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.

The mutual paranoia of Jacques Derrida and Niklas Luhmann
Gunther Teubner

and decision theory and to all promises of normative argumentation and discursive rationality, the protagonists of autopoiesis and deconstruction insist that the everyday routines of legal and economic decisions contain a component of madness, irrationality, mystery and even sacredness. The irrational is not to be viewed as a negligible remainder in a process of increasing rationalisation, but as the

in Critical theory and legal autopoiesis
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Gunther Teubner’s foundational paradox
Andreas Philippopoulos-Mihalopoulos

( Anschlussfähigkeit ) of recursive operations is the new imperative – autopoiesis proceeds or not, as the case may be.’ But is this really the case? Rightly, Teubner is not convinced: ‘the disquieting question remains of whether autopoiesis is not secretly dependent on the logic of growth.’ He goes on to note instances of excessive growth, pathological forms, addiction phenomena in nearly every system

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

-preservation. Connectivity ( Anschlussfähigkeit ) of recursive operations is the new imperative – autopoiesis proceeds or not, as the case may be. 12 Yet the disquieting question remains of whether autopoiesis is not secretly dependent on the logic of growth. Is there an affinity between the self-reproduction of social systems and their implacable compulsion to grow? And, particularly relevant to our discussion, does the

in Critical theory and legal autopoiesis
Contingency or transcendence formula of law?
Gunther Teubner

moral, political or legal philosophy – can contribute to a viable concept of justice today. Autopoiesis and deconstruction, in my view the most important theoretical irritations of law and society in the last decades, contribute two lines of thought, namely that of reconstructing the genealogy of justice on the one hand and that of observing the decisional paradoxes of modern law on the other. 3 Derrida says of these two styles

in Critical theory and legal autopoiesis
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The hybridisation of contracting
Gunther Teubner

contract, performance, amendment, breach of contract, etc.). But once more they do this only as autonomous discourses, which, again each under the laws of its own internal perspectives and maintaining its own autopoiesis, reconstruct legal, productional and economic aspects. Instead of transcending the hermeneutic differences between the three contractual chains emerging in different social contexts, they only add

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

Teubner, Law as an Autopoietic System , ch. 5; Teubner, ‘De collisione’. 25 See Teubner, ‘Autopoiesis and Steering’. 26 Stein, Lex mercatoria , pp. 179 ff

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

seen, externalisation brings major advantages for the system in question. In some cases, it even is what makes autopoiesis possible in the first place. However, at the same time, it entails some serious costs. The system that outsources its paradox is now subject to an extraneous structural logic. As illustrated above, the differences between the constitutionalisation of politics, of the economy and of

in Critical theory and legal autopoiesis
Derrida, Luhmann, Wiethölter
Gunther Teubner

triangle of great social theories: critical theory, autopoiesis theory and economic institutionalism. This is where Wiethölter's normativism differs from the cognitivism of Luhmann, according to which sociology should confine itself to noting what decisions are made in the conflict of laws. For in the translation of conflicts between legal norms into models of social theory, Wiethölter glimpses a great

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

governance regimes that produce specific routines, normative patterns and institutional requirements and analyses the resulting politics of interinstitutional conflicts. 16 German neo-romantic autopoiesis imagines a rich plurality of self-producing contextures in which specific operations, codes and programmes emerge and shape the rich tapestry of the many social worlds, but wholly without a pre

in Critical theory and legal autopoiesis