Crossing

To begin critically entails a departure. It also entails an (illusion of) arrival. In this sense, critique actualises itself in the crossing of a boundary. In this movement from one side to the other of the boundary, critique performs its krinein, its distinguishing, indicating and judging.⁴ Thus, a legal critique begins from the current state of the law and crosses the boundary that distinguishes the latter from a ‘better’state of the law. In its urge to cross, critique announces a crisis (a judgement, a distinction), a crisis of crossing (critique cannot leave itself out) as well as a crisis than can only be observed through this crossing. A critical crossing is a flirtation with improbability but from the (critical) point of probability – for why else would one embark on a critical crossing if the illusion of arrival were not at least convincingly entertained?

The above formulation poses some seemingly insurmountable problems for this book. To start with, Luhmann was notoriously anti-critique, anti-crisis and in a certain sense, anti-crossing. Following this, any presentation and discussion of Luhmann’s work has to respect a foundational Luhmannian replacement: prescription is replaced by description.⁵ The question, therefore, is whether there is room for critique in description. The difference between prescription and description for the purposes of a critical crossing is that in the latter no arrival is posited other than the very point of origin – in other words, in description there is always a return that follows any oscillating excursus. Simply put, a description of a suggested destination would be a prescription in the sense of a call to departure. But a description that does not arrive anywhere else than to itself is itself an autological destination that contains no departure. Within description, the destination is not prescribed. At most it is forecast, but then only as an altered state of the present and without any desire (to depart, to reach, to imagine). Herein lies description’s apparent negation of critique. It has to be said, however, that this negation is not in the sense of a lack of a different place from which to describe: indeed, Luhmannian description entails precisely this kind of departure from the usual mode of description, with the paradoxical consequence of both pluralising and annulling perspectives. Thus, description does not mean the impossibility of imagining other perspectives, other places. Rather, it indicates an unwillingness to imagine a better place which can operate as destination, in view of the impossibility of comparing the various places.

