Autopoiesis In Law Research Paper

1. Autopoiesis And The Functionally Differentiated Society

Autopoiesis describes the capacity of an entity to reproduce itself. As a concept it was first introduced in theoretical biology to explain cognition and the essence of life (see Maturana and Varela 1980, 1987 and was then further developed in general systems theory (for example, von Forster 1984). It has been widely applied in mathematics, in the study of cognition, and in studies of the nervous system as well as in information systems, cognitive science, and artificial intelligence (see Mingers 1995).

In general systems theory, the following definition is widely accepted: autopoietic systems ‘are defined as unities and as networks of production of components that recursively, through their interactions, generate and realize the network that produces them and constitute, in the space in which they exist, the boundaries of the network as components that participate in the realization of the network’ (Maturana 1981, p. 21). Maturana’s definition operates with a notion of recursive closure of the system. An autopoietic system is not only able to produce and eventually to change its structures, but is also capable of reproducing its components, and in particular its undecomposabLevelements, through recursive self- reference of these elements. Thus, its self-reproduction relies exclusively on internal operations and is not dependent on the environment.

Niklas Luhmann (1927–98) is responsible for introducing the concept of autopoiesis to social systems theory (Luhmann 1986. His approach transcends the Parsonian version of sociological systems theory, which operates with an input–output model of the social system and its environment. A crucial element of Luhmann’s concept is the idea of communications as the ultimate, non-decomposable elements of an autopoietic social system. Social systems are capable of reproducing themselves because they are communication systems (Luhmann 1995, 1997).

Autopoietic social theory distinguishes between society and functionally differentiated social systems. Society is seen as a first-order social system, whereas the legal system is viewed as a second-order social system or societal subsystem. Society as a first-order social system differs from second-order social systems insofar as it has no other social system as an environment; society’s environment consists of natural and psychic systems. In fact, human beings do not form part of society or any social system but belong to their environment; the individuality and the consciousness of human beings are features of highly complex psychic systems that operate separately from social systems (Luhmann 1995, Chap. 7).

2. Autopoiesis Of The Legal System

In accordance with general systems theory, autopoietic legal theory assumes that law is a special communication system that reproduces itself in self-referential processes. Legal communications, such as legal norms, legal decisions, or legal doctrine, are central to the autopoiesis of the legal system (Teubner 1993, Luhmann 1993). In order to determine whether a communication is part of the system, the legal system operates with a specific binary code: law nonlaw or legal/illegal (Luhmann 1990).

However, the code itself is not sufficient for the creation of law. The code must be translated into legal programs, which are rule-bound. Furthermore, the function of law is to deal with expectations, and in particular with disappointments of expectations. The legal system operates with a specific combination of normative closure and cognitive openness (Luhman 1987). It upholds the existing norms and procedures but it is also capable of learning in response to disappointments, and provides mechanisms for its own change. An important feature of autopoietic legal theory is the radicalization of the notion of legal autonomy. It is the peculiar character of autopoietic law that ‘only the law can change the law. This is not to deny that the environment (in particular the political system) has an impact on the legal system. But the legal system reproduces itself through legal events and only by legal events’ (Luhmann 1990, p. 229). On this basis, the modern legal system becomes positive and adopts a reflexive identity.

A further consequence of radical legal autonomy is the emergence of a special legal understanding of the external world. Like other function systems, the autopoietic legal system develops an epistemology according to its own criteria (Teubner 1989). It is this specific worldview that guides its internal operations and thereby influences legal development.

3. Legal Evolution And Structural Coupling

The legal system forms part of the functionally differentiated modern society (other functional systems include the economic, the political, and the religious systems). Each system within society evolves separately along its own trajectory, with its own internal structures and processes determining its development.

However, the evolution of social systems is not determined exclusively by internal conditions. Specific external relations that derive from structural couplings also have an effect. These structural couplings are constant sources of mutual irritations and perturbations of the coupled systems. Structural coupling can neither overcome the identity and autonomy of the coupled systems nor rank functional subsystems in an asymmetrical hierarchical fashion. Structural coupling allows only selective exchanges between the systems. Structural coupling produces irritations inside the system which are implemented by the system through its network of operations into further operations.

