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.

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1  4 Systems theory They can speak like Hegel. But they have no language left but the dialectical one. The countermeasure I have in mind is to make the theory decisions as transparent as possible. Niklas Luhmann, Introduction to Systems Theory1 Damit fehlen ausreichende Anhaltspunkte für ein Ausschöpfen des Möglichen, für Rationalisierung. Wir leben, wie man seit dem Erdbeben von Lissabon weiß, nicht in der besten der möglichen Welten, sondern in einer Welt voll besserer Möglichkeiten. Niklas Luhmann, Theorie der Gesellschaft oder Sozialtechnologie2

in Critical theory and epistemology
The mutual paranoia of Jacques Derrida and Niklas Luhmann

I  System versus différance Niklas Luhmann and Jacques Derrida have made the same diagnosis as regards the sober world of lawyers and economists. 1 Where other people observe rational decisions based on cost–benefit calculations and on rule–fact subsumptions, their diagnosis is that of the madness of decision. In contrast to all analyses of rational choice, games theory

in Critical theory and legal autopoiesis
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. Established integration theories can be used to refine the concept of juridification. The following section considers which are suited to the task: those indebted to, or at least compatible with, systems theory. Section two recounts Habermas’s survey of action and systems theories. Though critical of functionalism, he has drawn inspiration from the systems-theoretic approaches of Talcott Parsons and Niklas Luhmann. In depicting a complex and somewhat decentralised administrative apparatus, for example, BFN could be seen as the most

in Habermas and European integration
How social subsystems externalise their foundational paradoxes in the process of constitutionalisation

constitutionalisation of social subsystems proceed not in accordance with a standard pattern, but with clear differences of intensity? II  Reciprocal paradox externalisation in law and politics The starting point here is Niklas Luhmann's theory of the state constitution, which gives a central role to how law and politics deal with their foundational paradox. 11 As the law is founded on the

in Critical theory and legal autopoiesis
Franz Kafka on the (im)possibility of Law’s self-reflection

their existence, others forbid any paradoxical figures of thought on logical grounds, yet others ridicule and dismiss them as mere philosophical fancies. Against the background of the nightmarish suggestivity of Kafka's texts, however, all three responses appear merely as helpless gestures. Only a few present-day legal theoreticians take these paradoxes seriously: Niklas Luhmann, Giorgio Agamben and

in Critical theory and legal autopoiesis
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Gunther Teubner’s foundational paradox

too the uselessness of any universal position, the overarching necessity of not succumbing to ‘pure’ critique without the possibility of simultaneous action, and the supreme reign of paradoxes over conflicts (which is supreme also by necessity, hence the normative indictment, in Niklas Luhmann's footsteps, of never, whatever happens, questioning the foundational paradox). The intense flirtation with the paradox, and

in Critical theory and legal autopoiesis
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theories can be used to refine the concept of juridification. The following section considers which are suited to the task: those indebted to, or at least compatible with, systems theory. Section two recounts Habermas’s survey of action and systems theories. Though critical of functionalism, he has drawn inspiration from the systemstheoretic approaches of Talcott Parsons and Niklas Luhmann. In depicting a complex and somewhat decentralised administrative apparatus, for example, BFN could be seen as the most ‘Luhmannian’ of Habermas’s texts, and thus contrasted with the

in Habermas and European Integration (second edition)
Contingency or transcendence formula of law?

of justice appears, if at all, as a political, not as a legal project. So is justice itself, the most profound expectation that people have of the law, the blind spot in the distinction between law and society? Two external observers of law and society, Jacques Derrida and Niklas Luhmann, shed light on this blind spot and ask whether there is something specific that the sociology of law – as compared to

in Critical theory and legal autopoiesis
Social and cultural modernity beyond the nation-state

German philosopher Jürgen Habermas has written extensively on the European Union. This is the only in-depth account of his project. Published now in a second edition to coincide with the celebration of his ninetieth birthday, a new preface considers Habermas’s writings on the eurozone and refugee crises, populism and Brexit, and the presidency of Emmanuel Macron.

Placing an emphasis on the conception of the EU that informs Habermas’s political prescriptions, the book is divided into two main parts. The first considers the unfolding of 'social modernity' at the level of the EU. Among the subjects covered are Habermas's concept of juridification, the latter's affinities with integration theories such as neofunctionalism, and the application of Habermas's democratic theory to the EU. The second part addresses 'cultural modernity' in Europe – 'Europessimism' is argued to be a subset of the broader cultural pessimism that assailed the project of modernity in the late twentieth century, and with renewed intensity in the years since 9/11.

Interdisciplinary in approach, this book engages with European/EU studies, critical theory, political theory, international relations, intellectual history, comparative literature, and philosophy. Concise and clearly written, it will be of interest to students, scholars and professionals with an interest in these disciplines, as well as to a broader readership concerned with the future of Europe