(A) King & Thornhill Prelims 2/2/06 15:49 Page i LUHMANN ON LAW AND POLITICS Perhaps more than any other social theorist in recent history, Niklas Luhmann’s work has aroused extreme, and often antagonistic, responses. It has generated controversies about its political implications, its resolute anti-humanism and its ambitious critique of more established definitions of society, social theory and sociology. Now, however, a steadily growing number of scholars working in many different disciplines have begun to use aspects of Luhmann’s sociology as an important methodological stimulus and as a theoretical framework for reori- entating their studies. This collection of essays includes critical and reconstruc- tive contributions by social theorists, political theorists, legal scholars and empirical sociologists. Together, they provide evidence of Luhmann’s extensive and diverse relevance to the issues facing contemporary society, and, at the same time, they enhance our understanding of the challenges posed by his theoretical paradigm to more traditional conceptions of social theory. (A) King & Thornhill Prelims 2/2/06 15:49 Page ii Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors William L F Felstiner Johannes Feest Board of General Editors Rosemary Hunter, Griffiths University, Australia Carlos Lugo, Hostos Law School, Puerto Rico David Nelken, Macerata University, Italy Jacek Kurczewski, Warsaw University, Poland Marie Claire Foblets, Leuven University, Belgium Roderick Macdonald, McGill University, Canada Titles in this Series Social Dynamics of Crime and Control: New Theories for a World in Transition edited by Susannah Karstedt and Kai Bussmann Criminal Policy in Transition edited by Andrew Rutherford and Penny Green Making Law for Families edited by Mavis Maclean Poverty and the Law edited by Peter Robson and Asbjørn Kjønstad Adapting Legal Cultures edited by Johannes Feest and David Nelken Rethinking Law Society and Governance: Foucault’s Bequest edited by Gary Wickham and George Pavlich Rules and Networks edited by Richard Appelbaum, Bill Felstiner and Volkmar Gessner Women in the World’s Legal Professions edited by Ulrike Schultz and Gisela Shaw After National Democracy edited by Lars Trägaºrdh Healing the Wounds edited by Marie-Claire Foblets and Trutz von Trotha Imaginary Boundaries of Justice edited by Ronnie Lippens Family Law and Family Values edited by Mavis Maclean Contemporary Issues in the Semiotics of Law edited by Anne Wagner, Tracey Summerfield, and Farid Benavides Vanegas The Geography of Law: Landscapes, Identity and Regulation edited by Bill Taylor Luhmann on Law and Politics edited by Michael King and Chris Thornhill Theory and Method in Socio-Legal Research edited by Reza Banakar and Max Travers Precarious Work, Women and the New Economy edited by Judy Fudge and Rosemary Owens (A) King & Thornhill Prelims 2/2/06 15:49 Page iii Luhmann on Law and Politics Critical Appraisals and Applications Edited by MICHAEL KING and CHRIS THORNHILL OÑATIINTERNATIONALSERIESINLAWANDSOCIETY A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW OXFORD – PORTLAND OREGON 2006 (A) King & Thornhill Prelims 2/2/06 15:49 Page iv Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Web Site: www.isbs.com © Oñati I.I.S.L. 2006 Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford, OX1 4LB email: [email protected] Telephone: +44 (0)1865 245533 Fax: +44 (0)1865 794882 WEB SITE http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 13: 978–1–84113–623–3 (cloth) ISBN 10: 1–84113–623–9 (cloth) ISBN 13: 978–1–84113–624–7 (paper) ISBN 10: 1–84113–624–7 (paper) Typeset by Hope Services Ltd, Abingdon, Oxon Printed and bound in Great Britain by Biddles Ltd, King’s Lynn, Norfolk (A) King & Thornhill Prelims 2/2/06 15:49 Page v Contents Notes on Contributors vii Introduction Michael King and Chris Thornhill 1 I. Theory and Practice in Law 11 1. Reflecting On Reflexive Law 13 John Paterson 2. What’s The Use of Luhmann’s Theory? 37 Michael King II. Politics, Law and Human Rights 53 3. From Subject to System: Some Unsystematic Systems-Theoretical Thoughts on Race Equality and Human Rights Tim Murphy 55 4. Luhmann’s Political Theory: Politics After Metaphysics? Chris Thornhill 75 5. Systems Theory and the Paradox Of Human Rights Gert Verschraegen 101 6. The Problem of Power in Luhmann’s Systems Theory Samantha Ashenden 127 7. What Is Modern Power? Jean Clam 145 III. Critical Responses 163 8. SomeObservations on Social Anthropology and Niklas Luhmann’s Concept of Society Anne Friederike Müller 165 9. The Theoretical Context and Foundations of Luhmann’s Legal and Political Sociology Bernd R Hornung 187 (A) King & Thornhill Prelims 2/2/06 15:49 Page vi vi Contents 10. Dealing (With) Paradoxes:On Law, Justice and Cheating Andreas Philippopoulos-Mihalopoulos 217 Index 235 (A) King & Thornhill Prelims 2/2/06 15:49 Page vii Notes on Contributors John Paterson is Reader in Law at the University of Aberdeen. Michael King is Professor of Law at Brunel University, UK. Tim Murphy is Professor of Law at the London School of Economics. Chris Thornhill is Professor in the Politics Department at the University of Glasgow. Gert Verschraegen is Research Fellow of the National Fund of Scientific Research, Flanders, and works in the Sociology Department at Leuven University, Belgium. Samantha Ashenden is Senior Lecturer in Sociology at Birkbeck College, University of London. Jean Clam is Senior Research Fellow at the CNRS in Strasburg and at the Centre Marc Bloch, Berlin. Anne Friederike Müller was formerly AHRB Research Fellow at King’s College, University of London. Bernd Hornung is Senior Researcher and Lecturer at the Institute of Medical Informatics, Medical Center for Methodological Sciences and Health Research of the Faculty of Medicine at Marburg University. Andreas Philippopoulos-Mihalopoulos is Reader in