This is because, according to Luhmann, there is no other place: “one can today formulate a theory of postmodernity or act out one’s aversions to the factually supporting structures of our social system. Since, however, modern society is, and continues to be, factually without alternatives, there is little sense in semantically resorting to irrelevance in such a way.”⁶ Indeed, post-modernity is for Luhmann ‘mere’semantics without any purchase on ‘structure’ or ‘factuality’,⁷ “a belated recognition of the contingency of modernity.”⁸ As he says, quoting Bateson,⁹ postmodernity is a difference (distinction) that does not actually make a difference: all the elements that are traditionally diagnosed as postmodern have been around for longer. Thus, the absence of grand narratives or metanarratives in the Lyotardian sense¹⁰ can be readily found in Luhmann’s concept of functional differentiation, namely the arbitrary point of differentiation amongst the various societal systems, such as law, politics, religion, economy and so on, and the consequent disappearance of any vantage point from which one ideologically imposing description of society could emerge.¹¹ By the same token, the loss of the binding force of tradition “is so old that it has itself become a tradition.”¹² It seems therefore that postmodernity is a way for society to describe itself, which has no other effect except the presentation of an ‘alternative’ unity of society to itself. This is what Luhmann means when he writes “[society] can distinguish itself and describe itself, using a few operations to produce self-descriptions. For instance, it can say ‘we’. It can refer to itself by a name … The self-designation of ‘modern’ or ‘postmodern’ society belongs to this category.”¹³ It would seem, then, that postmodernity for society is a necessary illusion that denotes an alternative space within itself from which to describe and potentially criticise itself. But Luhmann seems to have much less patience with this necessary illusion than with other identity (namely self-description) formations, as I show below.¹⁴ This may be attributed to the fact that Luhmann’s theories can indeed be read as distinctly postmodern.¹⁵ The aforementioned characteristics of lack of metanarratives and detraditionalisation are central to it, combined with a consistent return to unsolvable paradoxes, a post-humanist orientation and an acentric societal organisation. All of them are described without ever losing sight of the impossibility of describing anything with any certainty in view of an uncontainable and ultimately unpredictable contingency. So this may sound distinctly ‘postmodern’. Still, Luhmann’s position is not that easily located and fixed. Compare the above with another Luhmannian habit: Luhmann regularly talks the language of ‘the’ system (while digging from within), flirts with (while uprooting) traditional dogmatics, appropriates (while altering beyond recognition) the thoughts of thinkers – in short, Luhmann constructs a modernity which turns as it were against itself by revealing itself in colours not easily soothed by illusionary constructions of identity, but only through an acceptance of the return to the paradox: “in view of all the fine prospects offered to Dr. Johnson in Scotland, there may be only one that is really attractive – the way back to England, the way back to the origin, the way back to the paradox.”¹⁶ Call it whatever you will, but society is all there is and the return to its paradoxes is the only thing that cannot be avoided, Luhmann says. And choosing to disregard this all-inclusion leads to a well-known type of critique: “The distinction between affirmative and critical, a distinction so beloved in Frankfurt … excludes the possibility that what has become realized as society gives cause for the worst fears, but cannot be rejected.”¹⁷ The continuous rejection of the object of critique (which coincides with the source of one’s worst fears) ends up in a neurosis of the kind Luhmann has often diagnosed in Habermas.¹⁸ The debate between the two is perhaps one of the better-known and documented parts in Luhmann’s academic career,¹⁹ and perhaps the least useful to a critical (in the present sense) understanding of his theory. Luhmann’s talk at a conference on the enduring presence and relevance of the Frankfurt School ended in a typically provocative way: to the self-posed question “whether, and how, modern society at the end of this century can achieve a representation of itself in itself (where else?)”, Luhmann answered, “my verdict is: not in Frankfurt.”²⁰ In the same way, if the arrogance is forgiven, I would answer the self-posed question on whether there is any point in returning to the Luhmann-Habermas debate, with a copycat “not in this book”.²¹ Although a brief and indirect exposition of some of their differences appears immediately below, this is not the kind of critique in which I am interested. For that kind of critique, distinctions between society and its ‘outside’, horizon and piazza, immanence and escape, and above all law and justice, are more relevant and indeed appear throughout the text. Consequently, in what follows the immediate need to locate critique amidst society’s all-inclusiveness is addressed, which consists the epistemological stance of the book while also revealing Luhmann’s location in contemporary epistemology.

While a description of what Luhmann means by society is reserved for later,²² here I want to start with the deceptively simple presupposition that if society is all there is, then there is no place for critique of society except within society. Society’s all-inclusiveness has been seen as co-opting of critique in the form of the inevitability that links ‘is’ and ‘ought’,²³ confounding thus the limits of society with a perceived absence of limitations. Luhmann sees this as normal occurrence in a society that observes itself: “every observation of society – if actualised as communication – occurs within society. The critique of society is part of the system that it criticises: it lets itself be inspired and subsidised, observed and described.”²⁴ Namely, if society is all there is and any critique addresses (parts or the whole of) society, then critique is part of it too; what is more, it is a part that can be seduced or even co-opted by its object (“inspired and subsidised”). This would be a rather banal position if it were not further elaborated: in a semi-targeted outburst against (Frankfurt) critique, Luhmann questions the privileged point that critique (and more specifically critical sociology) assumes in order to perform what is expected of it. In a Luhmannian world where no perspective is anything more than just that – one perspective that could always be other – critique is an almost theological affront that allows itself the illusion of “irreproachable moral impulses” and “the best perspective”.²⁵ This perspective seems to enable observation (and announcement) of crisis, not only in terms of diagnosis but also of healing. And a crisis, faithful to its Greek origins of judgement, contains the other side too, the one that has already been prioritised as the better one. Crisis is mount on the presupposition, not only that there is, but that “there must be – as it were – a good society behind society, towards which to redirect structures and effects in order to arrive to a better future.”²⁶ Sweeping or not, this critique of critique addresses a well-known fetishisation of the other better place while attempting to move away from the “grand bourgeois tradition of crisis and critique” whose consequence remains “the constant production of dissent with a view to a rational understanding.”²⁷

