Society’s law

Chapter 3
Society’s law

In society

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:

… as a result of its striking characteristics, language serves the structural coupling of communication and consciousness. Language keeps communication and consciousness, hence also society and individual, separate … There is no overlap on the operative level. We are dealing with two different, operatively closed systems. What is decisive is that despite this, language is able to couple the systems and precisely in their different manner of operation … This, however, is only the one side of its achievement. Like all structural couplings, language has an inclusive and an exclusive effect. This means that other sources of irritations are excluded for the system of society, that is, language isolates society from almost all environmental events of a physical, chemical or living nature with the sole exception of irritation through impulses of consciousness … The system of society is almost completely isolated from everything that occurs in the world – with a small range of stimuli which are channelled through consciousness.30

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:

a precisely identified manner of operating. If, to be safe, one names many operations – such as thought and action, structure formation and processes – the desired unity disappears in the pallor and insipidity of “and”.(“Ands” should be forbidden in the technical requirements of theory construction.) We have to take risks in determining the manner of operation by which society produces and reproduces itself. Otherwise the concept loses all contours.39

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:

The topology of world society is the topology of paradoxical surfaces, of surfaces which re-enter themselves and make it impossible to distinguish the inside from the outside, the engulfing from the engulfed, the penetrating from the penetrated. This topology is the re-entry of the world into itself: the world as an extensive, sequential space for a non-entangling deployment of self and other re-enters itself as an all-present, non-sequential, paradoxical space of a constantly accomplished entanglement of a self and other.50

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.

On the other side

In his article Beyond Barbarism,59 Luhmann begins with the assertion that society has moved to a point of including barbarism in the form of a potentially conflictual opposite. This conflict, however, is being avoided because barbarism – in its various presently permissible forms – is now an issue to deal with rather than exclude. As a result, modernity’s move beyond barbarism is now seen as an opportunity for education, therapy, care, help, thus making even its conflictual opposite a part of the marked space of society (“the existence of hell is denied – but then better and worse places in heaven must be distinguished”60). Luhmann’s ‘beyond’, therefore, appears safely folded inside and the relevant question now is whether there is a moment of re-entry of the beyond that unsettles the unity. As discussed in the previous chapter, re-entry is the reiteration within the system of its difference with its environment. Such a re-entry, one hopes and desires together with Kavafis,61 will take the form of a rancorous bar-bar that will not only counter-define the language of the agora but will fray its contours and spread the gaps within.62 But Luhmann does not wait for the Barbarians. His city only operates in the present, quietly going about its dissimulation, constantly checking itself for consistency, ignoring what there is to wait for. The future is here, juxtaposing itself between realisation and failure of future projects,63 and everything that can be predicted has been predicted. The Barbarians represent no risk or desire for the system because their advent has already been anticipated. But in this way, any solution the Barbarians might have given (we will never know) lies together with the problem. The Barbarians bring both. A double negative bind that cannot be resolved from the inside – but then again, there is no outside. Or is there? Luhmann’s city has no room for its outside, yet it does understand exclusion. In fact it practices exclusion, it nominates the Barbarians, although it does not wait for them. Exclusion is well inside the system, a memento violentiae that claims its own space and its own absence. It is through exclusion that Luhmann revisited some of his earlier concepts and allowed them to look at themselves in the mirror and see a slice of absence between themselves and their reflection.

