From the Autopoiesis to the Allopoiesis of Law-1

Cardiff University

From the Autopoiesis to the Allopoiesis of LawAuthor(s): Marcelo NevesSource: Journal of Law and Society, Vol. 28, No. 2 (Jun., 2001), pp. 242-264Published by: Wiley on behalf of Cardiff UniversityStable URL: http://www.jstor.org/stable/3657975 .

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JOURNAL OF LAW AND SOCIETY

VOLUME 28, NUMBER 2, JUNE 2001 ISSN: 0263-323X, pp. 242-64

From the Autopoiesis to the Allopoiesis of Law

MARCELO NEVES*

This article discusses the empirical limits of the concept of autopoiesis of law in world society today. The argument is based principally on observation of the problems of reproduction of the legal system in

peripheral countries'. The central thesis of the article is that, in the countries of 'peripheral modernity'the reproduction of the legal system is blocked by a wide variety of social factors, in such a way that one can

speak more of the allopoiesis than the autopoiesis of law. Beginning with a biological concept, the article considers the sociological concept of autopoiesis, and then analyzes the concept of autopoiesis of law. Based on this theoretical parameter, the argument about the allopoiesis of law in the 'peripheral countries' is presented. Finally, the article returns to the central theme of the allopoiesis of law in 'peripheral countries' and

points to the indications of a normative concept of autopoiesis of law in the theories of Niklas Luhmann and Gunther Teubner.

I. INTRODUCTION

In this article I intend to identify the empirical limits of the systemic concept of autopoiesis of law in world society today. The argument is based

principally on the observation of the problems of reproduction of the legal systems in 'peripheral' countries also known as 'underdeveloped', 'in

development' or Third World. From a theoretical point of view, in the

foreground is a confrontation of this observation with Luhmann's systems theory, but I also consider the postmodern model of the autopoiesis of law. The central thesis of the article is that in the countries of 'peripheral modernity', the permanent and generalized impediment to the reproduction of the legal system created by a wide variety of social factors, such as money, power, and relationships, makes the operational autonomy of law practically

* Federal University of Pernambuco, Recife. Brazil. Presently Visiting Professor at the University of Frankfurt, Robert-Mayer-Str. 5, D-60014

Frankfurt am Main, Germany This article was translated by Margaret Griesse and Jeffrey Hoff.

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impossible, in such a way that one can speak of the allopoiesis of law in contrast to the idea of an autopoietic law. This means that the reproduction of law is over-determined by variables of its social environment.

It is obvious that in the space of this article, I cannot completely develop my argument. I will first briefly present the central thesis contained in arguments more broadly elaborated and discussed in previous works. Unfortunately, these studies have not been published in English. This article serves, nevertheless, as an introduction to the ideas which I present in these other works in much greater detail.

In the following explanation, I will point in the first place to the biological origin of the concept of autopoiesis, to consider its reception and transformation by the social sciences, concentrating on the Luhmannian paradigm (II). I will then specifically consider the concept of autopoiesis of law as a social system, underlining Luhmann's theory without failing to consider, however, the post-modern variants of the concept of autopoietic law (III). Once the parameters are established, I will then discuss the central thesis of the article, the idea that the autopoiesis of law has no empiric plausibility in the majority of countries of the world society today, and will maintain that in the circumstances of social and legal reproduction of the 'peripheral modernity', a miscellany of codes and criteria of communication are destructively imposed in all of the spheres of social life and thus imply the allopoiesis of law. To support this point I will highlight that the relations of under-integration and over- integration in the legal system constitute determining factors and at the same time, result from the allopoietic reproduction of law (IV). In the final considerations, I will focus on the central thesis, emphasizing the empirical limits, both of the functionalist concept as well as the post-modern notion of autopoiesis of law, considering legal reproduction in extensive parts of current world society; in this step, I will point to the indications of a normative concept of autopoiesis of law, which appears to me to be present in the theory of Niklas Luhmann and in the concepts of Gunther Teubner (V).

II. FROM BIOLOGICAL TO SOCIAL AUTOPOIESIS

The concept of autopoiesis has its origin in the biological theory of Maturana and Varela.1 Etymologically, the word comes from the Greek aut6s ('self) and poiesis ('creation', 'production').2 In the first instance, it refers to the quality of a system to build for itself the components of which it consists. The life-systems are defined accordingly as autopoietic machines:

I Compare H.R. Maturana and F.J. Varela, Autopoiesis and Cognition: The Realization of the Living (1980) 73-123; H.R. Maturana and F.J. Varela, Der Baum der Erkenntnis (1987, 3rd edn.) 55-60; H.R. Maturana, Die Organisation und Verkirperung von Wirklichkeit. Ausgewdhlte Arbeiten zur biologischen Epistemologie (1982) 141-2, 157ff., 279-80.

2 Maturana and Varela, id. (1980) XVII.

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An autopoietic machine is a machine organized (defined as a unity) a network of processes of production (transformation and destruction) of components that produces the components which: (i) through their interactions and transformations continuously regenerate and realize the network of processes (relations) that produce them; and (ii) constitute it (the machine) as a concrete unity in the space in which they (the components) exist by specifying the topological domain of its realization as such a network.3

It deals, therefore, with a homeostatic system,4 characterized by closure in the production and reproduction of elements.5 Thus, it is an attempt to break with a tradition which holds that the conservation and evolution of the species would be conditioned and decided basically by environmental factors. On the contrary, the conservation of living-beings (individuals) is connected to their ability for autopoietic reproduction.6

Luhmann's introduction of the concept of autopoiesis in the social sciences has found wide resonance.7 His conception of autopoiesis deviates from Maturana's biological conception in so far as it distinguishes between (psychic and social) meaning systems and (organic and neurophysiological) non- meaning systems.8 According to Luhmann, in the biological theory of

3 id., pp. 78-79. See, also, p. 135; Maturana, op. cit., n. 1, pp. 141-2, 158, 184-5, 280. Teubner called this the 'official' definition of autopoiesis. Compare G. Teubner, Recht als autopoietisches System (1989) 32.

4 Maturana and Varela, op. cit. (1980), n. 1, p. 78. 5 See, for example, id., p. 127, in regard to the nervous system. 6 Compare id., pp. 117-18, for a critical perspective of the ideological implications of

Darwinist theory. 7 See, primarily, N. Luhmann, Soziale Systeme: Grundrifi einer allgemeinen Theorie

(1987); H.Haferkamp and M. Schmid (eds.), Sinn, Kommunikation und soziale Differenzierung: Beitrage zu Luhmanns Theorie sozialer Systeme (1987); D. Baecker et al. (eds.), Theorie als Passion: Niklas Luhmann zum 60. Geburtstag (1987) 394 ff.; G. Teubner (ed.), Autopoietic Law: A New Approach to Law and Society (1987); G. Teubner and A. Febbrajo (eds.), State, Law, and Economy as Autopoietic Systems: Regulation and autonomy in a new perspective - European Yearbook in the Sociology of Law (1992). For a critique of the reception of the concept of autopoiesis by the social sciences see W. L. Biihl, 'Grenzen der Autopoiesis' (1989) 39 Kolner Zeitschrift fur Soziologie und Sozialpsychologie 225; for a comprehensive perspective on Luhmann's systems theory, see W. Krawietz and M. Welker (eds.), Kritik der Theorie sozialer Systeme: Auseinandersetzungen mit Luhmanns Hauptwerk (1992, 2nd edn.). For a discourse-theoretical critique, see J. Habermas, Der philosophische Diskurs der Moderne (1988) 426-45. Zolo designates autopoiesis as an ideologically conservative paradigm. See D. Zolo, 'Autopoiesis: un paradigma conservatore' (1986) 1 Micro Mega 129.

