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Eui Working Papers In Repository. Research Institute University European Institute. Cadmus, on European European Florence University Institute, University Access European EUI EUI Working Paper LAW No. 90/7 Open Luhmann Conservative, Luhmann Luhmann Progressive Luhmann R WORKING LAW PAPERS IN EUI Author(s). Available einer The 2020. G © in rundmann Library EUI the by produced version Digitised Repository. Research Institute University European Institute. Cadmus, on University Access European Open Author(s). Available The 2020. © in Library EUI the by produced version Digitised Repository. Research Institute University EUR F a 9 WP European Institute. Cadmus, on EUROPEAN UNIVERSITY INSTITUTE, FLORENCE University BADIA FIESOLANA, SAN DOMENICO (FI) Access EUI EUI Working Paper European Open DEPARTMENT OF LAW Luhmann Luhmann Conservative, Luhmann Luhmann Progressive R einer Author(s). Available The G 2020. © rundmann in LAW LAW Library No. No. 90/7 EUI the by produced version Digitised Repository. Research Institute University European Institute. Cadmus, on University Access No part of paper this may be reproduced in any form European Open without permission of the author Printed Printed in Italy in October 1990 Author(s). Available European University Institute 1-50016 San 1-50016 Domenico (FI) The © © Reiner Grundmann All rights reserved. 2020. © Badia Fiesolana in Italy Library EUI the by produced version Digitised Repository. Research Institute University European Institute. Cadmus, on European Florence University European Institute, University Access European EUI EUI Working Paper Open Luhmann Luhmann Conservative, Luhmann Luhmann Progressive R WORKING LAW PAPERS IN Author(s). EUI Available einer The 2020. G © in rundmann LAW LAW Library No. No. 90/7 EUI the by produced version Digitised Repository. Research Institute University European Institute. 30001 Cadmus, on University Please note divided into six sub-series, each sub-series will be numbered individually (e.g. EUI Working Paper ECO No. 90/1). As from January 1990 the EUI Working Paper Series is EUI-BIB Access 000929499 European Open Author(s). Available The 2020. © in Library EUI the by produced version Digitised Repository. Research Institute University EUR Fa9 WP European Institute. Cadmus, on EUROPEAN UNIVERSITY INSTITUTE, FLORENCE University BADIA FIESOLANA, SAN DOMENICO (FI) Access EUI EUI Working Paper European Open DEPARTMENT OF LAW Luhmann Luhmann Conservative, Luhmann Luhmann Progressive R Author(s). Available einer The G 2020. © rundmann in LAW LAW Library No. No. 90/7 EUI the by produced version Digitised Repository. Research Institute University European Institute. Cadmus, on University Access No part ofthis paper may be reproduced in any form European Open without permission of the author Printed in Italy in October 1990 Author(s). Available European University Institute 1-50016 1-50016 San Domenico (FI) The © © Reiner Grundmann All rights reserved. 2020. © Badia Fiesolana in Italy Library EUI the by produced version Digitised Repository. Research Institute University European Institute. Cadmus, Luhmann conservative, Luhmann conservative, Luhmann progressive on University Access European Open European University Institute Reiner Grundmann Author(s). Available September 1990 The Florence 2020. © in by Library EUI the by produced version Digitised Repository. Research Institute University European Institute. Cadmus, on University Access European Open Author(s). Available The 2020. © in Library EUI the by produced version Digitised 3 Repository. of the subject and to the idea that individuals are the basic units of social action. But I shall not attempt to give a Research comprehensive exposition of the theory of autopoiesis as developed by Luhmann2. Instead, some aspects of Luhmann’s Institute ambitious and complex theory shall be picked out and treated University in a rather non-systematic way, drawing on his contributions to legal theory and the critique of ideology. This shall be done European so as to juxtapose his theoretical outline with those of Anglo- Institute. Cadmus, on 2 From Luhmann’s writings on the topic there are now University availbale Ecological Communication. Cambridge: Polity Press (1989); Essays on Self-Reference. New York: Columbia Access University Press (1990, forthcoming). Stanford University European Press prepares a translation of Soziale Système. For other Open contributions, see the articles in Humberto Maturana and Francisco Varela (eds.) Autopoietic Systems. A Characterization of the Living Organization, Urbana (111.) (1975); H. Maturana Author(s). and F. Varaela (eds.) Autopoiesis and Cognition. The Available Realization of the Living. Dordrecht: Reidei (1980); Milan The 2020. Zeleny (ed.) Autopoiesis: A Theory of Living