Environmental applications

Etymologically, environment comes from the word environs, in its turn coming from the French words en (‘in’) and virer (‘to turn’). In its traditional, non-autopoietic understanding, environment implies a circularity around a presence, an outside surrounding an inside, a whirling indifference around a stable pivot.¹ The difference between the inside and the outside of the turn is located in the fact that the inside is not turning: it is only the dervish-like outside that surrounds like a comfortable blanket the static inside. There are several problems with this formulation. Perhaps the most obvious is the assumption of a centralised geography, one that understands the observer, the utterer, the actor (in other words, the spatiotemporal parameters of locating the mode of locating) as the centre of the environment. The thematisation of the surroundings by the one who has the linguistic ability to express difference is reminiscent of Galileo’s trial, where the earth had to be torn out of the centre of the universe, leaving an unbearable absence for the religious system of the era.² In Galileo’s mind, the static centre was replaced by a movement: eppur si muove! Yet it moves! For a brief moment, the turning has rolled over and flooded the inside, making the latter collapse under its own gravitas. But even out of the ruins, a local universe was established in its proper syntax of centre and surroundings: thus, ‘our’ anthropomorphic planets and ‘our’ sun. Order restored and stability reestablished, albeit in a celestial body nearby. And with this example in mind, one looks for the centre.

The other problem revealed in the etymology of the word environment is the lack of connection between movement and stability. This is usually associated with a certain causality, where movement is understood as the precondition of stability. To put it differently, the turn is needed in order for the pivot to remain pivotal. The way the environment whirls around the human observer is a precondition for human centrality, indeed a resource (to use the environmental parlance when referring to the environment) of adequate existence. In the eye of the storm, there is quiet. But there is no connecting transgression between the two: human and non-human, human and resource, human and nature (indeed, environment and environment). All mendacious dichotomies that betray a simplicity in conceptualising human nature. Where does human end and natural start? Where does technology begin being evolutionary? When are disasters natural? Luhmann has been intent on the unworking of such dichotomies, introducing arrows and spaces of transgression between them,³ hence the radically differentiated concept of autopoietic environment and its peculiar confluence of impotence and force.

“What is the line that separates the inside from the outside, the rumbling of the wheels from the scream of the wolves?”⁴ asks Italo Calvino, in full knowledge that the line is never anywhere to be found except on the other side of the very line, in a space of invisibility, absence, paradoxical coagulation. The environment is in a process of relocation away from its periphery as the surrounding, and right on the gesture of transgression between human and natural. A potential tool towards that relocation is law, and more specifically environmental law.⁵ It is not, however, a straightforward affair. Law’s ability to conceptualise transgression is characterised by a distinct lack of connection between mobility (that would destabilise stability) and stability (that would ‘pollute’ movement).

A way of attempting the above can be found in the ambit of autopoiesis, not least in view of the particular challenge that the ecological issue poses. The principal reason may appear deceptively simple but quickly reveals an irreducible complexity: the definitional ambiguity of the concept of the environment can be explored in a parallel mode within both the ecological and the autopoietic discourse. This ambiguity builds on the linguistic consonance and alerts both sides to illusions and their respective necessity, to present absences and tangible halos of invisibility, and to paradoxes that remain unuttered despite the generally loquacious systemic operations. In a sense, environmental protection points to a certain ‘transcendence’,an inoperational crossing and a crisis that can be neither contained nor ignored. The environment nests both inside and outside the system in a demonic bilocality that irritates without declaring its topology, presents itself in irritating absence, and contributes to the autopoietic construction by planting an excess of uncertainty, complexity and angst within the system. Having in mind these peculiarities, this chapter attempts to put in context some of the autopoietic concepts discussed so far, while at the same time pushing the limits of autopoiesis through a critical application to environmental law and ecological thinking in general. In this context, this chapter revisits and further develops some of the themes dealt with previously, such as the environment of environmental law in its ambiguity, the temporality of environmental law and environmental law’s dealing with autopoietic absences.⁶