Luhmann ‘recalls’ the ‘beginning’ of function systems (empirically and theoretically) as “laid out to include the entirety of the population.”64 Functional differentiation (in Weber, in Parsons, but also in earlier Luhmann) thinks of itself as all-inclusive. In turn, this leads to an understanding of exclusion as a residual problem of society (seen sociolegally) or simply as an effect of societal oppression (seen from a Marxist/post-Marxist point of view). For Luhmann, beginning with inclusion is the wrong starting point. As we have seen, he proposes instead the normative exclusion of the human from society, which in its turn debilitates the aspiring illusion of all-inclusion and discredits its appeal.65 The distinction inclusion/exclusion is encountered in earlier works by Luhmann, albeit in different contexts. The concept of ‘total inclusion’ for example is one such instance and refers to the fixity of social position in a stratified society (that is, the way society was before functional differentiation), which bars one from social mobility.66 A historically defined and contained inclusion has been employed by Luhmann as a means of showing how exclusion of the human from modern society was the only way in which the human was allowed mobility and at the same time inclusion in the function systems – notably through the mechanism of human rights. But the inclusion afforded by human rights and function systems does not accept exclusion. This does not mean that there is no exclusion. Just that society cannot reflect on it, thereby further burying the actual problem.67 When modern society treats exclusions as “problems that need therapy”, it relegates exclusion to a matter of internalised societal care.68 When law treats exclusions as opportunities for improvement, the law institutes laudable but potentially misguided and essentially symptomatic mechanisms, such as legal aid, general principles of tolerance and piecemeal non-discrimination, and enclaves whose inclusion is a matter of criteriameeting – and one would be forgiven for thinking here of the European Union and its stability packs. But is this adequate? These included exclusions are precisely what Wendy Brown condemns as the practice of ‘tolerance’, which assuage while destroying.69 It is only nominally that society and law include their exclusions (or to decontextualise it a little further, they include their exclusions as a communicable event, about which systems communicate70). The habitual assignment to a functionally excluded exclusion, namely an exclusion that alleviates from further reflection through its assignment to institutional care, reveals that there is a double side to it: society cares in order not to care. As Cixous and Clément write: “the paradox of otherness is that, of course, at no moment in History is it tolerated as such. The other is there only to be reappropriated, recaptured, and destroyed as other. Even the exclusion is not an exclusion.”71

Thus, function systems offer a dream of universal inclusion (in the sense of the liberal individual’s ability to be included) but not actual full inclusion. On the contrary, it is now obvious that function systems produce exclusion. What is more, this exclusion does not operate between systems (“as if science could classify all non-scientific communication as barbaric”72), but on the level of society: “the function systems themselves decide how far someone gets.”73 Indeed, Luhmann admits that exclusion from one social system escalates to intensification of exclusion via repetition in other systems.74 Society integrates more efficiently when it comes to integrating exclusion – what Luhmann calls “negative integration”. Negative integration is the outcome of a society that cannot let go of its exclusions. At the same time, the realisation that “functional differentiation cannot realise the postulated full-inclusion”,75 pushes Luhmann into positing a different level on which the distinction inclusion/exclusion is to be operating: nothing less than the level of “the guiding difference of [this] century.”76 From that meta-level, inclusion/exclusion filters what is to be valid for each functionally differentiated system.77 Thus, “if the distinction valid/invalid (juridically) has any consequence … depends in the first place on a previous filtration of inclusion/exclusion; not only in the sense that the excluded are also excluded from law, but in the sense that others – in particular, politics, administration, policy and of course the military – decide on discretion on whether or not to obey the law.”78

The point is not whether there is exclusion. The point is not even whether exclusion can be fully eliminated. On this Luhmann is clear: inclusion cannot be without exclusion. What is important is what society, and for this discussion both law and autopoiesis, does with respect to exclusion, and more specifically, where it locates it. To put it differently, the question is whether autopoiesis can accept an outside qua outside. Doesn’t the theory suffer from precisely the pathology of total inclusion (potentially and actually, in the form of inclusive exclusions) that seems to criticise in other, more critical theories? Luhmann has been making regular references to ‘old-European’ theories of a world without an ‘outside’ in order to differentiate and subsequently develop systems theory – a technique also employed in Beyond Barbarism by citing Koselleck, Dumont, Kant, Hegel and Husserl amongst others. It is questionable, however, whether he is interested in avoiding treating the excluded as ‘actually’ excluded. Society’s outside is an environment of non-communication about which society may be able to communicate – but never with it. As Luhmann admits, “it is possible to communicate even about the inaccessibility of the world. In Derrida’s words, ‘la trace de la trace, la trace de l’effacement de la trace.’”79 But what about the incommunicable of incommunicability?80 To put it in the register of absence introduced in the previous chapter, what about the emerging space of absence within systems that remains beyond either direct (with) or indirect (about) communication and registers itself beyond the inclusion/exclusion filter, yet nags the system from inside, already invited within through the negativity of the systemic environment? It would seem that we have reached the limits of the theory in the form of its all-inclusion. Indeed, even when Luhmann deals with what he considers the most challenging ‘environmental’ problem of society, namely the ecological issue, he still resists doing anything more than “draw the barbarians into society.”81 But there is a twist to the story that at the last moment provides accommodation to that absence.

