Volume 29, Issue 1

The article deals with Niklas Luhmann’s and Jacques Derrida’s theories of law and asks the question whether legal sociology is capable of contributing to a contemporary and socially acceptable concept of justice. The main thesis is that justice not only aims for contingency but for transcendency of law. Accordingly, justice is neither a decision criterion nor the supreme principle of law but a judicial self-description which coerces the legal system to its self-transcendency but simultaneously coerces it to continue producing further operations immanent to law. Thereby justice sabotages legal decisions by internally affecting the legal system as a subversive force, with which the law protests against itself. For law being dependent on rational decisions, reasons and norms, it ever creates new injustice.

The contribution tries, in strict argumentation, to give an answer to G. Teubner’s question concerning the place of transcendence in today’s societies. It summarises Teubner’s line of thought and identifies the paradox of law or justice as the ultimate paradox as well in Luhmann’s as in Derrida’s thinking. It then develops the concept of a gratificatory communication as the specific form of communication in postmodern societies and the specifically attuned to its culture. It shows that the continuation of such a communication comes to failure when it encounters the figure of the victim. The concept of victim and victimhood has then to be developed on new basis. The victim condenses the irritation potential in the operation of all social systems. A distinction has to be introduced at this juncture between included and excluded victims which however does not change the function of victim within the frame of the form of communication which has been characterised. In order to get into perspective the figure of the victim in its whole concreteness one has to draw on other sources than the sociological problematics of inclusion and exclusion. The contribution proposes to introduce the concept of ‘malheur’ as it has been thought by Simone Weil. With such a concept a perspective opens up on the only place at which transcendence can be located in our societies - whose meaning construction are characterised by all pervading immanence. Such a transcendence is obviously a religious and not a legal one.

That the conceptual structure underlying Luhmann’s theory of social systems is indebted to sociological antecedents including Parsons’ action system, epistemological sources such as second-order cybernetics, a range of contributions to the modern philosophical tradition between Kant and Husserl, as well as terminological innovations drawn from biology, is subject to a vast consensus among the followers of autopoietic theory. These references are indeed so well known that the memory of the theory’s connections to a more extended old-european genealogy is discarded and needs refreshing, especially the deep affinities linking the autopoieticist differenciation of system and environment to its apparently distant theological background. A special issue here are recent developments that put a new emphasis on the legal system reference to justice (righteousness). Mostly, justice, or righteousness, is described as the system’s “contingency formula”. Yet by which right can the legal order lay claim to any special, let alone exclusive relationship to the topic of Justice ? Especially, current legal trends of universalisation under the aegis of Human Rights law multiply instances of what looks increasingly like an addictive spiral of legal self-reenforcement. In this situation, it is sometimes argued, help can be expected from the adoption of self-critique and self-transcendence. Instead, however, these methods are unfortunately especially bound to result in further reenforcement.

Systems theory and deconstruction alike conceive of modern law as self-reflective: Modern law entails in itself its own other; from this follows its paradoxical structure which is exemplified by the concept of legal person as a “two-sides-form” (Zwei-Seiten-Form: Luhmann) of “social person” and “concrete individuality”. Systems theory and deconstruction differ, however, in how they conceive of modern law’s paradoxical self-reflection: Systems theory grants it the power of form-constitution. This is shown by Luhmann’s interpretation of the figure of subjective right; in it, law’s paradoxical self-relation has become legal form. Deconstruction instead consists in unfolding the undecidable ambiguity in the relation between paradox and form: Modern law’s paradoxical self-reflection as much constitutes as dissolves legal form. This may be called the “paradox of paradox” of self-reflective law in which Derrida sees its essentially political character.

Systems theory under-estimates the transsubjective role of subjective rights in the process of selforganisation of the law. Instead it focuses on the “autological” connection of the operations of decisionmaking. That role consists primarily in the preservation of an “internal unrest”, of the openness of the “pool of variety” of potential relationships. The search for “justice”, which proceeds from an “outside” of society, is incompatible with this role. A “self-transcending” of the law towards “justice” is only imaginable within the limits of rationality of the legal system in the sense of a “meta-rule” a multiplication of potential variations which allow for experiments with the help of the “re-entry-protocol”. The attribution of a “second chance” after a failing use of subjective rights might be possible.

According to systems theory, law is without origin. It starts in the middle. This paradox is usually hidden behind myths produced within the system itself or by the introduction of new differences. In the case of „historically founded“ law, i.e. law „with a history“, the system becomes thus resistant against paralysis. However, this is not true with regard to law operating in anomy, an example for such a case being transitional justice. The essay tries to address the paradox of origin with the Derridian idea of supplément and ties up, on this basis, to Luhmann’s sociology of law which holds that the function of law consists in the stabilization of social expectations. If one equates such expectations with the supplément of law, a much more complex notion of origin of law may be developed. This notion affords the possibility to analyse transitional law on a law & society basis. This shall be demonstrated by taking up the example of the prohibition of crimes against humanity as it was applied in Nuremberg.

All over the world, societies that are faced with the legacy of a bloody past are establishing truth and reconciliation commissions, rather than applying the rigorous mechanisms of existing national and international criminal court systems. Drawing on an analysis of Derrida’s concept of forgiveness and Luhmann’s theory of memory, this contribution suggests a perspective on these commissions that contrasts with ongoing debates on memory and reconciliation. Rather than interpreting these bodies as alternatives to judicial forms of dealing with injustice or with the categories applied to social processes of reconciliation, this paper argues that they are social practices that generate social identity.

The discourse about the relationship between systems theory and deconstruction is systematically comprehensible and/or deconstructable. Therefore it is possible to criticize any involved author for the wrong estimation of one side of the differentiation of identity and differentiation and it is as easily possible to advocate for taking the other more serious than the other does. In spite of this condition no one has to worry about the sense of this discourse. It traces a rhetorical economy, that appears by chance and on the brink and whose sense should not be ignored in order of the sorrow about bauble, arbitrariness and superficiality. In the settings of justice it is a regulatory against the deep play of political and theological monopolies.

A story from the future. The Luhmann-Derrida-Society holds a meeting. There is presented a piece, a trouvaille: a recorded talk, even if not complete, between a pupil of Luhmann’s and a pupil of Derrida’s. The two jurists are talking about the means of adaptation of legal theory. Différance in law. Structural interfaces between law and politics. What is the place of this “inbetween”? How does one get from the law to the judgement? Who has ever heard the song of the law and felt the force of the law? Fragments, breakages, inconsistencies in the so called applications of the laws. Old stories. Schmitt, Kafka, Bataille, Kelsen are appearing. Tricky lawyers too. A melancholic adieu to the possibility of “right” judgments on the ground of properly understood laws. What do the Chinese say about law and judgment? And the Africans? At the end of the story Truffaut and a short ride to death.