More specifically, environmental law is put forth in this chapter as an exemplar of the autopoietic paradox, both in its readily paradoxical function and its ensuing theoretical challenge. The reasons are multiple and refer both to its nature and to Luhmann’s position with regard to the environmental issue. The former has to do with environmental law’s peculiar construction of its object of protection, namely the environment. In this sense, environmental law’s environment explores the parallels with its autopoietic synonym to a mutually destabilising effect, as I show later in this chapter. In terms of Luhmann’s engagement with ecological issues, on the other hand, the matter becomes challenging in view of the author’s ambiguous position. Luhmann has repeatedly dealt with ecological considerations, either in the form of his book dedicated to the issue, Ecological Communication, or in the ambit of other books which directly referred to the issues (Risk, Protest Movements), or indeed as an incidental example that appears throughout his more general books (such as Social Systems or Die Gesellschaft der Gesellschaft). Considering how poignantly rare examples are in Luhmann, his repeated return to ecology is telling of the latter’s peculiar and somewhat testing nature, as well as its dual appeal as an autopoietic paradigm and a challenge. Luhmann has dealt with it as a response to what has recently perceived as an ecological ‘crisis’ evinced in the work of various sociologists, such as Urlich Beck and Murray Bookchin.⁷ Luhmann saw this slightly anxious description of crisis as a solid terrain on which his anti-crisis, anti-humanist, anti-unity, anti-prescription paradoxical theory could flaunt its cooling potential while at the same time test its limits. Indeed, Luhmann’s critique of the ecological crisis is a restrained piece of autopoietic reinstatement, balancing between a desire to address a ‘hot’ issue and a resistance to do so. As Ingolfur Blühdorn observes in his excellent book on Luhmann’s ecological dealings, “the general undertone in the book [Ecological Communication] is that the ecologist issue was forced upon Luhmann, but that he is not really prepared to discuss it in any detail.”⁸ This ambiguity reveals a great deal about Luhmann’s thinking, both about what he has written and what he has not written, while at the same time informing the theory of autopoiesis and, significantly, its limitations.

It is fair to say that if one approaches Luhmann’s Ecological Communication in order to find ways in which the ecological crisis can be dealt with will no doubt be disappointed.⁹ In the book, Luhmann describes the general operations of several systems, and occasionally looks at how the environmental crisis is internalised by them. At first instance, the book reads more like a consolidation of (and an adequate introduction to) autopoietic theory rather than an honest engagement with ecology. But there is a performative trick here: Luhmann’s aim was to show that the only way in which an ecological issue can be felt and indeed dealt with is through society, and specifically through its comprising function systems – hence, the structure of the book, with its dedicated chapters to law, politics, economy, religion, science and so on. The book operates as a stage for some (fairly mild) Luhmannian acrobatics, enticingly turned inwards, busying themselves with their operational mundanities, and thus displaying beyond any doubt their inability to look at ecological problems as a problem per se. The only possibility is in the mode of intense systemic irritation, a resonance (as Luhmann calls it in this context, more of it below¹⁰) within society of the ecological exteriority.

This, however, does not seem to be the end of the story. Luhmann keeps on implying a reference to this exteriority that translates in societal arbitrariness, insecurity, angst, and so on. Admittedly, this exteriority is not explored in the way it has been explored in other texts: for example, in the final chapter of Law as a Social System, where the law wonders about its other, parallel forms, its possibilities of evolving differently, its missed opportunities and indeed its illusions; or in Die Gesellschaft der Gesellschaft, where the text opens up to an observation of exclusion itself transcending the systemic ability and situated on a third-order observation of critical crossing.¹¹ In Ecological Communication, Luhmann did not seem willing to let himself wonder whether this exteriority could be linked to such crossings. This is arguably revealing of the reason behind Luhmann’s perceived unwillingness to deal with ecology: the impossibility of blocking this exteriority completely, and of remaining enclosed in a self-nourishing, functionally differentiated autopoietic society without the suspicion of the outside. Indeed, Luhmann’s blocking attempts are fortunately not completely successful and draughty passages occur throughout. Amongst the most telling ones is Luhmann’s admission that “if anywhere, it is in ecological communication that society places itself in question.”¹² Luhmann concedes that, specifically in law, too much resonance of and angst about ecological issues translates into a considerable amount of unpredictability, best seen when the environmental legal system needs to define thresholds and values, levels of acceptability of risk, and environmental preferences as diluted by economic and other causal considerations. Of course, Luhmann continues, these are not new types of problems: there is nothing new in a system; everything is always already there. Novelties are simply another opportunity for reformulating existing operations, a way of testing the boundary of the form redundancy/variation.¹³ However, these problems “acquire a new intensity and scope when a new ecological consciousness of the problem begins to affect the law.”¹⁴ It is this intensity and scope that require the environmental legal system to determine its limits anew and potentially radically.

