Band 14, Heft 1

In asking the question about indispensable norms, Luhmann does not look to give a normative answer, but rather explores what he sees as the »form of the problem. « This introduction places Luhmann’s discussion of undecidability and the aporias of communication media of the various function systems within the larger »form of the problem« of modernity as Luhmann sees it, in particular the dissociation of reason and moral order. This introduction then uses this larger picture to examine the arguments of the various contributors to the volume.

In his Heidelberg University lecture of 1992, the author uses an ail-too prescient torture scenario to exam the function and putative indispensability of norms in modern society. In the exceptional case, recourse to the »normativity of norms« or to »values« proves to be untenable because all norms and values reveal themselves to be undecidable. Viewed from within the legal systems, the validity of norms remain unquestioned, but viewed from »society« (by, say, the sociologist), norms are seen as social facts and thus open to discussion. The author works his way through many permutations of the torture question (»Would you do it?«) not to give us a normative answer to the problem, but to exemplify the seeming impossibility of reasonably expecting that any given legal norm is normatively indispensable.

The author treats the question of »barbarism« in the modern world as a question of the relationship between semantics and social structure. The antique Greek distinction between »Hellenes« and »Barbarians« represents the general, asymmetrical schema of »inclusion« and »exclusion« that is characteristic societies marked by stratification. Modern, functional differentiated society eliminates this distinction in the name of a full inclusion of all. Yet this total inclusion reveals itself to be the mere self-description of modernity, for in truth complete exclusion from all function systems of society exist without disrupting the stability of society as a whole. The author concludes that a type of inclusion/exclusion super-coding may become the operating distinction of world society in this century.

This essay addresses the concept of norms and the connection between norms, social structure and politics in the works of Niklas Luhmann. Two theses are put forward in this regard. First, it is argued that, in its political implications, Luhmann’s theory of society has a clear normative - or socio-normative - content. His theory implies that governmental systems, whose constitution is adapted to the pluralistically differentiated form of modern society or at least does not jeopardize or impede the evolutionary process of social differentiation, have a higher probability of legitimation (or selflegitimation) than governmental systems that fail to observe or even undermine the differentiation of the distinct function systems of society. Second, it is argued that for Luhmann the question of norms or values can never be explicitly raised. Modern societies are polynormative societies. Norms are in embedded in social structure in highly variable manner, and they cannot be simply disentangled from this semantic structure or transformed into objects of debate by acts of theoretical questioning. In modern society, therefore, the normative function of norms depends on the fact that through their silence they promote the differentiation of society and obstruct the possible convergence of society around normative or politically emphatic contests. Luhmann’s question, whether indispensable norms exist, can thus not be adjudicated, or in fact even meaningfully posed. It imputes a politically centred or even exceptionalist form to society, which it can no longer factually assume.

Building upon Luhmann’s observations on the problems raised for law by indispensable norms and especially by conflicts between two or more of them, this paper considers some of legal theory’s attempted solutions before considering some recent thinking on these issues from the common law courts. Insofar as neither theory nor practice appears able to overcome the difficulties Luhmann highlights, conclusions are drawn which suggest that, far from being a matter for regret, Luhmann's analysis clarifies the practical limitations on what may be expected in respect of values and identifies the point at which those concerned with their protection should focus their attention.

In Niklas Luhmann’s social theory, the state of exception does not exist. His monographs presuppose the »normal« functioning of communication in world society, and this means that the borders of function systems and the differences between media and codes remain intact. Politics is politics, law is law, etc. But is this still true in the case of large scale terror attacks? In the question he posed to jurists in Heidelberg - whether »indispensable norms« are still valid - Luhmann opens a fissure in the heart of normality. By using the scenario of a »ticking bomb,« Luhmann parades the aporias of function codes before our eyes. The state of exception is normatively undecidable, but requires a decision nevertheless. These are the »hard cases« and the »tragic choices.« The essay plays out various scenarios involving dilemmas of decision in moral, legal, political, and mass-media communication and arrives at a type of »aprincipled maneuvering« that places systems theory astonishingly close to the modes of amoral theories current in the USA since »9/11«.

Luhmann’s essay eerily anticipates the post 9/11 argument - now widely endorsed in the United States - that even the fundamental moral prohibition on torture is by no means necessarily sacrosanct. Despite what appears to be an assault on traditional modes of moral reflection, Luhmann’;s critique itself implicitly rests on traditional forms of weak (and probably utilitarian) moral argumentation. Luhmann argues that we need to acknowledge the existence of irrepressible »tragic choices«, yet his own apparent (but by no means consistent) hostility to »old European« moral rationalism precludes him from fully understanding the nature of such tragic moral situations.

Niklas Luhmann’s attack on the rhetoric of the ›indispensable values‹ brigade is important and timely. Self-evidently good norms have political usefulness but no philosophical value. However replacing values with rights and entrusting decisions to lawyers displaces rather than solves the problems of indeterminacy and conflict of law and rights. The (falsely) ascetic commitment to description coupled with the acceptance of the social order makes systems theory useless as a tool for improving society. Philosophy tends the distance between the naturally and socially given and the eternal aspiration to resist and transcend it, by exploring both the justice internal to law and the justice which holds the whole of law to account.

Abstracts The essay starts by discussing the question if the debate between Luhmann and leftist social theory was primarily ideological in nature or not. It is stated that Luhmann’s own interest in the debate was not so much to pursue a political dialogue, but rather to expose the theoretical flaws of his opponents in order to provoke a paradigm shift in social theory. By referring to Luhmann’s treatment of the issue of human rights in his later works, I tiy to illustrate how he attempted to »deconstruct« the arguments of his intellectual adversaries. Luhmann makes use of semantic-historical and functional analyses of this politically successful concept so that its paradoxical aspects become obvious. This, in turn, »desubstantializes« the concept and shows how it is used as a rhetorical device that expresses a certain value-fundamentalism and is supposed to support the Utopia of all-inclusion.

The inclusion of exclusion in autopoiesis is a far-reaching step that demands a revisiting of the concept of autopoietic society. This article proposes a radicalisation of the concept on the basis of an acknowledgment of the impossibility of communication with the excluded. This acknowledgement conditions society from within. It is built upon the Luhmannian description of Barbarism as the included exclusion, and is further conceptualised as its excess, as a ›space of absences‹ Within autopoiesis, absence is described as an aporetic rather than a paradoxical structure, a memento vanitas that irritates the system from within, constantly reminding it of its limitations.