“To the surprise of the well-meaning …”: in this Dantean-like epigram Luhmann introduces in Beyond Barbarism the revisiting of his own precedent. Although he would never identify with the ‘well-meaning’ (who think of exclusion as an opportunity for social criticism), Luhmann attempts to contain his surprise by ascertaining that exclusion still exists. Luhmann discovered exclusion and with it his own tristes tropiques when in the early 1990s he visited the favelas in Brazil. The story is almost mythical in its recurrence, not least because of the spectacular new vocabulary that followed the journey. Expressions such as “existences reduced to the bodily … attempting to get to the next day” in Beyond Barbarism, and “physical violence, sexuality, the elemental and impulsive satisfaction of necessities” and “the observation of bodies” in Die Gesellschaft der Gesellschaft82 have narrowly although indelibly opened the text to the observation of the hitherto unobservable. I am not referring to human beings, to the corporeal or indeed to the return of geography (despite that, as Luhmann says, these phenomena can be seen “in some regions of this earthly globe”83), but to the acknowledgement of an outside – what William Rasch calls ‘the Spasm of the Limits’.84 With this new understanding of exclusion, at least some of the grand concepts of systems theory are being thrown into a ‘new’ meta-context: society, functional differentiation and communication are now required to swim in the larger ocean of inclusion/exclusion with all its new visibilisations. Inclusion/exclusion appears to be a spectre of promises past that is here to haunt Luhmann’s texts and their reader, and allow a flow of previously unencountered apparitions of bodies and spaces to enter his texts. This is the visibilisation of the invisible: “there are still immense differences between rich and poor, and such differences still affect lifestyle and access to social opportunities. What is different is that this is no longer the visible order, the order without which no order would be possible at all.”85 Functional differentiation promised an invisibilisation of social inequalities, but now the invisible has become visible (although still not instrumental for society, at least not in the way functional differentiation is) and the excluded has become registered. If I am not mistaken, Beyond Barbarism is the first English appearance of a text by Luhmann that refers explicitly to exclusion.86 Filling a small part of the gap until the eventual translation of Die Gesellschaft der Gesellschaft, this text addresses criticisms on Luhmann’s allegedly inadequate engagement with human marginalisation, while at the same time creating another space for newly described absences.87

This shot at a veritable reciprocal constitution, which has radical and possibly desirable consequences for the way autopoietic theory describes itself, has been quickly drawn back through masterful gestures of yet further levels of societal decision- and distinction-making. Thus, in Die Gesellschaft der Gesellschaft, Luhmann carries on by positing care and self-help as emerging new systems. This may well be the case and there is indeed an increasing bibliography moving in that direction.88 The wound, however, has been inflicted. The Brazilian excursus has opened up a chasm in the theory which calls for some theoretical acrobatics in order to account for what I have earlier called the absence of reference of exclusion. Attempts to conciliate it with the existing theoretical apparatus expectedly focus on the circularity between self- and external reference. Indeed, in its attempt to see the total unity, the system crosses between self- and external reference. In so doing, it creates its blind spots, themselves the precondition of unity: unity can be neither with a blind spot (for the unity leaves out the blind spot and is no longer a unity), nor without a blind spot (for where is the observer who observes the unity if not before her blind spot, her back turned to it, enabling the illusion of unity to blind her?) This is what Jean-Luc Nancy calls the “suspended world”,89 namely the world that withdraws when represented, the observed that changes as soon as observed. This is indeed the blind spot, the suspended totality so close yet so far away.

But for Nancy there is also something else: there is always a sliver of the world, an aspect which we cannot yet make out, and on account of which, as Stäheli puts it, “a mere aporetic happening of the world” takes place.90 This “essential non-accessibility within the world”91 can only to some extent be captured by the contingent necessity of the blind spot. Instead, it requires a constant oscillation: one has to take off, immerse oneself in the distance, be in and out at the same time. In other words, one needs to cheat: to see how the other sees and then allow the suspicion to be formed, allow the draught of the outside to breathe in. And one can do this without turning towards it. In fact, one does this: think of the legal system and the way it manages to maintain its illusion of unity while exposing itself to the awareness of the illusion. The latter is the ‘non-accessibility within’, the fear that limits may also be limitations, that there is something pushed aside, deeper into the margins. And this visibility of a suspicion is offered by a cryptic Luhmann who says that “one adds up what one sees”. Once this happens, the suspicion (that there is a non-accessibility within the world) comes to occupy a shadowy space that Luhmann unexpectedly calls “the margins of function systems” in which “effects of exclusion are generated which, on this level, lead to a negative integration of society.”92 But where exactly does Luhmann observe those margins? What are they? Are they of the system or the environment? Of society or its outside? Are they also autopoietically reproduced? Does a system know about them? Does it take medication for them, does it talk about them? I would like to suggest an understanding of systemic ‘margins’ as a reference to the absence of reference within the system. Systemic margins are the marginalia of systemic violence, the unfolding of the necessity of violence as well as its horror in a space out of the space of distinction yet inscribed well within it. It is where law eavesdrops on the rustling of its oscillation, momentarily losing both the illusion of identity and awareness of illusion. This is the internal spectrality of the absent environment, or the hostage to which every singularity is submitted, as Jean François Lyotard puts it.93 It is, once again, the space in a system whose internalisation by other systems occludes the possibility of self-description.