Luhmann regularly returns to the way law internalises its ecology.¹⁵ Nevertheless, perhaps the most eloquent formulation – precisely because it appears less bound by the theoretical constrictions of the ‘original’ theory although operating well within it – can be found in Teubner, Farmer and Murphy’s edited collection on environmental self-organisation. The editors and their contributors interpret and expand on some of the fundamental principles of Luhmannian autopoiesis and apply them specifically to environmental issues relating to corporate self-organisation. In this context, they also deal with the way the ecological environment is internalised by the legal system. This is not just a matter of complex environment versus a simplifying system. Much more than that, “uncertainty about ecological risks is irreducible.”¹⁶ What this unequivocal statement means is that the system is incapable of reducing the complexity of the ecological environment for its own purposes. In turn, this may mean that the uncertainty is internalised as whole, unmasticated, in a complex formation that eschews systemic simplification. Of course, the system carries on observing and internalising in the usual way of (non-)contact with its environment, which is the systemic external reference. As said earlier,¹⁷ external reference refers to the system’s environment, to what the system is not. It is the ‘other’ side of the form, operating in mutual rupture with the system’s self-reference. The two references operate in a (ruptured) continuum that furnishes the system with its (illusionary) sense of identity, its topology in the functional brouhaha of other systems. Even so, the system can only with a great deal of self-delusion avoid seeing that it cannot see what it cannot see. As Luhmann says, “systems operate under the illusion of contact with the environment – at least while they observe that they observe and not how they observe.”¹⁸ When systems pass on to the second-order observation, the observation of how the others observe, the non-linear process of divination, attribution, immersion and distance, the elation of clarity gained is frayed by the price of an autopoietic explosion of doubt. This doubt does not limit itself merely to the object of observation but extends itself indiscriminately to the subject too (what is the difference anyway?). Thus, once the illusion of contact with the environment collapses and the potentially awe-full sight of autopoietic isolation comes to the fore, any delusion that may be called upon to assist will be marred by the doubt of the limits of unknowability. Then, the form of self/external reference is undermined by a sliver of absence: not a third term, but a crossing, a lingering departure located always on the other side, a boundary apparition of a reference to precisely this absence of reference, the impossibility of reference of the outside and its irreducible complexity, at the same time part of the system and horizontally, devastatingly outside it.

First, autopoiesis is acentric. It specifically decentres any centre by displacing its centrality to always another centre, itself debilitated by the rupturing continuum between ‘centre’ and environment. This can be put in two ways (whose antithetical complementarity constitutes a paradoxical form): on the one hand, the centre of the theory, which could be variously seen as the system, society, function, observation or whatever other autopoietic operation one cares to focus on, is deprived of ‘centrality’, namely of an all-thematising quality that renders it central beyond any context. At the same time, each concept is all-thematising in that it fractally reiterates all of the others within its operational boundaries in such a way that they appear emanating from it. Thus, a system can be the centre of autopoiesis because it includes within its internalising boundaries its society as its environment, rendering in this way irrelevant (for itself) any other description of society. At the same time, the centre as a concept and observational tool is radically relativised through the visibility of such notions as blind spot, second-order observation and structural coupling. Thus, acentricity itself oscillates between negation of centre (non-centre) and displacement of centre (de-centre) An epiphenomenon of this acentrity is the theory’s polycontexturality,¹⁹ namely the pluralist multiplication of function centres whose centrality is consistently displaced through parallel interweaving of isolated contextures, first by their context, namely their environment, and second (which is simply another level of the first) by other ‘centres’. In this sense, acentricity paradoxically displaces and reasserts the centrality of the centre.²⁰

