Derrida, Luhmann, Wiethölter
Gunther Teubner

– Jacques Derrida was organising grammatological exercises and Niklas Luhmann kept reducing complexity – Rudolf Wiethölter already had that disquieting phenomenon, the paradox of law, in his sights. 2 When in 1977 he wrote a punctatio in the Festschrift for his academic teacher Gerhard Kegel, consisting of a list of points for and against Kegel's concept of conflict of laws, it was still a nagging

in Critical theory and legal autopoiesis
Abstract only
Christoph Menke in dialogue
Series: Critical Powers
Editor: Christoph Menke

This book focuses on the paradoxical character of law and specifically concerns the structural violence of law as the political imposition of normative order onto a "lawless" condition. The paradox of law which grounds and motivates Christoph Menke's intervention is that law is both the opposite of violence and, at the same time, a form of violence. The book develops its engagement with the paradox of law in two stages. The first shows why, and in what precise sense, the law is irreducibly characterized by structural violence. The second explores the possibility of law becoming self-reflectively aware of its own violence and, hence, of the form of a self-critique of law in view of its own violence. The Book's philosophical claims are developed through analyses of works of drama: two classical tragedies in the first part and two modern dramas in the second part. It attempts to illuminate the paradoxical nature of law by way of a philosophical interpretation of literature. There are at least two normative orders within the European ethical horizon that should be called "legal orders" even though they forego the use of coercion and are thus potentially nonviolent. These are international law and Jewish law. Understanding the relationship between law and violence is one of the most urgent challenges a postmodern critical legal theory faces today. Self-reflection, the philosophical concept that plays a key role in the essay, stands opposed to all forms of spontaneity.

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 paradoxes which not only destroy their legitimacy, but also paralyse each operation and calculation through their self-contradictory structures. Their approach to the founding paradox of law reveals how, despite far-reaching agreement between their respective analyses, their initial consensus suddenly turns into complete incompatibility between their lines of thinking. Both commence with a critique

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

produces normative impulses for a different understanding of justice in contemporary legal theory and practice. The re-entry of sociological theory into legal practice could create an imaginary space for the normativity of justice today, a space which is located beyond natural law and positivism. 7 Here, the problematic hiatus between legal norms and legal decisions and the decisional paradoxes of law it

in Critical theory and legal autopoiesis
Andreas Fischer- Lescano

the manifestation of law but also of its essence” (p. 21). Menke’s analytically precise distinction draws our attention to the fundamental paradoxes of law, the process of juridical decision-​making in undecidable matters, and the ambivalent situation in which law is operating: justice cannot be rendered quasi-​automatically, by way of a mathematical subsumption under legitimately instituted norms, but is generated in the struggle for law as the state of a just order that remains unattainable –​that it is never more than justice “to come.” Menke’s critique “counters

in Law and violence
Christoph Menke

” thus also fails to see how law in this process, hence in its ordinary practice, already deals with its own abstractness and formalism. According to objection (ii), the insistence on the paradox of law leads to a postmodern, anti-​utopian attitude of closing off any perspective of transcending the actual conditions of power and domination. Finally, objection (iii) questions the suitability of the central operational term that I propose in “Law and Violence” for conceptualizing the transformative process of the relief (or Entsetzung) of law, namely self

in Law and violence
How social subsystems externalise their foundational paradoxes in the process of constitutionalisation
Gunther Teubner

the legislative authorities at work in international politics is thus increasingly restricted to merely reformulating the law created within society. 3  Protest movements This, then, explains why protest movements are changing their addressees, as described above. Protest movements react to the change in the way the paradoxes of law are externalised. They no longer address

in Critical theory and legal autopoiesis
Abstract only
Christoph Menke

liberalism: The paradox of law The dualism of bourgeois liberalism consists in confronting autonomous participation in the law and the right of free non-​participation as mutually external registers. As a consequence, liberalism identifies freedom from the law without further ado with the right to pursue one’s interests “at one’s discretion.” That is because the liberal dualism fails to appreciate the constitutive asymmetry between the two domains. In the form of subjective rights, the law and the non-​legal do not actually confront each other as mutually external. As a

in Law and violence