Law as paradox
If there were to be a Grundnorm in the autopoietic legal system, that would be the paradox. If there were to be transcendence in autopoiesis, this would be in the guise of the paradox. If there were to be an end, that would also be the paradox. And if there were to be sublime, that too would be the paradox.1 In short, if there were to be anything in autopoiesis, that is, if autopoiesis were to have an ontological purchase, that would be the paradox. But there is none of this in autopoiesis: no origin, telos, au-delá or il-y-a. There is only the theory and its observations, and in this circular reference the paradox appears simultaneously as the theory’s superego that dictates without appearing, and its performative opposite: while nourishing, the paradox threatens to demolish the theory (and its observed objects) from the inside.2 In that sense, and if the parallelism can be forgiven in view of its pert anthropomorphising and its somewhat unfashionable appeal, the paradox is autopoiesis’s Jungian shadow, the Dorian Gray-type portrait whose depicted alter ego one would rather keep out of sight. Yet one always confronts it at some point, whether in a dungeon or an auction. As Jung writes, “once one has experienced a few times what it is like to stand judgingly between the opposites, one begins to understand what is meant by the self. Anyone who perceives his shadow and his light simultaneously sees himself from two sides and thus gets in the middle.”3 Getting in the middle in this context means to be on both sides at the same time, riding on prior and just lost knowledge, while battling to keep the oscillation going.4 In many ways, this is the way autopoiesis has structured both the role of the paradox in the theory, and the connection between the theory and the paradox (the paradoxes of the theory). The autopoietic paradox is something to bury while irrepressively remain attracted to. It is something to be ‘unfolded’ while always retained as a trace denoting the absence of the form. And for Luhmann specifically, it would seem that the paradox is always present yet subjected to a compulsion of invisibilisation – perhaps the main paradox on the level of theory.
In this chapter, autopoietic law will be explored through the radical frame of the paradox. Luhmannian paradox is not the same as logical paradoxes,5 and for this reason it is necessary to approach it first in the way it appears and becomes resemiologised in autopoiesis, and then in the specific context of autopoietic law. To do this, I would like to start with a reference to a classic paradox-weaver, Jorge Luis Borges, and his short story, El Aleph.In this story, Borges mentions another of his short stories, called Los naipes del tahúr, which, according to the author, has been shortlisted for the Argentinian National Literature Prize but, quite unbelievably, got no votes whatsoever.6 As far as we know, this story has never been written. It appears nowhere in Borges’s collected works and no manuscript has ever been found. The only thing that exists of the story is its title, which can be translated as The cards of the cheat. One purrs in delight when thinking how Borges must have enjoyed identifying with the card cheat. By inventing a cheat about someone who cheats and referring to it in his own work, Borges dealt with a paradoxical self-reference (since the only place in which the story is to be found is its reference) by dealing the cards of a cheat to the unsuspected reader. Borges’s hands remain free from sleight: it is the reader who deals with the paradox of a non-existent story as dealt to her by the author. Indeed, Borges passes the paradox onto his reader, offering only one clue: a deck of cards.
Dealing with the paradox is not the same as dealing the paradox. In fact, the two may well be mutually exclusive. But never too far from each other. A linguistic sleight, achieved by the parenthetical invisibilisation of a seemingly insignificant preposition, allows one almost to play with both sides of the paradox. ‘Almost’, since any decent card game is based on the premise that dealer and recipient see different sides of the card. Unless of course one is a cheat. ‘Cheating’, as already introduced in the first chapter, entails simultaneously ‘marking’ or prioritising both system and environment – a form of critical distance/immersion, a dislocation of the horizon and a running ‘backwards’ in an attempt to encompass more by excluding more. In other words, a self-observation on the conditions of observation, which entails the destabilisation of positioning – never anywhere at any one time, however illusionary this may be and however unsuccessful the attempt may prove. The following description of the paradox in Luhmann is meant to be performed from precisely this (non-)position of critique, a strategy that ends up in the wild oscillation between unfolding and folding of the paradox. This is not quite giving in to the paradox. It is rather an understanding that the paradox always returns.
There is an irresistible circularity that is so generously offered in the concept of the paradox. Etymologically, paradox is ‘the other belief’ (para-doxa). Paradox is the first and last instance of dialectics. It initiates the other speech, the other speaking, their expressing a belief contrary to the belief of their interlocutor. This contrary belief, however, is equally valid, with the result that the discussion returns to itself without ever concluding anywhere. The adverbs must be taken literally: the discussion concludes neither anywhere outside the doxa and the paradoxa (say, a third doxa); nor anywhere within the initial dialectics. Instead, it carries on whirling between the two initial doxae, without ever reaching a conclusion but instead by producing an excess, a movement that is superimposed and cannot be accommodated by either side.7 But this irritates a dialectics habitually guided by reason, and (paradoxically) begets a necessity of coming to a conclusion – a moral, phenomenological, logical, phenomenal, evolutionary, transcendental, operational, attributional, some sort of necessity anyway, which seems to be called upon by a whole constellation of known-logies to the effect that the discussion carries on.8 And quite rightly so: paradoxes are frightful things, they bring boredom, obsession, counter-productive repetition, paralysis, inability to communicate, inability to distinguish, no sense, nonsense.9 They are facile excuses and unlaborious shoulder shrugs, they obscure determination and encourage determinism, they force one to give up, to grin embarrassingly, to abandon battle, to take a nap under the trees. Paradoxes are too much hard work to be taken seriously and too easily unresolvable to be attempted.
