Recent accounts of the relation between law and other social spheres have emphasized law’s “relative autonomy. ” The intui- tion behind the “relative autonomy” formula is that law is neither wholly independent of, nor entirely reducible to, political, eco- nomic and other social processes. Sensible as this intuition is, however, the idea of “relativeautonomy” by itself remainspurely negative. It excludes two unpalatableextremes-pure formalism and pure instrumentalism-butit does not by itself characterize, in positive theoreticalterms, the relation between law and other social discourses or practices. This Article examines an attempt in recent German social thought to specify theoretically the relation between law and other social spheres. The theory examined-Niklas Luhmann’s theory of “autopoiesis”-is,though familiar to Continentalread- ers, not yet well-known to American legal academics. This Arti- cle presents autopoietic theory to the American legal audience, with particularattention to the way in which Luhmann reformu- lates the “relative autonomy” problematic. Throughout, the Ar- ticle focuses on the connections between autopoietic theory and issues in American law and contemporaryAmerican legal theory. The Article’s strategy is to criticize those aspects of autopoietic theory that deserve criticism, but at the same time, to show how he theory might operate as a productive stimulus for American legal theorists.

Between 1984 and his death in 1998, German sociologist Niklas Luhmann developed a comprehensive theory of what he called autopoietic or self-referential systems. He worked out this approach both at the level of a social system as a whole and at the level of various social subsystems, such as state, economy, science, religion, education, art, family, and – the concern of the present article – law. My particular topics in this critical introduction to Luhmann’s theory are (a) its relation to more standard legal theory, (b) foundational or self-referential problems in law, and (c) the problem of law’s relation to other social spheres, especially politics and the economy.

Key words: luhmann, autopoiesis, social systems, self-reference.

Excerpt: Autopoiesis appears to have made a substantial impact on the fields of sociology and socio-legal theory. In both contexts it is seen as a theory inspired by recent developments in biology. As such it is supposed to contain a truly new concept, to imply the mutual closure of various areas of society, and to represent the most advanced variant of general systems theory.

Law and Environment enter a connection of disrupted continuum. The recent ‘turns’ in law towards materiality, spatiality, corporeality, disconnect the usual distance between law and its environment and enhance the visibility of materiality continuum between the two. Law is no longer abstract but spatially emplaced, corporeally felt, materially present. The environment, be it in the form of human/non-human bodies, technology, weather phenomena, and the wider, open ecology of material presence, destabilises the system, rendering it more precarious and more distant from its usual self-description. Building on Luhmann’s theory of autopoiesis, I present my reading of what I call Critical Autopoiesis, namely the autopoietics of materiality, spatiality and corporeality as they emerge from contemporary legal theory. I am employing Deleuze and Guattari in connection to Luhmann in order to multiply and indeed fractally explode the Luhmannian boundaries between law and its environment.

Key words: critical autopoiesis, space, body, law, environment, materiality, deleuze, luhmann.

Excerpt: Is the practice of legal reasoning bound to end in “strange loops,” “tangled hierarchies,” and “reflexivity dilemmas” (Hofstadter, 1979: 692; 1985: 70)? Is the legal process nothing but a closed cycle of recurrent legal operations: “computation of computation of computation…” (von Foerster, 1981: 296)? And are the social dynamics of the legal system based upon the “paradoxes of self-reference” (Wormell, 1958; Quine, 1976)? Up to now, the intricate problems of self-referential relations have not been part of the discourse of lawyers; they have been discussed outside the law, in logic, linguistics, cybernetics and general systems theory. Now the theory of legal autopoiesis is importing the logic of self-referentiality into the legal world. Legal autopoiesis breaks a taboo in legal thinking – the taboo of circularity. Legal doctrine, legal theory and legal sociology have all regarded circularity as a subject not to be broached. Circular arguments have been viewed as petitio principii forbidden by the iron law of legal logic. Legal autopoiesis now presumes to invalidate this iron law by transferring circularity from the world of ideas to that of hard facts. The message is that circularity is not a flaw in legal thinking which ought to be avoided (Fletcher, 1985: 1263), but rather that the reality of law consists of a multitude of circular processes.

In this paper I contrast Hayek’s and Luhmann’s treatment of law as a complex social system. Through a detailed examination of Hayek’s account of law, I criticize the explanatory power of his central distinction between spontaneous order and organization. Furthermore, I conclude that its application to law leads to different results from the ones derived by Hayek. The central failure of Hayek’s failure, however, lies in his identification of complex systems with systems of liberal content maximizing individual freedom. Indeed, in this way, he can only account for systems-individuals and not systems-systems interactions. I introduce Luhmann’s theory of autopoietic systems, which I submit, can solve all the mentioned problems and seems a much more promising conceptual architecture to grasp social systems in the context of a complex society.

Key words: systems theory, luhmann, hayek, complexity, spontaneous order, legal theory