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Self-subversive justice

Contingency or transcendence formula of law?

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Gunther Teubner

Dominated by social and legal philosophers, the present debate on justice oscillates between the poles of universality (Rawls, Habermas) and alterity (Levinas, Derrida). This chapter contrasts them with a third position, a sociological theory in which justice appears as the ‘contingency formula’ of law (Luhmann). Here, the question of justice is no longer primarily a problem for philosophy but for concrete social practices in the changing self-descriptions of law. This opens perspectives for historical analyses to investigate affinities of varieties of justice with changing social structures.

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Regime-collisions

The vain search for legal unity in the fragmentation of global law

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Andreas Fischer-Lescano and Gunther Teubner

Global legal pluralism is not simply a result of political pluralism, but is instead the expression of deep contradictions between colliding sectors of a global society. It has its origins in contradictions between society-wide institutionalised rationalities, which law cannot solve, but which demand a new legal approach to colliding norms. This chapter develops the thesis with three arguments. (1) The fragmentation of global law is more radical than any single reductionist perspective can comprehend. (2) Any aspirations to a normative unity of global law are thus doomed from the outset. A meta-level at which conflicts might be solved is wholly elusive both in global law and in global society. (3) Legal fragmentation cannot itself be combated. At best, a weak normative compatibility of the fragments might be achieved. However, this is dependent upon the ability of conflict law to establish a specific network logic, which can effect a loose coupling of colliding units.

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The project of constitutional sociology

Irritating nation-state constitutionalism

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Gunther Teubner

Trends of constitutionalisation can be identified beyond the nation state. They follow two different directions, as this chapter shows. Outside the limits of the nation state, constitutions emerge in the institutions of international politics, and they emerge simultaneously outside the limits of politics in the ‘private’ sectors of global society. Transnationalisation confronts constitutional sociology with three different challenges: (1) to analyse empirically ongoing constitutionalisation processes beyond the nation state, (2) to develop a theory of transnational societal constitutionalism and (3) to formulate sociological preconditions for normative perspectives in politics and law.

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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

This chapter offers a novel interpretation of Franz Kafka’s celebrated parable ‘Before the Law’, inspired by developments in European legal theory, particularly the work of Jacques Derrida, Niklas Luhmann and Giorgio Agamben. It suggests a dual role-change in the confrontation of the parable’s protagonists – the ‘man from the country’ and the ‘law’. According to this interpretation it is not a specific individual who stands before the law’ but the legal discourse itself that is in desperate search of its law. The parable’s ‘law’ for its part is not a generalised and distant authority (power, morality, religion, etc.), but the valid and positive law of our times. The chapter asks the question: What happens within the mysterious relationship between ‘Law AND law’ which has always preoccupied legal theory when that relationship is subjected to the nightmarish logic in Kafka’s universe?’

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Introduction

Gunther Teubner’s foundational paradox

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Andreas Philippopoulos-Mihalopoulos

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In the blind spot

The hybridisation of contracting

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Gunther Teubner

This chapter takes as its starting point the transformation of the contract in modern times – in other words, its hybridisation. As the binding force of the contract disappears in the ‘in-between’ of the contextures, what are the consequences of this fragmentation? Can we still discern some operational, structural or systemic ‘unity’ of the contract that can be a suitable substitute for the exchange between two people? Social differentiation splits the formerly unitary contract into three autonomous concatenations of events in the respective legal, economic and production contexts. This difference is always reproduced as an insurmountable hermeneutic dissonance.

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Horizontal constitutional rights as conflict-of-laws rules

How transnational pharmaceutical groups manipulate scientific publications

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Isabell Hensel and Gunther Teubner

The term ‘publication bias’ describes the statistical distortion of data when pharmaceutical groups suppress or manipulate research data. This chapter uses publication bias as a paradigmatic case in order to examine four aspects of the third-party effects of constitutional rights, and to develop alternatives. (1) The third-party effect has so far been configured in an individualist perspective only, but in order to deal with structural conflicts within society constitutional rights in private relations have to be reformulated in their collective-institutional dimension. (2) Instead of being limited to the protection against state-equivalent power in society, the third-party effect must be widened and directed against all communication media with expansive tendencies. (3) Contextualising constitutional rights ought not to be limited to adapting these rights to the particularities of private law. (4) Instead of imposing duties to protect exclusively on state actors, third-party effects must address private actors who violate constitutional rights and at the same time activate counter-forces within society.

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Global Bukowina

Legal pluralism in the world society

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Gunther Teubner

This chapter examines the idea of ‘living law’ proposed by the legal scholar Eugen Ehrlich, contrasting it with the Pax Americana of Bill Clinton. It argues that while Ehrlich’s idea proved to be wrong as regards the national law of Austria, it will yet turn out to be right, both empirically and normatively, as regards the newly emerging global law.

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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

How a constitution deals with its foundational paradox is not restricted to the state constitution alone, but is also relevant to the constitutions of other social systems. The starting point of this chapter is Niklas Luhmann’s argument that the law externalises its original paradox towards politics, while politics externalises its own towards the law. Over and above this, the question is raised about whether the law also pursues a comparable de-paradoxisation vis-à-vis other social subsystems. Meanwhile, the same question is asked in the opposite direction about whether other social systems also behave like politics, externalising their paradoxes towards the law with the aid of a constitution, or whether they employ alternative de-paradoxisations. Both of these lead to the concluding question, regarding which subsequent problems are generated by those externalisations.

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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

Niklas Luhmann and Jacques Derrida start with a common assumption in their analyses of the law and the economy: the foundational paradox of social institutions. After that autopoiesis and deconstruction move in opposite directions. Luhmann asks how de-paradoxification constructs the immanence of social institutions and builds a world of autopoietic social systems. Derrida’s thought aims at the transcendence of social institutions through their re-paradoxification. This chapter argues that there is a hidden supplementarity of autopoiesis and deconstruction which makes it worthwhile to relate the theories to each other. Derrida's distinction of writing/speech is blind to Luhmann’s distinction of consciousness/communication, but at the same time continuously provoked by it. Luhmann’s autopoiesis is permanently irritated by Derrida’s différance but at the same time unable to conceptualise it. This complementary blindness of their distinctions directrices is a source of mutual irritation which requires a reformulation of the social and of the possibility of justice.