Except for recently that is. Theory’s turn to paradoxes is not surprising.10 Paradoxes emerge as epiphenomena of a generalised lack of direction. World society is turning upon itself, systems bite their own operations, individuals throw away their psychoanalytical couch (with themselves on it), and the word ‘paradox’ finds its way into the world’s worried whispering. Aporias and epoche, together in difference and in-betweens, infinity, collective unconscious and unknown, are adequately complex concepts that address the complex inadequacy of the world. Gaps everywhere render any conceptual bridging problematic: human rights theory and practice, chasms between north and south, terrorism, justification and guilt, technology and ecological catastrophe, sovereignty and naked bodies, system and subject. The world wakes up to its paradox and shuts its eyes before its reflection.
Paradoxes are painful. The impossibility of solution is embarrassing, suffocating, incarcerating. So one finds that one has to deal with it. Dealing with paradox can sometimes seem conveniently close to dealing the paradox, passing it on, pushing it into somewhere spacious, airy, breezy, full of cathedral light: where better than religion? Luhmann dreams of a moment of au-delà when he equates paradox with the transcendental subject: it is through paradox that knowledge is given in its absolute form, unconditionally and a priori.11 A paradox pushed into the divine is luminous, blinding, invisible in its radiating visibility. But above all, it is dealt, it is passed on and allowed to be, since its impossibility is not our weakness. The collapse of the divine as an apothecary of our impossibility has not affected the dealings. Loci of semi-transcendence have cropped up all around and inside the human that receive the paradox as gallantly as god. However, such dispersion has made the invisibility of paradox less visible. God’s shadow was enough to cover it, but human shadows tend to fly erratically away,12 and social systems cast no shadow over their environment. The paradox returns and its visibility becomes, once again, embarrassing. Theory can no longer ignore this: in steps equivalent to second-order observation, one’s gaze has progressively shifted from the lamp to the floor and the battle of the shadows is well underway.
This does not mean that the fascination with paradoxes is merely the desire to be rid of them. Agreed, paradoxes are prone to de-paradoxification, but arguably because they expose themselves in all their fragile omnipotence:13 they are omnipotent, of course, because there is no reference from which they draw their power except for themselves. But while one’s second reaction is to kick them, the first reaction is nearly always to admire them: Cicero said that “what they, the Greeks, call paradoxes, are what we Romans call marvels” (“haec paradoxa illi, nos admirabilia dicamus”). Paradoxes are perfection. A paradox contains the world in one autonomous, autocephalous, autologous, auto-générée/générative form.14 Causality is included and simultaneously annulled in Luhmannian paradoxes that are always expressed attributively (“lawful because unlawful”15), and in which any external reference is ingested in the totality of ipseity. Paradox is autopoiesis, in all its lithe claustrophobia.16 Paradoxes afford a glimpse of the impossible, the operable form, the unity, the illusion of being together, the unstoppable becoming, the time before time when no apple had been bitten and no horizon was ever to limit infinity. Through them, a glimpse of pre-edenic forms is afforded without the fear of expulsion (or walling in for that matter).
The fascination with the form in the sense of unity, impasse and impossibility, is a radical motivation behind theory’s paradoxical engagement. And autopoietic theory generates something out of this fascination: it feeds paradoxes with its attempts at deparadoxification.17 Luhmann identifies the following modes of deparadoxification: “unfolding, making invisible, civilizing, making asymmetrical.”18 One could comment on all four of them and amuse oneself especially by questioning the ramifications of the third;19 still, one has to avoid dwelling on the paradox and carry on, only to discover that all four are emanations of one operation: that of distinction (decision, asymmetrisation, marking, prioritisation).20 The world was an unbearable (no one could possibly bear it, as much as no one was there to bear it) mêlée of divine-demonic, godly-human, light-darkness, this-and-that. And then came the operation of distinction, the wand that marked the marked from the unmarked, the this from the that, the side of the card where the queen rests from the other side where a fleur-de-lis confounds nosy stares. This was the end of the paradox, once and for all: a paradox torn into two, a fitful interruption of the irritating perfection. But where did this operation come from? Who dealt it? Surely not god: too busy being marked this side of being marked. Then from distinction itself? Can distinction distinguish? And isn’t this paradoxical? “What about the paradoxicality inherent in the very act of distinguishing that makes its appearance, for instance when one thinks of the beginning or the end of the process of distinguishing.”21 Paradox returns, and renders the process of deparadoxification a jolly pastime with temporally limited validity.
