Band 44, Heft 1 - Special Issue: Society’s Constitutions Guest Editors: Malte-Christian Gruber Vagias Karavas Gunther Teubner

Teubner’s article on self-subversive justice is an inspiring example of the way in which he tries to move forward Luhmann’s sociological endeavour of understanding law in terms of how it understands itself. Moving Luhmann’s autopoietic systems theory forward is something that Teubner significantly does in many of his writings. Here he contrasts various social and legal philosophical accounts with a potential sociological account of justice that utilises the contrasting versions of both Luhmann’s autopoietic systems theory and Derrida’s deconstruction theory. To appreciate how justice operates self-subversively is to appreciate how law cannot avoid striving to overcome itself, and how justice both in its many universal and alterity forms enables this. Teubner gets close to marrying not only Luhmann and Derrida, but also sociological theory and literary or poetic theory; also marrying judicial creativity with that of other creative arts. Law constantly looks to justice within its own practices, but at the same time beyond those practices and thereby challengingly confronting itself and its search for justice in doing so.

The present contribution is a critical reading of Gunther Teubner’s text “The constitution of non-monetary surplus values”. On the basis of this text, Gunther Teubner’s theodicy, i.e. his doctrine of the rotten and irrational foundations of modern society and the normative way of dealing with them, is elaborated and embedded genealogically. The article then ends with remarks on the “katechontic” role that, according to Gunther Teubner, law has to play in a “fallen” society.

Gunther Teubner’s theory of transnational, globalised and fragmented law is founded on the polycentric emergence of law in the context of social interactions. This article examines the link, established by Gunther Teubner himself, between his understanding and Eugen Ehrlich’s theory of ‘living law’. This link is analysed as the result of an opposition between two fundamental paradigms of legal theory: the ‘creationist’ understanding and the ‘evolutionist’ understanding of law. Gunther Teubner’s homage to Eugen Ehrlich contributes to revealing the critical power and current relevance of the thought of this founder of legal sociology. Based on the theories defended today by Gunther Teubner, Eugen Ehrlich’s work thus still seems useful for thinking about the contemporary state of law.

One of the future challenges of law is to create possibilities for dealing with conflicts in ways that meet the fundamental requirements of environmental and climate protection. Climate responsibility, as a collective ecological responsibility, is not only expected socially from state policymakers and business enterprises, but also increasingly claimed legally. With the perspective of an ecological private law that thinks of interests worthy of protection and of legal subjectivity from the point of view of vulnerability, new legal channels open up for those affected to take action against impending climate hazards or damage and to demand compensation. Fatefully connected by jointly-suffered climate catastrophes, life communities assemble as associations of human and non-human beings that all incur injury. Legal protection for these injured beings can thus no longer be directed exclusively to human needs but must be based on the ubiquitous vulnerability of all forms of life – a vulnerability that is particularly evident in the face of climate change. The ecological private law of the future will have to ensure that those living entities affected can sue on the basis of their own right. In this way, an effective ecological climate law protection would be created, whose essential task is to help enforce climate policy decisions made in the interest of society.

This article is a response to the new wave of legal changes restricting access to abortion in several countries across the world, which have substantially undermined the global advances in the field of reproductive rights observed in recent years. To address this problem, the article derives insights from two important bodies of literature that are usually perceived as theoretically and ideologically counterposed, namely feminist legal studies and systems theory. In juxtaposing two important academic literatures, the article exposes gaps in both, and it demonstrates the conceptual potentials inherent in this juxtaposition. The article engages with the work of Drucilla Cornell and Gunther Teubner, who – despite their very different intellectual backgrounds – provided progressive interpretations of systems theory. It further critically examines whether societal constitutionalism can help feminists explain the recent developments in abortion law across the world. It engages critically with Teubner’s arguments concerning the role that human rights play in constraining the expansive tendencies of social systems, such as politics and religion, revealing the limitations of Teubner’s arguments in relation to reproductive rights and justice. At the same time, the article helps restate the contemporary relevance of systems-theoretical approaches in atypical fields like reproductive justice and gender studies.