Second, autopoiesis de-individualises the individual. Luhmann’s withdrawing of the human subject from the focus of the theory in an anti-humanist gesture that seemingly degrades the human to a cog in society’s wheels, is quickly revealed to be a gesture of acentric pluralising. Thus, the non-divided nature of the individual is mobilised under “more complex and less restricting” conditions than those of total societal inclusion, based not on the liberal conception of the individual’s abilities, but on the freedom of “irrational and immoral behaviour.”²¹ This seemingly odd reversal of freedom is nothing but an antidote to the rigidity of social systems. It follows that any positioning of agency that attempts to make a difference will have to take into account its prior projection onto the empty canvas of systemic operations.²² This is simultaneously more and less empowering than it sounds at first. It is more empowering in that it is free from the limitations of redundant behaviour and environmental closure that come out of societal expectations. Only outside society, in a connection of prior exclusion and subsequent interpenetration whose complexity remains merely a projection and whose fragmentation among the various systems remains elusive and contingent; only from such a position can the human factor be understood in its boundary relation to systems as an instance of inclusion/exclusion, with all the expected resistance.²³ But this location of the individual is also less empowering in that it denudes agency from illusions of environmental (namely, societal) control: the structures that determine an individual’sfateis both inside the individual (thus for example, capitalism can finally be moved firmly to the level of desire, as Lyotard has suggested²⁴) and well beyond her control. This, however, complicates the frequent assertion of structures ‘controlling’ the lives of individuals and makes the process both ambidirectional and deprived of control: both guilt-free and guilt-ridden. Once this has been established, then one can talk about, say, agency, protest movements or revolt as a way that breaks into communication – but this will be already grounded on the de-individualising multiplicity of the human.

Third, autopoiesis begins and carries on with difference. To the extent that Luhmann pursued a project of all-inclusive and autological sociological observation, the primacy of difference over unity may be put into doubt. However, any unity is impressionistic in that it takes the form of instrumental ‘whispering’ into systemic ears, assuming a façade of talking the system’s language, and constructing illusions of unity which only too easily fragment into shards of self-awareness. There is no essentialising – and this includes difference itself, in that the specificity of difference is perpetually deferred through programmes, temporalisation and observational perspectives. Thus, any beginning is arbitrary, any origin is constructed, any perspective is yet another, any boundary is fluctuating. On this shifting ground, autopoiesis anchors itself to itself by drawing a line that ruptures its ipseity, namely its imagined undifferentiated form, and describes itself in its difference from itself.²⁵ Significantly, this process always misses its own crossing, which remains intransparent on account of the impossibility of a unitary überperspective and constantly deferred as a veritably blinding blind spot.

Finally, autopoiesis discredits prescription. Not only autopoiesis cannot prescribe ways out of the problems of miscommunication and instruct solutions of influence, intervention and control, but it significantly trivialises prescription. Autopoiesis remains conscious of the fact that it is just one description amongst many. Despite Luhmann’s frequent assertions that autopoiesis informs the way reality is described in a way superior to other, existing ways, a fundamental tenet of the theory (and one to which Luhmann subscribes, and usually explicitly towards what I would call the ‘softer’ concluding paragraphs or sections of his later writings) is the return to the awareness of its contingency, of its temporal validity, of its finite innovative potential and eventually its ability of being combined with other perspectives. An example of this is the autopoietic flirtation with deconstruction, regularly appearing in the folds of Luhmann’s texts, and frequently pointed out and explored by commentators.²⁶ Even so, one of the defining differences between autopoiesis and deconstruction is precisely the insistence of the former on a return to description, however tempting an enlightened, novel, even revolutionary prescription may be. This means that any unfolding of the paradox – autopoiesis’s most luscious object of desire – remains a description orchestrated according to the means of the system in which the paradox is unfolded. Even Luhmann’s occasionally instructive urge against dedifferentiation can be seen as a descriptive continuum of what society seems to be currently resisting.

In order to see how the above inform environmental legal thinking, a short description of environmental law from an autopoietic perspective is necessary. Locating environmental law is already paradoxical: Luhmann’s rather dismissing understanding of environmental law as a cut into other, preexisting legal domains, such as planning law, police law, tax law, etc., can be to some extent justified in view of its differentiated function with regard to the general legal system.²⁷ The way environmental law operates within society is in itself an event of transgression – and one can only hope that this is not a short-lived moment, but one that will capitalise on its momentum and remain fleeting (always a moment) yet appropriately destabilising (always already gone). The reasons are multiple: environmental law is considered a relatively new, relatively uncrystallised legal discipline, whose limits are tested significantly more intensely than those of other legal disciplines. This is not so much a state of systemic development,²⁸ as it is a state of inadequate epistemic distress: as yet there are few sustained attempts at the establishment of (mutually annulling and therefore paradoxically constituting) jurisprudential underpinnings.²⁹ This may be also because of the intensely fragmented societal presence of environmental law: calls for reliably consistent responses come from social domains as diverse as science, transnational politics, global economics, ethics, environmental philosophy, geography and so on. Environmental law performs unprecedently tight structural couplings with most of the above:³⁰ take the example of Sustainable Development, a legal concept that incorporates the handling of the conflict between economy and environment within the boundaries of the legal system.³¹ As a consequence, environmental law finds itself in a practical continuum with policy and regulation. This is supplemented by an extensive use of the concept of soft law which deliberately oscillates between binding and non-binding law.³² It is far from surprising, therefore, that environmental law provokes social reactions that range from support and fanaticism to indifference and hostility. It has to play along and resist (un)fashionable environmentalism, persistent economic weighing (and equally, remuneration, since both protection of the environment and protection against the protection of the environment are lucrative), avid internalisation of environmental issues by the political system, unsettling internalisation of scientific uncertainty, ethical reflection that urges towards paradigm shifts of the kind established law is unable to perform and so on.

