Society’s law

In this chapter, I would like to ‘locate’ the law in the broader context of society. Society is Luhmann’s playing field, in which all systems can be observed. As such, it constitutes an obvious way of expanding on the previous discussion on the way the law understands its external reference and indeed its self-description, which necessarily have to do with the broader societal environment. This will, however, prove not to be as straightforward as it may seem at the beginning. Luhmann’s understanding of society is both self-evident (considering systemic structures) and counter-intuitive, and entails a reiteration of systemic operations albeit from a different perspective. One of its most challenging aspects is that Luhmannian society contains its exclusions. In order to contextualise this in the present discussion, I read Luhmann’s thesis on society critically. I attempt to locate society’s barbarians, namely the included exclusion of society, in a way that will constitute a societal absence, very much along the lines of the preceding discussion on absence. This opens up the possibility of a description of the way the various systemic environments (as opposed to a more orthodox understanding of Luhmann that focuses on systems) ‘converge’ and become cross-fertilised without relinquishing either their specificity or indeed their unobservability. To this effect, I employ two examples: a discussion on constitution, which is widely understood as a coupling of law and politics; and a discussion on human rights, which is particularly interesting in view of the ambivalent position that Luhmann has maintained on the issue.

Before that, however, a closer look into the role society has for Luhmann is needed. This will assist both an understanding of its prominence and its critical destabilising. For in the same vein that a self-description is a system’s necessary illusion (‘illusion’ in that it is never synthetic or operational; and ‘necessary’, because it replaces the search for identity without which the system could be perilously close to its unutterable paradox), society is Luhmann’s rather personal necessary illusion. Luhmann has professed time and again that he only does sociology. While his preferred discipline has traditionally ignored or actively concealed its relationship with the concept of society by focusing instead on empirically verifiable social ‘structures’ such as agency, action and causality,¹ Luhmann radically reintroduces society in sociology. Thus, society is described as a suprasystem that includes all social systems. In this way, Luhmann attempts to rephrase the haunting sociological paradox of how sociology is, on the one hand, just another discipline, and on the other, an all-describing, all-embracing epistemic position. Society becomes the subject of sociology, at the same time transcending the division subject/object, and replacing it with the schema of observation. From being the subject-matter of sociology, society becomes an observer who can also be observed along with its operations, observations, boundaries and environment.² Just as any observer, its expanse depends on the second-order observer and how the latter locates it in the broader schema of distinctions. At the same time, society has a slightly enlarged responsibility (at least vis-à-vis sociology and Luhmann himself): it bears the unity of the system within the system and arguably the unity of the theory within the theory. Luhmann professes that sociology needs a concept to express “the unity of the totality … of social relations, processes, actions, or communications”,³ thus confirming that society is both necessary and illusionary in the above sense.⁴

For Luhmann, society is assembled by the totality of social systems (such as law, politics, religion, economy, science, education, media, and even protest movements) without, however, being capable of being described in its totality from any one viewpoint – hence Luhmann’s indifference towards totalising concepts such as ‘risk society’, ‘knowledge society’ or even ‘post-modern’ society. Each system describes what it thinks the total society is, constructed within its boundaries in the shape of systemic environment. Among these systemic viewpoints there can be neither hierarchy,⁵ nor centre. Any impression of classical harmony is diluted in the solitary explosion of each system’s autopoietic ingestion of society, simultaneously thematising its perceived totality according, to recall Husserl, to its ‘egological’ phenomenology,⁶ while excluding its ‘ego’ from the centre: decentring, as it were, the concept of the centre itself. This is because society is not the totality of social systems. Society is nothing, it has no essence: “the unity of the system of society consists only in its delimitation from outside, in the form of the system, in the difference that carries on being operatively reproduced.”⁷ Luhmann’s rupture with what he calls the ‘old-European’ understanding of society is encapsulated in the above negation of essential reduction of society, the immediate implication of which is that society no longer consists of human beings and their relations but of functionally differentiated systems.