8 For another interpretation See K.-H. Ladeur, 'Perspektiven einer post-modernen Rechtstheorie: Zur Auseinandersetzung mit N. Luhmanns Konzept der "Einheit des Rechtssystems "'(1985) 16 Rechtstheorie 383, at 408-9. Compare also G. Teubner, op. cit., n. 3, pp. 38, 43, 46; G. Teubner, 'Gesellschaftsordnung durch Gesetzgebungslirm? Autopoietische Geschlossenheit als Problem fiir die Rechtssetzung' (1988) 13 Jahrbuch fiir Rechtssoziologie und Rechtstheorie 45, at 51, in opposition to Luhmann, who in connection with Maturana and Varela asserted the impossibility of partial autopoiesis of the social systems. See N. Luhmann,

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autopoiesis, there is a radicalized conception of closure, since in the production of relations between system and environment an observer outside the system, that is to say, another system, is needed.9 In the case of meaning systems however, 'self-observation becomes the necessary component of autopoietic reproduction'.10 Meaning systems maintain their autopoietic character, in so far as they refer simultaneously to themselves (inwards) and to their environment (outwards), and therefore, operate internally with the fundamental difference between system and environment.11 Their complete closure is not impaired however, since meaning is related only to meaning and can only be changed through meaning.12 But the introduction of the 'system/environment distinction' within the meaning systems (self-observation as the 'operative element of autopoiesis')13 enables a new combination of closure and environmental openness, so that the circularity of autopoiesis can be interrupted by reference to the environment.14 According to Luhmann's theory of autopoietic social systems, environment functions in regard to system not merely as the 'infrastructural condition of the possibility for the constitution of the elements' 5 nor as only disturbance, noise, bruit;16 it is more, namely, 'the system's ground'.17 In relation to the system, many different types of environmental determinants are at work, but they are only first inserted into the system if it attributes its form to them according to its own differences.18

Luhmann's conception of the closure of self-referential meaning systems, especially the social systems, not only differs from the biological theory of autopoiesis, but also deviates even more clearly from the opposition of closed and open systems which was at the base of the classic systems theory.19 The concept of closed systems 'acquires a new meaning in

'Einige Probleme mit "reflexivem Recht "' (1985) 6 Zeitschrift fiir Rechtssoziologie 1, at 2; N. Luhmann, 'Autopoiesis als soziologischer Begriff in Sinn, Kom- munikation und soziale Differenzierung, eds. W. Krawietz and M. Welker (1992, 2nd ed.) 307, at 318; Maturana and Varela, op. cit. (1980), n. 1, p. 94; Maturana, op. cit., n. 1, p. 301.

9 Luhmann, op. cit., n. 7, p. 64. 10 id. 11 id. 12 id. 13 id., p. 63. 14 id., p. 64-65. 15 id., p. 60. 16 For Francisco Varela, noise ('bruit' - 'couplage par cloture' in opposition to

'couplage par input') functions as the typical form of environmental influence on the autonomous systems. See F. Varela, 'L'auto-organisation: de l'apparence au mecanisme' in L'auto-organisation: De la physique au politique, eds. P. Dumouchel and J.-P. Dupuy (1983) 147.

17 Luhmann, op. cit., n. 7, p. 602. 18 '[...] ground is always without form.' id. 19 Compare id., p. 63-64. For a summary of this standpoint of the classic systems

theory, See L. von Bertalanffy, 'Allgemeine Systemtheorie: Wege zu einer neuen mathesis universalis' (1957) 5/6 Deutsche Universitdtszeitung 8, at 10-12.

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comparison with earlier systems theory. It no longer indicates systems that exist (almost) without environments, that is, that can determine themselves (almost) completely.'20 In other words: 'Closure does not, however, mean the absence of an environment nor does it mean complete self-determination by itself.'21 It deals with the autonomy of the system, not its autarchy.22 Operative closure 'is rather the condition of possibility for openness. All openness is based on closure.'23 The combination of closure and openness can be considered under two perspectives:

(i) although a meaning system practices 'control of its own possibilities for negation while producing its own elements' (closure), this control depends on the conditions of choice between yes and no (openness);24

(ii) the control of the possibility of negation (closure) enables a continuous and stable (or at least less unstable) selective relationship of the system to its environment (adequate openness).

Influenced by Maturana and Varela, Luhmann emphatically defines the concept of autopoiesis as the self-reference of systemic elements: 'One can call a system self-referential if it itself constitutes the elements that compose it as functional unities ...,25 Here we are dealing primarily with the unitary reproduction of the elements that are constituted by the system and at the same time constituting the same system,26 and not with the self-organization or the structural maintenance of the system.27 From this point of view, Luhmann considers the unity of the system primarily as 'unity of the final elements of which the system consists and unity of the processes into which the operations of the system combine these elements.'28 Accordingly, he formulates 'that an autopoietic system constitutes the elements of which it consists through the elements of which it consists and, in this way, sets limits

20 Luhmann, op. cit., n. 7, p. 602. 21 N. Luhmann, 'Die Einheit des Rechtssystems' (1983) 14 Rechtstheorie 129, at 133. 22 N. Luhmann, Legitimation durch Verfahren (1983) 69; G. Teubner, 'Reflexives

Recht: Entwicklungsmodelle des Rechts in vergleichender Perspektive' (1982) 68 Archiv fir Rechts und Sozialphilosophie 13, at 20. 'Autonomy of law refers to the circularity of its self-reproduction, but not to its causal independence of the environment.' Gunther Teubner, op. cit., n. 3, p. 47. Thus, it does not deal with (causal) isolation. See N. Luhmann Soziologische Aufklirung 6: Die Soziologie und der Mensch (1995) 15; N. Luhmann, Die Gesellschaft der Gesellschaft (1997) 68; N. Luhmann, Das Recht der Gesellschaft (1993) 43-4.

23 Luhmann, op. cit., n. 7, p. 606; Compare also Luhmann, op. cit. (1997), n. 22, p. 68. 24 Luhmann, op. cit., n. 7, p. 603; See, also, N. Luhmann, Okologische

Kommunikation: Kann die modeme Gesellschaft sich auf okologische Gefdhrdungen einstellen? (1986) 83.

25 Luhmann, op. cit., n. 7, p. 59. 26 'Elements are elements only for systems, which use them as a unity and which they

are only through the systems.' Luhmann, id., p. 43. 27 Luhmann, op. cit., n. 21, p. 132. 28 id., p. 131.

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which do not exist in the infrastructural complexity of the environment of the ,29

system.29 Nevertheless, Luhmann's conception of autopoiesis does not restrict itself

to basal self-reference that is found in the difference between element and relation.30 Basal self-reference is presented as 'the minimal form of self- reference'31 and constitutes one of the three moments of autopoiesis;32 the others would be reflexivity and reflection, which are based on the distinction between before and after or between system and environment.33

'Reflexivity' and 'reflection' are more precise concepts than the extensive category of reflexive mechanisms formulated earlier by Luhmann.34

'Reflexivity' involves the reference of a process to itself, or better, to a

process of the same type.35 What is meant here, for example, is the learning of learning, the regulating of norm-making, the power of power and the decisions over decisions.36 However, such a formulation, inadequately characterizes reflexivity as a type of self-reference in terms of an autopoietic system. Taking this into consideration, Luhmann attempts to define it more

exactly: 'We would like to speak of processual self-reference or reflexivity only when this re-entry into the process is articulated using the process's means.'37 This can be formulated differently with the systems theory model:

reflexivity as a mechanism within an autopoietic system implies that the

referring process and the referred process are structured by the same binary coding and, in connection with this, the criteria and programmes of the former re-enter partially into the latter. Accordingly, it is not enough to refer to the regulating of norm-making, because a religious or ethical regulating of the creation of legal norms as well as a 'natural-law ruling' of the production

29 id., p. 132. See, also, Luhmann, op. cit. (1997), n. 22, p. 65-66. 30 Luhmann, op. cit., n. 7, p. 600-01. 31 id., p. 600. 32 Even here should the equating of autopoiesis and elementary self-reference

(compare id., p. 602) be understood in a relative and restricted way within Luhmann's systems theory.

33 id., p. 601-02. 34 See N. Luhmann, 'Reflexive Mechanismen' in N. Luhmann, Soziologische

Aufklarung 1: Aufsdtze zur Theorie sozialer Systeme (1984, 5th edn.) 92. 35 In this regard see, primarily, Luhmann, op. cit., n. 7, pp. 601, 610-16. Distinguishing

this systemic concept from the logical concept of reflexivity, Luhmann notes: 'It indicates a relation which meets the conditions that each part stands by itself in the same relation as to the other. [...] We do not hold to this definition, because the exact identity of the reflexive relation would obstruct the very argument which we want to develop: the increase in efficiency through reflexivity. A mechanism shall be considered as reflexive here then, if it intends an object that is the same type of mechanism, which in turn refers to its own type.' Luhmann, op. cit., n. 34, p. 109, fn.6.

