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Abstract only
Darrow Schecter

Functional differentiation is introduced as a defining characteristic of modern society and one that is rarely discussed by critical theorists. The result is that there are glaring sociological and explanatory deficits in that literature. Systems theory is very useful for understanding sociological realities such as functional differentiation. However, systems-theoretical orthodoxy often assumes that social systems have to be coded in reductively binary terms such as legal/illegal. Orthodox approaches often suggest that social-systemic coding happens in a-historical and automatic ways. This book therefore adopts a significantly modified version of systems theory. The book also draws on other sources, such as Gramsci and constitutional theory. The version of critical theory that emerges on this basis is clearly distinct from first- and second-generation Frankfurt School critical theory. It is also markedly distinct from a number of other theoretical currents that see themselves as offering critical theories of society following in the steps of the Frankfurt School.

in Critical theory and sociological theory
On the relation between law, politics, and other social systems in modern societies
Darrow Schecter

Chapter 2 examines the theoretical, practical, and historical incongruities between presupposed mediated unity, on the one hand, and the sociological reality of functional differentiation, on the other. It is explained that there is a widespread inclination amongst expert theorists and the lay public alike to imagine political authority as having a pyramidal structure culminating in the state. The factual differentiation of social-systemic operations stands in stark contrast with prevailing normative conceptions of constituent power based on the mediated unity of citizens and the state. When the sociological fact of functional differentiation does happen to be recognised by scholars, they frequently accept the currently existing hegemonic model of functional differentiation as somehow natural or inevitable. This tendency manifests itself when supposed experts casually assume that privatisation and outsourcing are efficient responses to the need to respect the differentiation of economic, political, and legal social systems. The dynamics of politicisation and democratisation need to be reconsidered without relying on casual assumptions about mediated unity, ethnic unity, national unity, constituent power, or popular sovereignty.

in Critical theory and sociological theory
On social systems and societal constitutions
Darrow Schecter

Literal readings of terms such as centralisation and de-centralisation can lead to misinterpretations of the issues involved when assessing the fibre and composition of legitimacy and statehood. When applied to modern states, for example, centralisation and the division of powers are mutually reinforcing rather than contradictory or antithetical. Similarly, social systems are dispersed and nonetheless in steady communication with one another through a wide range of mediations. One of the crucial points for this chapter and for the book as a whole is that social systems are not joined according to a model of mediated unity. Their relations can be compared instead to a constellation of constituent elements that transmit and receive coded communication. At this historical juncture it can be said that inter-systemic social communication proceeds according to the dialectics of mediated non-identity. The dialectics of mediated non-identity imply a qualitatively different model of statehood than the dialectics of mediated unity. However inchoately, it is a model of social statehood in tune with the potentially constitutional dimensions of social systems.

in Critical theory and sociological theory
On mediated unity and overarching legal-political form
Darrow Schecter

Mediated unity is introduced as one of the key premises underlying almost all conceptions of modern statehood. The term mediated unity expresses the idea that if there was no way to bridge the metaphorical distance between citizens and the state, representation would be impossible. Within this framework mediation and the possibility of rational representation are intrinsically linked with the presupposition of an underlying unity. The premise is consolidated by the corollary premise that if there was identity or fusion between citizens and the state, representation would be superfluous. Identity between citizens and political authority would make representative institutions redundant. It is shown that although the premise of mediated unity is closely associated with thinkers with an explicitly dialectical position in matters of epistemology and politics, virtually all arguments in support of democratic legitimacy rely on either a strong or weak dialectical argument. Chapter 1 explains what is at stake in the deconstruction of the key concept of mediated unity.

in Critical theory and sociological theory
The many autonomies of private law
Gunther Teubner