This point has been discussed briefly above, Chapter 1. It is worth repeating here that Luhmann’s anti-humanist move, for many the most radical part of his theory, is not anti-human.⁸ One could see this along with Reza Banakar as pessimistic but realistic: “what is most disturbing about Luhmann’s world of dehumanised sub-systems is that it accurately corresponds, in many respects, with the way modern society’s institutions are organised.”⁹ Or, one could see it, to some extent with Luhmann, as the only responsible theoretical position towards human concerns: although not entirely devoid of irony, Luhmann confirms that only through excluding human beings from society can a sociological theory “take human beings seriously.”¹⁰ Exclusion is Luhmann’s answer to the theoretical obsession with both the fatigue of the subject and the seeming inevitability of the return to it. Luhmann’s complete separation between society and the individual is the only way in which autopoiesis can deal with human beings: by not dealing with them (and instead dealing them to the environment of society).

In parallel to this general understanding, however, exclusion has a specific meaning and operates on various levels in Luhmann. The exclusion of humans from society is located on the level of operations. Human beings operate in a way that eludes a social system. A human perception remains a perception and cannot qualify as, say, the legal system’s pronouncement of what is lawful and what unlawful. This point requires a disengagement from the usual understanding of human beings as law-makers: of course it is the judge who pronounces what is lawful and what unlawful, but the judge at the moment of pronouncement speaks not only on behalf of but through, from within, and on the level of the legal system.¹¹ Personal biases and subjectivity are not denied from factually entering the judgement, but they are to be incorporated, ‘translated’ in the language of the system and hope to be convincing. The exclusion of humans from Luhmannian society both in terms of consciousness and corporeality, manifests itself in their differentiated operations: perceptions and interactions for humans, communications for social systems.¹² Both communication and interaction are autopoietic systems in their own merit – which means that they remain closed to each other except through a mutual construction of each other as internalised environment. Autopoietic communication relies on a modified version of the concept of information as inherited by general systems theory. In general systems theory, information flows freely between system and environment. In autopoiesis, information does not cross the boundary, but is constructed internally in the system,¹³ in response (although not directly) to environmental irritations (that the system has triggered within).¹⁴ Thus, the addressee (significantly: ego) anticipates the information of the sender (significantly: alter) without the information ever crossing from one to the other.¹⁵ The reason for this reversal of ego and alter is simply the autopoiesis of the system. A system is like a black box that reproduces its environment within its structure, blindly reconstructing moments of exteriority which are pieced together to construct a convincing narrative that will present both the unity of the self and the difference with the other. Communication between two black boxes builds a momentum of affability through the expectation of communication. A desire of togetherness is projected onto the only canvas that the system knows, namely itself, and the system constructs its obscure object of desire on a fragile expectational helix. Communication is, once again, the illusion of an unspecifiable alterity (the one to whom the communication is addressed), ingested while constructed, out of necessity or narcissism, in parallel to an unspecifiabe selfhood, itself relying on the absent invitation by the other.