Luhmann dismisses both rationality and dissent as illusions. The pursuit of rationality is perhaps the greatest problem inherited from Enlightenment on account of both its instrumentality and its anthropocentricity;²⁸ dissent, on the other hand, always speaks from within, and although potentially relevant, it has to be conceptualised precisely in its immanence in order to be meaningfully understood.²⁹ For this reason, Luhmann insinuates an understanding of critique as observation. While I return to this fundamental concept later, it is important to note that Luhmann differentiates between two kinds of observation: first- and second-order observation. First-order observation focuses on what others observe; second-order on how others observe. Second-order observation is emphatically not a critique³⁰ – it is simply another perspective, without pretences of überobservation, that raises the complexity of the process of observation thus attempting to produce adequately complex observations that would adequately describe a complex society. Professing to operate consistently in the mode of second-order observation, Luhmann contends that his perspective is not a better one,³¹ simply another one that can always be other. But there is awareness of this contingency, and this is precisely on account of the second-order level of observation: observing how others observe means that a second-order observer can also observe what a first-order observer cannot observe (importantly, of the choice that the first-order observer has made).³² Indeed, if a first-order observer distinguishes between observed and non-observed, a second-order observer observing the first-order observer can see both sides of the distinction (no doubt while creating further distinctions). At the same time, the second-order observer can always be observed from a different standpoint and variously as first- or second-order observer. In this sense, observation is the tool that delivers Luhmann from both objectivism and subjectivism.³³

Luhmann has built his theoretical edifice on the premises of second-order observation. Second-order does not mean value-free or ‘objective’ (in the same way that first-order does not mean ‘subjective’). Terminological incompatibilities aside, the distinction between first- and second-order observation reproduces several philosophical and psychoanalytical schemata, but perhaps more relevantly that of Husserlian epoche. Epoche is the bracketing of the ‘natural’ world (the ‘natural attitude’) for the ‘transcendental attitude’. The idiom of the ‘transcendental attitude’ originates in the distance from the everyday world and the departure for another level of observation,³⁴ or as Luhmann puts it in the context of second-order observation, “a distance from immediately fact-related observations and distinctions … a second level, on which one can observe and describe observations and descriptions themselves.”³⁵ This level is not ‘higher’ but merely more complex because it requires the application of further distinctions: between observer and observed, between observed and non-observed, between observed and act of observation.³⁶ The second-order observer, riding the distance between first-and second-order, applies another distinction on the already existing first-order distinction, thus contextualising and debilitating it. What appears as a value in first-order observation, it becomes pluralised and diluted according to its definitional horizon.³⁷ Second-order observation refuses indulging the illusion of a privileged point of description (of critique of ideology), and conditions any such tendencies by an awareness of self-contingency – something that first-order observation distinctly lacks since it cannot enter a comparison of position between itself and another.

As mentioned, however, Luhmann does not equate the distance afforded by second-order observation with a critical stance. Second-order observation is still within the operations of factuality whose products are routinely employed by the various observers in order to carry on observing.³⁸ This is possibly the reason for which Luhmann insists on the redundancy of deconstruction in the face of the already practiced second-order observing.³⁹ Just as postmodernity, deconstruction does not do anything substantially more than second-order observation. On the contrary, Luhmann maintains albeit with less conviction, deconstruction remains on the level of semantics, whereas second-order observation engages with structure. It is, however, difficult to accept this division and consign either of the two practices to one side.⁴⁰ As Urs Stäheli correctly finds, semantics in Luhmann (at least in his later writings, I would add) is used as “a polemical device for marking theoretical positions … e.g. turning ‘postmodernism’ into a problem of semantics, helps to distance [Luhmann’s] theory from competing theories by implying that a concept may be pure semantics, i.e., without any reference to reality.”⁴¹ This device is, I believe, one of the least attractive aspects of the theory, and for this reason I agree with Stäheli when he writes that it would need a “serious re-working”.⁴² The fact that any discussion, let alone ‘serious re-working’ of Luhmann’s distinction between semantics and structure exceeds the ambit of this book is merely one reason for which I shall not engage with it. The other, perhaps more important reason has to do with the fact that it is difficult to read such passages by Luhmann and not discern both a defensiveness and what I would dare characterise an envy in Luhmann. His attempts at showing how second-order observation has already ‘done’ deconstruction ‘and more’, are to some extent convincing, but ultimately irrelevant to the present discussion on account of their limited exegetic interest and their somewhat arbitrary distinctions. Nevertheless, as Luhmann admits, “deconstruction will survive its deconstruction as the most pertinent description of the self-description of modern society.”⁴³ For me this is enough of a licence to explore, when relevant, the parallels without residing on their supposed levels of operation. For it is after all the case that, in following Luhmann, whatever I do I merely describe.

