Critical theory and legal autopoiesis: The case for societal constitutionalism PDF
Preview Critical theory and legal autopoiesis: The case for societal constitutionalism
Critical theory and legal autopoiesis Critical theory and contemporary society Series editors: David M. Berry, Professor of Digital Humanities, University of Sussex Darrow Schecter, Professor of Critical Theory and Modern European History, University of Sussex The Critical Theory and Contemporary Society series aims to demonstrate the ongoing relevance of multi-disciplinary research in explaining the causes of pressing social problems today and in indicating the possible paths towards a libertarian transformation of twenty-first century society. It builds upon some of the main ideas of first generation critical theorists, including Horkheimer, Adorno, Benjamin, Marcuse and Fromm, but it does not aim to provide sys- tematic guides to the work of those thinkers. Rather, each volume focuses on ways of thinking about the political dimensions of a particular topic, which include political economy, law, popular culture, globalization, feminism, theology and terrorism. Authors are encouraged to build on the legacy of first generation Frankfurt School theorists and their influences (Kant, Hegel, Kierkegaard, Marx, Nietzsche, Weber and Freud) in a manner that is distinct from, though not necessarily hostile to, the broad lines of second-generation critical theory. The series sets ambitious theoretical standards, aiming to engage and challenge an interdisciplinary readership of students and scholars across political theory, philosophy, sociology, history, media studies and literary studies. Previously published by Bloomsbury Critical theory in the twenty-first century Darrow Schecter Critical theory and the critique of political economy Werner Bonefeld Critical theory and contemporary Europe William Outhwaite Critical theory of legal revolutions Hauke Brunkhorst Critical theory of libertarian socialism Charles Masquelier Critical theory and film Fabio Vighi Critical theory and the digital David Berry Critical theory and disability Teodor Mladenov Critical theory and the crisis of contemporary capitalism Heiko Feldner and Fabio Vighi Previously published by Manchester University Press Critical theory and epistemology Anastasia Marinopoulou Critical theory and feeling Simon Mussell Forthcoming from Manchester University Press Critical theory and contemporary technology Ben Roberts Critical theory and sociological theory Darrow Schecter Critical theory and demagogic populism Paul K. Jones Critical theory and legal autopoiesis The case for societal constitutionalism GUNTHER TEUBNER Edited by DIANA GÖBEL Manchester University Press Copyright © Gunther Teubner 2019 except for chapter 1 © John Wiley and Sons 2009 chapter 2 © Sage Publications 2001 chapter 4 © German Law Journal GbR 2013 chapter 5 © The Modern Law Review Limited 2006 chapter 6 © Oxford University Press 1998 chapter 7 © Walter de Gruyter GmbH & Co. KG, Berlin/Boston 2011 chapter 10 © Andreas Fischer-Lescano and Gunther Teubner 2004 chapter 11 © Cambridge University Press 2016 The right of Gunther Teubner to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library SBN 978 1 5261 0722 0 hardback First published 2019 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Typeset by Toppan Best-set Premedia Limited Contents Acknowledgements vii List of abbreviations viii Introduction: Gunther Teubner’s foundational paradox 1 Andreas Philippopoulos-Mihalopoulos Part I: Law, literature and deconstruction 1 Self-subversive justice: contingency or transcendence formula of law? 13 2 The economics of the gift – the positivity of justice: the mutual paranoia of Jacques Derrida and Niklas Luhmann 40 3 Dealing with paradoxes of law: Derrida, Luhmann, Wiethölter 59 4 The Law before its law: Franz Kafka on the (im)possibility of Law’s self-reflection 84 Part II: Juridical epistemology: reconstructing the horizontal effects of human rights, the private–public dichotomy and contracting 5 The anonymous matrix: human rights violations by ‘private’ transnational actors 105 6 After privatisation? The many autonomies of private law 128 7 In the blind spot: the hybridisation of contracting 154 vi CONTENTS Part III: The dark side of functional differentiation: the normative response of societal constitutionalism 8 A constitutional moment? The logics of ‘hitting the bottom’ 175 9 Global Bukowina: legal pluralism in the world society 213 10 Regime-collisions: the vain search for legal unity in the fragmentation of global law 237 Andreas Fischer-Lescano and Gunther Teubner 11 Horizontal constitutional rights as conflict-of-laws rules: how transnational pharmaceutical groups manipulate scientific publications 278 Isabell Hensel and Gunther Teubner 12 The project of constitutional sociology: irritating nation-state constitutionalism 302 13 Exogenous self-binding: how social subsystems externalise their foundational paradoxes in the process of constitutionalisation 317 Afterword: the milestones of Teubner’s neo-pluralism 339 Alberto Febbrajo Bibliography 349 Index 387 Acknowledgements Iw ould like to thank Darrow Schecter for the encouragement and support he gave me throughout the production of this book. In my view, his series on Critical Theory has successfully contributed to the exchange of ideas between British and continental social theorists. I am happy that this collection of my most important articles is being published in this series. My thanks go as well to Diana Göbel and Fiona Little for carefully editing the book. I received perfect professional support from Manchester University Press, especially from David Appleyard. Finally, I would like to thank Iain Fraser, Alison Lewis and Cornelia Moser for their careful translation of some of the articles in this book. The quotations in the text are taken from English translations where they exist. All other translations are my (or our) own. Abbreviations BVerfG Bundesverfassungsgericht (German Federal Constitutional Court) BVerfGE Bundesverfassungsgericht, Entscheidungssammlung (German FederalConstitutional Court, collection of decisions) DSB Dispute Settlement Body (World Trade Organization) DSU Dispute Settlement Understanding (World Trade Organization) EAS East African Standards EFTA European Free Trade Association ENAA Engineering Advancement Association of Japan GATT General Agreement on Tariffs and Trade ICANN Internet Corporation for Assigned Names and Numbers ICC International Chamber of Commerce ICJ International Court of Justice ICTR International Clinical Trials Registry ICTRP International Clinical Trials Registry Platform ICTY International Criminal Tribunal for the Former Yugoslavia ILC International Law Commission IMF International Monetary Fund IQWiG Institut für Qualität und Wirtschaftlichkeit im Gesundheitswesen (Institute for Quality and Efficiency in Healthcare) OECD Organization for Economic Cooperation and Development PICT Project on International Courts and Tribunals TRIPS Agreement on Trade Related Aspects of International Property Rights UNCITRAL United Nations Commission on International Trade Law UNECE United Nations Economic Commission for Europe UNIDROIT International Institute for the Unification of Private Law WHO World Health Organization WIPO World Intellectual Property Organization WTO World Trade Organization
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