The same can be put from the temporal perspective: the system’s temporality is one of a paradoxically imminent yet far-embracing horizon. Environmental protection matters tend to make their presence felt with unprecedented urgency, imposing deadlines concerning global survival, health and quality of life. The temporality of environmental law is a hydrocephalous one, with the future weighing massively over present decisions not least in the form of intergenerational equity, which is discussed below. Such a distribution of juridical weight requires of the system unprecedented degrees of flexibility (or inflexibility, depending on how observant the system is of other systems’ expectations of it) that pull environmental law towards a potentially uncomfortable intensity of consistency-checking. This is particularly relevant with regard to law’s time-binding function.³³ While at any point an environmental legal decision is a distinction between lawfulness and unlawfulness, environmental law’s time-binding is built on explicit presumptions,³⁴ the conditionality of which is expressed by law’s programmes. As said earlier,³⁵ programmes are not merely the vehicles of connection between the code and the environment, but the enablers of a self-generated uncertainty that destabilises the code’s rigidity by resorting to delay and doubt in the attribution of the value. Programmes supplement the code as a means of reiteration within of the uncertainty outside. This uncertainty is largely attributed to the often blind internalisation of scientific findings, which are the epitome of autopoietic environmental complexity.³⁶ The establishment of thresholds, for example, is only a minor theme compared to the formidable task of risk prevention in view of lack of exhaustive scientific information. The inherent necessity of environmental law to couple with science demands ephemeral decisions and constant re-evaluation of already established problem-solving methodologies, demanded especially by the internalisation of economy in the form of technology transfer, exploitation of biodiversity, and pollution allocations, amongst other mechanisms.³⁷ “Environmental problems are characterized by the need to reduce their inevitable uncertainty through the constant generation and application of new knowledge. They often do not, as do many other areas of the law, display a repetition of similar fact patterns.”³⁸ It is not only the patterns that change but also the scientifically recommended way of evaluating such patterns. Environmental law is a showcase of Murphy’s description of the future in the era of statistical positivisation: “[t]he future is reconstituted as inherently revisable statistical projections on a screen.”³⁹ The in-built need for revision of statistics renders shaky the connection between a present decision and future stability: “it makes little sense to agonise over today’s decision when it is likely to require revision tomorrow.”⁴⁰ The inability of environmental law to fix expectations temporally, at least as adequately as other legal branches, is not a systemic malfunction: it is simply an attribute of the system in view of the irreducible complexity of the environment.

All this leaves environmental law at a point of ‘turning’, of ‘environing’ as it were, of spinning around itself in order to locate its description. Perhaps the most advantageous (because of its destabilising effect) feature of environmental law over other legal disciplines is its unique position as a ‘luxury’ item that comes decidedly after survival, development, economic viability, etc., and simultaneously a matter of life-or-death in terms of nuclear catastrophes, climate change and rising sea level, environmental health, GMOs and so on. This superfluity and necessity seem to span precisely the scope of its action: environmental law is a law that, on the one hand looks into itself, its legal construction and identity as a societal system that can be relied upon to produce consistent decisions; and on the other, it looks outside itself, desperately trying to accommodate concepts, operations, geographies and temporalities that have never hitherto been part of a legal description. Environmental law seems to be attempting to bridge the distance between the inside and the outside, stability and mobility, what is being surrounded and what is around, this and that side of the line separating the wheels from the wolves.