Just as justice in the previous chapter, exclusion remains unobservable by all social systems, since properly speaking, it cannot be found in any one system, but in a vertiginous catenation that spreads across all systems, of simultaneous internalisation and inability to observe, internalise and deal with. Accordingly, exclusion is to be sought neither as “an address for critique”,94 nor as a thing upon which society can simply reflect and about which it can communicate. Exclusion is to be sought within exclusion itself. This exclusion of exclusion entails a systemic folding unto itself, a self-transcendence as it were, that reveals to the system a space of ignorance within, in the ambits of the inclusive exclusion and simultaneously against it, transgressing it from within. This is close to what Luhmann following Günther, calls the ‘rejection value’ that each system reserves for the codes of other systems.95 Not a third value as such but once again a ‘space of absence’ within the system, a memento violentiae that irritates the system from within, occupying its systemic ‘margins’ and constantly reminding it of its limitations. This acknowledgement of limitation breeds different forms of uncertainty to the ones previously produced by the system. While both are self-generated, the uncertainty produced from the reference to the absence of reference addresses directly the system’s illusion of all-inclusiveness and allows for a more modest self-description of the system’s abilities.

To contextualise the above in the previous discussion on society: the relevance of Luhmannian society in its functionally differentiated form, even as a nontotalising totality which nevertheless determines systemic location as within rather than outside, becomes limited if a space of absence is brought forth in the system. Once the systemic ‘margins’ have been exposed and the space of absence made visible, the difference between system and environment that re-enters the system can no longer be confined by the pre-filtering suprasystem of society, because the latter would determine what is to be re-entered on the basis of the distinction between communication and non-communication. As a result, only communications ‘enter’ the system, even when re-entry is in operation. But if this re-entry contains already those aspects of the system that even the system itself wants to suppress, namely all those absences, margins and exclusions, then no amount of communicational filtering can alter that. This does not mean that there is no society or even that there should be no society – such ontological observations have nothing to do with the argument. It simply means that, as an epistemological parameter, society does not offer anything to the system that the system does not already construct, in full presence and, more significantly, absence. The same argument applies to law’s location within society: the autopoietic axiom that the legal system does not understand its environment as environment, means also that it is irrelevant whether or not the environment is constructed as societal. What is instead relevant is that the system remains able, not only to re-enter its difference between itself and its (constructed) environment, but to retain exclusivity in determining what is of the system. While this may sound centralising and undercutting of other modes of law production, in reality it reveals precisely the impossibility of the law to control what is of the system, because the law has already exposed itself to the draughts of non-communication by allowing a space of absence to become visible within the system. Society cannot protect the law from the upsetting whispers of injustice around, even when such whispers do not partake in the closure of communication.

