Publication 6721

Baxter H. (1998) Autopoiesis and the “Relative Autonomy” of law. Cardozo Law Review 19: 1987–2090. Fulltext at https://cepa.info/6721
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.

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