My Numerous Detours – Toward Private Law as Society’s Constitution

Excursus Malte Gruber^[2]

This is where Malte Gruber comes in, continuing this line of thought. Throughout his paper, he attacks the domination that legal economics exerts on private law today. In particular, he criticizes economists’ orthodoxy of methodological individualism, which requires any collective action to be reduced to the decisions of individuals. With determination, Gruber moves in the opposite direction and suggests a bipolar relation of collective responsibility. On its one pole, the law needs to personify various endangered ecological entities and endow them with new, carefully calibrated collective rights. On the other pole, he requires the law to create new liability subjects in the form of collective risk pools, which become liable whenever their typical dangers for vulnerable species are realized. Regarding the details of this collective responsibility, Gruber criticizes the economic assumption that liability rules needs to be oriented to rational-choice actors who will optimally react to fine-tuning incentives and sanctions. Instead of this rather unrealistic basis for liability law, he suggests an experimental approach that would introduce binding goal definitions and discover concrete legal instruments via trial-and-error procedures. This implies carefully monitoring and correcting the goal-instrument relation if needed in a long-term and thorough observation process.

I support these ideas and suggest developing them further into a generalized concept of “bipolar personification by law” that would support the creation of new legal actors on a broad socio-legal basis. It implies transforming the victim-perpetrator relation in liability law, extending it beyond an inter-individual connection, and creating a bipolar liability relation between collective actors explicitly established by law. It is a certain irony that Weinrib (1995), the staunch defender of private law’s autonomy vis-a-vis society, suggests basing tort law systematically on the social relation between a victim and a perpetrator. This allows for contextualizing tort law within an interpersonal relationship and enriches positive law through interactional morality. But as a reaction to new ecological and digital dangers, private law will have to abandon such an exclusive reference to individual actors and invent, by its own authority, on both sides of the relation new collective legal subjects and allocate rights and duties between entities that have not existed as social actors before.

However, Selznick’s sociological jurisprudence leads me to an additional suggestion on how the law’s conceptual readiness will respond to social opportunity structures. Only when the liability relation between new collective actors is tied to incipient self-organization processes within society, the law will play the required maieutic role. Digital liability is a good case in point. Algorithms are gradually becoming participants in social communication (e.g. Cohen 2019: 221 ff.). Private law is under pressure to recognize their emerging social status and grant them legal action capacity. At present, it would be premature to construct them as full juridical persons. Rather, due to their socio-digital institutionalization as “actants”, “hybrids”, and “swarms”, they should be endowed with more limited, carefully circumscribed rights and duties, especially in the law of contracting, liability, and political regulation. In the future, the full legal personification of algorithms might be necessary, but only when newly-established socio-digital institutions treat them as members of society and attribute communicative capacities and correlated responsibilities to them. Today, however, granting full legal personality to “electronic persons” cannot (yet) rely on autonomous digital entrepreneurship as a corresponding socio-digital institution. So far, only limited personality rights should be attributed to algorithms that act as agents within the existing institution of digital assistance (Beckers & Teubner 2021).

Similarly, the increasing legal personification of rivers and mountains should be welcomed. But again, it always needs to be tied closely to the viability of social systems that surround the endangered ecological entities. And if the law designs procedures for their self-organization, it needs to build on existing political action potentialities in the ecological communities. In this way, personification by law will have to deal with intercultural collisions when indigenous knowledge embedded in a holistic cosmology must be protected against the intrusions of modern scientific and economic rationalities (Korth & Teubner 2011). At the same time, while the law’s conceptual readiness should respond to opportunity structures that emerge in such ecological relations, the law needs to put limits to their economic colonization.

Back to my London years. I tried to make more concrete the legal critique of economic reason. I re-interpreted the groundbreaking ruling of the German Federal Constitutional Court on guarantee contracts by family members (Familienbürgschaft). In my view they did not primarily protect individual rights, but rather a social institution’s integrity against its economic colonization (Teubner 2000b). Compared to such explosive problems, which remained only latent in the judgment, the Court’s paternalistic correction of contractual imbalances on a case-by-case basis seemed too harmless to me. Rather, I saw in bank guarantees by family members a private law problem of the first order. They should be qualified as conflicts between social spheres of action, concretely, as an intrusion of economic rationality into family solidarity, which needs to be counteracted by institutional protection via fundamental rights. I understood the "colonization of the life-world" here: the family, by rational economic action, as a "third-party effect" of the family’s constitutional protection, which needs private law sanctions. In my view, if understood in this way, the Court’s ruling could become a precedent for other collisions between social spheres, the destructive aspects of which are increasingly recognizable today and to which private law must find answers.