Every social system operates with its own communications – thus, legal communication, political communication, scientific communication and so on. A communication is of a specific system and not other if it its meaningful for the particular system, namely if it produces meaning, which is defined by Luhmann as the “simultaneous presentation … of actuality and possibility.”¹⁶ Meaning is a form that, when broken and unfolded, operates in differentiated temporalities, bringing together the actuality of the system with the possibility of the environment. Luhmann explicitly linked meaning to Husserl’s intentionality, namely the connection of difference between consciousness and the world.¹⁷ Despite Luhmann’s distance from Husserl, there is something in common which would be difficult for either of them to admit. For Husserl just as for Luhmann, there is a priority, an epistemological focus even in the face of sustained attempts to show otherwise: if for Husserl the starting point (with a difficult to shed directionality) is that of consciousness in comparison to the world at large, for Luhmann it is society in its inclusiveness of all social systems. While admittedly the bias is harder to discern in Luhmann, a case can be argued that Luhmannian society manages to retain its priority over anything else by armouring itself with two topologies of exclusivity: first, because of its all-inclusive plurality, society always remains the starting point. Admittedly, it is the case that one has to start from somewhere, from one’s closeness, from what is proper to the one that starts: so society may indeed be the starting point for sociology. But such a starting point risks being understood in the same way that Derrida understands the Heideggerian starting point of Being: “A mortal can only start from here, from his mortality.”¹⁸ But just as Derrida finds in this starting point the classic phenomenological bias of “the pre-archic originality of the proper, the authentic, and the eigentlich”,¹⁹ and subsequently posits a space beyond mortality inhabited by “mourning, ghosting, and spectrality or living-on”,²⁰ which remains interchangeable in some respect with the supposedly methodologically-dictated starting point of ‘this side’; just like that, one ought to challenge a concept of society which, by positing itself as the only starting point, ends up silencing other beginnings and other perspectives which cannot be accommodated in its tight circularity of beginning/telos.²¹

Second, society fiercely retains its communicative monopoly, exemplified in an inescapable double-bind: “society carries on communication, and whatever carries on communication is society.”²² Communication operates autopoietically, producing and reproducing itself and its environment, which in this case is everything that is not (at any particular instance) communication.²³ Nothing of the other side (indeed, what other side?) can ever be part of communication, unless it is communication itself – and one can think here of the ‘spectrality’ of non-humans, of the ‘living-on’ of the ones that do not partake of the feast of words. Or the ‘mourning’ of the ones who lament the loss of communication. In the face of this, and in conjunction with the aforementioned comment on the logocentricity of communication, one is left wondering how it is that a concept of society so fearfully protective of its own directionality and communicative monopoly can be a useful or indeed relevant concept for an autopoietic system that exposes itself to the ghosting of its absences.

Let me rephrase these questions from the point of view of human beings – but, as it will become clear, not as a humanist critique that attempts to reintroduce perceptions in communication but as a post-humanist critique that transcends this dualism. As I said earlier, humans perceive (a less exigent operation than communication because it does not depend on being selected and communicated²⁴) and interact (a reciprocal perception of perception amongst human beings present to one another²⁵). Humans do not communicate in the above sense, although perceptions and interactions can become communications:²⁶ “systems of the mind and systems of communication exist independently of each other. At the same time, however, they form a relationship of structural complementarity … They use each other for a reciprocal initiation of these structural changes.”²⁷ Social systems and humans operate as environment to each other, triggering changes within each other without crossing boundaries.²⁸ However, one cannot avoid but notice that through this coming together of the human and the social, a ‘return’ to the subject is being indulged. No doubt this return is conditioned by the subject’s exclusion. However, if the exclusion were not just of the human subject but of everything else, namely the ‘natural’ and everything within this epithet, and in between that and ‘artificial’,²⁹ then the return could carry on being written in inverted commas, eaten from inside and constantly destabilised, on the one hand by its perceived necessity to ‘talk to the system’, and on the other, by its de facto departure from it. But Luhmann lapses into irreconcilable logocentricity when he elevates language to an instrumental factor of the exclusion. It is worth quoting at some length:

One readily admits that autopoietic communication is not necessarily linguistic. Indeed, at several instances Luhmann makes a case for the broad spectrum of the concept that includes non-linguistic means of communication.³¹ But there seems to be a special ‘mediating’ role for language, which becomes clear in the above extract. Thus, human perceptions or interactions may turn into communication,³² although even this seems to be less open to openness than in the equivalent boundary case between system and environment.³³ But even if this is a matter of degree, another openness is completely written off. Society (and all of ‘its’ social systems) is entirely closed to “almost all environmental events of a physical, chemical or living nature”. This ‘almost’ can be read as referring either to the “sole exception” that immediately follows it, or to another admission that Luhmann has made in the context of his ecological preoccupations and referring specifically to the possibility of a total environmental catastrophe.³⁴ Whatever it is, the result remains the same: by returning to a logocentric articulation of both inclusion and exclusion, the return to the subject is posited as a prioritised exclusion – an inclusive exclusion, as it were, that consequently further excludes the exclusion of the non-human. The human returns in her exclusion, which is prioritised over the exclusion of the non-human.