36 id., pp. 94-99. 37 Luhmann, op. cit., n., p. 611. According to Luhmann himself (id., p. 611 note 31)

this distinction was missing from his earlier work on this subject, first published in 17 Soziale Welt (1966) 1: Luhmann, op. cit., n. 34.

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of positive legal norms would represent, in this narrower sense, no reflexivity in the norm-making.

In the case of reflection, which presupposes basal self-reference and reflexivity, 'the self is the system to which the self-referential operation attributes itself', not simply the systemic elements or processes.8 As a 'theory of the system in the system'39 it implies the conceptual elaboration of 'the system's identity in distinction to the environment'. It is, therefore, 'a form of concentrated self-reference'41 that enables the questioning of the very identity of the system.42

While Luhmann conceives autopoiesis in three interdependent moments (self-reference, reflexivity, and reflection), Teubner proposes a more extensive concept, defining it as the 'hypercyclic connection' of element, process, structure, and identity.43 It seems to me, however, that Luhmann's model of autopoiesis does not contradict the idea of 'hypercyclic connection' because it includes the structural element. Luhmann did not restrict autopoietic reproduction to elementary self-reference but claimed that it only amounted to the minimum form of autopoiesis. What characterizes the conception of the autopoietic systems is that it starts from the operative aspects, and does not refer primarily to the structural dimension (autonomy).

In relation to social systems, 'as constituted on the basis of a unified (self- referential) nexus of communications',44 it is society which forms the more

38 Compare Luhmann, op. cit., n. 7, p. 601; N. Luhmann, 'Selbstreflexion des Rechtssystems: Rechtstheorie in gesellschaftstheoretischer Perspektive' in N. Luhmann, Ausdifferenzierung des Rechts (1981) 419, at 423.

39 id., pp. 422, 446. 40 Luhmann, op. cit., n. 7, p. 620. 41 Luhmann, op. cit., n. 38, p. 423. 42 N. Luhmann, Funktion der Religion (1982) 59. 43 Teubner, op. cit., n. 3, pp. 36-40; G. Teubner, 'Hyperzyklus in Recht und

Organisation. Zum Verhiiltnis von Selbstbeobachtung, Selbstkonstitution und Autopoiese' in Sinn, Kommunikation und soziale Differenzierung, eds. W. Krawietz and M. Welker (1992, 2nd edn.) 89, at 106ff. Compare, also, G. Teubner, 'Episodenverknupfung. Zur Steigerung von Selbstreferenz im Recht' in Theorie als Passion, eds. D. Baecker et al. (1987) 423.

44 Luhmann, op. cit., n. 7, p. 92. According to Luhmann (id., p. 43-4) the social systems as autopoietic communication contexts are built through their emergence from 'above', they constitute themselves in the way in which they propose and operationalize a new difference from system and environment at another level. They are not the result of the accumulation of infrastructural elements, such as consciousness, human beings, and so on. On the contrary, the living-beings are presented according to Maturana and Varela's distinction of autopoiesis of the first, second and third order as components of the social systems (emergence from 'under'). Compare Maturana and Varela, op. cit. (1980), n. 1, pp. 107-11; Maturana and Varela, op. cit. (1987), n. 1, pp. 196 ff. See, also, Teubner, op. cit., n. 3, pp. 40- 1. It is necessary here to note that the primary biological concept of the society (genus) of Maturana and Varela is more extensive than the concept of the human society (species). Compare Maturana and Varela, id. (1980), pp. xxiv-xxx; Maturana and Varela, id. (1987), pp. 196ff.

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extensive system. The elementary units of society, the communications,45 that are built through the synthesis of information, utterance, and understanding46 exist only within society, not in its environment, in such a way that society can be characterized as 'real-necessarily closed'.47 Although the reproduction of communications realizes itself within the society exclusively (self-referential closure), communications exist inevitably about the (psychic, organic, and chemical) environment (openness).48

The autopoietic character of the subsystems of the society, however, cannot be clarified in this same way: communication is the elementary unit of all social systems; in the environment of all subsystems of society, there is communication; for these subsystems, not only does communication develop about the environment but also communication with the environment.49 Only when a social system has a specific code difference of yes and no, can it be characterized as self-referentially closed (and consequently as environmentally open).50 By means of the very binary systemic coding of yes and no, the elementary units of the system are reproduced internally and clearly distinguished from external communication.51

III. LAW AS AUTOPOIETIC SYSTEM

The differentiation of law in modem society has been interpreted as the control of the code difference between legal and illegal by a functional system specialized for this purpose.52 According to Luhmann's paradigm, this new position of law presupposes an advance over the pre-moder society which is differentiated according to the stratification principle (vertically). To the extent that the differentiation principle was based on a distinction between 'upper' and 'under', only the 'highest', that is, the political system, had self-referential autonomy.53 Law remained overdetermined by politics and a political-legitimizing static moral; it did not have its own specific code difference between 'yes' and 'no' exclusively. The legal system in modem

45 Luhmann, op. cit., n. 7, pp. 192-3. 46 Luhmann, op. cit., n. 21, p. 137. See, also, Luhmann., op. cit., n. 7, pp. 193 ff. 47 Luhmann, op. cit., n. 7, pp. 60-1. 48 Luhmann, op. cit., n. 21, p. 137. 49 id., pp. 137-8. 50 See id., p. 134; Luhmann, op. cit., n. 7, p. 603; Luhmann, op. cit., n. 24, p. 83; N.

Luhmann, 'Die Codierung des Rechtssystems' (1986) 17 Rechtstheorie 171, at 171-2. 51 About binary coding see, generally, Luhmann, op. cit., n. 24, pp. 75 ff. 52 Luhmann, op. cit., n. 50, p. 171. See, in regard to the social systems in general,

Luhmann, op. cit., n. 24, pp. 85-6. 53 N. Luhmann, 'Machtkreislauf und Recht in Demokratien' (1981) 2 Zeitschrift fur

Rechtssoziologie 158, at 159-60; N. Luhmann, Rechtssoziologie (1987, 3rd edn.) 168 ff.

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society implies the control of the binary code legal/illegal exclusively by the legal system, which gains in this way its operative closure.54

In this sense, positivity is understood as the self-determination as well as the operative closure of the law.55 As with the other differentiated social systems, we are not dealing here with autarchy, (quasi-) lack of environment. If the exclusive use of the binary code legal/illegal leads to operative closure, the choice between legal and illegal is determined by the environment. On the other hand, the self-determination of law is based on the distinction between normative and cognitive expectations56 that only become clear once the binary coding of legal and illegal is exclusively used through the legal system. On the basis of the differentiation between 'normative and cognitive' the operative closure of the legal system is secured simultaneously with its environmental openness. Concerning this, Luhmann writes:

Legal systems use this difference to combine the closure of recursive self- production and the openness of their relation to the environment. In other words, law is a normatively closed but cognitively open system. [...] The norm quality serves the autopoiesis of the system, its self-continuation in difference to the environment. The cognitive quality serves the co-ordination of this process with the system's environment.57

This results in a connection between concept and interest in the reproduction of positive law: 'the legal system "factorializes" self-reference through concepts, hetero-reference on the other hand through interests.'58

In this way, the legal system can process the environmental factors according to its own criteria, without being directly influenced by these factors. The legal validity of normative expectations cannot be decided

54 Luhmann, op. cit., n. 24, pp. 125-6. Specifically about the binary coding of legal system, see Luhmann, op. cit., n. 50; Luhmann, op. cit. (1993), n. 22, pp. 165 ff. It is important to note that law within the observation perspective of the political system could be characterized as the second coding of political power. Compare Luhmann, op. cit., n. 50, p. 199; N. Luhmann, Macht (1988, 2nd edn.) 34, 48 ff., 56.

55 See Luhmann, op. cit. (1993), n. 22, pp. 38-123; N. Luhmann, 'Positivitdt als Selbstbestimmtheit des Rechts' (1988) 19 Rechtstheorie 11; Luhmann, op. cit., n. 21; Luhmann, op. cit. (1985), n. 8; Luhmann, op. cit., n. 38. Luhmann claims that the concept of positivity is theoretically not sufficient in so far as it is subject to the 'reproach of decisionism' and understood as a concept counter to natural-law, that is, does not strictly amount to the operative closure of the legal system. Compare Luhmann, op. cit. (1993), n. 22, pp. 38-9.

