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Critical theory and legal autopoiesis

The case for societal constitutionalism

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Gunther Teubner

Edited by: 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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Anastasia Marinopoulou

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

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The economics of the gift – the positivity of justice

The mutual paranoia of Jacques Derrida and Niklas Luhmann

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Gunther Teubner

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

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Shivdeep Grewal

. 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

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Exogenous self-binding

How social subsystems externalise their foundational paradoxes in the process of constitutionalisation

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Gunther Teubner

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

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The Law before its law

Franz Kafka on the (im)possibility of Law’s self-reflection

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Gunther Teubner

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

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Introduction

Gunther Teubner’s foundational paradox

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Andreas Philippopoulos-Mihalopoulos

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

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Shivdeep Grewal

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

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Self-subversive justice

Contingency or transcendence formula of law?

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Gunther Teubner

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

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Habermas and European Integration (second edition)

Social and cultural modernity beyond the nation-state

Shivdeep Grewal

Habermas and European integration examines the attitudes of German philosopher Jürgen Harbermas towards the European Union and the proposed European Constitution of 2004. Habermas wrote in support of this Constitution which ultimately remained unratified after referendums in 2005. This book combines an exploration of both Habermas’s ideas and of the crises on the European Union; these are both currently topical subjects. The book is divided into two main parts. The first section addresses the concept of ‘social modernity’ at EU level whilst exploring Habermas’s notion of juridification and its affinities with integration theories. The second section considers ‘cultural modernity’ in Europe and focuses on the impact of ‘Europessimism’ which grew in the late twentieth century and intensified in the years following 9/11. There is also a final third section which looks at the conceptual landscape of the Constitutional Convention using empirical research. With an interdisciplinary approach, the book engages with EU studies, critical and political theory, international relations, intellectual history, comparative literature and philosophy. Habermas and European integration was originally published in 2012 with this second edition being published in paperback with a new preface to coincide with Habermas’s ninetieth birthday. This republication follows several developments in European politics which are explored in the revised preface; the original text is maintained with annotations supplied for correction. The book appeals to multiple readerships including students and scholars as well as broader readers who might be interested in European affairs especially considering the ongoing political crises.