REVIEWS: Niklas Luhmann: Law, Justice, Society by Andreas Philippopoulos-Mihalopoulos: Reviews

Reviews

the right of rights is presumptive, not conclusive.We have as much of a say as the courts will allow. The Human Rights Act is confronting challenges from di¡erent quarters ^ political parties and parliamentary committees chief among them ^ for change. Aileen Kavanagh articulates the challenge that will confront the Prime Minister who seeks too great a change. Is the Human Rights Act now entrenched and beyond Parliament or can the British constitution continue to change from day to day? Constitutional lawyers will o¡er di¡erent conclusions by appealing to di¡erent conceptions of the constitution. I suppose it will depend on who you ask. After all, to question whether an Act of Parliament is constitutional is to presuppose an audience. GreŁgoire C. N.Webbern

Andreas Philippopoulos-Mihalopoulos, Niklas Luhmann: Law, Justice, Society, Oxford: Routledge, 2010, 237 pp, hb d75.00. Some CDs and DVDs give parental guidance regarding lyrics and scenes. Book publishers might consider attaching a similar sticker saying ‘This is not an easy book!’ on the cover of some publications. Such an approach certainly would be appropriate in the case of Philippopoulos-Mihalopoulos’s book Niklas Luhmann: Law, Justice, Society, published in the Nomikoi: Critical LegalThinkers series edited by Peter Goodrich and David Seymour. The book is di⁄cult for two reasons. The ¢rst reason relates to its subject: Luhmann’s systems theory represents one of the most complex endeavours within recent social theory. The second reason relates to Philippopoulos-Mihalopoulos’s central goal, which is to reinterpret Luhmann’s theory as part of critical thinking. Since the publication of his groundbreaking book Social Systems (¢rst published in 1984; translated into English in 1995), Luhmann has become a major ¢gure within contemporary social theory. His description of society as consisting of functionally di¡erentiated autopoietic systems contributed to the revival of interest in general social theory. In general, one can distinguish orthodox, liberal and pragmatic receptions and elaborations of Luhmann’s autopoietic social systems theory. Some scholars prefer to read Luhmann’s work in a strictly literalist way and abhor any deviance from the most likely original meaning. To these scholars, who often contribute invaluable insights into Luhmann’s thinking, the complexity of autopoietic social systems theory requires its most faithful interpretation and application and any other approaches amount to the ‘heresy’. Liberal interpretations also build on expositions of Luhmann’s theory in all its complexities, paradoxes, conceptual twists and paradigmatic turns. Unlike orthodox interpretations, however, they critically evaluate central categories and conceptual oppositions, such as ‘self-reference’, ‘structural coupling’, ‘normative closure/cognitive openness’, elaborating them further to produce alternative meanings of autopoin

Law Department, London School of Economics & Political Science

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esis. Gˇnther Teubner’s contribution to the autopoietic legal system theory and legal pluralism represents one of the ¢nest examples of this approach. Nevertheless, the most common approach to Luhmann’s work has been pragmatic and predatory in the sense that social, legal and political theorists use parts of Luhmann’s theory and some of its general concepts to support their own arguments in speci¢c areas. These scholars are not so much bothered with the consistency and complexities of arguments and terminology introduced by Luhmann himself. Instead, they instrumentalise them and thus e¡ectively contribute to what Luhmann summarised as society’s permanent creating ‘order from noise’ by turning the order of Luhmann’s systems theory to the noise of their own theoretical enterprises. Philippopoulos-Mihalopoulos’s goal of reading Luhmann both critically and as a critical thinker represents a departure from these more conventional readings. For some, the idea of reinterpreting the autopoietic social systems theory as part of critical thinking may sound like an impossible attempt to square the circle. Luhmann was critical of the Frankfurt school and its legacy, especially in the form of the discourse and communicative reason theory elaborated by Jˇrgen Habermas. However, the strategic choice to read Luhmann in light of critical theory turns out not to be as extravagant as it might ¢rst appear. Philippopoulos-Mihalopoulos is well aware of Luhmann’s often sarcastic and sweeping criticisms of critical theory and its prescriptive models of thinking. Nevertheless, he invites the reader to re-think Luhmann’s post-metaphysical ‘sociological Enlightenment’ as a speci¢c form of critical thinking. To succeed in this di⁄cult task, he resorts to a poetic rather than explanatory and descriptive reading of Luhmann’s theory of autopoietic social systems. Philippopoulos-Mihalopoulos engages in what he describes as an‘acrobatic and not systematic’ method (8), deploying a number of artistic and literary examples to support his reading of Luhmann’s theory. Furthermore, he admits to cheating on Luhmann (while also describing Luhmann’s theory as cheating) and introduces the metaphors of space and horizon to explain what he means by treating Luhmann as a critical thinker. Philippopoulos-Mihalopoulos’s critical engagement with Luhmann, therefore, is a lot more complex, creative and controversial than, for example, Hardt and Negri’s selective and quasi-analytical use of the autopoietic social systems theory in their ‘critical bestseller’ Empire (Harvard UP, 2000). Indeed, Luhmann is a radical scholar and his departure from modern philosophy and humanist rationalism has more general implications than various critiques of capitalism, consumerism, bureaucracy and instrumental reason. For him, the tradition of crisis and critique and the notion of a rationally reconstructed good society and a better future are just speci¢c forms of the modern society’s self-observation and self-description. But being radical and being critical are, for Luhmann, two theoretically very di¡erent positions. Criticising the self-labelled tradition of critical sociology from Marx to Habermas, he argues persuasively that its main weakness consists of putting the judgement before the investigation and replacing methodology with measuring the critical ambitions of its opponents’ opinions. In these almost Kundera-like comments of a rational sceptic fearing those who prefer judging to thinking, one can detect second-order 894