56 Luhmann, op. cit., n. 21, pp. 138 ff. In regard to this distinction, see Luhmann, op. cit., n. 7, pp. 436-43; Luhmann, op. cit. (1987), n. 53, pp. 40-53; M. Neves, Verfassung und Positivitat des Rechts in der peripheren Modeme: Eine theoretische Betrachtung und eine Interpretation des Falls Brasilien (1992) 22-3.

57 Luhmann, op. cit., n. 21, p. 139. See, also, N. Luhmann, 'The Self-Reproduction of the Law and its Limits' in Direito e Mudanfa Social, ed. F. A. de Miranda Rosa (1984) 107, at pp. 110ff.; Luhmann, op. cit. (1993), n. 22, pp. 77 ff.

58 N. Luhmann, 'Interesse und Interessenjurisprudenz im Spannungsfeld von Gesetzgebung und Rechtsprechung' (1990) 12 Zeitschrift fur Neuere Rechts- geschichte 1, at 10. See Luhmann, op. cit. (1993), n. 22, pp. 393 ff.

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directly in accordance with economic interests, political criteria, ethical ideas or even scientific propositions,59 but it depends on selective, conceptual filtration processes within the legal system.6" The ability of positive law to learn (that is, the cognitively open dimension) enables it to change in order to adapt to the complex and 'high-speed' environment. Normative closure prevents the fusion of the legal system with the environment, and requires the 'digitizing' of environmental information. The social differentiation of law is simply the making possible of the mediation by the law system of these two orientations.61 The adaptability of law is reinforced in this way and not prevented - as it would be claimed in respect to closure that is absent of environment; but it occurs according to the specific, inner criteria of an environmentally sensitive system that is capable of learning.62

From this point of view, self-referential closure, that is, normativity for the legal system, does not serve as the system's end in itself but rather as a condition for openness.63 The radicalization of the thesis that closure is the absence of environment, misjudges the central problem concerning the

connectivity (in opposition to simple repetition) between elementary events.64 Only under the conditions of cognitive openness to the environment (the capacity to learn) can the legal system take measures to de- paradoxicalize its self-reference and, therefore, ensure connectivity for further operations.65 The cognitive closure of the legal system would produce an insurmountable paradox of autopoiesis, and make the interru6tion of

interdependence through reference to the environment impossible.6

59 In regard to scientific knowledge, Luhmann affirms: 'It would be, therefore, certainly fatal and above all politically fatal for the legal system if it could be revolutionized through a substitution of central theoretical elements or through a change in paradigm.' Luhmann, op. cit. (1985), n. 8, p. 17. See, also, N. Luhmann, Die Wissenschaft der Gesellschaft (1990) 593-4, 663-4 and with regard to the interdependence of law and science Luhmann, op. cit. (1993), n. 22, pp. 86, 91-2. In contrast, within the particular perspective of Claudio and Solange Souto the law is partially defined in terms of the criteria of empirical scientific knowledge. Compare C. Souto and S. Souto, Sociologia do Direito (1981) 101, 106-13; C. Souto, Ciencia e Etica no Direito: uma alternativa de modernidade (1992) 43-5; C. Souto, Allgemeinste wissenschaftliche Grundlagen des Sozialen (1984) 82-4, 91-2; C. Souto, Teoria Sociologica do Direito e Prdtica Forense (1978) 85-117.

60 'External developments are neither, on the one hand, ignored, nor on the other hand, directly converted into internal effects according to the "stimulus-response-schema" but, rather, they would be filtered according to the criteria of selectivity within the structure of the law and adapted to the internal logic of normative development.' Teubner, op. cit., n. 22, p. 21.

61 Luhmann, op. cit., n. 21, pp. 152-3. 62 Compare id., p. 136. 63 Luhmann, op. cit., n. 7, p. 606; Luhmann, op. cit. (1993), n. 22, pp. 76, 79. 64 Luhmann, op. cit., n. 7, p. 62. 65 Compare id., p. 59. 66 Compare id., p. 65.

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On the other hand, the interruption of normative closure through the questioning of the binary code legal/illegal, would impair the autonomy of the legal system, leading to heteronomizing paradoxes:

If a system uses a difference guide as code for the totality of its operations, this self-application of the code on the code must be excluded. Self-reference is admitted only within the code, and then operationalized as negation .... The autonomy of the system is nothing other than operating according to the standards of the code itself, and that is because this de-paradoxicalizes the paradox of self-reference.

According to Luhmann's conception, the 'self-application of the code on the code' not only results in heteronomizing effects but also implies a rigidity in the legal system, in so far as the connectivity of the autopoietic reproduction would be in this way obstructed.

Particularly at this point, the divergences between Luhmann's theory of positivity and the new conceptions which relate law to values or moral become noticeable.68 That not only the supression of the immediate determination of the law through political interests, desires or criteria of the powerful, but also the moral neutralization of the legal system is inherent in the positivity of law, makes a theory of justice as exterior as well as superior criteria of positive law irrelevant for Luhmann: 'All values, that may circulate in general social discourse are, after the differentiation of a legal system, either legally irrelevant or intrinsic values of the law.'69

67 Luhmann, op. cit (1985), n. 8, p. 6. In relation to the social systems in general see, also, Luhmann, op. cit., n. 24, pp. 76-7, 80-81. About the de-paradoxicalizing and the de-tautologizing of the law through the code 'legal/illegal' see Luhmann, op. cit. (1993), n. 22, especially p. 168-69.

68 Compare, primarily, N. Luhmann, 'Gerechtigkeit in den Rechtssystemen der modemen Gesellschaft' in op. cit., n. 38, p. 374; Luhmann, op. cit., n. 55; Luhmann, op. cit. (1993), n. 22, pp. 214-38; Niklas Luhmann, 'Quod Omnes Tangit: Remarks on Jiirgen Habermas's Legal Theory' (1996) 17 Cardozo Law Review 883. For a critical perspective, R. Dreier, 'Zu Luhmanns systemtheoretischer Neuformulierung des Gerechtigkeitsproblems' in his Recht - Moral - Ideologie: Studien zur Rechtstheorie (1981) 270; J. Habermas, Faktizitdt und Geltung: Beitrdge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (1992) 573-80; J. Habermas, Die Einbeziehung des Anderen: Studien zur politischen Theorie (1996) 393-8; R. Alexy, Theorie der Juristischen Argumentation: Die Theorie des rationalen Diskurses als Theorie der juristischen Begriindung (1983) 161-5; K. Giinther, Der Sinn fir Angemessenheit: Anwendungsdiskurse in Moral und Recht (1988) 318-34. In defence of Luhmann's approach see B. Kasprzik, 'Ist die Rechtspositivismusdebatte beendbar? Zur Rechtstheorie Niklas Luhmanns' (1985) 16 Rechtstheorie 367.

69 Luhmann, op. cit., n. 55, p. 27. For this reason Kasprzik characterizes Luhmann's approach as de-fundamentalizing. See Kasprzik, op. cit., n. 68, p. 368 ff. Admittedly, the validity of the code 'legal/illegal', which is the difference guide to autopoietic reproduction of law according to Luhmann, is also independent of a 'basic norm' (Kelsen) or of a 'rule of recognition' (Hart). Compare H. Kelsen, Reine Rechtslehre (1960, 2nd edn.) 196-227; H. Kelsen, General Theory of Law and State (1945) 11Off.; H.L.A. Hart, The Concept of Law (1994, 2nd edn.) 94 ff.; Luhmann, op. cit., n. 21, pp. 140-1; Giinther, op. cit., n. 68, p. 328. In addition, one can observe that

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Consequently justice can only be considered within the legal system as adequate complexity (outer justice) or as consistency of decisions (inner justice).70 In other words, it is, on the one hand, about adequate cognitive environmental openness or adaptablity (external), on the other, about the capacity for connection of normative autopoietic reproduction (internal). According to this, the positivity of law does not restrict itself to displacing problems of justification in the sense of Habermas's discourse theory,71 rather, it signifies the elimination of these problems. The fact that law fulfills its function of congruent generalization of behaviour expectations in face of a highly-complex environment, flooded with different normative expectations, necessitates, according to Luhmann, a more radical exoneration of ethical as well as moral justifications, whether these are material or argu- mentative-procedural.72 Giving relevance to considerations in regard to universal values would result in the inflexibility of the legal system, obstruction of its selective task, and would have, therefore, dysfunctional effects. In short: according to Luhmann's conception of the positivity of law,

Kelsen's concept of the self-production of law remains at the structural level of the legal system and consequently - in contrast to the interpretation of Franqois Ost - is not linked to the autopoietic paradigm which primarily refers to the operative level and the circularity of the reproduction of law. Compare H. Kelsen, Reine Rechtslehre (1960, 2nd ed.) 73, 228, 283; F. Ost, 'Entre ordre et desordre: le jeu du droit. Discussion du paradigme autopoietique applique au droit' (1986) 31 Archives de Philosophie du Droit 133, 141-4. In contrast to the approach of either model see, particularly in regard to the cognitive openness of the legal system in Luhmann, L. Reisinger, 'Der Staatsbegriff Kelsens und Luhmanns Theorie sozialer Systeme' (1982) 4 (Beiheft) Rechtstheorie 483. For a systemic reinterpretation of the theory of basic norms, see M. Pawlik, 'Die Lehre von der Grundnorm als eine Theorie der Beobachtung zweiter Ordnung' (1994) 25 Rechtstheorie 451.

