Publication 6410

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.