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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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The economics of the gift – the positivity of justice

The mutual paranoia of Jacques Derrida and Niklas Luhmann

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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

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Global Bukowina

Legal pluralism in the world society

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Gunther Teubner

The center of gravity of legal development therefore from time immemorial has not lain in the activity of the state, but in society itself, and must be sought there at the present time. 1 I Who is right – Bill Clinton or Eugen Ehrlich

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Self-subversive justice

Contingency or transcendence formula of law?

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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

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Introduction

Gunther Teubner’s foundational paradox

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Andreas Philippopoulos-Mihalopoulos

in Teubner's work, and this collection in particular, but indeed the grand formula at the core of Teubner's scriptural pathos, which, in its turn, is often dissimulated as cool detachment. In a caustic remark that still holds true, Teubner positions himself: ‘legal sociology has no idea of justice.’ And it is not just legal sociology that is found lacking. The actual idea and practice of justice in law are inadequate: ‘Does

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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

courts – which after all are supposed to be no more than la bouche de la loi – were producing more and more legal norms themselves even in the presence of a dominant political legislature, in direct contravention of the basic principles of the separation of powers and of democratic legitimacy. 1 Yet now we find that in transnational regimes, this trend is continuing unfettered and even accelerating

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A constitutional moment?

The logics of ‘hitting the bottom’

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Gunther Teubner

of which could not be achieved through either national or transnational interventions of the world of states. The dichotomy constitutional/unconstitutional develops into a binary meta-code within the structural coupling between the economy and law, and is set above both the legal code and the economic code. II  Growth compulsions and the financial crisis 1  Causal factors or the compulsion to

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In the blind spot

The hybridisation of contracting

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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

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Dealing with paradoxes of law

Derrida, Luhmann, Wiethölter

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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

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After privatisation?

The many autonomies of private law

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Gunther Teubner

globalisation and technological changes, combined with the neo-liberal policies of national governments, both conservative and progressive, have created a transnational wave of privatisation. Political and legal resistance at a national level seems to be powerless against this overwhelming movement. The crucial question seems to be: After privatisation, what now? What will market mechanisms do to the public