The last twenty years have seen an important shift in the pattern of public service provision throughout the countries of the OECD. There has been a transfer of responsibility from the public to the private sector across a range of services. But what will market mechanisms do to the public interest aspects of these services? This chapter puts forward two alternative claims: (1) The crucial problem is not how to compensate for the loss of the public interest in privatisation but how to move out of the reductive public/private dichotomy itself and make private law responsive to a plurality of diverse ‘private’ autonomies in civil society; (2) the adequate reaction to privatisation is not to impose public law standards on private law but to transform private law itself into the constitutional law of diverse private governance regimes, something which will ultimately lead to its far-reaching fragmentation and hybridisation.

in Critical theory and legal autopoiesis
Abstract only
The milestones of Teubner’s neo-pluralism
Alberto Febbrajo
in Critical theory and legal autopoiesis
Human rights violations by ‘private’ transnational actors
Gunther Teubner

Do fundamental rights obligate not only states, but also private transnational actors? That is the question addressed by this chapter. Since violations of fundamental rights stem from the totalising tendencies of partial rationalities, there is no longer any point in seeing the horizontal effect as if rights of private actors have to be weighed up against each other. On one side of the human-rights relation the fundamental-rights violator is no longer a private actor but the anonymous matrix of an autonomised communicative medium. On the other side, fundamental rights have to be divided into three dimensions: (1) institutional rights protecting the autonomy of social discourses against their subjugation by the totalising tendencies of the communicative matrix; (2) personal rights protecting the autonomy of communication, attributed not to institutions, but to the social artefacts called ‘persons’; (3) human rights as negative bounds on societal communication, where the integrity of individual’s body and mind is endangered.

in Critical theory and legal autopoiesis
The logics of ‘hitting the bottom’
Gunther Teubner

This chapter draws a bow from the self-destructive growth compulsions of social systems, over the moment of near-catastrophe, to new orientations, which cannot be effected from the outside but only through the transformation of their ‘inner constitution’. It makes four main arguments. (1) in order to understand the global financial crisis, we should not rely on factor analysis alone. Instead, we should look for the underlying self-destructive growth compulsions of information flows. (2) To ‘hit the bottom’ refers to the constitutional moment when either a catastrophe begins or societal forces for change are mobilised in such intensity that the ‘inner constitution’ of the economy transforms under their pressure. (3) Plain money reform is one of several examples that illustrate a capillary constitutionalisation of the global economy. (4) The dichotomy constitutional/unconstitutional develops into a binary meta-code within the structural coupling between the economy and law, and is ordered above both the legal code and the economic code.

in Critical theory and legal autopoiesis
The case for societal constitutionalism
Editor: Diana Göbel
Author: Gunther Teubner

This volume collects and revises the key essays of Gunther Teubner, one of the world’s leading sociologists of law. Written over the past twenty years, these essays examine the ‘dark side’ of functional differentiation and the prospects of societal constitutionalism as a possible remedy. Teubner’s claim is that critical accounts of law and society require reformulation in the light of the sophisticated diagnoses of late modernity in the writings of Niklas Luhmann, Jacques Derrida and select examples of modernist literature. Autopoiesis, deconstruction and other post-foundational epistemological and political realities compel us to confront the fact that fundamental democratic concepts such as law and justice can no longer be based on theories of stringent argumentation or analytical philosophy. We must now approach law in terms of contingency and self-subversion rather than in terms of logical consistency and rational coherence.

Derrida, Luhmann, Wiethölter
Gunther Teubner

This chapter turns to the idea of paradox in the law, particularly in the context of civil constitutions and hybrid networks. Beginning with an examination of the work of Rudolf Wiethölter, a proponent of conflict-of-laws theory, the chapter suggests a change in the mode of thought from conflict to paradox. Conflicts are contradictions between A and non-A, while paradoxes have the structure non-A because A. Constitutions are always paradoxical in their foundation, because they are formed in a self-referential mode and have a foundationless foundation, or a similar paradoxical formulation. This is true in a similar way for civil constitutions, although they are based on different mechanisms.

in Critical theory and legal autopoiesis