So what? Paradox, just as everything else in autopoiesis, is temporally conditioned to operate in the present – for in autopoiesis all operations take place in the present and simultaneously.22 Paradox, just as everything else, has to refrain itself from asking the foundational question: is paradox paradoxical? Idem for distinctions, systems, individuals: do I do what I do? Does the distinction distinguish, is law lawful, am I me: all relevant questions that the one who asks them can answer only by creating another distinction, taking distance and invisibilising the suspicion of the whole. One will rightfully wonder whether this is answering or simply postponing the answer. Regardless, I choose to postpone the answer here by saying that any answer to this is simply a postponement, not so much of giving the answer but of asking the question.23 Dealing with paradox is a catenation of negative steps, backward steps forward as it were, which lead inexorably but non-causally away from the question and nowhere closer to the answer. Dealing with paradox is engulfing the horizon. Indeed, a paradox does have its use: in all its irritability, through and because of it, a paradox demands structural reconsiderations, resemiologisations, shiftings, adjustments, self-searchings, comparisons, new positionings.24 It is not through the question that a paradox does all that (anathema to the question which is to remain unuttered) but through the fear of the question. It is the desire to reveal it in its terror, and the subsequent fear of such magnificence, that the one who turns away from the paradox shifts uncomfortably and finds new ways of becoming. To find an answer is to find oneself, to emplace oneself in the world and expose oneself to the flow of systems, humans, nature, boundaries. To find the question is to suspect that there are other emplacements, all equally contingent, all equally markable. To find that one should never find the question is the sublime torment of becoming, the halo of knowledge around the abyss of ignorance, the only communication with the self – however negative, prohibiting or limiting. The impossibility of asking the question is what makes being avoid the question and revolve around a negative becoming. Avoidance, or refusal as Karin van Marle would have it,25 is just as everything else temporally conditioned; so every time once, the avoidability of the question arises and keeps one becoming. Through their need to remain invisible, paradoxes are the deathly élan vital of autopoiesis. They are the ones who wake us up by asking the facetious, all-too-avoidable question: ‘Are you asleep?’
What is the question that the law can never ask itself? Simply, whether law is lawful or unlawful.26 If uttered, the question would immobilise the legal system, would bring it before its very own impasse, its aporia. The question echoes the primordial never-to-be-uttered question: who dealt the first distinction? For law, this translates into the first moment of violence.27 Law followed that moment by preceding it: law justified one side of violence, thereby marking itself this side of the law. The law legitimised itself by legitimising violence – or could it be that the law legitimised violence by self-legitimisation? In other words, which came first, law or violence? But this is perilously close to the unutterable first question. The law cannot deal with its own limitations, let alone with what lies beyond its limits (that there exists something beyond its limits would be a surprise for law).
So let me begin with the law, with the security of ignorance as guaranteed by the system’s boundaries. Law’s paradoxes are always a fractal reiteration of the unutterable question. Nevertheless, they are asked. Not because they are less ‘paradoxical’, but because their ‘unfolding’ is always a step away from the unutterable; in other words, their distinction does not coincide with the unutterable or first distinction. These paradoxes – I will call them utterable28 – can be dealt with from within the system, through its own operations and systemic observations.29 Some of these paradoxes are common amongst social systems. Some are peculiar to law. All of them are dealt with through the usual mechanisms mentioned in the previous chapter: distinction in the form of marking that enables unfolding, asymmetrisation, prioritisation, invisibilisation. None of them is solved forever: they are merely postponed. But in this postponement, in this absence of unutterability,30 lies the relevance of the unutterable paradox. Luhmann has endowed the latter with an almost life-giving quality, which is affirmed in a gesture of withdrawal, in running backwards and away from the paradox itself: “the paradox itself turns unwittingly into a creative principle because one has to try so hard to avoid and to conceal it.”31
All paradoxes are echoes of the unutterable question. Every utterable paradox contains a negative (prohibiting) reference to the unutterable, in the sense that every utterable is another step away from the unutterable. Every utterance of a paradox partly visibilises the invisibility of the unutterable paradox by maintaining its inoperability. In other words, although utterable paradoxes are the way for law to deal with its unutterable paradox and not deal it to other systems (politics or economy usually), at the same time they are a way of hiding the fact that the law is not really dealing with it. Imagine every utterable as temporarily adequate (but only just) chunks of flesh that keep the great beast calm. In every paradox, the unutterable is found sous rature, never to be found, in a form with the utterable, on a level at the same time simultaneous and nonsimultaneous to the utterable. ‘Simultaneous’ because it is constitutive of the form; ‘nonsimultaneous’ because it can never be evoked while the utterable is speaking. The gregarious, sociable, communicative utterable paradox is the only way in which the unutterable paradox can be kept at bay. Thus, every apparent conflict of paradoxes is resolved by recourse to the different levels of paradoxification, as a strategy of distanciation from the unutterable.
