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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
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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
The mutual paranoia of Jacques Derrida and Niklas Luhmann
Gunther Teubner

Niklas Luhmann and Jacques Derrida start with a common assumption in their analyses of the law and the economy: the foundational paradox of social institutions. After that autopoiesis and deconstruction move in opposite directions. Luhmann asks how de-paradoxification constructs the immanence of social institutions and builds a world of autopoietic social systems. Derrida’s thought aims at the transcendence of social institutions through their re-paradoxification. This chapter argues that there is a hidden supplementarity of autopoiesis and deconstruction which makes it worthwhile to relate the theories to each other. Derrida's distinction of writing/speech is blind to Luhmann’s distinction of consciousness/communication, but at the same time continuously provoked by it. Luhmann’s autopoiesis is permanently irritated by Derrida’s différance but at the same time unable to conceptualise it. This complementary blindness of their distinctions directrices is a source of mutual irritation which requires a reformulation of the social and of the possibility of justice.

in Critical theory and legal autopoiesis
How social subsystems externalise their foundational paradoxes in the process of constitutionalisation
Gunther Teubner

How a constitution deals with its foundational paradox is not restricted to the state constitution alone, but is also relevant to the constitutions of other social systems. The starting point of this chapter is Niklas Luhmann’s argument that the law externalises its original paradox towards politics, while politics externalises its own towards the law. Over and above this, the question is raised about whether the law also pursues a comparable de-paradoxisation vis-à-vis other social subsystems. Meanwhile, the same question is asked in the opposite direction about whether other social systems also behave like politics, externalising their paradoxes towards the law with the aid of a constitution, or whether they employ alternative de-paradoxisations. Both of these lead to the concluding question, regarding which subsequent problems are generated by those externalisations.

in Critical theory and legal autopoiesis
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Legal pluralism in the world society
Gunther Teubner

This chapter examines the idea of ‘living law’ proposed by the legal scholar Eugen Ehrlich, contrasting it with the Pax Americana of Bill Clinton. It argues that while Ehrlich’s idea proved to be wrong as regards the national law of Austria, it will yet turn out to be right, both empirically and normatively, as regards the newly emerging global law.

in Critical theory and legal autopoiesis
How transnational pharmaceutical groups manipulate scientific publications
Isabell Hensel and Gunther Teubner

The term ‘publication bias’ describes the statistical distortion of data when pharmaceutical groups suppress or manipulate research data. This chapter uses publication bias as a paradigmatic case in order to examine four aspects of the third-party effects of constitutional rights, and to develop alternatives. (1) The third-party effect has so far been configured in an individualist perspective only, but in order to deal with structural conflicts within society constitutional rights in private relations have to be reformulated in their collective-institutional dimension. (2) Instead of being limited to the protection against state-equivalent power in society, the third-party effect must be widened and directed against all communication media with expansive tendencies. (3) Contextualising constitutional rights ought not to be limited to adapting these rights to the particularities of private law. (4) Instead of imposing duties to protect exclusively on state actors, third-party effects must address private actors who violate constitutional rights and at the same time activate counter-forces within society.

in Critical theory and legal autopoiesis