70 Luhmann, op. cit., n. 55, pp. 26-7. Compare, also, Luhmann, op. cit. (1981), n. 68, pp. 388 ff.; Luhmann, op. cit. (1993), n. 22, pp. 225-6.

71 'The particular accomplishment of the positivization of the legal order consists in displacing problems of justification, that is, in relieving the technical administration of the law of such problems over broad expanses, but not in doing away with them.' J. Habermas, Theorie des Kommunikativen Handelns (1982, 2nd edn.) 354. Later the opposition to Luhmann's concept of positivity as systemic autonomy would be expressed more sharply: 'A legal system acquires autonomy not only for itself alone. It is autonomous only in the way in which institutionalized procedures for legislation and jurisdiction guarantee impartial formation of judgment and will and in this way procure an entrance for ethical procedural rationality equally in law and politics.' J. Habermas, 'Wie ist Legitimitit durch Legalitdt moglich?' (1987) 20 Kritische Justiz 1, at 16. Compare Habermas, op. cit. (1992), n. 68, p. 599, where the expressions 'judgement' and 'ethical' in each case would be replaced with the words 'opinion' and 'moral'.

72 According to Luhmann '... discursive rational forms of clarification from acceptable as well as unacceptable value positions remain today imbedded in the area of mere experience. The central proposal of practical philosophy that by arguing about what is currently called value, one could come closer to action, is no longer defendable in the present condition of a world very rich in possibilities.' Luhmann, op. cit. (1981), n. 68, p. 389, fn. 33.

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that is, the normative closure and cognitive openness of modem law, the problem of justice is redirected to the question around the adequate complexity of the legal system and the consistency of its decisions.

IV. THE ALLOPOIESIS OF LAW

Luhmann's model of modern (positive) law as an autopoietic system is, from an empirical viewpoint, subject to restrictions. Allopoietic determination prevails in most states in which the modem (world) society is segmented politically and legally.73 First, some explanations are necessary.

Setting autopoiesis against allopoiesis does not deal with the logical problem of overcoming the paradox of self-reference.74 The debate between Hart and Ross concerning the logical possibility of self-reference in law has been guided along these lines.75 On the one hand, Hart made objections to Kelsen's response to the argument that 'a never-ending series of sanctions' in the relation between sanctioning norms and sanctioned norms would be in contradiction to the notion of law as coercive order;76 on the other hand, he raised objection against Ross's thesis that the amendment of the articles of the Constitution governing the very procedure of amendment of the Constitution would be a 'logical absurdity'.77 Hart presented the conclusive argument, that law forms no logical system of propositions and consequently allows of self-reference.78

In terms of the systems theoretical conception of autopoiesis, self- reference belongs to the reality of law as social system, it is not considered a logical problem:

Here the concept of self-reference (reflection, reflexivity) is detached from its classical location in human consciousness or in the subject and transferred to the domain of objects, namely, to real systems as the object of science. One thereby gains a certain distance from the purely logical difficulties of self- reference.79

At the same time, in this context it is no longer the thinking about law which is called self-referential but the law itself.80 Autopoietic self-reference is not,

73 In this regard, see Neves, op. cit., n. 56. 74 See Teubner, n. 3, pp. 14-15. 75 See H.L.A. Hart, 'Self-Referring Laws' in H.L.A. Hart, Essays in Jurisprudence and

Philosophy (1983) 170; A. Ross, On Law and Justice (1959) 80-4; A. Ross, 'On Self-Reference and a Puzzle in Constitutional Law' (1969) 78 Mind 1.

76 Compare Hart, id., pp. 170-3; Kelsen, op. cit. (1945), n. 69, p. 28-9. 77 Compare Ross, op. cit. (1959), n. 75, pp. 80-4 and op. cit. (1969), n. 75, especially

pp. 4-5, 20-1, 23-4; Hart, id., pp. 175 ff. 78 Compare Hart, id., pp. 177-8. 79 Luhmann, op. cit., n. 7, p. 58. 80 Teubner, op. cit., n. 3, p. 18.

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therefore, a problem to be overcome but rather an indispensable condition for the operative and structural unity of the legal system.

I am not referring here to the distinction between self-referred and allo- referred systems in terms of the biological conception of Maturana, in which the distinction is made between 'systems that could only be characterized with reference to themselves' and 'systems that could only be characterized with reference to a context'.81 In the case of social systems, operative autopoiesis is combined with cognitive reference to the environment. The informative hetero-reference is a prerequisite to operative self-reference and vice-versa. In the legal system, this means, as I have already noted in the last section, the combination of normative closure and cognitive openness. Law as an autopoietic system is at the same time normatively symmetric and cognitively assymmetric.82 Only if there is an external assymetricalization on the level of normative orientation, the problem of allopoiesis as negation of the operative self-reference of law appears. Derived etymologically from the Greek words dllos ('other') and poiesis ('creation', 'production'), this word designates the (re)production of a system through the criteria, programmes, and codes of its environment. The corresponding system is determined by immediate factors from external reality, so that the very difference between system and environment loses its meaning. On the other hand, allopoietic obstructions of the system are incompatible with the ability to learn (cognitive openness) and consequently with the very notion that reference to the environment implies the interruption of the interdependence of the elements of the system.

The criticism of Luhmann's conception of the autopoiesis of the legal system has been developed primarily by the supporters of postmodern legal theory.83 Ladeur bases his argument on the plurality of legal discourses and therefore objects to the concept of law as a congruent generalization of normative expectations, since such a concept is associated with an instrumental conception of language as 'sign-system'84 and hence, the

81 Maturana, in Matuma and Varela, op. cit. (1980), n. 1, p. xiii. 82 Luhmann, op. cit., n. 57, p. 111. In relation to social systems in general, compare

Luhmann, n. 7, pp. 65, 262. 83 See Teubner, op. cit., n. 22; Teubner, op. cit. (1992) and op. cit. (1987), n. 43;

Teubner, op. cit., n. 8; Teubner, op. cit., n. 3; G. Teubner and H. Willke, 'Kontext und Autonomie: Gesellschaftliche Selbststeuerung durch reflexives Recht' (1984) 6 Zeitschriftfiir Rechtssoziologie 4; Ladeur, op. cit., n. 8; K.-H. Ladeur, "Abwdgung' - ein neues Rechtsparadigma? Von der Einheit der Rechtsordnung zur Pluralitdt der Rechtsdiskurse' (1983) 69 Archiv fiir Rechts- und Sozialphilosophie 463; K.-H. Ladeur, 'Abwdgung' - ein neues Paradigma des Verwaltungsrechts: von der Einheit der Rechtsordnung zum Rechtspluralismus (1984) 153ff., 222ff.; K.-H. Ladeur, Postmoderne Rechtstheorie (1992) 80ff. For an overview see, also, Neves, op. cit., n. 56, pp. 41-4. From another standpoint, see M. Rosenfeld, Just Interpretations: Law between Ethics and Politics (1998) 89-113.

84 Ladeur, op. cit., n. 8, pp. 415, 417-18, note 131. For a softer critique see Ladeur, op. cit. (1992), n. 83, pp. 127-8.