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criticisms of normative and prescriptive ambitions of critical sociology and its moralistic foundations. Any suggestion of theoretical description having the power of prescriptive statement is unacceptable. One can con¢dently apply Kundera’s view of a novel as ‘a realm where moral judgment is suspended’ to Luhmann’s perception of social theory and the meaning of post-metaphysical sociological Enlightenment. Philippopoulos-Mihalopoulos draws on surprising parallels in art, philosophy and social theory, bringing together De Chirico’s paintings, Jung’s psychology, Borges’s stories, Derrida’s deconstruction and many other materials. Combining aesthetics and philosophy, he steers clear of the morality infested waters of critical theory and, more importantly, emphasises the need to engage in philosophical rather than technological readings of the theory of autopoietic social systems. His book thus presents Luhmann’s theory in the context of phenomenology, recent post-structuralist philosophy, radical deconstruction, critical theories of constitutionalism, human rights, environmental law and a more general ecological critique. It contains a detailed analysis and contextualisation of major concepts and central problems of the theory of autopoietic social systems and successfully challenges their misinterpretations and misrepresentations, especially those attempting to treat Luhmann as just another conservative social theorist faithful to the functionalist and positivist dogma. The book’s introduction to Luhmann’s work at both the most general level of theoretical explanation and a more speci¢c level of legal theoretical and jurisprudential analysis is very useful for social and legal scholars and theorists. At the same time, Philippopoulos-Mihalopoulos’s interpretation of Luhmann’s theory is highly original and presents a radical critique of modern society and its legal system, especially the law’s internal paradoxes and environment. Husserl’s phenomenological, Heidegger’s ontological and Derrida’s deconstructive insights are repeatedly emphasised and examined to locate critical gestures in Luhmann’s thinking. Heidegger’s notion of the horizon as ‘the openness that surrounds us’ and Husserl’s phenomenology of temporality are adopted to demonstrate potentials rather than positions of critique. Furthermore, Philippopoulos-Mihalopoulos correctly highlights what is common to Luhmann and postmodernist critical thinkers, namely treating social phenomena as paradoxes. If ‘the paradox is the orthodoxy of our times’, Luhmann’s theory should be listed right next to other major ¢gures of postmodern critical thought, such as Derrida and Lyotard who o¡ered a spectacularly misleading critique of the autopoietic systems theory in his canonical textThe Postmodern Condition (Manchester UP, 1984). Philippopoulos-Mihalopoulos’s academic work belongs to the school of postmodern critical legal studies. No wonder, then, that he emphasises Luhmann’s criticism of meta-narratives and their claims of unity as well as Luhmann’s call for a theoretical transition drawing on radically di¡erentialist concepts in the opening chapter of the book which is metaphorically entitled ‘Crossing’. The chapter’s main goal is to probe critique as an intellectual enterprise free of moralist expectations and fully focused on theoretical con£icts and internal paradoxes of law, justice and society. A deconstructive reading of Luhmann’s theory establishes the connection between law and its ‘other’ side. However, Philippopoulos-Mihalopoulos refuses to indulge in the critical legal canon of reclaiming the concept of r 2010 The Authors. Journal Compilation r 2010 The Modern Law Review Limited. (2010) 73(5) 883^902