A rudimentary Luhmannian list necessarily includes instances of self-reference, most of them founded on biological autopoiesis. Let me revisit some of the concepts discussed earlier in the first chapter and place them in the context of what is by now a visible paradox. An autopoietic system, at least in its original biological version, has been defined as a system that reproduces itself, all its constituent elements, the processes of its reproduction, and its systemic environment.32 The immediate systemic interpretation of such circularity is that a system recognises no telos. There is no inherent purpose in the system except for its own operations. An autopoietic system carries on with its autopoiesis and the product of its autopoiesis is precisely an autopoietic system: in autopoiesis ‘being’ is becoming,33 whereby the tautology between the given of (operational) existence and the beyond of creation constitute the schizophrenia of the autopoietic paradox. The system defines its boundaries making full use of the paradox of identity (I am what I am because I am what I am not) thereby including in its self-description the unity of difference between itself and its environment. It is on this basis that one ought to understand Edgar Morin’s adage that Luhmann uses in relation to autopoiesis, namely that ‘the open rests on the close’;34 or as Stanley Fish would have it, “an open, though bounded forum.”35 Fish describes this paradox of law from the perspective of rhetoric (“the law is at once thoroughly rhetorical and engaged in the effacing of its own rhetoricity”36)as “law’s amazing trick by which the law rebuilds itself in mid-air without ever touching down.”37 Likewise, Morin’s paradox is based on an internalised causal attribution, discouraging thus any facile attribution of direction. Thus, the close rests on the open, and at the same time each one rests (because it does not rest) on the other. Bearing this in mind, the text now turns to the legal paradoxes, both utterable and unutterable, while contextualising some of the basic concepts that Luhmann employs to describe the autopoiesis of the legal system.
Perhaps the most prominent paradox of the legal system is its very description as an autopoietic system. This is as much a sine qua non condition for the following discussion, as it is an arbitrary distinction. The arbitrariness is revealed in the system’s unspecifiable environment, its fluctuating boundary and its lack of origin. The system’s autopoiesis relies upon a function that has been designated as legal (and lawful), and which in its turn designates a reference to a societal environment that includes all other systems (e.g. politics, science, mass media, economy, religion, education), but from the specific systemic point of the law; a boundary that conciliates while distinguishing closure and openness; and an absence of origin (in that the legal system originates in the arbitrary point when society became functionally differentiated and systems such as law, politics, religion, science, economy, were formed38), of external legitimation and of an ultimate narrative point from which the system could be described. But these are neither extraordinary nor peculiar to law (just as any other system, the law requires a distinction in order to be observed as a system) or to autopoiesis as a theory – except that autopoiesis makes a point of including its own theoretical premises in the contingency of its descriptions, thus admitting within its own descriptions that things could always be otherwise.
On an epistemological, autopoietic-theoretical level, a system has a function, a code and programmes. These constitute the idiom of the system, but their content differs from system to system. Through them, a simultaneous continuum and rupture is materialised that bridges law with (while distancing it from) other systems. Thus, they bring together the various systems under the observational continuum that society is for Luhmann,39 while at the same time differentiating one system from another, rupturing society in fractal enclosures of poetics. The legal system’s function is best understood as its social positionality. This is removed from Parsonian functionalism, in that here causality does not prescribe the connection between function and structure, nor does it lead to the conservative reinstatement of the original structure; on the contrary, function creates a space in which several equally plausible solutions to a problem may be tried out.40 Indeed, function is the question, rather than the causal answer. At the same time, function is distanced from a humanist instrumentalism. Thus, while Weberian functionalism includes legal actors and their subjective expression of beliefs, Luhmann’s systems exclude both the generic possibility of ‘action’ and the specific human input. This means that function is unconnected to either human usability or teleology.41 The particular concept of function helps Luhmann move away from ontological metaphysics that dwell on questions of being (in the sense both of human existence and static identity) and expand on a way of thinking that engages with a social identity produced contingently as the chance unity of difference between the question and a multiplicity of answers. The legal system’s function is not, strictly speaking, delivering the law, but positing a space in which the problem of the law is set up as a question, while allowing for a range of answers to flow in without prior notions of causal link. The relation between function and environment is one of complexity reduction. The autopoietic environment is always more complex than the system, but does not have the means to ‘ask the question’ as it were: the answers flow latently but meaninglessly in the environment. Environmental complexity refers to a multiplicity of reference points (function systems that ask different questions) that can only relate to each other selectively, that is on the basis of their own function and their ability to reduce the complexity of the environment for the system itself.