In contrast, my excursions into corporate law at that time were rather frustrating. In the heyday of deregulation in the 1980s, my attempts to establish a systems-theoretical foundation for a pluralistic legal concept of the enterprise interest (Unternehmensinteresse) or even a legally supported corporate social responsibility (Teubner 2009a), was met with an icy silence on the part of German corporate lawyers. My American colleagues reacted with blunt irony à la Milton Friedman: "The sole social responsibility of business is to make a profit." Even EU law, which today – after the shocks of the financial crisis – celebrates itself as pioneering corporate social responsibility, was at that time, probably under the influence of British neoliberal policies, distanced, if not hostile, towards a legally supported responsibility of companies for the public interest. I did not fare much better when I reinterpreted corporate groups as polycorporative networks, as "many-headed hydras", and proposed a corresponding drastic expansion of corporate group liability (Teubner 1990). "Free-floating construction" was still the most benevolent comment on my article, which actually meant: "unlawful." At that time, the consensus was that corporate law should open up to the allegedly superior rationality of the capital markets and not intervene "constructivistically". Against that, I thought a pluralist constitution would protect organizational autonomy against one-sided domination by the capital markets.

Excursus Hugues Rabault^[3]

Using the image of the Global Bukowina, Rabault discusses how the recent debate on transnational law relates to Eugen Ehrlich’s theory of living law. He comes up with a new interpretation of Ehrlich’s work and a suggestion for its revision. In Rabault’s understanding, Ehrlich’s “living law” opposed a “legal theology”, that is, a “creationist” conception of law, in which the State takes the place of God the Creator. Ehrlich’s work appears thus as an attempt to “de-theologize” the law. Although political science and legal theory continue to be strongly influenced by the “creationist” imaginary, Ehrlich makes for Rabault a first step towards formulating a paradigm of law as a spontaneous social emergence rather than as the legislator’s intentional, conscious, and rational production. At the same time, Rabault sees a need to revise Ehrlich’s theory. While for Ehrlich, the centers of law-making had been social organizations (Verbände), i.e. associations, ethnic groups, and families, the social source of global law can no longer be the lifeworld of personal relations, but the proto-law of specialized, organizational, and functional networks, which are forming a global and sharply limited identity.

I would like to take up these ideas on emergence by connecting Ehrlich’s contribution to a central controversy in legal sociology, the (in)famous distinction between law and social norms. While Rabault identifies emergence with the gradual build-up of decentralized spontaneous social orders in the sense of Friedrich von Hayek, I would like to distinguish emergence from below and from above. Emergence from below, which is mainstream today, defines emergence as the appearance of new properties out of the interplay of existing elements (Hoyningen-Huene 1994: 172 ff.). In contrast, emergence from above is more ambitious (Luhmann 1995: 22 f.). It is not only new properties but full-fledged new social systems that are emerging. And they do so only when these systems constitute new elementary operations. While they use existing material, they produce their new elementary operations, which in a circular way produce the new autopoietic system. This sheds new light on the difference between social and legal norms in transnational law. The moment of emergence comes up when existing social norms are utilized, e.g., in a transnational agreement or in an arbitration tribunal, to decide a social conflict via the binary code legal/illegal. Then a simple social communication has been transformed into an authentic legal act that connects with a chain of other legal acts and becomes part of the overarching legal system. This is how in the new transnational law – without the help of the state world – authentic elementary legal operations are emerging. Thus, we can replace Ehrlich’s often ridiculed criteria for distinguishing law from social norms, which he found in the different emotional reactions to rule violations, with the empirically identifiable emergence of authentic legal acts, as opposed to simple social communication.

Excursus Atina Krajewska^[4]

At the centre of the new nationalism and authoritarianism are biopolitical strategies, in particular anti-abortion policies. Combining population policies with disciplinary techniques and moralistic arguments, they extend political control into the most intimate aspects of social life. In her critique of anti-abortionism, Krajewska uses sociological systems theory, focusing on the role of impersonal social processes in the abortion conflict. She submits that the “anonymous matrix” is central among repressive politics and illegitimate intrusions into private existence. Krajewska argues that in the abortion controversy, human rights conflicts are not at all limited to the relation state-individual. Of course, massive biopolitical intrusions into human life have come from health population policies of nation-states, but equally intrusive are biopolitical attacks from powerful private actors. She refers to the professional figures of the doctor or the scientist as powerful biopolitical actors who today move into a no man’s land where once only the sovereign could venture (Agamben). Parallel to such attacks from individual professionals, well-organized collective anti-abortion campaigns are initiated by powerful private associations. In the end, the concept of the anonymous matrix makes visible impersonal communicative processes that exert structural violence (Galtung) on the female body. They do so when neither individual nor collective perpetrators are in sight. Krajewska shows in an exemplary way how anonymous discourses, social systems, institutions of religion, medicine, science, economy, education, and morality compete to dominate the normativity of abortion. These impersonal processes exert their disciplinary power on the health system as well as on the female body and mind.