The present reading of the theory argues for an even greater internalisation of absence (of the natural, the barbaric, or whatever other reference is found absent within, in a veritable exclusion of exclusion) from within the system. This can only take place via a return to the boundaries of each system, relocating thus the system from society to the system itself. In this way, a system is self-described as both totalising (since every reference is framed in the difference between self and other) and at the same time fragmented and indeed traumatised by its self-inflicted trace of absence. This is the way I think autopoiesis understands the legal system: less as a subsystem, a boundary within a boundary and a communication basin in which safely rehearsed tirades are repeated; and more as a fragile, momentary formation. Deprived of the protective atmosphere of a suprasystem, exposed to the rusting effects of incommunicability, the system in its nefarious vagrancy returns as the only terrain on which autopoiesis is to be studied: an autopoiesis that demands viewing the phenomenon of the difference between inside and outside from within the boundary of a system, indeed from a point of internalisation not only of systemic operations but also of its impassable, unfoldable, unpostponable, unutterable paradoxes. In an autopoiesis that does not employ societal boundaries to carry on with its communications, communications are disrupted – as indeed they are – by an environment whose incommunicability guarantees its absence and at the same time prohibits its normative colonisation on behalf of the system. In other words, lifting the shield of autopoietic society from autopoiesis exposes the system to an unmasticated environment, full of potential communications but also fantasies, imperceptions, impossibilities and other barbaric-sounding destabilising factors that demand a systemic reference beyond the self-referential unity of self- and external reference; but this ‘beyond’ is nowhere to be found but between self- and external reference, in unobservability and unutterability, a margin within the margins of the suspicion of illusion. It is only in this way that the system readjusts its self-description to unfiltered uncertainties, producing expectations that reveal its systemic limits and limitations to itself. To paraphrase Luhmann, adequately exposed theoretical premises are necessary for the description of an inadequately (and impossibly) compartmentalised environmental uncertainty.

The return to law is a reiteration of the departure from society. Here is where society imagines itself (here, and in every other system that observes its difference from its environment). Whatever said so far applies to law as the repeatedly unique performance of limits and limitations. The totality of the system is the totality of the world. But the difference between law and society at large is that, in law, there can be a constructible outside that does not rely on death or ecological catastrophe as it does in the case of society, but simply on the immersion in the distance of second-order observation. The latter of course is not a panacea, but, especially in terms of the law, it allows a landed understanding of its thresholds with its environment and more specifically the other function systems. As discussed in the previous chapter, albeit in different terms, legal communication reaches its limits and ingests them as absence. Its necessity for identity is continuously counter-acted by its suspicion that law is not all there is. Law’s oscillation between self- and external reference internalises an environment which is both unknowable and constructed, in turns host and guest. Exclusion within law is also initially perceived as inclusion – thus as I said earlier, legal aid, access to information, access to justice, but also legal transplants, the international use of force and even transnational or supranational regimes96 – only immediately to allow the appearance of a sliver of excluded exclusion, an impression of inadequacy variously formed in terms of legal theory or legal internalisation of political or media reactions to total inclusion. Law’s space of absence within as the non-included exclusion is law’s own barbarians: the memory of an anticipated limitation, the revisiting of a case, the visibilisation of gender structures, even the ability of the constitution to change itself. There are several instances of awareness of limitation and (critical) legal theory reminds law of them.97 Indeed, if there were ever to be a transformative potential in autopoiesis, this would be it: to irritate the law from within while also showing the law its potential by positing spaces of absence that elude yet are invited by systemic normativity. This is what I would call, following Cixous, the ‘bisexuality’ of autopoiesis: it is “this being ‘neither out nor in’, being ‘beyond the outside/inside opposition.’”98

However, the limitations have an internal side too: the law cannot do more about exclusion than its systemic boundaries provide for. However oscillating, law is limited to law. Justice, as the flight away from it, is its ticket for an understanding of societal exclusion, but again, it can only do so much considering that the flight always lands back onto law. Arguably this is the most valuable element of autopoietic theory: the constant oscillation between the external and internal side of limits, never losing sight of what is expected of the law (how the law describes itself, how the law is described) while allowing it

to transcend the very same expectations in a circularity of return. Thus, conceptualising exclusion as absence opens the space within the theory in which the latter is required to reflect on the absence of a reference, an empty reflection that reveals the contours of a void within the system. Working together with the shattering of the illusion of therapy, the empty reference disrupts the system’s omnivalidity and suggests the possibility of a parallel system that cannot be reflected as an external reference on account of its incommunicability. At present, favelas appear in two ways: either as an empty pale yellow space on the map whose sprawling begins where neatly sketched streets end abruptly;99 or as a land to be appropriated, a normativity to be normalised, minds to be educated, etc.100 Non-reflection in the former, opportunity for therapy in the latter. Exclusion as absence, however, schematically appears on the other side of the map. Its location transcends the need for solution (in the sense of unfolding the paradox or the map) and requires a parallel observation of an incomprehensibility while retaining its incomprehensible traits.101 This leads nowhere but to an awareness of a suspicion of another system/society/life, which stands as the other side of the limit and at the same time a cognitive opportunity for the observing system. Cognising in symmetry, but only after and through the asymmetry of absence. Returning to the boundaries of the system is one way of circumventing the limitations of communication as the sole point of entry for society, encouraging an autopoietic conceptualisation of precisely those spaces of absence within systems. Only once this is in place, one can begin thinking on how to continue misunderstanding the Barbarians.

