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Critical Autopoiesis and the Materiality of Law

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Abstract

Autopoietic theory is increasingly seen as a candidate for a radical theory of law, both in relation to its theoretical credentials and its relevance in terms of new and emerging forms of law. An aspect of the theory that has remained less developed, however, is its material side, and more concretely the theory’s accommodation of bodies, space, objects and their claim to legal agency. The present article reads Luhmann’s theory of autopoietic systems in a radical and material manner, linking it on the one hand to current post-structural theorisations of law and society, and on the other hand extending its ambit to accommodate the influx of material considerations that have been working their way through various other disciplines. The latter comprises both a materialisation of the theory itself and ways of conceptualising the legal system as material through and through. This I do by further developing what I have called Critical Autopoiesis, namely an acentric, topological, post-ecological and posthuman understanding of Luhmann’s theory, that draws on Deleuzian thought, feminist theory, geography, non-representational theory, and new material and object-oriented ontologies. These are combined with some well-rehearsed autopoietic concepts, such as distinction, environment and boundaries; Luhmann’s earlier work on materiality continuum; more recent work on bodies and space; as well as his work on form and medium in relation to art. The article concludes with five suggestions for an understanding of what critical autopoietic materiality might mean for law.

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Notes

  1. See indicatively [7, 45, 20, 28].

  2. e.g., [12, 59, 65].

  3. e.g., [67, 60].

  4. My response to these issues can be found in [51].

  5. [52].

  6. [39: 1117]. To put it simply, third-order or critical knowledge would be seeing oneself through the eyes of another in a social interaction. In systemic language this would translate in the untranslatable ‘observing oneself observing oneself while observing and being observed by another’.

  7. This is reminiscent of Nicola [29: 195], description of feminist legal critique, itself taking place from within and at the law: “to question, unsettle and expose to careful scrutiny not only current laws and their organisation but also the claims to authority and legitimacy which legal officials, law-makers, legal practices and theories express on law’s behalf.”.

  8. [39: 889].

  9. This is the reason for which I have described one of the basic tenets of Luhmann’s theory, namely structural coupling between social systems, as a coupling of environments, of contingencies rather than illusions of knowledge and simplification. See [51].

  10. [19: 28].

  11. This is a not-so-covert reference to Deleuzian/Guattarian rhizomatics [15].

  12. [51].

  13. Luhmann has referred to Deleuze more and more in his later texts. Luhmann’s use of the concept of meaning is a point in case, also analysed below: Luhmann moved away from an initial Husserlian understanding of Sinn and towards a Deleuzian Sens. This marks an open rupture of autopoiesis with phenomenology and even a concession to a potential access to ontology.

  14. [54, 5, 9, 56].

  15. Felicitous exceptions are not infrequent. See indicatively [64, 61, 63, 12, 59], amongst others.

  16. [44].

  17. [41: 73].

  18. [39: 76].

  19. [33: 178].

  20. [10].

  21. [45].

  22. Calm [13: 73] parallels the effect of communication to that of Freudian unconscious: just as “the concept of the Unconscious anonymized the psychic entity, transforming it in a bundle of processes governed by a complex affectual economy”, communication inaugurates a grand ontological reversal “as an inaugurative performance endowing sociology with its proper object: the social.”

  23. [41: 235].

  24. [69].

  25. [23, 42, 46].

  26. [50].

  27. [6, 55].

  28. More concretely, through the mechanism of re-entry, which is the internal systemic reproduction of the difference between the specific system and its environment.

  29. [39].

  30. “only in exceptional cases (i.e., on different levels of reality, irritated by environmental factors), can [the system] start reverberating, can it be set in motion. This is the case we designate as resonance.” [34: 15].

  31. [16].

  32. [16: 59].

  33. One of which I have developed in my 2010 book on Niklas Luhmann, which revolves around a critical reading of Luhmann in line with other, poststructuralist theories.

  34. Autopoiesis “should not be conceived as the production of a determinate form (Gestalt). Rather, it is important to be conceptualised as the production of a difference between system and environment” [39: 66].

  35. [41: 84, n. 19].

  36. [38: 412].

  37. A boundary of an interaction system is defined along the notion of presence: “they include everything that can be treated as present and are able, if need be, to decide who, among those who happen to be present, is to be treated as present and who not.” [38: 412].

  38. [37: 380].

  39. This is what Luhmann following [43] calls structural coupling.

  40. [7, 47, 10].

  41. See my 2008 contribution on this.

  42. Luhmannian ‘nature’ is helpfully defined by [27: 8] in the following terms: “Nature extends from biological phenomena, such as events in the human body or in the natural world of plants and animals, to stars, planets, atoms and nuclei, to natural catastrophes such as earthquakes or global warming.”.

  43. [35: 75–76].