In my view, it comes as a certain surprise that new support for anti-abortionism seems to come from the ecological discourse insofar as it is constantly expanding the personification of living processes to grant them legal-political protection. Not only animals, rivers, and mountains but also future generations and unborn children are treated as new subjects, endowed with human rights, and protected by vicarious speakers of their interests. This discourse is supported by more and more detailed medical explanations and widely distributed media images. In this situation, the law finds itself in a position where it no longer balances exclusively the legal rights of the unborn child against that of the woman but has to find a precarious balance between violently competing socio-political discourses. One major difficulty is identifying the tipping point where legitimate outside irritations become illegitimate intrusions. Krajewska offers the criterion: the threshold is reached when the very existence is threatened by the expansionist system. I agree but would suggest the more comprehensive integrity criterion defines the tipping point. The integrity of the female body and mind, as well as the integrity of the health discourse, which is not a matter of external scientific, medical, political, or legal definition but a matter of individual and collective self-determination, the law has to respect. Thus, the woman’s self-determination about her body moves into center stage, however with the important qualification that she acts as the guardian of a hybrid relation between her and the fetus in a bodily unity which changes constantly the internal weight of both.

This combination of self-determination and stewardship might indicate how the law could deal with the abortion conflict. However, I suspect that the range of illegitimate intruders is not limited to medicine, religion, and politics. Rather, the law itself seems to overstep its legitimate boundaries when it claims to make final decisions on abortion issues. Krajewska points rightly to the impossibility of legal communication when it goes beyond human rights in their institutional and communicative dimension and attempts to reach the female mind-body-unity. Moreover, the juridicality of abortion will end up in outright undecidability once one realizes that the Other of every foundation of order, in our case, the hybrid bodily unity, allows "an extraordinary" to emerge – as Waldenfels (2006) and Lindahl (2010: 52, fn. 40) put it – as “a-legal”, implying a surplus of reference beyond the binary code of legal and illegal. This suggests recognizing boundaries of the juridical by the legal system itself: Abortion could be seen as one of the exceptional cases of what is a-legal, neither lawful nor unlawful. This would require the paradoxical legal operation of juridifying the de-juridification of abortion: The law orders itself to keep out of abortion.

One of the many other topics of societal constitutionalism I am dealing with in Frankfurt is the emergence of a digital constitution (starting with Teubner (2004), ending with Teubner and Golia (eds.) (2023)). I find it remarkable that almost exclusively private law norms shape the online world of the internet, the socio-digital networks (Facebook & Co.), and the digital platforms (Amazon, eBay & Co.). Here, social power is combined with the inscrutable dynamics of a new technology, the destructive consequences of which need to be fought against, also employing private law. The triangular constitutionalization of the digital space, i.e., the division of labor between self-constitutionalisation of the new digital institutions, constitutional interventions of the state world, and constitutional reviews of private ordering by the civil law courts, should be the practical and theoretical task of societal constitutionalism.

Excursus Nofar Sheffi^[5]

At this point, Nofar Sheffi’s paper comes in as a provocation. The present debate on digital constitutionalism focuses too narrowly on the economic power of the offline companies behind social networks and digital platforms, as well as on their regulation by political actors. The constitutional issues involved are, of course, highly relevant but not really new: combating private power, which is now reinforced by digital weapons. In contrast, the title of Sheffi’s paper, “Bit by bit constitution” underlines the algorithmic center of the digital constitution, which authors obsessed with the economic power of Facebook & Co. tend to overlook. The bit-by-bit constitution is the real novelty for the constitutional discourse. Sheffi digs deeper than her colleagues and reveals massive constitutional contingencies hidden in the so-called political neutrality of technical processes that build up the internet architecture. Throughout the paper, Sheffi connects a fine-grained analysis of the algorithm’s technical details with social theory, political semantics, translation theory, literary allusions, and constitutional concerns. She shows painstakingly how political ideologies have deeply influenced various ruptures within the internal evolution of the techno-constitution. For example, the internet’s centralization, which would be highly attractive for digital bio-power, i.e., repressive state control of the entire population, has been avoided, and Californian counterculture motives of decentralization as well as massive economic interests, e.g., on trade secrets, have instead shaped the internet governance. In contrast, the new state-capitalist regimes of China and Russia attempt to revolutionize the digital constitution by sharply centralizing their national digital networks for the sake of totalizing social control. At the same time, they want their networks to function as efficiently as their capitalist counterparts. Following Michel Foucault, Nofar describes websites as “réalités de transaction”, as domains of reference born “from the interplay of relations of power and everything which constantly eludes them, at the interface… of governors and governed.”

