Auctoritatis Interpositio: How Systems Theory Deconstructs Decisionism
| Author | Andreas Fischer-Lescano,Ralph Christensen |
| DOI | 10.1177/0964663911423698 |
| Date | 01 March 2012 |
| Published date | 01 March 2012 |
| Subject Matter | Articles |
Article
Auctoritatis Interpositio:
How Systems Theory
Deconstructs
Decisionism
Andreas Fischer-Lescano and Ralph Christensen
University of Bremen, Germany
Translated by Michelle Everson
Abstract
A deconstructivist interpretation of Luhmann’s systems theory can provide a new basis
for the understanding of legal decision-making. While legal scholars traditionally
describe the process of judgement either as a stylized conclusion whose content
educes from legal sources (judicial deduction) or – in the tradition of Carl Schmitt –
as an act of will, whose normative content entails a creatio ex nihilo (judicial will), con-
temporary legal thought supports, for the most part, some form of compromise
between the two theories. In a systems theoretical perspective, however, the opposing
notionsofwillanddeductionhavetobetracedbacktoafundamentalparadoxoflaw,
the paradox of legal decision-making. We argue that this paradox-oriented approach is
not just another variation of decisionism of a Schmittian nature. Rather it goes well
beyond decisionism in that it takes account of the societal context of the decision-
making process and insists on the importance of the legal form and the autonomy of
law as a social system. A deconstructivist interpretation further sets the stage for a
new conception of the political dimension within law, by pointing out that legal
decision-making in the light of undecidability is itself a political act. This conceptiona-
lization calls for an identification of real-world social conflicts and their reformulation
within the quaestio iuris.
Corresponding author:
Andreas Fischer-Lescano, Universita
¨t Bremen, Zentrumfu¨r Europa
¨ische Rechtspolitik(ZERP), Universita
¨tsallee
GW 1, Bremen, 28359,Germany
Email: fischer-lescano@zerp.uni-bremen.de
Social & Legal Studies
21(1) 93–119
ªThe Author(s) 2012
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DOI: 10.1177/0964663911423698
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Keywords
critical systems theory; critical theory; global law; world society
Under conditions of modernity, the exercise of political power is increasingly being
transferred from the legislature to instances of case-by-case decision-making by
individual judges. Such a statement reanimates one aspect of the discussion on the
distinction made between the ‘Judge-King and the subsumptive automaton’ (Ogorek,
1986: 198ff.) – a debate typically associated with Carl Schmitt. Public lawyers have con-
tinually asserted that this example of the transformed exercise of power is the epipheno-
menon of a far deeper process of the erosion of the state, whereby Constitution, law and
executive action are subject to a specific logic of attrition (Vesting, 1992: 32), since none
can be clearly differentiated in the face of rapid technological/scientific advance
(Schmitt, 1988: 270). In Schmitt’s pessimistic analysis: subsumptive legal science,
together with methodological approaches founded within the natural science ideal of
exactitude, as well as precision legislative techniques deriving from Kant’s demand for
‘precise mathematical’ concepts (Kant, 1964: 340), form ‘a major part of occidental
rationalism, will culminate in a systematically conceived Jus Publicum Europaeum,
and will finally founder with it’ (Schmitt, 1988: 269).
In Gesetz und Urteil (Law and Judgement), published in 1912, Schmitt accordingly
furnishes us with a very early account of disintegration within the classical method of
legislative interpretation, likewise providing us with a contrasting model of emancipa-
tory judicial norm identification (Vesting, 1992: 32); as well as an analysis which seems,
at first glance at least, to coincide with descriptions developed within more contempo-
rary legal sociology (Maus, 1976: 22). Niklas Luhmann, in particular, has made much
recourse to the classical European legal scientific tradition and criticized its dogmatic
approach, its assertion of value redundancy and its simplifications of democratic theory;
an approach which has often provoked the forceful counter-critique that Luhmann’s
theoretical vision entails an ‘apology for the emerging order, for the sake of maintaining
its existence’ (Habermas, 1974: 170), or that his self-referential system of law, within
which legal operations may only be evaluated with reference to legal operations, derives
directly from Carl Schmitt (Bolsinger, 1998: 474; Maus, 1976: 22), and, above all, from
the assertion found in Gesetz und Urteil that: ‘Practice is justified with reference to itself.
The justice identified in this manner is not an absolute, but is, instead, the justice of
modern praxis’ (Schmitt, 1912: 86).
At second glance, however, the comparison made between the Luhmann-inspired
systems theoretical observation of legal operation under the conditions of systemic
autopoeisis and the concept of law that derives from Carl Schmitt’s decisionism,
indicates the existence of a far more fundamental problem, which, in turn, precludes the
overly rash drawing of parallels (Wirtz, 1999: 175ff.). This problem relates to our
understanding of legal decision-making; of the curious metamorphosis of non-law into
law through an ‘intermediate’, a problem which was addressed very early on in the
history of legal science by virtue of Ulpian’s deployment of the term auctoritatem
interponere (Ulpian, 11.25) to characterize the Roman tutor’s transformation of ‘the
external’ into the internal material of law. Where this legal concept, educing from the
94 Social & Legal Studies 21(1)
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