Project topics and materials
Get Complete Project Material File(s) Now! »
The functioning of legal autopoiesis
Fundamental to the theory of legal autopoiesis is that the legal system is first and foremost regarded as a social system.335 For the law to be autopoietic and thus autonomous, it must possess the three tiered relation of self-observation, selfconstitution and self-reproduction. Self-observation refers to law’s ability to “think” by making distinctions. It is defined by Luhmann as “the unity of an operation that makes a distinction in order to indicate one or the other side of this distinction.”336 Law observes by making distinctions of what is law and what is not. Law achieves the making of distinctions, its observations, by reducing complexity. I explain the notion of “reduction of complexity” below.
Teubner states that, when we say that law is self-constituting we mean that legal rules assume a life of their own.337 Legal rules begin to act as ends in themselves and no longer as legal means to social ends.338 Self-reproduction of law refers to law’s ability to produce and reproduce the elements of its system, which, as explained above, are communications. In a nutshell, and in the final analysis, for law to be autopoietic, it must firstly qualify as a self-referential system.339 The question, in relation to Teubner’s reflexive law, is, how can legal rules that assume a life of their own, are an end in themselves and are self-reproducing, be capable of being reflexive. According to King, “the essential component for an autopoietic system is then its capacity for selforganisation, for devising itself the rules which govern its own operations – Hart’s secondary rules, that is, the rules which determine whether its own decisions are legal or illegal, rules governing the making of rules.”340
Closure, openness and autonomy of the legal system
When it is said that law is an autopoietic system, it means that it is the law itself that determines what law is and what it is not341 (for instance, the distinction between legal and illegal is legally determined. This constitutes the self-referentiality of law. For something to be legal, it must be so because a law says it is legal342 ). In other words, the source of law lies within law itself.343 Law is autopoietic because it presupposes itself and reproduces itself.344 The self-reproduction of law occurs through changes in law.345 According to Teubner, central to the theory of legal autopoiesis is that the legal system is self-referential and circular. If a legal system is autopoietic, it means it is
closed. Circularity means closure. Teubner states that the closure of the system is in contradistinction to the idea of law being adaptable and being able to shape and be shaped by the external environment.346
There is however a dialectic that the closed nature of the system introduces. This dialectic consists in the fact that the legal system, being a closed system, is also simultaneously an open system. Thus an autopoietically closed system presupposes an open system. Accordingly, “the more the legal system gains in operational closure and autonomy, the more it gains in openness towards social facts, political demands, social science theories and human needs.”347 The legal system is thus a combination of closure and openness.
When it is said that the legal system is operationally closed, it means that the operations of the legal system reproduce the elements of the legal system. The system is closed because it is recursive, it is self-referential. The elements of the system reproduce the elements of the system through the interaction of the elements of the system.350
It is clear from above that legal autopoiesis essentially means that law as a system is closed. It is closed in the sense that its elements produce and reproduce its elements through the interaction of its elements. It is closed because it is self-referential, recursive and self-constituting. The elements of law validate themselves and selfjustify.
Law as a differentiated social subsystem presupposes and reproduces itself both in terms of its unity and boundaries.
Law as a communication system is nonetheless cognitively open in that it is able to respond to economic, scientific, political and other phenomena. “But it can only observe its environment in relation to own categories of evaluation and interpretation.”351 It observes its environment by using its own mechanisms ofevaluation and interpretation. Thus when law observes cognitively, it does so by using its normatively closed categories, which are “centred specifically on the differentiation of right and wrong, legality and illegality. It adopts always its own normative criteria which in themselves owe nothing to its environment.”352 How law responds to its environment is, for instance, not on the basis of truth, efficiency or some other normative criteria, it is on the basis of whether something is right or wrong and thus legal or illegal.
The fact that law reproduces itself through the interaction of its elements means, according to autopoietic theory, that law is autonomous.353 The view that law is autonomous is one of the most controversial aspects of autopoiesis. For instance, Richard Lempert has argued that “if law is to be autonomous in the sense of defining events in its own terms … it must be independent of society’s other mechanisms of social control … its actions must be uncontrolled by the political branches of
government … it must remain impervious to the ethical codes of surrounding society”.354
CHAPTER ONE: INTRODUCTION
1.1. Introduction .
1.2. Research question
1.3. Theoretical approach
1.4. Overview of chapters
CHAPTER TWO: THEORISING RADICAL TRANSFORMATION .
2.1. Introduction
2.2. Radical transformation and competing notions of decolonisation
2.3. Radical transformation as a constitutional project
2.4. Radical transformation and transformative constitutionalism
2.5. Conclusion
CHAPTER THREE: SYSTEMS THEORY AND THE LIMITS OF LAW AND CONSTITUTIONALISM
3.1. Introduction
3.2. Luhmann’s social systems theory
3.3. Autopoiesis and law
3.4. Operations and observations
3.5. Systems theory, limits of law and constitutionalism .
3.6. Systems theory, radical transformation and transformative
constitutionalism
3.7. Conclusion
CHAPTER FOUR: RADICAL TRANSFORMATION, CRITICAL LEGAL STUDIES, AND CRITICAL RACE THEORY: ATTEMPTING TO TRANSCEND THE LIMITS OF LAW?
4.1. Introduction
4.2. Critical approaches in general
4.3. Critical legal studies .
4.5. CLS, CRT and radical transformation in South Africa
4.6. Systems theory, CLS and CRT: a critique of critiques
CHAPTER FIVE: POSTSTRUCTURALISM, LAW AND THE QUEST FOR RADICAL TRANSFORMATION IN SOUTH AFRICA
CHAPTER 6: CONCLUSION