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historic heterogeneity and discontinuity of 'language games' are not considered.85 It follows that one speaks not of (supposed) consensus but rather of the compatibility of dissensus.86 Autopoiesis becomes more flexible as 'the level of the virtualizing of structure and function'87 makes the network of the different social systems possible, which requires 'a legal culture of uncertainty'.88 Ladeur affirms the pluralization instead of the unity of law89 as well as the constitutive character of 'disorder' for 'interest weighing' ('Abwigung') as legal paradigm.90 But he retains the concept of autopoiesis. This is conceived in a pluralistic sense as presupposing 'the increasing heterogeneity and situative differentiation of the spheres of social and administrative action'91 and as requiring the situative-topical handling of law.92 It is not negated: autopoietic reproduction realizes itself within the context of a 'local logic' for the legal doctrine.93 There would be merely a pluralization of autopoiesis.

The model proposed earlier by Teubner and Willke points to another direction. In an attempt to bring together Luhmann's systems theory with Habermas's discourse theory, the concept of 'reflexive law' is introduced, which is presented as a reaction to the functional differentiation of society (Luhmann) and as an 'external constitution' for discursive self-reflection in other social systems (Habermas).94 'Reflexive law' is conceived as a type of

85 K.-H. Ladeur, '"Prozedurale Rationalitdt" - Steigerung der Legitimationsfdhigkeit oder der Leistungsfiihigkeit des Rechtssystems?' (1986) 7 Zeitschrift fur Rechtssoziologie 265, at 268, fn. 8.

86 id., p. 273. 87 Ladeur, op. cit., p. 8, p. 414. 88 id., p. 423. In this regard see K.-H. Ladeur, 'Gesetzinterpretation, 'Richterrecht'

und Konventionsbildung in Kognitivistischer Perspektive - Handeln unter Ungewif3heitsbedingungen und richterliches Entscheiden' (1991) 77 Archiv fir Rechts- und Sozialphilosophie 176; K.-H. Ladeur, 'Selbstorganisation sozialer Systeme und Prozeduralisierung des Rechts: Von der Schrankenziehung zur Steuerung von Beziehungsnetzen' in Wachsende Staatsaufgaben - sinkende Steuerungsfihigkeit des Rechts, ed. D. Grimm (1990) 187; K.-H. Ladeur, op. cit. (1992), n. 83; K.-H. Ladeur, Das Umweltrecht der Wissensgesellschaft: Von der Gefahrenabwehr zum Risikomanagement (1995).

89 Ladeur, op. cit. (1983), n. 83, especially pp. 479-83; Ladeur, op. cit. (1984), n. 83. 90 id. (1983), p. 478. For the application of this theoretical concept to a concrete

constitutional question, see K.-H. Ladeur, 'Ein Vorschlag zur dogmatischen Neukonstruktion des Grundrechts aus Art. 8 GG als Recht auf "Ordnungsstorung"' (1987) 20 Kritische Justiz 150; and, in counterpoint, see T. Blanke, 'Kritik der systemfunktionalen Interpretation der Demonstrationsfreiheit' (1987) 20 Kritische Justiz 157.

91 Ladeur, op. cit., n. 85, p. 273. 92 Ladeur, op. cit (1983), n. 83, p. 472. See, also, Ladeur, op. cit. (1984), n. 83, pp.

205 ff. 93 Ladeur, op. cit., n. 8, p. 426. 94 Teubner and Willke, op. cit., n. 83, pp. 24-30; Teubner, op. cit., n. 22, pp. 44-51.

For diverse critical perspectives on this subject, see Luhmann, op. cit. (1985), n. 8; P. Nahamowitz, "'Reflexives Recht": Das unmogliche Ideal eines post-

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law that has overcome the limits of formal-rational law and material-legal rationality.95 In the first case (formal rationality) there is an insensitivity in relation to the requirements of the social context; material-rational law cannot respond adequately to the functional differentiation of society and, thus, cannot further the autonomy of the legal system. 'Reflexive law' regulates the autonomous societal context by giving the affected subsystems a social constitution, 'which respects their own dynamics, but which imposes at the same time those social restrictions, that come out of the conditions of the interplay of all parts and that regulate the context for any individual part.'96 Differently from Luhmann's paradigm, this construction presupposes that the social subsystems are not found only in circumstances of reciprocal observations; systemic interference is not to be excluded.97 The autopoiesis of the legal system is not denied in this way, but on the contrary, double autopoiesis is affirmed that of law and that of social subsystems.98

With the development of his pluralistic and postmodern legal conception, Teubner introduces the distinction between autopoietic law, partially autonomous law and socially diffuse law.99 He starts from the premise that the autopoietic legal system constitutes itself through the hypercyclic connection of system components, namely legal procedure (process), legal act (element), legal norm (structure), and legal doctrine (identity). In the case of partially autonomous law, there is the self-referential constitution of the respective system components, but not their hypercyclic connection. Therefore, self-referential (re)production of legal acts refers only to legal acts, that of legal norms to legal norms, that of legal procedures only to legal procedures, and that of legal-doctrinal arguments and statements to legal- doctrinal arguments and statements; however, these diverse system components do not join themselves together in an autopoietic hypercycle. Finally, we have socially diffuse law, in which the system components are produced without legal differentiation, simply as conflict (process), action

interventionistischen Steuerungskonzepts' (1985) 6 Zeitschrift fir Rechtssoziologie 29; R. Munch, 'Die Sprachlose Systemtheorie. Systemdifferenzierung und Integration durch Indifferenz' (1985) 6 Zeitschrift fir Rechtssoziologie 19.

95 Teubner and Willke, id., pp. 19-24; Teubner, id., pp. 23-9. 96 Teubner and Willke, id., p. 7. 97 See Teubner, op. cit., n. 8, pp. 52-9; Teubner, op. cit., n. 3, pp. 96ff. 98 Teubner, id. (n. 8), pp. 46-8; Teubner, id. (n. 3), pp. 88-90. For a critical

perspective, see P. Nahamowitz, 'Autopoietische Rechtstheorie: mit dem baldigen Ableben ist zu rechnen - Kritische Anmerkungen zu: Gunther Teubner, Recht als autopoietisches System' (1990) 11 Zeitschriftfiir Rechtstheorie 137. For a counter response to Nahamowitz's critique see N. Luhmann, 'Steuerung durch Recht? Einige klarstellende Bemerkungen' (1991) 12 Zeitschriftfiir Rechtssoziologie 142. For a departure from both positions, see W. Kargl, 'Gesellschaft ohne Subjekte oder Subjekte ohne Gesellschaft? Kritik der rechtssoziologischen Autopoiese-Kritik' (1991) 12 Zeitschrift fir Rechtssoziologie 120.

99 See Teubner, op. cit., n. 3, p. 49 ff.; Teubner, op. cit (1992), n. 43, pp. 106 ff.; Teubner, op. cit., (1987), n. 43, pp. 432ff.

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(element), social norm (structure), and world view (identity). In distinguishing these three types of constitution as well as reproduction of the components of the legal system, Teubner is led to the following aporia: in dealing with the same area of validity, how are the conflicts between these three different types of legal systems resolved? He answers with the concept of intersystemic collision law,100 which is also valid for 'the conflict between the state legal order and plural social quasi-legal orders'.101 The question remains however: does intersystemic collision law represent an autopoietic legal system, a partially autonomous law or a socially diffuse law? In the case of these last two forms, there would be, strictly speaking, no autopoietic law; if it was characterized as autopoietic law then there would be, in the strict sense, no partially autonomous or socially diffuse law in existence.102

When I speak of allopoietic law, I refer to the territorially delimited state law itself. Here it should be made clear that in certain fixedly demarcated territorial spheres of validity the functional differentiation of a domain of legal action and experience has not adequately developed, and therefore, no self-referential system was built, that would be capable, in a congruently generalized way in terms of the respective society, of orienting the normative expectations and of regulating the interpersonal behavioural contexts. This is not about the conventional model of legal pluralism in which the distinction is made between 'official' autonomous law and informally and diffusely constructed legal spheres. On one hand, this differentiation leads us to the aforementioned insurmountable aporie in regard to the mechanisms of solving intersystemic conflicts, since the prevalence of one of the legal types implies the absorption of the other. On the other hand, the pluralistic postmodern conception of European origin attempts to emphasize the relationship of extra-state 'quasi-legal' mechanisms and operationally autonomous, state law. Within this present article, I claim to determine something more radical, namely, the very lack of operative autonomy of the positive law of state. This means the precedence of other difference codes, particularly the economic (have/not-have) and the political (power/no- power), over the code legal/illegal to the detriment of the efficiency, functionality, and even the rationality of law.