  44. See e.g., [39].

  45. Luhmann, following Parsons, calls it interpenetration. Interpenetration allows such associations, since it “presupposes the capacity for connecting different kinds of autopoiesis -here, organic life, consciousness, and communication” [38: 219]. Interpretation is the reciprocal availability of complexities, which, however, remain peculiar to the original systems; there can be no fundamental common ground among systems [38: 35]. Indeed, it has not been named interpenetration lightly: “the boundaries of one system can be included in the operational domain of the other…Every system that participates in interpenetration realizes the other within itself as the other’s difference between system and environment, without destroying its own system/environment difference” [38: 217]. Consequently, [37: 380], defines socialisation as “the process that, by interpenetration, forms the psychic system and the bodily behavior of human beings that it controls.” See also [68].

  46. Thus [37: 381]: “Communication operates with an unspecific reference to the participating state of mind; it is especially unspecific as to perception. It cannot copy states of mind, cannot imitate them, cannot represent them.” And further, [38: 408]: “Society is the all-encompassing social system that includes everything that is social and therefore does not admit a social environment.” And also, [38: 409]: “For [society] there are no environmental contacts on the level of its own functioning…It is completely and without exception a closed system.”

  47. [34].

  48. Admittedly, Luhmann accepts that autopoiesis is just one of the ways in which society can be described. But one gets the distinct impression that he seems to think it is also the most adequate one.

  49. [39: 18]. The acknowledgment of medium is as far as Luhmann goes in terms of explicit ‘corporeal’ and material relevance; forms remain dematerialised and incorporeal.

  50. [17: 108].

  51. [40: 106].

  52. [17: 108].

  53. [17: 10].

  54. [17: 12].

  55. [17: 10].

  56. [17: 13].

  57. [17: 25].

  58. [17: 78].

  59. [39: 54].

  60. Note, however, the fact that in his earlier book on law, 1985a, Luhmann refers to the ‘material dimension’ of expectations which is the acknowledgement of the necessary community of the world in order for expectations to exist. This appears in the form of the need for a fictional consensus on which the reciprocal confirmation and limitation of expectations is exercised. This consensus is material in the strict sense of the word: as [11: 124], writes, it consists of “a commonality of events, visible action and symbols for the invisible.”.

  61. “Forms are generated in a medium via a tight coupling of its elements…” [40: 104].

  62. [36: 141].

  63. [62: 3].

  64. [45: 76].

  65. In the context of linguistic priority, Catherine Hayles [26: 192] notes for example: “one contemporary belief likely to stupefy future generations is the postmodern orthodoxy that the body is primarily, if not entirely, a linguistic construction.”.

  66. [53].

  67. [24, 1, 25, 30].

  68. See [26] on this.

  69. My contribution to the discussion can be found in [51].

  70. See [49], also [3].

  71. [40: 106].

  72. [40: 103].

  73. [40: 106].

  74. [44: 106].

  75. [2: 319].

  76. [51].

  77. The system’s (and Luhmann’s) attempts at excluding matter are another reassertion of environmental affirmation. A readily available example of such present absence is the way Luhmann deals with ecology. Thus, he writes, “if anywhere, it is in ecological communication that society places itself in question.” [34: 142]. If one were to go even further, one would see that the entirely material, strictly topological terminology employed by autopoietic theory is nothing but a memento of the absence of materiality, and as such, a successful strategy to render materiality always present.

  78. [9].

  79. [9: 160].

  80. [9: 21].

  81. [18: 451].

  82. [18: 408].

  83. [18: 420].

  84. [18: 421].

  85. [18: 409].

  86. See [2: 319]: “to think outside the postenlightenment bifurcation of matter into primary and secondary qualities that underpin the distinction between materialism and idealism (and entangled distinctions such as matter/form, material/immaterial, actual/virtual, material/discursive, mind/matter). Instead, questions are asked around the complexity, and indeterminacy, of matter and about how qualities of liveliness are internal to, rather than in supplement or opposition to, the taking place of matter and materiality.”

  87. [32: 3–4].

  88. [58].

  89. [58: 169].

  90. [22: 255].

  91. [4].

  92. See [48, 8, 46].

  93. [57].

  94. Philippopoulos-Mihalopoulos [52, 53].

  95. [4: 31–32].

  96. [66].

  97. [4].

  98. [14: 16].

  99. [21].

  100. See http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10830586 for the agreement between the Crown and the local community of the Whanganui river in New Zealand, recognising the latter as having legal agency with all its “physical and metaphysical elements”.

  101. [58].

  102. [31: 81].

  103. [41: 460] (translation modified).

  104. [18: 451].

  105. [40: 119].

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Acknowledgments

With deep gratitude for their comments to Alain Pottage; Todd Cesaratto; Hans-Georg Moeller; Christian Borch, Lynn Roseberry and Anders la Cour; the Politics department at Copenhagen Business School for their unwavering intellectual and material hospitality; and the anonymous reviewers for engaging so deeply with this text.

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Philippopoulos-Mihalopoulos, A. Critical Autopoiesis and the Materiality of Law. Int J Semiot Law 27, 389–418 (2014). https://doi.org/10.1007/s11196-013-9328-7

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