In 1985, when Ecological Communication was published in German, Luhmann seemed to believe that environmental law is only partially equipped to deal with the increased appearance of arbitrariness in decisionmaking, partly because of a relocation of responsibility to the political system – a frequent deus ex machina for most systems – and partly because of the inadequate speed at which learning takes place within the legal system.⁴¹ In his later writings, however, it becomes clear that every system internalises the amount of uncertainty that is feasible and expected of it.⁴² This means that, first, there has been a shift of emphasis in Luhmann’s writings, schematically put from the rigidity of code to the flexibility of programme,⁴³ with the parallel understanding that systemic uncertainty is well inside the system in a fractal reference to environmental uncertainty. In addition to this, there is also Luhmann’s marginal expressions of suspicion of what I have previously called the absence of reference. At the same time, the pragmatic consideration of environmental law’s ability to establish itself as a branch of law, however precariously and intensely in terms of structural couplings with other systems, is a valid reason for which one should rethink Luhmann’s initial hesitation.

An autopoietic description of environmental law builds precisely on the ability of the theory to accommodate uncertainty. While this is readily accommodated by mainstream environmental legal theory, it poses significant issues when the mechanics of uncertainty extend to the traditional bastions of legal unity, human agency and perceived mission (rather than function) of the environmental legal system. Thus, to return to the four paradoxical autopoietic positions enumerated above: first, the autopoietic decentring of the centre, with its consequent pluralist paradox of multiple thematising (non-)centres, is in perfect accord with environmental law’s self-description as a multilayered, global, fragmented discipline, characterised by links that follow the transboundary nature of pollution. The radical potential of an autopoietic description in this respect is the realisation that all these centres remain isolated within their constructed difference with their environment – in other words, from mere pluralism to a radical acentricity. Against the prevalent concept of environmental interlinkages on the level of agents and actions, an autopoietic description of environmental law throws into relief the miscommunication between the various centres by rendering their boundaries visible. The effect of an acentric autopoietic description is the abandonment of the paradigm of direct influence and intervention across differentiated ecological spheres, and its replacement with an indirect eavesdropping on the other side’s mechanisms as part of the autopoietic re-entry of the difference between system and environment. This can lead to either an enhancement of the applicability of the concept of ecological self-organisation,⁴⁴ a more pluralist network application,⁴⁵ or indeed a search for other ways in which even the concept of the environment as a whole should be formulated in order to capture the elusive centrality of ecological considerations.

The autopoietic displacement of the individual as an undivided whole and its replacement with the difference between system and environment further contributes to the acentralisation of environmental thinking. It does so by relinquishing the dry dualism between anthropocentric and ecocentric legal protection and extending the blurring between the ‘natural’, the ‘human’ and the ‘artificial’ in line with biopolitical readings that point to precisely this kind of fragmentation and reinstitute a posthumanist form of continuum/rupture, referring variously to human/non-human nature, and to the way in which these differences are conceptualised.⁴⁶ The beginning of this line of thought can be traced in deconstruction – thus Gayatri Spivak: “identity [is] disengaged in terms of who was and who was not human. That’s why all these projects, the justification of slavery, as well as the justification of Christianization, seemed to be alright; because, after all, these people had not graduated into humanhood, as it were.”⁴⁷ This has been transposed into ecological thinking, with a pioneering ecofeminism, especially through the writings of Val Plumwood and Catherine Merchant,⁴⁸ whose ecocriticism of pre-existing binarisms has had a measurable effect on feminist theory as a whole. Thus, Donna Haraway has famously declared that “the boundary between human and animal is thoroughly breached” and cyborgs, oncomice and coyotes are posthumanist dimensions of more traditional feminist bodies that transcend the natural/cultural, organic/mechanical, physical/non-physical and so on divides.⁴⁹ In a non-dissimilar vein, although from a different point of view, Bruno Latour talks about ‘hybrid networks’ between social, informational and ecological systems,⁵⁰ and the ‘pluriverse’ consisting of collectivities of humans and non-humans that redefine democracy as something that can be found either side of the boundary.⁵¹ Likewise, Katherine Hayles’s digital subjectivity is built on a discontinued and inherently unpredictable conception of the human,⁵² while closer to autopoietic things, Gunther Teubner refers to the legal role of private actors, incidentally via the example of rats.⁵³ From a different perspective, Giorgio Agamben locates the Homo Sacer, the bandit and the werewolf right there, on the threshold between continuum and rupture: “what had to remain in the collective unconscious as a monstrous hybrid of human and animal, divided between the forest and the city – the werewolf – is, therefore, in its origin the figure of the man who has been banned from the city … a threshold of indistinction and of passage … who dwells paradoxically within both while belonging to neither.”⁵⁴ It is obvious that, in view of all this, Luhmann’s relegation of the human outside society opens up an avenue of differentiated but unprioritised inclusion of the ‘natural’ (‘artificial’, ‘human’ and so on), the societal reference to which empties out a space of absence within society that accommodates precisely the impossibility of societal accommodation.