Thus, critique remains a description – hence its distance from Frankfurt. As such, it requires a slightly different although related positioning to second-order observation: if the latter is the position which oscillates between positions, then critique entails a constant deferment of the concept and praxis of position. Critique is simultaneously a position (in the sense of distinction and self-positioning this or that side of the distinction) and a nonposition (in that it is already elsewhere, atopic and utopian, embracing the world conditions), and in that sense it can be described as actualised contingency. Let me explain this by returning to the concept of observation. For Luhmann, it is conceivable that the concept of critique is replaced by that of observation,⁴⁴ as long as a parallel level of observation is posited that would further contextualise the object of observation. This added level of observation cannot be performed simply as a chain of observation of observation (in that sense, it does not constitute properly speaking a third-order⁴⁵), nor as the usual total rejection of the object of observation (in the form of capitalism, the system or class). Rather, critical observation entails that a second-order observer observes in and through herself the conditions of possibility of second-order observation.⁴⁶ In other words, in addition to observing how others observe (second-order), one would observe in parallel the context of this very second-order observation which necessarily includes and implies self-observation.⁴⁷ To recall, teasingly in this context, Theodor Adorno, “the object opens itself … to a sense of the constellation in which it stands; the possibility of internal immersion requires externality.”⁴⁸ This, surprisingly and improbably, constitutes critique for Luhmann: a reflection on the possibility of second-order observation, an immersion in a self-observation which,⁴⁹ however, takes into account its locatedness in the embracing externality of the world as the sum of parameters that enable observation. Critique stands astride with “a foot in both camps”,⁵⁰ observing in parallel observation and its conditions of possibility; immanence and exteriority; object and horizon.

Thus, a critique of the law, including legal theory, is both openness to the law and escape from it, an engagement both with its specificity and its ability to expose itself as precisely an object of critique. This means that the law is seen both in its immanence and its societal location, both in its claustrophobic paradoxes and its environmental presence.⁵¹ As Costas Douzinas and Adam Gearey announce (possibly a little too optimistically) “without the law, critique would not exist, and vice versa. If law finds its destiny in its contestation, critique is bound constantly to become law.”⁵² But not, one should add, as a negative correlative to the law. Critique is law’s contingency, indeed its actualised contingency that performs a crossing into law while at the same time withdrawing from it. Critique of the law is precisely the revelation of this legal paradox, and presupposes (while breeding) what Peter Goodrich has called the schizophrenia of the legal thinker,⁵³ namely, loving and hating the law simultaneously, in an invisible crossing that reinstates the schizophrenic simultaneity with every gesture. Thus, the difference with Luhmann is that the latter posits all critique as self-observation. But this proves to be less straightforward than it may initially appear, and Luhmann clearly points to this difficulty and posits it as the main limitation of any (critical) observation. Observation is steeped into improbability, for the very conditions that enable observation are also the ones that hinder it: although observation takes place in the context of a perceived totality that includes the observer, it is this very inclusion that excludes the possibility of a total ‘worldly’ observation. One cannot observe oneself and the world simultaneously, for then where would the blind spot, the ‘back’ of the observer as it were, be located if not within the world? There is a positional modesty associated with it, an understanding of limitations that comes as a result of awareness of the partiality of observation, which renders all observation self-observation, all critique self-critique, and every horizon an inscription within the piazza.