The point of this move from causal connection to contingent flux is not so much an expression of doubt (although doubt and its consequent recasting of the epistemological premises of most theories with which Luhmann engages is a fundamental yet unacknowledged underlining tool of the whole theory), as it is an opening up to the possibility of substitutability, confounding therefore the boundaries between reference and supplement. Luhmann has referred to the concept of the supplement in direct reference to the Derridean concept. Supplementarity denotes the paradoxical coexistence of both supplement and supplant, namely an addition and a replacement. The relation between addition and replacement is ambiguous and undecidable. In that sense, supplementarity, says Derrida, “is the very dislocation of the proper in general.”42 Thus, a reference (a functional reference but also self- and external reference as employed by law) becomes a supplement: it crosses from the presence of causality to a blurring of the limits between presence and absence. Reference now becomes an invitation to contingency – the system can be otherwise. Accordingly, reference is not ‘proper’, that is, it does not belong to the system, but it is merely a “mark of an emptiness” in the structure.43 To quote Derrida again, “if totalisation no longer has any meaning, is because … there is something missing from it: a centre which arrests and grounds the play of substitutions.”44 The emptiness of autopoiesis and indeed the absence of any, even illusionary, systemic centre is supplemented by function as a question that can never arrest the ‘play of substitutions’.45
To put the above from the point of view of the paradox, the function of a system is inclusive of its environment (as the mark of emptiness) in a form of inescapable contingency which has to be retained just so. This means that when the system employs its self- and external reference, it takes a decisive distance from them, their ‘propriety’ and also their object of reference. At its simplest,46 this means that part of the systemic function are the functions of all the other systems in their simultaneous potentiality as answers to the question of function: “Orientation by function alone is not sufficient. This follows from the simple fact that the reference to a function is always an invitation to look for functionally equivalent alternatives, that is, to cross systems boundaries.”47 Viewed in this decidedly second-order manner, systemic function is an enabler of other systems’ continuation of autopoiesis – namely, the perpetuation of their systemic and environmental self-production. The legal system’s function is less to do with law and more to do with enabling other systems to carry on their autopoiesis, by including them all in the form of external reference of the legal system. In its inoperative collectivity, function operates as the void – the necessary void – through which the continuation of other systems’ autopoiesis materialises. And since each function is unique to each system, function is nothing but the absence of other systemic functions. This, however, also means that a system’s function remains unintelligible to other systems on account of its self-containing within the invisibility of systemic closure. This proffered systemic space which however remains out of bounds brings forth an instance of reversed marking: the unmarked space remains unmarked because of the marked space. Marking as a precondition of unmarking. It becomes clear that the direction of marking is to be recast. The initial impression of causality that seemed to be favouring system over environment, in that the former is the marked space that can be observed, can now be supplemented by its converse – the cathedral comes before the buttress so to speak. Systemic function is an invitation by an absent host towards an alterity that is to remain unmarked.
This impression of alterity materialises within systemic function through what Luhmann calls expectations. Expectations are the way in which society (that includes other systems) fills the void of the function of the legal system. Expectations are projected into the legal system by society, and in its turn, the legal system guarantees a sense of stability: one can reliably expect the law to deliver what is expected to deliver, regardless of factual conditions that may cause personal disappointment. The fact that one is caught stealing may be disappointing for the thief, but does not alter the societal expectation that theft is unlawful. As Emilios Christodoulidis writes, “[t]he law provides a constancy peculiar to it alone. This is due to the function law has in society of stabilising expectations, of controlling normativity, of guaranteeing that its expectations will not be discredited if disappointed, that Alter is bound by the legal norm and will bear the consequences if she defies it.”48 The legal system’s function is to establish and stabilise social expectations through the handling of disappointment.49 This involves internalising (within its systemic void referred to as function) a structure of anticipation of expectations. The main characteristic of expectations, however, is that they bind time,50 namely they carry this sense of stability into the future allowing thus all other systems to defer at least some portions of unpredictability. The legal system represents society’s arsenal of future predictability precisely because the future is understood to be inherently unpredictable. This does not mean that the law can promise a conduct that conforms with norms, but simply that the law protects those who expect such conduct.51 Indeed, expectations are formulated on the basis of norms, which remain unchanged when faced with disappointment. This is what Luhmann calls the legal system’s normative (or operative) closure. Normative closure denotes that norms do not change merely on the basis of factual conditions. Normative change occurs on the basis of autopoietic reproduction: the superimposition of norms onto norms. This process at the same time reproduces and re-establishes the normative historicity, while foundationally questioning it, annihilating it and (re-) creating it anew – always the same and always different. The process of annihilation and reinvention of the law, every time anew and every time once, unrepeatably yet reliably, applies to both norms and judgements.52 In other words, there is nothing normative about normative closure.