This return to the return of the subject through a tiered exclusion based on language is potentially problematic. It throws into doubt concepts such as autopoietic society and communication. While the latter will be discussed in the following chapter, here it is perhaps time to focus on what I am tempted to call Luhmann’s fetish, namely the functionally differentiated society. The delay in so doing has been deliberate. The focus, first on the general relation between system and environment, then on the systemic operation of the law as a functionally differentiated system, and only now on society and its connection to the law can be justified in the face of autopoiesis – at least the kind of autopoiesis put forth here, one that teases out Luhmann’s oscillating qualities and rendering visible some of its invisibilities. Thus, in focusing on society, I would like first to describe its exact position in autopoietic thinking, its connection to a possible societal environment, and its exclusions, be they inclusive or exclusive. Ultimately, I would like to show how autopoiesis may manage to accommodate the unspeakability of the exclusion, not only by not speaking about it, but also by allowing glimpses of what it is that it cannot speak about. This is important for the role that law is expected to play within such a set-up of exclusions, and becomes instrumental for what follows, namely a close look at how the law couples with other systems within society.

Seen from inside (since, according to its self-description, there is nowhere else from where to be seen), Luhmann’s society is nothing more than a happenstance, an improbability that happened to happen and continues to happen for as long as it manages to.³⁵ Society is an aggregation of its systems and receives its limits from the boundaries of its systems. This means that society appears as nothing more than an absence of environment, a hole in the environmental chaos, a nebulous formation which sustains itself as a bunch of communications huddled together. Be this as it may, there seems to be an epistemological necessity in Luhmann’s theory for the maintenance of the concept of society as the totality of communications. This is to some extent justified by his perceived need, on the one hand, to reverse what he calls the ‘abstention’ from the concept of society;³⁶ and, on the other, to replace action theory, namely an ontologising subject-centred theory, with a new theory, more ‘silent’, less ‘emancipating’, less grandiloquent in its supposed effects and social control ability. Luhmann moulds this new communication theory into an adequate vessel that accommodates both self-limitations and the altogether surprising apparition of otherness within. At points, however, an insistence on and prioritisation of societal closure is evinced in Luhmann’s almost prescriptive urge to maintain what he calls “the precarious unity of sociology.”³⁷ This impression becomes especially strong after having witnessed the efforts that Luhmann makes in order to avoid the prioritisation of closure over openness in the case of system/environment boundary, especially in his later writings where an earlier more militant closure is mitigated by a greater attention to the systemic environment and the insistence that autopoiesis is the (re-)production of system and environment. In the issue of society, however, the matter is not just direction (from closure to openness, from marked to markable) but stasis, defence, fortification. It is difficult not to discern a prescriptive deviation from the ‘neutrality’ of descriptive observation, for example when he writes that “society is a system totally and exclusively determined by itself”;³⁸ or, even more clearly, in the context of the quest for society’s main operation (which for Luhmann is exclusively communication), that what is needed is:

Even if ironic (or perhaps especially when ironic), the above passage reveals something rather urging, a fear of losing contours, an abstention from fraying frailty, indeed an implied distanciation from the alleged safety of oscillation and a seemingly courageous thrust into the risks of a unity of difference. But let me look a little closer into the alleged risks of unity and the alleged safety of ‘and’, for I find that this fear of ‘safety’ has some implications that are difficult to negotiate within the broader autopoietic schema.