Another concern comes with Sheffi’s analysis of an “algorithmic bias” that potentially influences, changes, or even falsifies human-machine communication. It appears as a recursive process: The hermeneutical richness of human thought and debate is translated into the rigid machine language of the programmers, then via several protocols, transformed into mathematical calculations and finally reduced to simple commands – either open or close the flow of electronic signals – and then, after the interplay of myriads of electronic commands, re-translated into the world of human hermeneutics. Does this not imply that the social world is exposed to a structural drift driven by this fundamental algorithmic bias? Would this mean that a social counter-hermeneutics needs to compensate for this structural drift, giving new momentum to the Geisteswissenschaften, the old-fashioned humanities?

While Sheffi describes meticulously translation processes within the bit-by-bit constitution, I would like to raise the question of whether, between computers and humans, genuine communication takes place. Sheffi analyzes in detail how the algorithms transform differences of information via conversion and re-conversion. Complicated translation processes are going on within the computer – and at the same time within human consciousness. But beyond that, the fascinating question arises whether or not a genuine social system is evolving, which takes place not in the interaction between humans but in the interaction between computers and humans, in the interface of human and computer messages. It is detached from the calculations of the machines as it is detached from the concatenation of thought in human consciousness. Here, the subface/surface/interface distinction, which Sheffi refuses to make use of becomes relevant. While in the subface, electronic signals are processed, and in human consciousness, thoughts are processed, on the surface, the semiotic distinction between utterance and information is produced, and understanding takes place in the interface. Thus, genuine communication between “persons”, i.e. semantic artifacts of the algorithms and humans, occurs in the emerging social system. Of course, algorithms remain mindless machines, but when social attribution of action to them is firmly institutionalised via personification, they become (non-human) members of society.^[6]

In addition, I would raise the question of whether one has just to accept a path-dependent “blind” evolution of digitality, which is concealing potential constitutional alternatives. Or could one imagine, in the language of Rudolf Wiethölter (2005: 71), “criteria, venues/fora, procedures” for political and legal intervention into these deep structures of the internet? Could ICANN, for example, be transformed via procedural reforms into the most important “collegial formation” as a deliberative institution in the sense of David Sciulli’s societal constitutionalism?

At this point, liability law’s contribution to an emerging digital constitution becomes visible. Certainly, liability is about optimizing standards of care and levels of activity of algorithms. But the constitutional requirements on digitality are not exhausted with such legal-economic arguments. In the recursive dynamic of technology/institutions/liability, a mutual constitution of legal norms, legal subjects, social institutions, and technological innovation takes place. Autonomous algorithms in their quality as novel quasi-subjects (“actants”), pose a constitutional question of the first order. Private law should react with the legal personification of both individual algorithms and human-algorithm associations, especially under liability law (Beckers & Teubner 2021: 23 ff., 97 ff.). This development is not only shaped by technology or economics but also depends on various legal-political decisions about the social responsibility of digital technologies. Insofar as liability law, which only appears to be technical, produces arguments and decisions about combating responsibility deficits, about the productive chances and destructive risks of personalizing algorithmic processes, about the standards of care for algorithms’ decisions, about the protection of individual rights endangered by wrong digital decisions, about the extent of compensation payments and about the necessary reprogramming of algorithms that involve risk, liability law contributes considerably to the digital constitution that is currently developing.