This internal production of unpredictability, itself reliably present whenever law is applied, has its external side, in the same way that autopoietic reproduction involves precisely the parallel reproduction of the environment: thus, in conjunction to normative expectations, the law also operates with cognitive expectations. Cognitive expectations denote openness to factual conditions – hence, the legal system’s cognitive openness. The form normative/cognitive expectations constitutes the form of law and enables the constant crossing from one side to the other, in turns retaining, testing, modifying and annulling it.53 In that way, normative reliability is only good to the extent that the law has not changed. The law changes though all the time, both as a result of internal and external reproduction (what is the difference?). This seemingly goes against what has earlier been described as the basic function of the legal system, namely the binding of time and expectations. While there is nothing counterfactual in this (indeed, this is how law seems to operate), it is in that sense that the paradoxical understanding of function as question and autopoietic alterity is supported. But here comes the coup: it would seem that the system needs its illusion of identity.54 The arbitrary term ‘legal system’, which in view of its illusion-feeding arbitrariness seems now to be infested with doubt as to both its systematic nature and its lawfulness, is the kind of self-catering tautology (I need it so I invent it, I invent so I need it) that perpetuates the legal system and that the legal system perpetuates. As Luhmann says, “it is precisely because it is the factual dimension that administers this balancing function that there is no factual definition of law. The factual definition of law is replaced by the system reference ‘legal system’.”55
It is necessary to focus for a moment on the above understanding of ‘factual definition’. If the latter is replaced by a readily understood and communicable (to the system as well as to society at large) reference to a ‘legal system’, an extension of the imaginary factuality is entailed, one that does not limit itself to the system but includes the systemic environment (in the sense of supplement). The factual dimension of the legal system is an internal construction which at the same time thematises the rest of society.56 This ‘virtual’ social world, as King and Thornhill put it,57 is neither solely internal nor external, and its construction cannot be attributed to either the legal system or its environment but precisely to the distance/conflict/asymmetry between the two. In the term ‘legal system’, the conflictual undecidability between normativity and factuality is only seemingly solved in the direction of a ‘balance’, itself always destabilised by the emptiness of the signifier.
Yet, the emptiness is wrapped in a (translucent, yet flexible and resilient) layer of communicable visibility in the form of what Luhmann calls the code of the system. The binarism lawful/unlawful (Recht/Unrecht) is the form of the legal code, itself inoperable until a distinction breaks it open and operationalises one of its sides. It is, however, the form in its expectant entirety that determines what falls under the systemic legal function. Everything that is either lawful or unlawful constitutes the legal system, since “only the law can say what is lawful and what is unlawful.”58 This uniqueness determines the systemic boundary in relation to other social systems: law’s monopoly on deciding between lawfulness/unlawfulness is at the same time the law’s limit – not as including, say, only the lawful, but as occupying precisely that social space in which the crossing, the simultaneity of potentiality and actuality, the always-another distinction takes place. In other words, the seeming monopoly of the law in deciding what is lawful and what unlawful is but a void filled by other presences (be they systemic or constructed in terms of agency). Further, there is nothing ‘fixed’ about it. The form lawful/unlawful is applied in every case in its virginal but inoperable totality, only to be severed into the space of actuality (the marked side) and the space of potentiality (the unmarked). There is nothing final or predetermined in this severance. Every time the law considers the consequences of its distinction (in the form of legislating act or court decision) and the existing normative background (in short, its autopoiesis in the form of inclusive environment and systemic closure), the distinction can be otherwise.59 This otherness is fractally repeated in interiority and exteriority. Thus, the code lawful/unlawful is at the same time the distinction within the legal system, and the distinction of the legal system.60 And just as an internal distinction (legislation or decision) can be always-another, its external side is embodied in the boundary flux of what is of the system and what is not: at any point there is a simultaneity of actuality/potentiality, and of the legal system/not of the legal system, consistently enabling the crossing from one side (and level) of the distinction to the other.61
The code therefore is a dramatically uncodifiable boundary construction that can only be relied upon, paradoxically, to the extent that it remains stable. Any guarantee of norm and consequently of expectation stability is premised on the understanding that the latter “have not yet been changed.”62 Legal stabilisation can only be considered in time, and only from the present moment. Thus, time binding refers to the way the future is constructed at present, and nothing more. Any attempt to construct or indeed in the case of law, to capture the future63 is dependent on the boundary fluctuation between interiority and exteriority. But in order to extend to the future and have a credible societal purchase, the code also needs its supplement, its delay, its ghost that colonises its exteriority and allows further destabilising factors to flow in the system. This is what Luhmann calls programmes, namely, the criteria that direct a legal distinction between lawful and unlawful. Programmes stop the potentially infinite oscillation between the two sides of the legal code by offering, not so much a conditional solution of the type “if … then …”, but a delay until the marking of the one side of the code takes place. The programme allows an approximation between the present moment of decision and future uncertainty, but through a “self-generated uncertainty … because there is no doubt about the world at large but only a lack of clarity as to the attribution of the values of the code.”64 It is thus important to conceptualise programmes, not merely as the vehicles of connection between the code and ‘the world at large’, but, significantly, as enablers of uncertainty that destabilise the rigidity of the code, introducing both delay and doubt in the attribution. Programmes are relevant, not because they help reaching a decision, but precisely because they problematise this process by rendering the difficulty of distinguishing between lawful and unlawful tangible and inevitable. It is in this sense that programmes can be seen as supplements: as Luhmann himself admits, they constitute a third value, “namely the value of the uncertainty of the value attribution.”65 A programme exposes the mythology of coded completeness, ‘invaginating’, as Derrida would have it, the hole in the code, rendering it thus visible in its absence. The programme as supplement disconnects the form from its self-describing totality, introducing the visibility of oscillation between lawful and unlawful, thus contributing to (while delaying) the pivotal instance of the system: the unfolding of the paradox.
