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Looming constitutional conflicts between the de-centralist logic of functional diff erentiation and the bio-political steering of austerity and global governance

3 Functional differentiation and mediated unity in question: looming constitutional conflicts between the de-​centralist logic of functional differentiation and the bio-​political steering of austerity and global governance It has been seen so far that the theoretical premises informing prevailing accounts of modern statehood and political representation have become susceptible to comprehensive critique and deconstruction. This is not to argue that states no longer exist or have ceased to be important actors in domestic and international politics. In many parts

in Critical theory and sociological theory
The case for societal constitutionalism
Editor: Diana Göbel

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.

On late modernity and social statehood

Populism, neoliberalism, and globalisation are just three of the many terms used to analyse the challenges facing democracies around the world. Critical Theory and Sociological Theory examines those challenges by investigating how the conditions of democratic statehood have been altered at several key historical intervals since 1945. The author explains why the formal mechanisms of democratic statehood, such as elections, have always been complemented by civic, cultural, educational, socio-economic, and, perhaps most importantly, constitutional institutions mediating between citizens and state authority. Critical theory is rearticulated with a contemporary focus in order to show how the mediations between citizens and statehood are once again rapidly changing. The book looks at the ways in which modern societies have developed mixed constitutions in several senses that go beyond the official separation of legislative, executive, and judicial powers. In addition to that separation, one also witnesses a complex set of conflicts, agreements, and precarious compromises that are not adequately defined by the existing conceptual vocabulary on the subject. Darrow Schecter shows why a sociological approach to critical theory is urgently needed to address prevailing conceptual deficits and to explain how the formal mechanisms of democratic statehood need to be complemented and updated in new ways today.

On the relation between law, politics, and other social systems in modern societies

notions of neutrality, merit, and expertise can be shown to be problematic in this regard, it can be convincingly argued that access to schools and universities, health care, legal rights, and rewarding work is never really equal (critique of the currently prevailing protection of rights). Hence it becomes important to see where, exactly, the mediations between law, neutrality, and equality become strained in the everyday life of people in functionally differentiated societies. These preliminary remarks serve to highlight some of the ambiguities in the specifically

in Critical theory and sociological theory
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, and as Hegel tries to demonstrate, the state and statehood have always been simultaneously concrete and conceptual. Chapter 1 examines his dialectical line of argument. The third and related claim can be introduced by noting that one of the defining features of modern society is the evolution of social forms into social systems. This development is analysed here in relation to the functional differentiation (henceforth FD) of economic, political, legal, educational, and other systems. For the purposes of this book, then, sociological theory is really concerned with

in Critical theory and sociological theory
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Democratic state, capitalist society, or dysfunctional differentiation?

live in a modern, dynamic, functionally differentiated society in which progressive innovation in 200 Critical theory and sociological theory one system is accompanied by regression in another. Social systems divide and converge; questions of race, class, and gender –​to name but the most prominent –​are all related and yet also distinct. Some of the theoretical and empirical literature on intersectionality is very adept at illuminating some of the issues at stake. It reinforces the point that it is entirely possible for the same individual to be confronted with

in Critical theory and sociological theory
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meaning serves as the structural invariant, and the input of information contributes to the initiation of communication within the system. To a certain extent, systems are differentiation. What constitutes a system is its ability to differentiate and construct a whole array of functions that allow it to ‘happen’. Autopoiesis comes as a secondary innate process that solidifies that a system produces and, contrary to misunderstandings in Luhmann, does not reproduce functional and communicative processes. A system keeps producing itself in terms of new structures and

in Critical theory and epistemology
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The hybridisation of contracting

always lies in the blind spot of the distinction between system and environment. 15 Is this a failing of modern society or a failing of its theory? Is it the reality of functional differentiation or its self-description that is at fault here? Under conditions of functional differentiation, can the contractual differences no longer be bridged? Or is it only that contract theory no longer has anything to say about

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

appear: that is the normal state of things. Rather, it is the moment when the collapse is directly imminent. Functionally differentiated society appears to ignore earlier opportunities for self-correction; to ignore the fact that sensitive observers point out the impending danger in warnings and entreaties. The endogenous self-energising processes are so dominant that they allow self-correction only at the very last

in Critical theory and legal autopoiesis
On the sociological paradoxes of weak dialectical formalism and embedded neoliberalism

institutional forms that perform better than existing political systems currently do in response to demands for political inclusion. One can illustrate the point by examining the symmetries linking formal political inclusion (voting rights) with the imperative (strategy and ‘common sense’) to respect the systemic logic of parties of government versus parties of opposition as the only valid practical political knowledge appropriate for functionally differentiated societies. Clearly, however, this pared-​down, instrumental knowledge is not the most appropriate or the only one

in Critical theory and sociological theory