Organization, New © York: Elsevier (1981); Gunther Teubner (ed.) Autopoietic Law: in A New Approach to Law and Society, Berlin: de Gruyter (1988); G unther Teubner (ed.) State, Law, Economy as Library Autopoietic Systems, Milano: Giuffré (1990, forthcoming). For a lenghty review article, see Arthur J. Jacobson ’Autopoietic EUI Law: The New Science of Niklas Luhmann’ in 87 Michigan the Law Review (1989), pp. 1647-1689. For a general by representation of Luhmann’s work in English, see his Trust and Power. Chichester: Wiley (1979); Differentiation of Society. New York: Columbia University Press (1982); A Sociological Theory of Law. London: Routedge (1985); Love as Passion. produced Cambridge: Polity Press (1986); Political Theory in the Welfare State. Berlin: de Gruyter (1990). version Digitised 2 Repository. Reiner Grandmami Luhmann conservative, Luhmann progressive' Research Institute University The lawyer has to legitimate the world as it is. European Jacob Taubes Institute. If we presuppose society as it is the only thing we can do is to conserve Cadmus, it. on Niklas Luhmann University Access Writing on Luhmann for an Anglo-american readership, one European Open could be tempted to adopt a habit of explaining autopoiesis in a way reminiscent of Lyotard’s well-known booktitle* 1. This is Author(s). Available not meant to be presumptuous or provocative. The theoretical The 2020. © traditions of German and Anglo-american thought are quite in distinct, a fact which makes communication across the Library boarders difficult. The most single important difference is EUI perhaps Luhmann’s abolition of any appeal to the philosophy the by I wish to thank Niklas Luhmann, Sean Smith and Gunther Teubner for valuable comments. produced 1 See J.F. Lyotard, Le postmodeme expliqué aux enfants. Paris: Galilée (1986). version Digitised 4 Repository. american theorists, such as Rawls’. But some attention is also paid to Habermas’ competing project. In fact, many of the Research Anglo-american audience know Luhmann’s system theory only from a Frankfurtian reading. This reading nurtured a long­ Institute standing aversion towards systems theoiy which is regarded University as technocratic3. The present article tries to reconsider such a judgement. European Institute. The two epigrams4 at the beginning of the text seem to Cadmus, suggest that Luhmann is primarily interested in justifying on University existing order, not to criticise or to change it. However, this Access impression is contradicted by statements where Luhmann European Open Author(s). 3 Cf. Robert Lilienfeld, ’Systems Theory as an Ideology’ in Available 42 Social Research pp. 637-660 (1975); Peter Ludz, ’Marxism and Systems Theory in a Bureaucratic Society’ in 42 Social The 2020. Research pp. 661-674 (1975). © in 4 In the original they read as follows; ’Der Jurist muJ3 die Welt, wie sie ist, legitimieren. Solange auch nur eine Library juristische Form gefunden werden kann, mit welcher Spitzfindigkeit auch immer, ist es unbedingt zu tun, denn EUI sonst regiert das Chaos.’ (Jacob Taubes, Ad Carl Schmitt. the Gegenstrebige Fügung. Berlin: Merve (1987), p.72) and ’If by society is supposed to be what it is, then the problem can be only to conserve society, to continue solving its problems, and possibly to improve problem solving and to overcome unexpecetd difficulties.' Niklas Luhmann, Tautology and produced Paradox in the self-Descriptions of Modem Society’ in 6 Sociological Theory (1988), p.28. version Digitised Repository. Research Institute University European Institute. Cadmus, recommend the functions he describes5. How are we to resolve a move which followsa distinctionTaubes’ betweendictum. lawyers the andtwoAccording statements?sociologists. to This Onethis, wouldthis way betoparadox? view this Or,question if it is isno to paradox,draw how are theirwe to reconcilefunctions, saysthat that hehe doesdefends doesnot himselfwantnotagainst to justify exactlyin suchexistinga charges. normativesystems For example, and he way to the problem on of someself-description aspects of Luhmann’sof modernlegal theoiy society(I.) and then— a turn face the same problem suchas the a ’conservative’neat lawyer.separation.the fact Thethat ’progressive’Luhmann’s appealingsociologist theory this hasreally suggestiondoesto Luhmannnot maylend be, theitselfit tosociologistis putLuhmann wouldinto bequestion the the progressive.by lawyerHowever would be the conservative, and 5 5 Niklas Luhmann, 1978), p. 6. on I I shall adress both aspects in what follows. First, I focus University Access European Open Author(s). Available Legitimation durch Verfahren The 2020. © in 5 Library EUI the by produced (3rd ed. version Digitised Repository. Research Institute University European Institute. Rawls, one would note
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