This is precisely the reason for which the law keeps itself busy and mostly safely away from the big questions, by dedicating itself to particular utterabilities, themselves paradoxical and manageable by law itself (the law can deal with them rather than having to deal them away). The form of norm and its interpretation is one such paradoxical instance. In Luhmann, this translates into the difference between core and ‘periphery’. Courts are to be found in the former, in contradistinction to other kinds of legal communication, such as the legislature, that correspond to the ‘periphery’ of the system.66 As expected, Luhmann was quick to dispel any impression of hierarchy between core and periphery, since hierarchy would be a misinterpretation of autopoietic circularity.67 The courts are simply the elements of the legal system that deparadoxify law’s utterable paradoxes, not least because their operation itself is based on a constant expectation of deparadoxification (that of the legal obligation to decide68); but also because courts are the guards of systemic memory, the facilitators of its evocation through case law, precedent, etc.69 This means that the form norm/decision is deparadoxified through differentiated prioritisation between what can also be referred to as the internal and external sides of the form.
The same internal/external differentiation can be witnessed in another Luhmannian binarism, that between redundancy and variation.70 Variation is the systemic accommodation of surprise, whereas redundancy is akin to the memory of the system. While there is little doubt that the system accommodates surprises according to its memory (e.g. the return to the legal precedence), variation triggers not only evocation but also new combinations – in other words, intelligence. Redundancy, on the other hand, is the process of banalisation of irritations that takes place in strict accordance with the system’s memory. The system is expected to balance both functions without compromising either its ability of cognitive openness to innovations, or its structural closure. In balancing, the system takes into consideration two kinds of consequences: the intrasystemic consequences which refer to future legal decisions, and the external consequences, or the effects a decision has on the legal environment.71 It is not as if redundancy and variation have respectively internal and external consequences, or that the legal system can consciously select which mode of reaction it will employ. Rather, the connection is one of contingently balancing one binarism against and through the other without any prioritisation – otherwise known as a paradox.
The boundary between internal and external, however, is the meeting point of paradoxical utterabilities and unutterabilities. Autopoietic reproduction entails the reproduction of systemic boundaries that separate the internal from the external.72 But autopoiesis in the Luhmannian sense entails also the distinction between the two sides, which further enables the beginning of the oscillation. While the object in focus is here the legal system, the focus cannot be materialised without the horizon that frames it, illuminates it, distorts it and displaces it. Still, the focus in the previous sentence was neither the system nor the environment, but the focus itself, namely the distinction included in the operation of observation which finds itself always at a state of co-determinacy with the horizon of observation. This becomes especially relevant when the process of observation is applied to the system itself as self-observation. When the system observes itself observing others (a second-order observation: the law observing its operations changing in response to the way, say, media describe the law), it constructs its focus in its co-determinacy with the environment. Thus, the environment as horizon is constructed by the system and constitutes what I referred in Chapter 1 as the external reference of the system. External reference is simply a direction: in it, self-reference is always implicated, just as external reference is implicated in self-reference: “system and environment always coexist and one side of the form of the system is never without the other side of its environment. However, by internalising this distinction in the form of the distinction between self-reference and external reference, the system gains the freedom to change ‘leadership’ on what it refers to for guiding its own (and always its own!) operations. It can shift from self-reference to external reference and back.”73 Admittedly, this sounds surprisingly close to a ‘free’ systemic choice, indeed a ‘freedom’ that enables control. But wouldn’t this run contrary to the usual autopoietic dicta of deferred control? This is where the aforementioned ‘reference to the legal system’ that replaces any factual definition becomes relevant:74 the steering factuality is the absent exteriority that guides without appearing and must hide behind an illusion of reference to ‘the legal system’ (which remains a reference to the absence of reference) as well as the illusion of leadership and choice. This shows, first, that Luhmann oscillates. His oscillation is internal, measured, and self-consumed (the system can never guide another system’s operations, however close they may be perceived to be); at the same time, however, his oscillation evokes the exteriority within, a way of relating to the outside and even changing the direction of the initial marking: thus, not just the system (self-reference) but also the environment (external reference) can operate as the focus (in the above sense of operation of observation). Closure is inclusive of an escaping alterity, and the system is looking inside for its necessary illusions.