Law at the University of Westminster. (A) King & Thornhill Prelims 2/2/06 15:49 Page viii (B) King & Thornhill Intro 1/2/06 11:29 Page 1 Introduction MICHAEL KING AND CHRIS THORNHILL T HIS VOLUME REPRESENTS the outcome of a memorable work- shop held in September 2003 at The International Institute for the Sociology of Law in Onati, Guipuzcoa, Spain. The theme of the work- shop was Niklas Luhmann’s Legal and Political Theory. This workshop was conceived as an international forum to facilitate wide-ranging discussion of ways in which aspects of Luhmann’s social theory might be applied in contem- porary debates in the social sciences, and it attracted participants from Belgium, France, Germany, Holland, Italy, Mexico, New Zealand and the UK. A number of the chapters in this volume were originally presented as discussion papers at this workshop, and others were stimulated by discussions arising during and after the workshop. We are extremely grateful to the staff at the Institute in Onati, particularly Malen Gordoa Mendizabal and Volkmar Gessner, for their help and financial support in organising the workshop. We hope that this volume does justice to the quality of the setting in the AntiguaUniversidadand to the debates between participants during the workshop sessions. CONTENT, THEMES AND CONTEXT A steadily increasing number of scholars across many different disciplines are now taking Niklas Luhmann’s writings as a major theoretical source for their work. The collection of essays in this volume offers further evidence of this increasingly broad and enthusiastic reception of Luhmann, and it includes con- tributions from several distinct fields of inquiry—including social theory, polit- ical sociology, political theory, legal theory and social anthropology. It also marks a growing discrimination in the understanding of the complexity of Luhmann’s ideas and a refined critical appreciation both of their breadth and of their limitations. Perhaps more than any other theorist in recent history, Luhmann’s work has aroused extreme responses and stimulated diverse theoretical receptions. At an earlier stage in the appropriation of his work, particularly during the period of his heated debate with Jürgen Habermas in the 1970s, the status of Luhmann’s theory was questioned and debated in the starkest and most polemical terms. At this stage attitudes to Luhmann were closely tied to more generally polarised political stances, and it was assumed that readers of his work either fully embraced his anti-humanist view of the world and accepted all aspects of his (B) King & Thornhill Intro 1/2/06 11:29 Page 2 2 Michael King and Chris Thornhill systemic sociology, or rejected his work entirely, and opted instead for more normatively inflected accounts of the way that society operates. The publication of this book, however, is a clear indication that times have changed and that the preconditions of debate have been altered. It is certainly not the case that every contributor to this volume would wish to be described as a fervent supporter of Luhmann’s theoretical approach, or would express preference for Luhmann’s work over all other theoretical perspectives on the social world. Nonetheless, all believe his vision to be original, fascinating and theoretically productive, and all thus insist that it warrants the most committed and detailed consideration. All of them would also accept the view that the theoretical potential of his work can be appreciated and realised without a full subscription to all its implications and preconditions. We have chosen, for the sake of clarity and thematic coherence, to organise the chapters in this volume according to their thematic focus. The book there- fore has three distinct sections: one section comprises chapters that reflect on the relation between theory and practice in law, one section contains chapters that provide commentaries on politics, law and human rights, and one section incor- porates chapters that express broader critical reactions to Luhmann’s general theory of society. In addition to the thematic connections between individual contributions, however, many of the chapters in this volume are connected by common methods,concernsandinterests,sothatthreedistinctapproachestotheinter- pretation and application of Luhmann’s sociology are represented here. First, the volume includes essays which seek to analyse and, in some cases, criticise Luhmann’s writings by situating them within the matrix of a particular and distinct academic discipline. These essays also compare his theoretical accounts or methodological principles with those of other writers in order to identify both the strengths, the limitations, and the critical resonances of the theory. As a sociologist, for example, Bernd Hornung provides a very insightful description of the construction and of the key conceptual features of Luhmann’s social theory (or, to use his own terms, theories). In so doing, he identifies the concepts and categories which centrally characterise and delineate the four phases of theory building which mark Luhmann’s trajectory: these are, Hornung claims, functionalism, complexity, autopoeisis and selectivity, and semantics. He examines the interactions between these theoretical phases in Luhmann’s development and he shows how his sociology is ultimately constructed through a fusion of these distinct conceptual paradigms. He then proceeds to question whether autopoietic theory can legitimately be applied to social systems. He concludes his chapter with a provocative analysis of the dif- ferent types and levels of ‘statement’ contained in Luhmann’s writings, and he discusses how these might be used in wider sociological research. In the field of political theory, analogously, Chris Thornhill critically exam- ines Luhmann’s self-styled project of elaborating a Sociological Enlightenment.