If society is “the social system whose structure regulates the ultimate and basic reductions to which other social systems can be attached” and “guarantees for the remaining systems an almost domesticated environment of reduced complexity”,⁴⁰ it follows that society filters out in tandem with the systems the environment from which selections are made. It would seem, therefore, that society is a womb of selections in which systems and their environment cohabit. In this womb, the cognitive openness of the system manifests itself on a contingent basis, which, properly thought, does not exhaust itself in the contingency of the marking between two values, but in its consistent movement between two sides: one that contains what retrospectively can be observed as marked; and the other that retrospectively can be observed as markable. The markable side contains the fan of probabilities in a horizontal, non-hierarchical, non-prioritised telos (in the non-teleological sense discussed earlier, Chapter 2). Thus, contingency cannot be limited by anything but the system itself, and always in the system’s absence: the system cannot control its environment, only believe that it can.⁴¹ Any attempt to contain contingency feeds the illusion of a containable environment, which, nevertheless, appears to the system as the only environment available. The partiality of societal environment (potentially attributed to the sum of communications and only them,⁴² or to the absolute closure of the societal system,⁴³ or simply to an epistemological misconstruction of necessity on behalf of autopoietic theory itself) maternally feeds its wombed fledglings with what is best for them. Even if it is the system that defines society, society still lends to a system its epithet and baptises it with a communicational talent that operates protectively against the disruption of such epithets. Even if society’s boundaries are simply the oscillating systemic boundaries, society (rather than the system itself) remains, according to Luhmann, the terrain of explanation for the differentiated growth of some systems over others: “modern society increases the complexity of some systems [such as economy] and lets others [such as religion] fade away”⁴⁴. Even if society is simply a representation of the total selection of its subsystems (in other words, it is not society that delimits the horizon, but systems themselves), the systemic limitation is reinforced autopoietically in the sense of superimposition of totality onto totality, thus totalising the cognitive experience within a set of (illusionary) secure exclusions and without the necessary translucence of illusion. Even if there is no privileged point from which society can be observed, the totality of society with its capacity to include its exclusions is observed by autopoietic theory. Here, however, the aspiring autology of the theory comes perilously close to a theological reinstatement of infallibility. Even in all-inclusiveness, there is a point from which the impossibility to observe the totality becomes observable, with all the ensuing fear of losing the illusion of all-inclusiveness. In order for the concept of society to avoid becoming paternalistic, the maternal protection of autopoietic society must allow its fear of the environment to resonate within. In its vaporous and rather desperate omnipotence, society rests on its boundaries that include and are determined by what the systems exclude, constantly including its exclusion while never including the absence of exclusion.

To go back to the passage quoted earlier, the risk for the present discussion is not to resist oscillation and ‘ands’, but to launch itself into it with the knowledge that any ‘desired unity’ is an illusionary construction. The latter, especially in the context of the present discussion, may or may not be sustained since here I have no vested interested in the unity of sociology. The unity of society, on the other hand, is a more demanding issue, and one may be tempted to look for replacements in the direction suggested by Tim Murphy: “instead of regarding ‘society’ as some encompassing system, in relation to which these others must be termed sub-systems, and merely reversing the old hierarchical scheme by switching into the driving seat the object rather than the subject, the ruled rather than the ruler, we need a cooler, more banal vision …”⁴⁵ I could hardly agree more. But a vision, however banal, risks always becoming a telos that commands and determines the horizon. Luhmann has already engulfed the horizon of society within society by qualifying the latter as a Weltgesellschaft (‘world society’).⁴⁶ Whether this could be an adequate replacement for the concept of society, it remains to be seen. The concept of a horizontal world as the orientation of society means, quite simply, that no system, national or regional, orients itself on a merely spatial basis but on the basis of the world. This is not a refusal to acknowledge local differences. On the contrary, they are contained in their fragmented potentiality as part of a functionally differentiated horizon which expands or contracts depending on its empty content. Weltgesellschaft seems to be the equivalent of a systemic fate, as inaccessible as it is inevitable. Its contribution to contemporary sociology can be found especially in its dialogue with globalisation: Weltgesellschaft, as a predating concept,⁴⁷ describes the totality while destabilising its totalisation. To put it more concretely, the characterisation of the world from one systemic point of view (the economic) as it happens in globalisation is a totalising totality. On the other hand, the expression of the impossibility of replacing the multiplicity with a simplifying unity is what Weltgesellschaft is. In that sense, I would suggest that Weltgesellschaft remain an untranslatable concept,⁴⁸ as opposed to the readily ‘meaningful’ globalization (even in its regional variation that occasionally replaces the finality of z with the nearinfinity of an s). Luhmann’s concept is a description of something that produces itself without cause, direction or any possibility of external ‘vision’:in a differentiated Weltgesellschaft, where everything is just a matter of perspective, and for this reason always already both banal and cool. I have dealt with the concept of world society and its ramifications for legal knowledge elsewhere.⁴⁹ Here, I would simply like to quote at length one of the most powerful descriptions of the concept, interestingly not by Luhmann, but by Jean Clam:

There is little doubt that even in its worldly formulation, Weltgesellschaft remains a society. Therefore, the same communicational critique applies to it too, and the same spaces of absence can be detected even in this ‘all-present’ space of entanglement. In his revisiting of the concept, Luhmann writes: “if society consists of the totality of all communications, the rest of the world is condemned to remain without a word. It retreats in silence; but even this concept is inadequate, because only the one who communicates can remain in silence.”⁵¹ So, one goes beyond silence, beyond language and possibly beyond the binarism that a logocentric communicational monopoly would entail, and one looks for fissures in between: for instances of what below I call unutterance,⁵² namely neither silence nor communication but the refusal of both and the reinstatement of incommunicability as a non-communicable event. This search amidst the multiplicity of differences may be the only way to “do justice” to what Weltgesellschaft includes but does not see. As Jean-Luc Nancy, when talking about totality without totalisation writes, “how to do justice, not only to the whole of existence, but to all existences, taken together but distinctly and in a discontinuous way, not as the totality of their differences, and differends – precisely not that – but as these differences together in a multiple way, if one can put it this way, or as a multiple together, if we can state it even less adequately … – and held by a co – that is not a principle.”⁵³ Indeed, what both Nancy and Luhmann make abundantly clear is that there is nothing that cannot be found inside – even its outside: “since there is no other world, the ‘outside’ of the world must be open ‘within it’ – but open in a way that no other world could be posited there.”⁵⁴ To return to Clam’s text above, this ‘non-sequential, paradoxical’ all-inclusiveness is precisely what constitutes society’s ‘outside’, its own entanglement with its self. In there, alterity can be neither other nor self, neither distanced nor assimilated, but a thorn that pierces while constituting. Precisely because of its impossibility of ‘one vision’, of a cosmotheoros, namely the one Archimedean point of view from which the world can be described, Weltgesellschaft remains a vision, however steeped in ‘factuality’ may be assumed to be; and as such, it induces both suspicion and a desire to look further and deeper within for a critical position.

The combination of the two amounts to a critical position in the sense described above, in Chapter 1. Urs Stäheli asks: “what could be external to this horizon? Is there a critical position that allows us to grasp the precarious nature of this horizon?”⁵⁵ As I show below, the exteriority is within, along the oscillation and behind the absence of exteriority – that is, an exteriority that is visible in its visibility and because of that. Once again, Jean-Luc Nancy talks about “this very thing” that “has its outside on the inside”, in an immanence that transcends its enclosure without ever stopping being immanent,⁵⁶ an outside is inside but whose “negativity is not converted into positivity”⁵⁷ – it retains its inoperability, its absence, its “interiority without an interior.”⁵⁸ In what follows, I want to focus on what I see precisely as this immanence that transcends without relinquishing its immanence, namely the lack of contours of the systemic sum. I want to look into Luhmann’s space of incommunicability within the sum of communications, the exclusion that is included in its absence rather than systematised presence. In order to do this, I would like to focus on the other side of whatever it is that thinks of itself able to contain exclusion: in the environment of society, whatever these (environment and society) may be.