Coupling of environments

In connecting the legal system with other function systems, one traditionally looks for causal links, common sources, direct influence and downright control. It should be clear by now that autopoiesis departs from the above ways of describing connections between or even within systems.102 This does not mean that the existence of the above is denied.103 They are simply relegated to a different level, that of second-order observation. Thus, causality is replaced by attribution, namely the causal link performed by a second-order observer in her attempt to explain the way the observed connect and co-evolve. Attribution “does not penetrate the units, but it can establish that they occasionally combine, that they adopt the same or complementary values for many variables, or even that they operate as a unified unit on specific occasions.”104 On a first-order, systemic observation level, however, there can be no cause and effect. Everything is organised on a flat, unhierarchical array of systems and environments. As for power, Anton Schütz has put it eloquently:

Arkhé (mastery) is located outside and in front of the system – that is, just beyond the system’s borders with its accompanying other or heteros … The dream of a self-mastering society, of societal autarky or sovereignty, is incompatible with the autopoietic division, the autopoietic disentanglement, of a system which is contingent but gifted (gifted with selectivity, preferences, self-reference, use of time), and an environment which is calmly indifferent but unmanoeuvrable … One is liable to limitless enslavement and cannot take control of its conditions. The other side fails to be elevated to a corresponding plenitude of power.105

In autopoiesis, powerlessness is infused with power, the latter always on the other side, vertiginously and intransparently spread between system and environment.106 Autopoiesis incorporates precisely a departure from concepts of power and control, because it wants to denude the social from the impression of direct and consequently facile influence between, say law and politics. This is one of the hardest paradigm shifts autopoiesis initiates, one that requires leaving behind “the fiction that played the role of the consolatory companion throughout many centuries of European Dasein.”107 The diffusion of power in autopoiesis is a balance between a blind potency and a luminous impotence – neither of which is solely of the system or the environment.

But systems float in parallel lines to each other and power returns to haunt their distance and even involve autopoiesis in formulations that may initially sound a little artificial. Thus, Luhmann has suggested that political power, traditionally the operative privilege of the political system, also extends to law and becomes coded by the legal code too.108 This is a simultaneous process: power is double coded by law (as law) and by politics (as politics). With this, violence returns while keeping a distance from the system precisely due to its bilocality. Legal violence (which, according to Luhmann, although based on force, it is not controlled by force109) is what politics needs in order to operate its power. But legal violence is not political violence: it is law, in its obstinacy of producing normative expectations. Thus, power is dispersed, externalised, communicated to its environment, at the same time reinforced and debilitated, divided between two operabilities which remain individually inoperable.

Power’s bilocality in system and environment while never solely in either is a complex issue which eschews the limits of this discussion.110 It is, however, important to note that the apparition of power in both law and politics is an instance of a generalised autopoietic process that Luhmann following Maturana and Varela, calls structural coupling. Just as the autopoiesis of systems involves the production of an environment which is relevant to systemic operations, in the same way the environment folds into niches of coevolution, allowing the systemic triggering of intransparent commonalities. This process of mirrored spiralling between system and environment is what structural coupling is about: the system presupposes certain features of its environment on an ongoing basis and relies on them structurally.111 Structural coupling involves no contact, no intersection, no input-output.112 It remains an “interlocking of independent units”113 whose parallel evolution becomes visible through a series of (internally constructed) irritations.114 These irritations cannot be isolated events115 but a continuous influx of uncertainty that destabilises the system by placing it in cognitive asymmetry with its environment. An interesting parallel between structural coupling and the Husserlian concept of pairing can be traced. Phenomenological pairing is defined as the appresentation of the other within the self. Appresentation in Husserl’s terminology is to make “present to consciousness a ‘there too’, which nevertheless is not itself there.”116 A combination of presence and absence, and indeed of structure and environment as the unity of difference between alter and ego is inscribed here. Remarkably, alterity appears in pairing as primarily instituted. It does not rely on inference but on analogised transfer of the originally instituted.117 But since the only primal instituting is ego, pairing, as the constitution of the other, always takes place within ego. This is why the ‘there too’ is not itself there; and this is also why Lévinas amongst others criticised Husserl’s attempt at intersubjectivity.118 In pairing, alter is always the ‘there’ that follows, always constituted in ‘here’. Hence, alter is reduced to same. While this criticism may also be launched against structural coupling, I believe that there is another way in which it can be read. It is true that in structural coupling a system only presupposes states of its environment (i.e. operations of other systems) rather than directly perceiving them. And it is also the case that alterity is constructed inside ego, a terrain of concentration rather than of priority concession. Still, amidst this internalisation, the construction of alterity is mutual. Just as Husserlian pairing can also be read as reciprocity, in that ego is constructed by alter as much as alter is constructed by ego,119 an analogous form of reciprocity can be found in autopoietic coupling in the form of a constructed mutual history. But structural coupling goes beyond reciprocity: their history remains one of difference, where structures become shared and co-evolutionary without becoming common.120 Alter is reduced to different.