In affirming the entanglement of the preference codes and criteria of the various spheres of social life (economy, politics, family, and so on) with the binary code of law, one cannot overlook that each autopoietic system is

100 Teubner, op. cit., n. 3, pp. 123-48. 101 id., pp. 135-8. 102 In regard to the collision of discourses Teubner has recently made a different

formulation: on the basis of the concept of re-entry, collision law and collision discourse is installed in the colliding law and colliding discourse respectively. See G. Teubner, 'De Collisione Discursuum: Communicative Rationalities in Law, Morality, and Politics' (1996) 17 Cardozo Law Review 901, at 907-18.

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always conditioned by factors of its environment and this is the prerequisite of the self-referential connection of the system components. But in this case, there is the 'conversion' or 'digitalization' of the external factors through the code and the criteria of the corresponding system. A system expresses itself as autopoietic if it is able to reinterpret the environmental determinants according to its own observation. Provided that, on the contrary, the agents of the state legal system put aside the binary code

legal/illegal and the corresponding criteria, and act, as well as orient their

expectations, in accordance with the direct pressures of the economy, power, family relationships, and so on, one can claim the existence of the

allopoiesis of law. We are not dealing here with the localized phenomenon of system corruption at the cost of structural coupling in organizations, as has occurred in the democratic and constitutional states in Western Europe and North America,'03 nor are we dealing with the 'rejection value' in the terms of Gotthard Giinther,104 since both presuppose the autopoieses of the

corresponding systems. Under the typical conditions for the reproduction of law in the peripheral modem states, the so-called system corruption has a tendency towards generalization,105 so that the very principle of functional differentiation is affected and situations of allopoiesis of the law are

brought forth.106 Therefore, we are not dealing with the eventual obstructions of autopoietic reproduction of positive law, that are to be overcome through complementary immunization mechanisms of the same

legal system. The problem implies the generalized compromising of the

operative autonomy of law. The boundaries between legal system and environment dissolve, even in respect to an alleged social diffuse law without state.

Allopoiesis affects the basal self-reference (legality), reflexivity (con- stitutionality), and reflection (legitimacy) as constitutive moments of the

operationally closed reproduction of the legal system. It impairs also the hetero-reference, that is, the function and the performances of the law.107

According to Teubner's model, allopoiesis first implies the non-constitution

103 Luhmann, op. cit. (1993), n. 22, pp. 81-2 and passim. 104 G. Giinther, 'Cybernetic Ontology and Transjunctional Operations' in his Beitrdge

zur Grundlegung einer operationsfahigen Dialektik (1976) 249, at 286 ff.; compare Luhmann, op. cit., n. 50, p. 181 ff.; Luhmann, op. cit. (1993), n. 22, pp. 81, 181, 187, 545 ff.; Luhmann, op. cit. (1997), n. 22, p. 751 ff.

105 See Neves, op. cit., n. 56, where the concept of 'the peripheral modernity' is more precisely described (at pp. 72-81).

106 Luhmann acknowledges that 'in the extreme case' of system corruption 'one can not talk any more of autopoietic closing' (Luhmann, op. cit. (1993), n. 22, p. 82), but from this he draws no consistent empirical consequences for his theoretical construction, in so far as he still insists very strongly on the primacy of functional differentiation in the current world society. See id., p. 572; Luhmann, op. cit. (1997), n. 22, p. 743.

107 In regard to the problem of self-reference and hetero-reference in situations of allopoiesis see a detailed examination in Neves, op. cit., n. 56, pp. 147-215.

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as well as the generalized obstruction of the hypercyclic connection of the systemic components (legal act, norm, procedure, and doctrine). However, it can mean even more: namely, that these systemic components are not self- referentially constituted. In this case, the boundaries between legal system and environment become not only weak or opaque, they vanish.

The typical problem of the 'peripheral modernity' in regard to the allopoiesis of law108 amounts to the weakness, irrelevance as well as the absence of the constitution as a structural coupling of politics and law,109 a mechanism that 'makes a legal solution of the self-reference problem of the political system and at the same time a political solution of the self-reference problem of the legal system possible.' 10 The political takes precedence over the legal so that one can hardly speak of operative autonomy or functional differentiation of both systems. And this situation occurs not only in the autocratic experiences, in which the destructive effect of the power code over the legal code, or more exactly, the superiority of the political over the legal already on the level of constitutional legislation is structurally determined. With symbolic constitutionalization,1" in the context of which the constitutional text adopts the democratic model of rule of law, the problem of the destructive interference of politics in the legal system only appears in the course of the application of the constitution. If one considers the 'concretizing' of the constitution in the narrower, strictly legal technical sense as the construction of the 'legal norm' and the 'decision norm' in each particular case,

12 a semantic distortion of constitutional clauses can already be found: the content of meaning that is attributed to them in the concrete case often deviates from any generalizable interpretation of the principles of the democratic and constitutional state. If 'concretizing' is defined in the wider sense, so that the actual realization of the constitution is also included, one can conclude that there is a scandalous divergence between the constitutional model based on democratic principles and rule of law, on the one hand, and political and legal practice, on the other hand. In general terms, there is a lack of constitutional normativity consistent with the constitutional text. The obstructing of the constitution concretizing process by diverse particularistic interests implies a de-legalizing political reality and a de-constitutionalizing legal practice. In regard to law, this means that the

108 See id. 109 N. Luhmann, 'Verfassung als evolutionare Errungenschaft' (1990) 9 Rechts-

historisches Journal 176, at 193 ff.; Luhmann, op. cit. (1993), n. 22, pp. 470ff. 110 Luhmann, id. (1990), p. 202. 111 M. Neves, Symbolische Konstitutionalisierung (1998). 112 In this regard, see F. Miiller, Juristische Methodik (1995, 6th edn.) 166-74; F.

Miiller, Strukturierende Rechtslehre (1994, 2nd edn.) 263; R. Christensen, 'Der Richter als Mund des sprechenden Textes. Zur Kritik des gestezespositivistischen Textmodells' in Untersuchungen zur Rechtslinguistik: Interdisziplindre Studien zu praktischer Semantik und strukturierender Rechtslehre in Grundfragen der juristischen Methodik, ed. F. Miiller (1989) 47, at 87-91.

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constitution as 'that form with which the legal system reacts to its own autonomy' 13 is not sufficiently concretized or constructed.

The problem which occurs when the constitution does not become a mechanism of legal operative autonomy, particularly in the case of semantic distortions of the constitutional text in the course of the concretizing process, is closely related with the generalized problem of 'social exclusion' within the peripheral countries, carried out from 'below' as well as from 'above'. We are no longer dealing here with 'secondary exclusion' but rather 'primary exclusion'.114 The first case evokes no questioning or destruction of the legal code but rather the code 'only limits the actual extension of its validity'.115 In the second case, exclusion is expanded and intensified resulting in the releasing and generalizing of destructive consequences which act against the validity of differentiating legal codes and against a constitution based on the rule of law and which represents the structural coupling of law and politics. This is not about a mild meta-difference of inclusion and exclusion in Luhmann's terms, which would mediate the codes of the functional systems and, thus, pervade the functional differentiation of society and the differentiation of law as well as the constitutional order,116 but rather about the generalized phenomena of exclusion that questions and threatens functional differentiation, the autonomy of the law and constitutional normativity.117 More exactly, we are not talking in this context about social 'exclusion', as if communicative isolation of population groups from each other could still be possible in the modem world society. It seems to me it is not appropriate to speak of sphere of inclusion (in which 'people count as persons') and sphere of exclusion (in which 'people are considered no longer as persons but as bodies')118 as if both could be clearly distinguished. The problem consists in the generalization of relations of over-integration

113 Luhmann, op. cit. (1990), n. 109, p. 187. 'The constitution closes the legal system by regulating this system as a sphere where the constitution is present as well. It constitutes the legal system as a closed system through re-entry into the system.'

114 F. Miiller, Wer ist das Volk: Die Grundfrage der Demokratie - Elemente einer Verfassungstheorie VI (1997) 50-6.

115 id., p. 51. 116 Luhmann, op. cit. (1997), n. 22, p. 632; Luhmann, op. cit. (1993), n. 22, p. 583. 117 Luhmann acknowledges: 'The difference of inclusion and exclusion has grave

effects, since on the one hand it is brought about by the functional differentiation of the world society, on the other hand, it hinders, if not prevents, the regional production of conditions of functional differentiation'. Luhmann, id. (1997), p. 168. In other words it is a matter of a difference 'that admittedly through functional differentiation is generated but is, in the end, incompatible with it.' Luhmann, id, (1993), p. 582 (emphasis mine). Luhmann insists however, that despite the generalized conditions of 'inclusion/exclusion' as in the Latin American case, the elimination of the autopoiesis of the law does not occur. Luhmann, id. (1997), p. 632.