Likewise, an autopoietic description can only begin with difference. The initial problem may be that unity (ecosystemic, ecological, and so on) is a staple starting point of the ecological discourse, in combination with a unifying centre and a homeostatic goal.⁵⁵ Autopoietic difference ruptures this continuum, both in terms of communication and temporalisation, and renders any perspective (the ecological included) simply yet another perspective. The awareness of ‘just another perspective’ is a deep trauma to ecological thinking which describes itself as the only available unity that can make a difference in the face of urgent environmental issues. Assuming one unitary überperspective and messianically inviting society to follow is something that Luhmann could not easily accept, despite his arguably sympathetic position to the ecological cause. Luhmann’s description includes the environmental perspective, but in a status which is always parallel to other positions, such as the economic, the political and the scientific. This does not preclude prioritising one over others, but entails a continuous awareness of other perspectives and their way of internalisation of the ecological problem. The radical contribution of autopoiesis to the environmental issue is the continuous deferment of origin to further instances of difference, rather to a unitary illusion of ecological harmony, often expressed in the form of community nostalgia.⁵⁶ At the same time, autopoiesis presents a system – in this case, the environmental legal system – with an awareness of illusion of any self-presentation of identity the system may construct for itself.⁵⁷ This means that in view of the illusion of identity, uncertainty becomes a structural and constantly present inevitability rather than an invisibilised externality.

Finally, the autopoietic preference for description over prescription is yet another indication of the awareness of limits and limitations of the various systems. The overly prescriptive nature of environmental discourse, even in its legal theoretical aspect, urges towards a rushed search for short-term solutions that misunderstands the capacities of the various systems involved in the complexity of ecological protection. While environmental problems are not discounted either by Luhmann⁵⁸ or indeed by this text, they are contextualised within and through an acentric system (be this law, politics, science, economy); at the same time, this very system observes what it observes, thinking that its observation is the only relevant observation. In this latter sense, environmental problems are contextualised but not relativised: each systemic description is compromised only by the crossing that a system may perform from second- to first-order observation, that is by the suspicion of intransparency that emerged in the system while observing how others observe, and that the system bears within its boundaries when observing itself observing. In other words, any prescription can only work from within the system, in full respect of (and therefore, doubt, resistance, revolt against) the system’s limitations.

The above perfunctory application of autopoiesis to environmental law and ecological thinking at large seems to have the paradoxical effect of ‘dispersing’ and ‘diluting’ environmental values while reasserting systemic limits and limitations. Although they may initially seem contrary to some of the basic tenets of current ecological thought,⁵⁹ they represent a way for a potentially more efficient environmental protection which relies on societal internalisation of the environment in a way that simultaneously ‘debilitates’ the notion of environment and reinforces the awareness of systemic limitations such as law, politics or economy. While this is taken up in the following section, it may be relevant here to sum up epigrammatically the reasons for which an autopoietic approach to environmental law is justified: first, autopoiesis is an adequately complex theory to describe the complexity of a newly emerging yet highly technical legal discipline; second, autopoiesis conceptualises systems in a grounded way that, while describing potentialities, marks systemic limitations. This is particularly relevant to a system, like environmental law, whose object is constantly redefined in ways over which the system has no control. Third, the autopoietic mistrust towards prescriptions that encourage control and intervention is particularly apposite to an otherwise aggressively abused branch of the legal system, whose services are variously internalised in order to fit in with more pronounced priorities, such as economics or politics. This does not mean that autopoiesis can change the way legal reality is, but merely the way it is understood and contextualised. And finally, by plunging in and out of the particularity of systemic perspectives, autopoietic abstraction enables an insular interdisciplinarity, or perhaps more appropriately transdisciplinarity, that is needed for any adequate description of environmental law.