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justice as the law’s ‘otherness’ while rejecting ‘other’ legal theories and jurisprudence as reductively analysing the mechanics of the legal system. Instead, he sees justice everywhere, just as he sees law everywhere, and engages in the critical job of addressing the complexity of oscillations between law, justice and society. The legal system’s self-description involves its cognitive exposure to the environment but, according to Luhmann, all external references and the very di¡erence between the system and its environment are constructed by the system itself. Drawing on this di¡erence, Philippopoulos-Mihalopoulos detects a process of selection of environmental irritations that trigger changes within the system and marks exactly this process of permanent crossing, oscillating and withdrawing as a space of critique. According to him,‘a critique of the law. . . is both openness to the law and escape from it’ and the perception of the law ‘both in its claustrophobic paradoxes and its environmental presence’ (21). However, PhilippopoulosMihalopoulos agrees with Luhmann that there is no better place outside society on a horizon posited by critique and calls for ‘a redirecting of emphasis from a systemic presence to a critical absence’ (27). The initial job of bringing Luhmann closer to the postmodern thinking is no easier than the parallel attempt to reconcile Luhmann’s notoriously anti-critique theory with critical thinking. For Luhmann, postmodernity is a di¡erence that does not make a di¡erence and the Lyotardian ‘end of grand narratives’ is just another description of functional di¡erentiation. According to Luhmann, postmodernity is ‘a belated recognition of the contingency of modernity’ which may be semantically rich but hardly contributes anything original to social structures of modern society (14^15). Despite these critical remarks, Philippopoulos-Mihalopoulos is able to establish some striking similarities between the theory of autopoietic social systems and postmodern thinking in the second chapter ‘Law as paradox’. Indeed, Luhmann’s ‘supertheory’ is a theory of di¡erence and paradox which, according to Philippopoulos-Mihalopoulos,‘is the ¢rst and last instance of dialectics’ (61).The ¢rst paradox of law is that it cannot ask itself whether it is lawful or unlawful. Apart from the impossibility of answering the question of law’s legitimacy, this paradox means that ‘[T]he law cannot deal with its own limitations, let alone with what lies beyond its limits (that there exists something beyond its limits would be a surprise for law.)’ (65). While the ¢rst two sections of the second chapter mainly discuss general theoretical issues of legal paradoxes and law as paradox, the third section turns to the law’s environment and the connection between the law and its ‘other’side which is considered a space of ignorance within the law. The circularity and oscillation between law and justice thus appear in the form of the connection between the law and its other side ^ its environment. Though Philippopoulos-Mihalopoulos subscribes to the postmodern ethics of alterity, he strongly emphasises that this ethics is the law’s second-order social observation which, rather than making the law responsive to the ‘other’, requires continuous adjustment of one’s own social position and societal expectations of law. In the next chapter ‘Society’s law’, Philippopoulos-Mihaloppoulos analyses the notion of structural coupling between the legal system and its environment and focuses on more speci¢c problems and paradoxes. Elaborating on Luhmann’s concept of Weltgesellschaft and modernity ‘beyond barbarism’, he states that the ‘Bar896

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barians’ in their ‘otherness’ are subject of the included exclusion and reduced to just another non-threatening structure of modern society. Their ‘exclusion is well inside the system’ (119). However, it also means that inclusion cannot be without exclusion and one always has to ask what law does with respect to exclusion and where it locates it. These general observations as well as Luhmann’s concept of ‘structural coupling’ are subsequently applied to two areas ^ constitutional law and human rights. Criticising theoretical views, which consider the relation between law and politics a matter of control and limitation of power, Philippopoulos-Mihalopoulos adopts Luhmann’s view and treats a constitution as an example of structural coupling between the legal and political systems and ‘the paradox that brings together law and politics precisely by keeping them separate’ (143). In one of the most insightful comments of the whole chapter, he subsequently treats the constitutional moment not as ‘the moment of discontinuity between what precedes and what follows the constitution, but the moment at which the di¡erence between a constitutional text and its context is simultaneously revealed and bridged’ (150). The constitutional moment is thus another moment of systemic inclusion and exclusion. Similarly, human rights constitute ‘the actualisation of exclusion’ of human beings and humanism from legal communication (155). Human rights, therefore, are not moral foundations and essential fabric of society and, when invoked by human rights activists and campaigners or political leaders, only operate as substitute symbols for the nonexistent unity of functionally di¡erentiated modern society. The fourth and ¢nal chapter ‘Environmental applications’ is the most speci¢c part of the book because it focuses on environmental law. The chapter examines speci¢c paradoxes within and critical possibilities for environmental law, putting them in the more general context of Luhmann’s book Ecological Communication (University of Chicago Press, 1989), and clearly demonstrates that the theory of autopoietic social systems cannot be dismissed as completely disconnected from social reality and particular legal problems. Philippopoulos-Mihalopoulos draws on Luhmann’s notions of contingency, scienti¢c uncertainty and the system’s environment which make it possible to re-think environmental law theory beyond social and legal scienti¢c humanism and anthropocentrism. In this chapter, Philippopoulos-Mihalopoulos also applies his general theoretical concept of ‘absence’ to the problem of environmental legal protection which is associated with the society’s response to the ‘silence’ of its environment (194^195). In the chapter’s ¢nal section, the problem of silence is contextualised as a problem of intergenerational social communication and equity which involves issues of memory, forgetting and waiting. It may be di⁄cult to judge whether Philippopoulos-Mihalopoulos succeeded in introducing and interpreting Luhmann as a critical thinker. However, he has undoubtedly succeeded in reading Luhmann’s theory in an unorthodox critical, radical and even poetic manner. Jir› |¤ Pr› ibaŁn›n n

Cardi¡ Law School, Cardi¡ University

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