118 id. (1997), pp. 632 ff.; N. Luhmann, 'Inklusion und Exklusion' in his Soziologische Aufkliirung 6: Die Soziologie und der Mensch (1995) 237, 259-64, 262; Luhmann, id. (1993), pp. 584-5.

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and under-integration into the different social systems.119 These relations

imply hierarchical positions towards the functional systems, positions which are not guided by principles but factually conditioned. In these relations, one is integrated into the social systems 'from above' or 'from below', with the

consequence that their autonomous reproduction is obstructed. The over- integration pole has access to the products and benefits of the social systems, without being simultaneously dependent on their constraints and rules

(positive integration), while the under-integrated pole is dependent on the rules and constraints without having access to the products and benefits (negative integration), so that at both poles, defective inclusion as well as partial exclusion exists.120

In regard to law, this means that the over-integrated have access to the law (as well as to legal protection and legal action), without having to fulfill the duties and responsibilities imposed by the legal system (impunity), while in contrast the under-integrated have no access to legal action and legal protection, although they are very strictly submitted to duties, responsibilities, and freedom-limiting penalties.121 In the highly complex modem world, there are, admittedly, no absolute over-integrated or under-integrated positions, because these positions are not based, as in pre-moder societies, on solid principles or norms but depend on concrete factual conditions of communication reproduction; however, there are parts of the population that are regularly found in the superior or in the inferior pole of the relations of over-integration and under-integration. For the supra-citizen and the sub- citizen, the constitution forms no horizon for their legal and political action and experience: for the former, the constitution could be used, not used, or

119 Compare Neves, op. cit., n. 56, pp. 78-9, 94-8, 155-6; M. Neves, 'Entre Subintegracao e Sobreintegracdo: A Cidadania Inexistente' (1994) 37 Dados - Revista de Ciencias Sociais 253; M. Neves, 'Do Pluralismo Juridico a Misceldnea Social: 0 Problema da Falta de Identidade da(s) Esfera(s) de Juridicidade na Moderidade Periferica e suas Implicaoies na America Latina' (1995) 5 Direito em Debate 7.

120 From the standpoint of dependence rather than access, Luhmann, in contrast to my formulation, defines the 'area of exclusion' as highly integrated and the 'area of inclusion' as less integrated. Luhmann, op. cit. (1993) n. 22, pp. 584-5; Luhmann, op. cit. (1997), n. 22, pp. 631-2; Luhmann, op. cit., n. 118, p. 259-60. In this way integration would be understood uni-dimensionally 'as the reduction of the degree of freedom of subsystems' as well as 'restriction of the degree of freedom for selection', and therefore, negatively as dependent and not positively as access. See Luhmann, op. cit. (1997), n. 22, pp. 603, 631. However, according to my formulation, under-integration and over-integration imply in each case insufficient 'inclusion' (therefore, partial exclusion), be it for lack of access (of positive integration) to the social systems, be it for lack of dependence (of negative integration) on them.

121 Following this argument see, for Latin America, G. O'Donnell, 'Polyarchies and the (Un)Rule of Law in Latin America: A Partial Conclusion' in The (Un)Rule of Law and the Underprivileged in Latin America, eds. J.E. Mendez, G. O'Donnell, and P.S. Pinheiro (1999) 303, especially at 312.

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misused according to the concrete contexts of interests; for the latter, the fundamental rights and guarantees proclaimed in the Constitution are alien. It follows that the generalization of relations of over-integration and under- integration in the social subsystems, especially in politics and law, leads to the breakdown of the constitution as basic (sub)order of legal and political communications. And for law, this means that its reproduction is suppressed through communicative attributions which either from 'above ' or 'below' are determined according to other binary codes. In this way. law is com- pressed through vertical determinants from the environment, so that, despite all the increases in complexity and corresponding demands for functional differentiation or system autonomy, it lacks self-referential circularity or operative closure.

V. FINAL CONSIDERATIONS: FROM EMPIRIC REALITY TO THE NORMATIVE DEMANDS OF AUTOPOIESIS OF LAW

So conceived, the allopoiesis of law, as a typical problem of the 'peripheral states', cannot be understood through the postmodern theory of law, which while denying the unity of law as an operationally closed communication chain, claims that the legal system constructs itself as a communication network pluralistically and thus includes (de)constructive uncertainty and instability (Ladeur). The predominantly allopoietic determination of the structures (norms), elements (actions), processes (conflicts) and identity (worldview) of law in the current highly-complex world implies destructive insecurity in regard to the practice of conflict resolution and to the orientation of normative expectations. Thus, as in the case of Brazil, the generalization of the code legal/illegal in the sense of a preference for inclusion becomes impossible, and the direct, particularistic and obstructing interference of various social factors in the reproduction of law, above all the heteronomizing interference of the economic and political interests, is promoted. The resulting subordination of the legal code to the code have/not- have and the code power/no-power is neither oriented by highly moral principles nor internally determined or controlled through criteria and programmes of differentiated functional systems, but rather, is conditioned through actual 'social exclusion'. This has grave destructive effects on the integration of society and is, of course, incompatible with the idea of the autopoiesis of law. For this situation, which is dominant in countless communicative contexts of today's world society and in the majority of the regions of the globe, the existing approaches of systems theory, whether based on the functional model or on the postmodern paradigm, offer no adequate explanatory model.

It appears to me that the concept of the autopoiesis of law can be subjected to a reading from a normative point of view. Although this is not the line taken by either Luhmann or Teubner, we find indications of such an

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interpretation in both of their works. In the now highly complex world society, a functional requirement has been established that has with normative implications - but which does not constitute a generalized empiric reality, nor even a dominant one - that the codes and programmes of a sphere of communication are not directly imposed on the other sphere of communication. It demands the respect for autonomy of all and any social discourse. 22 For example, it is imperative of justice in a complex society that 'the central point of internal rationality of an autonomous social sector, such as research, health or education, should not be substituted by economic rationality.'123 In general, it can be said that the rationality of a field of communication should not be reduced to that of another or affirm that the codes and criteria of an autonomous social sphere should not be sabotaged by the demands of another. In this sense, Luhmann himself emphasizes that 'sabotage of the code now becomes a moral problem - something like corruption in politics and law or doping in sport or the purchase of love, or the manipulation of data in empirical research.'124 With reference to the various games of language, a discursive justice is imposed as 'justice in the face of the heterogeneous'.125 In this perspective, justice means 'the relation between discursive identity and alterity, not, however, based on the perspective of a third party, but from the singular perspective of respective discourse in light of other discursive worlds'.26 In sum, justice presupposes and demands the recognition of discursive plurality and the systemic complexity of world society today, implying respect for the autonomy of the discursive spheres or of the systems of communication. The concept of autopoiesis of law refers exactly to the way in which the law builds its autonomy as a sphere of communication, acquiring identity and discursive alterity. Thus, if the law is usurped (and in this manner rights are denied) by a wild politics corrupted by money, the result is structural injustice, as occurs

principally in the countries of peripheral modernity, characterized by a political culture of illegality contrary to the rule of law and by the tremendous fragility of law before the destructive expansionism of the means of money in a globalized economy.

122 G. Teubner, 'Altera Pars Audiatur: Das Recht in der Kollision anderer Universalititsanspriiche' (1996) 65 (Beiheft) Archiv fur Rechts- und Sozialphilosophie 199, at 218.

123 G. Teubner, 'Nach der Privatisierung? Diskurskonflikte im Privatrecht' (1998) 19 Zeitschrift fiir Rechtssoziologie 8, at 21.

124 Luhmann, op. cit. (1997), n. 22, p. 1043. 125 W. Welsch, 'Gesellschaft ohne Meta-Erzahlung?' in Die Modernisierung moderner

Gesellschaften: Verhandlungen des 25. Deutschen Soziologentages in Frankfurt am Main 1990, ed. W. Zapf (1991) 174, at 176.

126 Teubner, op. cit., n. 123, p. 218.

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From the Autopoiesis to the Allopoiesis of Law-1

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