Europeanization/transnationalization

The Europeanization of private law has brought about profound changes, at least in the last fifty years. In particular, the comparative law method that European and national courts use has provided various impulses for the unification of law, not only as an analysis but also as a secret source of law-making. However, I believe that the paradoxes of the unitas multiplex europaea should inspire European private law’s formation not as comprehensive legal unification, but as targeted constitutional interventions in neuralgic zones where social problems create specific challenges for private law. Respecting differences in national legal cultures as well as taking account of the varieties of capitalism within Europe (Teubner 1998; 2024), should encourage building a kind of federal constitution of European private law systems (Joerges 2022). This should also defuse the controversial "battle of the courts", the dispute between the self-confident guardians of the European constitution in Luxembourg and Strasbourg on the one hand, and the equally self-confident guardians of the national constitutions in Karlsruhe, Rome, Warsaw, and Budapest on the other. I would argue against the primacy of national constitutions, neither would I argue for an unconditional primacy of the European constitution, but rather for a heterarchy of constitutional courts, which, however, provides a right of final decision for Luxembourg and Strassburg to the extent necessary to preserve a quasi-federal order.

Europeanization finds its extension in the transnationalization of private law, which needs to assert itself today against tendencies towards nation-state isolation, but given the new East-West divide, can arguably only do so in the more universalistically oriented "Western" legal systems. Full globalization of private law will probably be reduced to its regionalization. Here, the private transnational regimes already mentioned are in the foreground, for the constitution of which, in addition to international dispute resolution bodies, nation-state civil courts can provide important impulses.

Materialization

The materialization of private law has become its second major transformation. Max Weber (1968 [1914–1920]: Ch. VII, §§ 5, 8) had warned against the intrusion of material tendencies into the formal rationality of modern law, while Franz Wieacker (1996: Ch. 28) welcomed this master trend in the history of modern private law. Materialization became effective as a welfare state transformation of liberal private law, which particularly led to the rise of labor law, consumer law and social law, but also influenced the core areas of civil law. I can imagine that private law, beyond combating social inequality involved here, will in the future take a closer look at other grave societal risks, above all the dramatic ecological hazards.^[7] Materialization, understood in this way as ecologization, is likely to change the foundations of legal methodology. Beyond Rudolf von Jhering’s purpose orientation and Philipp Heck’s interest jurisprudence, it will transform the “value jurisprudence” that dominates today. I consider its reliance on the old-fashioned philosophy of values, widespread among German lawyers, futile. Rather, a political reflection internal to the law would have to orient its values, understood as preference rules, to the political reflection in other social subsystems, of course, also modifying them via the rule of law. Today’s consensus is that the legal methods of balancing have overridden, if not replaced, the traditional techniques of subsumption and interpretation. I would imagine, however, that this is not limited to the mere balancing of interests of private actors, nor only to the balancing of group interests, but that balancing of different social rationalities moves into the foreground.

Ultimately, this leads to an understanding of justice under private law that is neither exhausted in equality-oriented conceptual consistency nor in responsiveness to the contingencies of external demands but that amounts virtually to self-transcendence of law (Teubner 2009b). As it becomes clear in the paradoxes of the abuse of rights and other hard cases, justice understood in this way transcends the boundaries of positive law exposing itself to what Jacques Derrida (1990) calls invocation, abyss, disruption, experience of contradiction, chaos in order to return to positive law with new normative intuitions potentially emerging in such borderline experiences.

Excursus Richard Nobles and David Schiff^[8]

Their reflections on self-subversive justice add an important distinction to the debate. But first, they criticize Rawls’ and Dworkin’s concepts of justice. They judge Rawls’ ideas as relevant for justice within the political process but only of limited value for the legal process. Unlike political justice, law’s justice cannot hide behind the veil of ignorance, instead needs to dig deeply into the peculiarities of singular cases and the needs of the individuals involved. Nobles and Schiff submit that Dworkin is too much involved in law’s internal normative contextualization. While to a certain degree, he oversteps law’s boundaries in the direction of moral and political principles, he does so only under the condition that they are compatible with “other propositions of law generally treated as true”. In contrast to both, Nobles and Schiff insist that justice needs to radically transcend law’s boundaries.

Here, they introduce the distinction between law’s transcendence and self-subversive justice. In a subtle analysis of the common law tradition, they show that the techniques of distinguishing and overruling have indeed transcended law’s boundaries. But all this is not yet self-subversive justice which only comes in when it works as what they call an “attractor”. It attracts those who are motivated to achieve justice: those who refuse to learn from disappointment and insist on a fundamental normative orientation. Nobles and Schiff attribute meaning to legal justice which is not explicable in terms of political, economic, moral or even religious motives. They look for a propensity in individual consciousness to approach a self-subversion of law from the perspective of infinite justice.

