiesis
now presumes to invalidate this iron law by transferring circularity from
the world of ideas to that of hard facts. The message is that circularity is
not a flaw in legal thinking which ought to be avoided (Fletcher, 1985:
1263), but rather that the reality of law consists of a multitude of circular
processes.
Autopoiesis proposes, as a new and promising research strategy, to
identify circular relationships within the legal system and to analyze their
internal dynamics and their external interactions. What has been done so
far in this field seems to be marginal. Legal methods are only slightly
informed about the circular relation between purpose and norm in teleologi-
cal reasoning (Alexy, 1978: 289 ff.); legal hermeneutics have only begun to
study the perplexities of the hermeneutic circle in "Vorverständnis und
Methodenwahl" (Esser, 1970); legal sociology has so far granted the luxury
of circularity in feedback loops only between law and society. In the
autopoietic perspective, these phenomena are viewed as only a few special
cases in the encompassing circular self-referential reality of law. The whole
legal system is seen as a dynamic cyclical reproduction of legal elements
embedded in hypercyclical relations of legal structures and processes (see
2 Gunther Teubner
Teubner, 1987 a). Law, like other autopoietic systems, is nothing but an
"endless dance of internal correlations in a closed network of interacting
elements" (Maturana, 1982: 28).
Circularity suggests closure. Thus, an autopoietic legal system is seen as
operationally closed. Apparently, this runs against modern conceptions of
an open responsive legal order, adapting to, and at the same time, shaping
the social environment. Operational closure of law raises the suspicion of
a new legal formalism, of a self-sustaining autarchy of law, of a new
ideology for the legal profession — especially in the minds of legal
sociologists. However, operational closure is only a half-truth. "L'ouvert
s'appuye sur le ferme" (Morin, 1977: 197 ff.). A radical closure of the
system — under certain conditions — means its radical openness. This is
one of the most challenging theses of autopoietic theory. The more the
legal system gains in operational closure and autonomy, the more it gains
in openness toward social facts, political demands, social science theories,
and human needs. This sounds paradoxical, and many formulations within
this new theory seem to enjoy paradoxes. However, if it can be shown that
this combination of openness and closure renders the legal system more
responsive to social reality, and if concrete mechanisms coupling normative
closure with cognitive openness can be identified, then legal autopoiesis
has a potential of going beyond the theory of "open systems" which views
itself as the legitimate successor of the older concepts of closed systems.
This book launches an inquiry into the world of legal autopoiesis — it
is a project in interdisciplinary theory building. Our collective effort is to
transfer a new and complex theory, the theory of autopoietic systems, from
the general context of systems theory to the context of legal theory. This
is done with the cooperation of international experts in the fields of both
legal theory and systems theory. The book represents the first major
endeavor to develop this approach within the field of law.
What sense is there for legal theory to make use of the theory of
autopoietic systems? This newly developed theory, formulated by biologists
(Maturana, 1970; Maturana et al., 1974; Varela, 1979; Zeleny, 1981; Roth
and Schwegler, 1981) and transferred to the social sciences (Hejl, 1982 a;
1982 b; Luhmann, 1981; 1984; 1985; Teubner, 1985; 1987 a; 1987 b; Teubner
and Willke, 1984) cannot yet claim with authority to be a fruitful paradigm.
It is thus used in a more experimental manner as a strictly heuristic
device. What follows for the problematic law and society relation if it is
reformulated in terms of autopoiesis and self-referentiality? What hypo-
theses and consequences are implied with regard to doctrinal practice and
legal policy?
While the relations between law and other spheres of society will be
dealt with in a separate volume (Teubner, 1987 c), the idee directrice of this
book is to examine the potential of autopoiesis for legal theory and to
reformulate fundamental legal concepts in the light of this theory. Although