The “wildcat strike” against the poor working conditions of the bike couriers of the delivery service Gorilla at the beginning of 2021 ended in numerous dismissals by the employer. The trade unions did not support the strike, so that participation in the work stoppage was deemed unlawful by the courts. Under German law, strikes are only permitted as a means of exerting pressure in collective bargaining. However, it must be asked whether, with the changes in forms of employment and the associated limits to trade union representation of interests, it is still justified to regard the right to strike exclusively as an appendage of collective bargaining autonomy. Not only the pressure of international law, but also Gunther Teubner’s concept of non-market institutions as necessarily resistant collective actors against economic profit pressures call for the further development of legal protection of collectivities. Alternative labor struggles for the often precarious conditions of increasing mobile, digitalized and transnational gainful employment would then have to be recognized under certain conditions.

In “We Accept: The Constitution of Airbnb”, published in 2020, I drew on Gunther Teubner’s systems theoretical approach, including to digitalisation and societal constitutionalism, to rethink Airbnb as an auto-constitutionalising domain. This dynamic process, the paper proceeded to suggest, instantiates a structural change, what can be described, in systems theoretical terms, as a “co-evolution” of multiple social systems through structural couplings. It renders observable an “emergence” of a general model of functioning – terms of use and engagement – epitomised by a reconceptualisation of the “social contract” as a network of “standard form contracts” or “contracts of adhesion”, and of an increasingly dominant mode of subjectivation: the standard formation or auto-constitution of subjects as adherents. In this new contribution, I continue this processing of social systems theory and Teubner’s work, this time through a deconstruction and reconstruction of Internet communication. Through this recursive illustration of social systems theory and Teubner’s work, the paper develops a social systems theoretical account of “process”, “constitution”, and “structural change”.

The author responds in two ways to the contributions in this special issue dealing with aspects of his scholarly work. In his first, more general response, he traces the influences that various institutions and individuals exerted on him and were reflected in his work on private law theory. In retrospect, he understands both his many years abroad and his involvement with extra-legal disciplines, especially systems theory and sociology of law, as a search for the identity of private law in foreign legal systems as well as in foreign disciplines. At the end of this search stands the concept of societal constitutionalism. The author understands private law as society’s constitution, more precisely: as the legal constitution of the self-governance of a variety of social systems. In a second, more specific response, the author deals with some of the questions raised in the various contributions to the special issue. From the perspective of both sociology of law and legal doctrine, the author addresses problems of society’s constitution that arise, on the one hand, outside the borders of the nation-state in transnational political processes and, on the other hand, outside the institutionalized political sector, in the "private" sectors of world society. They revolve around the theoretical and practical potential of societal constitutionalism: how, in non-state institutions, the new power centers of society, particularly in the emerging socio-digital institutions, private law can set the normative conditions for fundamental rights, the rule of law, democratic participation, and, increasingly today, ecological sensibility.

Zusammenfassung Eugen Ehrlichs „lebendes Recht“ zählt zu den Schlüsselbegriffen rechtssoziologischer oder rechtsanthropologischer Forschung. Als Chiffre für nicht-staatliches Recht hat der Begriff auch in den rechtsvergleichenden, transnationalen oder völkerrechtlichen Rechtswissenschaften eine steile internationale Karriere hingelegt. Demgegenüber werden Ehrlichs Ausführungen zur Unterscheidung von rechtlichen und gesellschaftlichen Normen oft als „Gefühlstheorie“ des Rechts abgetan. Am Rechtsbegriff scheint Ehrlich gescheitert zu sein. Dabei formuliert das „lebende Recht“ selbst einen gesellschaftlichen Rechtsbegriff. Diesem und seinen Schwierigkeiten widmet sich dieser Beitrag.