“Much is too tender to be thought of, even more, to be spoken”. Nobles’ and Schiff’s distinction resonate with this quotation from Novalis (Hardenberg) (1798: 70–106, § 23), a poet of German romanticism. Self-subversive justice is in the end neither a matter of legal communication nor is it to be imagined as individual legal thoughts. Rather, its place is in individual consciousness, what the philosopher Christoph Menke (2020: Ch. 15) calls the “pre-conceptual affection”, which precedes and dominates rational legal debate. Thus justice is re-oriented towards the affective, emotional, and a-rational dimensions of judgment, in a process of reflective transformation of affective evidence, of which theories of rational argumentation have taken no account.

At this point, Luhmann’s theory of justice needs to be modified considerably. While it is his merit to distinguish clearly communicative and psychic processes, in his relentless drive toward autonomy and closure of social systems, he tends to undervalue the massive influence that the individual mind exerts on social communication, despite their mutual closure. This is particularly true for the pre-conceptual affections of justice in people’s consciousness whose importance is rightly stressed by Nobles and Schiff.

At the same time, however, I would emphasise that the pre-conceptual affection of justice cannot be reduced to the emotions of the individual alone. What matters equally is the specific signification of justice that affective communication creates, in distinction to individual sentiment. Novalis (Hardenberg 1798: 70–106, § 23) who rightly insists that only “tender” emotions will grasp the signification of “pudency, friendship, love and piety” – and I suggest to add: justice –, allows at the same time for “rare moments to talk about it in silent mutual understanding”. The difference between consciousness and communication implies that – like communication in literature – a genuine communication of affective justice takes place paradoxically via the linguistically non-communicable that happens alongside the communication of legal arguments. Communication of pre-conceptual justice is similar to aesthetic communication in literature: the aesthetic message of its words cannot be found in their content, but rather in non-verbal communication, i.e. what cannot be verbally communicated.^[9] Similarly, the message of affective justice will be co-communicated in words of law but goes beyond what can be said.

And we should not forget that even the much-praised reflective transformation of the pre-conceptual affective evidence of justice has a dark side. Levinas (1982: 98) makes us painfully aware that affective justice has self-subversive tendencies whenever it is exposed to rational justification: “General and generous principles will be inverted in their application. Every generous thought is threatened by its own Stalinism.” The price for exposing the infinite experience of justice to its rational justification is high – new injustice. Due to the poverty of legal formalization, but also due to the insensitivity of philosophical norm-universalization, the very search for juridical justice produces injustice which in its turn provokes a renewed self-transcendence, and then again new rational constraints. What remains is nothing but a desperate search for justice which produces the permanent inner restlessness of law. New criteria of justice are invented again and again, and new legal arguments are presented, but these very constructs destroy the possibility of justice. The search for justice becomes the addiction of law, destructive and inventive at the same time.

Pluralization

Alongside this search for justice within the master trend for the private law’s materialization, the pluralization of private law is another transformation that, although already well advanced, has nevertheless remained highly controversial. The emergence of the large special branches of private law (labor law, consumer law, antitrust law), the autonomisation of various private law areas through their own values and terminology, the explosion of new types of contracts, and the internal differentiation of tort law are often criticized as private law’s history of decay. However, it seems to me that attempts to restore the former unity of private law against this deep fragmentation are futile. Fragmentation should rather be interpreted in its historical context, in which law reacts to the external differentiation of society with internal differentiation. It does so not as one-to-one mirroring but as legal changes triggered by social irritations.

Perhaps, a new unity of private law will be established by conceiving private law not only as substantive law but also as a special type of conflict of laws. It seeks to deal with the collisions of norms and principles of the various special private law orders, different fields of private law, and diverse regimes of private ordering. In this sense, contract cannot be understood merely as a synallagmatic relationship between two parties but as an intermediary between different "contracting worlds" (Teubner 2000a). Contracting becomes a space of compatibility between the conflicting requirements of economic transactions, social production processes, political regulations, and legal obligations. Resolving collisions between these "contracting worlds" and re-balancing them against overwhelming tendencies of one world over the other will be the task of contract law which, compared to its traditional individual orientation, gains an additional institutional orientation. Of course, contract law will need to be interdisciplinary, but not one-sidedly as “law and …”, neither sociology, economics, nor political science. Still, it would have to seek a balance according to the philosophical concept of transversality (Teubner 2014). What is more, it will have to deal with the excesses that are produced by diverse competing surplus orientations – economic profit, power augmentation, reputation gains, etc. (Teubner 2020a).