A way to explain this radically autopoietic nature of structural coupling is through the form of continuum/rupture.121 Structural coupling visibilises the difference of identity by positing a horizon of reciprocal construction, thereby pulling the coupled systems apart while offering a second-level, attributional identity. Thus, the continuum of coupling is predicated on a certain structural rupture needed for the accommodation of environmental uncertainty. The continuum can be attributed to an invitation, a structural call as it were that addresses the suspicion of continuum and the need to render this continuum visible. An invitation, however, at the same time occludes the continuum precisely because, in its turn, is predicated upon a prior rupture (the one between the host and the guest, as well as the time of the host and the time of the guest). The two coupling systems, for example law and politics, just as their form rupture/continuum, are brought in parallel togetherness through the circularity of this ever-receding, ever-prior, ever-egological invitation to couple (which one asked first, law or politics?) In the invitation, a summons to continuum is protended. But in the priority of the other invitation, the rupture is reinstituted as the inviting distance of an undomesticated complexity that always precedes. Thus, the continuum is enabled precisely on account of the rupturing effect of the priority of invitation, and the rupture disabled and invited anew with every continuum. Continuum presupposes and brings about the invitation to couple, just as rupture enables and disables coupling; but their reciprocal invitation, their mutual entanglement enables schisms within the continuum and sutures along the rupture. There is no space clean from either, be this environment or significantly system, and resonances of the ghost of dedifferentiation (the dissolution of functional differentiation into tautology) can be found across the boundary. The invitation, therefore, is a means of appeasement and further exposure, a self-imposed utopian challenge that conditions the space of invitation by exposing it to further rupture. The reciprocal appellation reveals, not a causal relationship between what is needed and what is provided, but a simultaneity of environmental internalisation as fractured continuum in both systems.

From the above it becomes obvious that the two coupling systems invite, not each other but each other’s environment in its difference to the system. Law exposes its blind spots, its unrehearsed ignorance to an invited politics, whispering a summons to conditioning in the form of postponement, new distinctions, differently taken decisions. At the same time, politics invite law to rely upon for the legitimacy of its distinctions, themselves always ultimate and always originary, solidly based on an original law. Fantasies exchanged, the two systems can go about occupying themselves with themselves. But each expanse of ignorance becomes conditioned by the horizons of the other, in an attempt to mirror, not a secure coupling between systemic operations, but an uncoupling of ambiguity, a rupture of the unknown as totality, and a ‘compartmentalisation’ of this unknown into system-specific unknowabilities, which, however, become disrupted by the other system’s continuum with its environment. Through the coupling of environments, the uncertainty of the environment is not just a matter of exchanged re-entries of the difference between system and environment, but a much more radical and thus uncontainable experience of exposure. Structural coupling has the effect of an exponential increase of ambiguity and arbitrariness within the system in view of the amount of environmental perturbations to which each system is now exposed. When one system invites the other in coupling (and the invitation can only be reciprocal, simultaneous and intransparent), they offer their respective blind spots (namely, what cannot be focused on, when the system is in focus) as ever-receding horizons of prior invitation, thereby conceding a priority to the ignorance of alter that can never be domesticated – unlike their own environment which has been converted into a domesticated external reference, or, as Baudrillard would say, to something “dangerously similar.”122 In either system, the alter environment operates as both rupture and continuum with its system disrupting sameness with an uncontainable difference.

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