But there is something else here too. This oscillation does not show merely that there can be a change a focus, or even that the system remains hostage to this exteriority,75 but significantly that the system absorbs an environmental excess, the force of an overwhelming and potentially destroying exteriority. Or at least, it attempts to absorb it (through external reference), since it does not always manage. Indeed, even external reference itself is exceeded. Remarkably not by factuality (namely its reference), but by the impossibility of factuality for law (namely the absence of reference). The factual is never factual for law, but always law’s factual – law’s own construction. Yet, law’s factual cannot and does not absorb its own excess, the flooding uncertainty of facts, the traumatising violence of new conditions and the insatiable demand for new distinctions. In this sense, in order for external reference to remain relevant, it needs to be conceptualised as a veritable supplement in the sense discussed above, namely as one that replaces the environment of the law and adds to it its own excess, its impossibility of absorption, its very absence of reference.76 This achieves a dual aim for external reference: on the one hand, to be referred to by the system as if it were a visible part of the system, an operational event which can be slid in along the rest of systemic operations; and, contained in the latter but also exceeding it, to be referred to by the system as the absence of reference, as the operation that is there but remains inoperational, a visit by the unutterable paradox, the ‘secret hôte’ in and of the system, as Lyotard put it.77 This is simultaneously more and less than a reinstatement of what Luhmann diagnoses as “the best known way out”, namely “to insist on an external reference.”78 It is more, because it explicitly exceeds external reference; it is less because it implicitly annuls external reference in favour of a return to an allembracing self-reference (which includes its exclusions, and its excluded exclusions, in presence, absence or excess79). Still, one is also compelled to look into the way in which Luhmann courts with precisely this way out. And while his courting is generally circumspect, it is also characterised by a certain extravagance since he relies on the self-invisibilisation of the paradox while rehearsing its continuous return (or perhaps its non-departure). The paradox for Luhmann contains the inoperable excess of the reference to the absence of reference, the deposit of any transcendental suspicion. But, as I show below and progressively in the course of this book, the excess always returns in the form of the unutterable paradox, instigating within the system a space of self-questioning that cannot be accommodated.
Before that, however, let me briefly look at the way the system produces its identity. The legal system’s identity – its ‘unity’–is neither a principle nor a norm. It is an illusion that comes in the form of self-description, namely “the presentation of the unity of the system within the system.”80 The system needs to present itself with this illusion, while in parallel almost desperately demanding of external observers to respect its attempt to invisibilise its weakness: “[the legal system] has to insist, for instance, that it is right to distinguish between lawful and unlawful whereas external observers may see this precisely as an injustice.”81 The presence of justice in the system will be the focus of the following section, but at present it is important to dwell for a minute on the construction of self-description within the system. For, in order for such a construction to take place, an internal boundary has to be set up by the system, at the same time described (the system describing its unity to itself) and performed (the system must cross this boundary in order to describe itself as observed from the other side).82 In other words, the system is found oscillating between an identity (to be called and to belong) and its perennially invisibilised ipseity (the total form which can never be observed).83 Further, the system has to relativise both identity and ipseity in order to elicit the necessary difference through which its ‘unity’ will be presented. In this oscillation, it must bracket the descriptions of other observers and differentiate between self and external reference while confounding them. On top of everything else, it has to self-impose an estoppel “where the quest for finding the final reason of law must end. In performing its self-description the system must presuppose and accept itself.”84 It is not easy to be a system. Indeed, there is something endearing in this depiction of a system as impotent yet obstinate, isolated yet seeking a call, narcissistic yet unable to accept itself unless forced (by the only one who can, namely itself). But this is how autopoiesis describes its systems (“a system can only found itself on a paradox and cannot found itself on a paradox”85). Systems are nebulous things that cannot carry on without illusions of self-unity, the latter perpetually invisibilising the systems’ impossibility of reaching out beyond their self-producing boundaries or their self-perpetuating external references, and replacing them instead with blind simulacra of an outside. An autopoietic system is neither in the system nor in its environment, neither closed nor open, neither form nor distinction, neither neither nor nor, but a perpetual oscillation that cannot be traced except as a trace of a just present absence.
The flirtation between the utterable and the unutterable could carry on. But even if the unutterable has been invited in the system and at least a partial visibility has been facilitated by some of the more outré utterable paradoxes, I want to push a little deeper outside in the environment and a little further into Luhmann’s textual fissures. For however much I try, I am confined in a direction given at the outset, and by a starting point that returns even in the face of unbreakable circularity. So far I have been beginning from the one side of the form, the side that shows the relatively innocuous fleur-de-lis