Excursus Vagias Karavas^[10]

"Capitalism with a Human Face" – that is what Karavas calls “Teubner’s life project”. He criticizes my ideas of a multitude of social surplus values which includes not only economic profit but as well a variety of non-monetary surplus pressures. For Karavas, this is nothing but the logical continuation of liberal doctrines, which offers the “idyll” of an invisible-hand society that "always wants evil and always creates good". This sounds like a harsh attack. However, apart from some exaggerations, I tend to see Karavas’ reaction to my text rather as driven by critical empathy. What is more, he teaches me a lesson.

As for empathy, Karavas considerably enriches my thesis on the origin of surplus extraction. While I am tracing it to the deadly sins in medieval Christian society (avaritia, superbia, contentio, etc.), he supplements it with two narratives from Greek mythology. One is the connection "hybris – ate – nemesis – tisis," which means, in short, severe punishment for hybris. The second one is "hamartia" (ἁμαρτία). Again, in short: Missing a goal becomes an encouragement for a new effort. In my view, both shed light on potential reactions to excessive surplus extraction. Either they stand for severe negative sanctions to suppress the excesses or for taking them themselves as productive pressures for learning.

Karavas’ second supplement to my text is to apply a similar surplus analysis to digitality. He takes up the idea of multiple surplus values in contemporary society and adds to them digitality that he sees as also driven by endogenous surplus pressures. Karavas makes the never-ending internal digital dynamics responsible for relentlessly driving digital calculations into permanent growth pressures. I find this suggestive but would prefer to distinguish two constellations. Digitality in itself does not seem to me a success medium, only a distribution medium comparable to orality, writing, and printing, which do not imply surplus pressures. In contrast to monetary operations, power threats, or scientific insights, digital calculations create no endogenous motives for their acceptance in communication. However, when programming introduces the goals of profit, power, and reputation into algorithmic calculations, Karavas’ observation is plausible since a turbo is added to these surplus pressures, which speed up with overwhelming force and increase their destructive tendencies.

As for critique, Karavas accuses me of relying on invisible hand mechanisms which are supposed to guide individual surplus extraction necessarily toward the common good. He says I am deceiving the reader: Not Karl Marx is my intellectual authority but Adam Smith. In my view, Karavas rather selectively concentrates on one paragraph in my text which argues that the surplus pressures may sometimes contribute to the common good. But at this point, Karavas ignores my central concern about the "excessive ambivalence" of all surplus pressures (Teubner 2020a: 13 ff.) I believe the various surplus pressures are indeed working as invisible hand mechanisms. However, not at all do they drive society automatically toward the common good, but in both directions, to good and evil. Under certain conditions, they arrive at Adam Smith’s common good (see China’s new capitalism in its fight against hunger), and under different conditions, they end up in Karl Marx’s destructive consequences (see China’s account of massive corruption, exploitation, and human rights violations).

My question for Karavas is: Why does he concentrate only on economic profit and remains silent on my main thesis – surplus pressures in a variety of social systems, which do augment monetary profit, but equally recreate the specific communication medium in other social systems: power, reputation, educational rewards, religious faith? If there are a variety of surplus pressures, what follows for social theory and political practice? For example, is indeed the hope elusive that by abolishing private property, the ills of capitalism will be cured? Will not the destructive consequences of the other powerful surplus pressures remain?

What did I learn from Karavas? He insists throughout his paper on the individual-psychological aspect of surplus orientation, while I tended to stress the social-institutional aspects. At this point, Karavas makes me rethink systems theory’s psyche/communication relationship. Like in the case of self-subversive justice, I would now understand this relationship less as mutual insulation and more as a symbiosis. Decisive is the flow of material energies from biological and psychic life into social systems. Thus, I can better appreciate the strong influence that human drives and desires have on social communication. While I described in my article how social surplus pressures shape individual drives and desires, now I think that, equally, and perhaps more intensively, the other way around, individual desires are overwhelmingly driving the social dynamics of surplus orientation.

Here, however, theories of subjectivation are deficient. They are right regarding the modern subject as produced by discourses and practices but they are wrong refusing to separate psychic and social aspects. In this respect, the systems-theoretical distinction between consciousness and communication has advantages again. It suggests that the communicative surplus value orientation is clearly separated from the psychic energies of desire but at the same time depends on them. While the energies of desire remain relatively undirected it is the codes and programs of social systems that channel these energies and redirect them toward the regeneration of the communicative medium and its surplus value.