These perturbations do not actually cause changes; rather, they serve as triggers that may initiate internally controlled operations in operationally closed systems. Thus, structural coupling of social systems does not contribute directly to the reproduction of the systems. It is simply the specific form in which the system presupposes specific states or changes in its environment and relies on them.

The constitution provides an example of the role of structural coupling between the legal and the political systems. When constitutions emerged in the eighteenth century, they helped to recombine the functionally differentiated political and legal systems. From an autopoietic perspective, constitutions were adopted in response to problems of self-reference, paradoxes, and asymmetries in the legal and the political systems of the respective countries. Factors such as independence from colonial domination in the USA, or the formation of political sovereignty in a revolutionary situation in France, reflected only specific historical constellations. In both cases, the functionally differentiated legal and political systems had to realize that law completely determines what is legal or illegal, and that the political system had to design its own self-binding sovereign power.

The concept of the constitution offered the solution for both systems because it separated the political and the legal systems, yet provided for their structural coupling. The legal system made reference to the political system by acknowledging that the constitution derived from the political will of the people, and the political system made reference to the legal system by endowing the latter with the power to determine the constitutionality of positive law.

4. Reflexive Law And Legal Regulation

The concept of reflexive law, which arose from a debate of a new form of reflexive legal rationality in modern law, accompanies autopoietic legal theory. In particular, Gunther Teubner has argued that the modern legal system is characterized not only by formal and substantive rationality but also, increasingly, by reflexive legal rationality (Teubner 1983). The reflexive law concept was originally intended to combine the social theories of Jurgen Habermas and Niklas Luhmann. However, as the construct of reflexive law became more integrated with autopoietic legal theory (Teubner 1993), the influence of Habermas’ theory decreased and Luhmann’s systems theory became dominant.

The reflexive law concept emphasizes the limits of legal regulation and processes of self-regulation in other social systems. It analyzes the regulatory capacities of the legal system, both in relation to the regulation of other systems and in relation to the legal systems capacity to regulate itself. Law is confronted with a regulatory dilemma. It encounters ineffective-ness when the regulated system simply does not respond to the regulatory attempt. Furthermore, if law imposes its own solution, it risks legalizing politics; but if law yields to the political imperatives, it risks becoming politicized. Teubner (1985) suggests that by facilitating self-regulation by the regulated system, law can sometimes overcome the dilemma.

There have been a number of attempts to use the reflexive law concept to analyze developments in particular areas of law. For example, Collins (1999) sees modern contract law as a form of reflexive regulation. Reflexive environmental law (Orts 1995) and reflexive labor law (Rogowski and Wilthagen 1994) have been suggested as concepts that can provide new insights in legal developments of legal subdisciplines. There have been attempts to combine reflexive law and postmodern legal theory in constitutional law (Ladeur 1992, 1997).

5. Law In The World Society

An ‘unavoidable consequence of functional differentiation’ (Luhmann 1982[1990, p. 178]) is that society becomes global. By concentrating on one function and excluding other functions, each subsystem gains a capacity to include all function specific communicative behavior, unlimited by territorial boundaries. Traditional subsystems that are constituted by specific communications can spread over the globe. Society as a whole can no longer integrate its subsystems by common territorial frontiers. Indeed, a modern, functionally differentiated society is a world society. It is this dimension with which the reflexive and autopoietic law concept fundamentally challenges traditional legal analyses.

Autopoietic legal theory predicts that legal globalization is unavoidable, and that a world legal system will emerge. This global law develops without support by any particular state (Teubner 1997). Despite considerable confusion about the meaning of globalization, it seems clear that there is not one trajectory that law follows within the world society. It is thus a further feature of reflexive law that it observes and compares legal developments in different parts of the world. For autopoietic legal theory, the study of global law requires a reflexive comparative law that is both empirically informed and theoretically aware of the autopoietic nature of world law.

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