In the end, Karavas compares my life project to “Katéchon”, one of the most enigmatic concepts of the New Testament. The "Katéchon" preserves the world from chaos by preventing the appearance of the Antichrist, but at the same time, prevents the coming of Jesus Christ and thus the world’s redemption. Now Karavas asserts: “The law plays a similar, ambiguous role in Gunther Teubner’s life project. It prevents the collapse of modern society, but at the same time, due to its own limited rationality, it prevents the completion of the project of modernity.”

Yes, I think suspension of the catastrophe is needed because the very hope of redemption is a false eschatology. Therefore, instead of redemption, we better look for more modest and more realistic second-best solutions. Karavas’ secret redemption hope seems to lie in abolishing the “idyll” of functional differentiation. In contrast to such a misled redemption strategy, I would plead not for Capitalism with a human face, but instead define my life project: Polycontexturality with an ecological face.

Constitutionalization

To return to the various transformations of private law, its constitutionalization is probably the royal road towards which the paths of the other transformations could run. Today, the constitutionalization of private law means that the political constitution of the nation-state, with its fundamental normative orientations, especially with human rights, reshapes private law’s principles. In my opinion, however, the constitutionalization of private law would take on an additional meaning. Private law receives its guidelines not only from the political constitution of the state but also from the constitutions of various social domains, from the constitution of the economy, science and technology, education, the mass media, the health system, and the digital world. In particular, the horizontal effect of fundamental rights should be expanded, not only as individual rights protection against social power in the various subsystems but also as the protection of fragile social institutions (such as art and science) against their colonization by expansive social systems (Hensel & Teubner 2016).

Excursus Isabel Hensel^[11]

What this means for the labor constitution in times of digital platforms is carefully analyzed by Hensel in its multifaceted dimensions. The platforms’ precarious and low-paid employment structure makes the long-term organization of traditional trade unions difficult to realize. The fluctuation of employees, the limited duration of employment contracts, the use of temporary workers, the part-time nature of the employment, and the young age of the employees, the majority of the migrant workforce, are the factors that impede collective action. Karl Polanyi’s strategies for re-embedding the disembedded economy are of no help anymore in the platform economy (Polanyi 1991 [1944]). Labor unions, the main of Polanyi’s non-market institutions that are supposed to correct the marketization of the fictitious commodity of labor, obviously do not play their corrective role when counteracting the infamous exploitation practices of digital platforms.

Surplus analysis will bring about new aspects when it is not reduced to economic profit but considers competing surplus pressures. The platform workers are sandwiched between several surplus pressures. On the one side, the profit motive of digital platforms is drastically strengthened by the additional digital surplus pressures (as already mentioned in my comments on Karavas’ paper). On the other side, labor unions are not just the altruistic supporters of exploited workers but are themselves under massive surplus pressures of a specific kind. The drive for power surplus in the internal politics of labor unions as well as organizational surplus pressures for the labor unions’ growth, tend to marginalize the platform workers’ interest.

It is difficult to see how labor unions can escape this dilemma. With Polanyi, against Polanyi, and beyond Polanyi, a new search for fighting false surplus pressures in the platform economy is probably needed. Hensel indeed points to intra-organizational democracy in labor unions, which could strengthen the minority’s position by granting them constitutional rights. But the well-known obstacles to labor union democracy lead her rightly to recommend wide-ranging changes in the labor constitution, which would strengthen the countervailing power of other forms of collective action, in particular, digital activism, the interweaving of analog and digital resistance, spontaneous protest, and autonomous associations outside established labor unions. "Gorillas workers collective", wild cat strikes, and the calls for a walkout in three warehouses – to these concrete instances of collective resistance, Hensel recommends granting constitutional protection under the German Basic Law.

The overarching principle in the private law constitution remains private autonomy, which should indeed continue to be the self-determination of individual human beings in a variety of their contractual arrangements, but which in the future needs to incorporate additional dimensions. Private autonomy cannot remain only individual autonomy; at the same time, it is to be understood as social autonomy, more precisely: as freedom of self-determination of a variety of social domains, associations, organizations, foundations, networks, commons, and function systems. It would include autonomy guarantees under private law as well as help for self-help against self-destructive tendencies. The problem is whether the conceptual readiness of private law will be able to correspond to the opportunity structures of the late modern society, in the words of Wiethölter (1988), whether

“… ‘autonomy’ can be taken seriously as self-determination and, nevertheless, can become suitable as essential externalization (control), not as external determination, but as a possible help in situations of impossible self-help, not unlike ‘counselling’ help and ‘compatibility’ therapy outside the law” (my translation).

Thus, the future task of private law as society’s constitution would be to secure the eigen-normativity of social subsystems and, at the same time, set clear limits to their expansive tendencies.