Changing Maps: Empirical Legal Autopoiesis
| Author | Gunther Teubner,John Paterson |
| Published date | 01 December 1998 |
| Date | 01 December 1998 |
| DOI | http://doi.org/10.1177/096466399800700401 |
| Subject Matter | Articles |
CHANGING
MAPS:
EMPIRICAL
LEGAL
AUTOPOIESIS
JOHN
PATERSON
School of Law,
University of Westminster,
UK
AND
GUNTHER TEUBNER
Department
of Law,
University
of Frankfurt
and
London
School
of Economics
ABSTRACT
Superficially
at
odds
with
the
idea
of
empirical
research,
autopoiesis
is
shown
on
closer
study
to
demand
a
fundamental
reconsideration
of
the
empirico-theoretical
relationship.
This
idea
is
developed
firstly
in
the
context
of
a
possible
methodology
and
secondly
in
the
application
of
that
methodology
to
a
particular
regulatory
situ-
ation.
The
aim
is
to
arrive
at
a
more
adequately
complex
understanding
of
the
regu-
latory
process -
as
well
as
of
the
process
of
legal
sociological
research
itself.
I
HE
IDEA
of
self-organization
was
invented
simultaneously
in
differ-
t
ent
fields
of
knowledge,
in
the
natural
as
well
as
in
the
social
sciences.
-JL.
Under
such
exotic
titles
as
entre
cristal
et
la fumée
(Atlan,
1979),
dis-
sipative
structures
(Prigogine,
1976),
synergetics
(Haken,
1977),
self-refer-
ential
processes
(Hofstadter,
1979),
self-substitutive
orders
(Luhmann,
1981),
autopoiesis
(Maturana
and
Varela,
1980),
morphogenetic
fields
(Shel-
drake,
1988),
holographic
order
(Bohm,
1981)
and
second-order
cybernet-
ics
(von
F6rster,
1981),
new
theories
on
the
spontaneous
emergence
of
order
were
emerging
spontaneously.
Then
these
ideas
began
to
influence
each
other
in
a
transdisciplinary
discussion
and
to
form
a
common
web
of
theor-
etical
constructs.
Today,
rather
than
merging
into
a
unified
theory
of
self-
organization,
these
interconnected
constructs
rotate
freely
in
a
theory
space,
la
galaxie
auto
(Dumouchel
and
Dupuy,
1983).
And
finally,
this
self-
organizing
’heaven
of
concepts’
confers
its
blessings
on
down-to-earth
empirical
research:
scientific
foundations
are
funding
significant
projects
in
SOCIAL &
LEGAL
STUDIES
0964 6639
(199812)
7:4
Copyright ©
1998
SAGE
Publications,
London,
Thousand
Oaks,
CA
and
New
Delhi,
Vol.
7(4), 451-486;
006261
451-
452
which
self-organization
stimulates
different
research
questions
and
the
development
of
new
empirical
tools.1
While
such
projects
are
flourishing
in
areas
as
diverse
as
economy,
psycho-
therapy
and
flamenco,
in
’law
and
society’
there
has
so
far
been
a
paucity
of
empirical
research
on
self-organization.2
Is
this
just
the
usual
theory-
hostility
of
empirically
minded
scholars?
Is
it
US
empirical
imperialism?
Is
it
the
Berührungsangst
of
speculative
Euro-wimps?
Perhaps
explanations
such
as
these
are
somewhat
too
superficial
to
account
for
the
anomalous
situation
in
law
and
society.
Rather,
the
anomaly
can
be
traced
back
to
certain
pecu-
liarities
of
legal
sociology
as a
field
of
knowledge.
It
seems
that
the
long-
lasting
and
deep
hiatus
between
theory
construction
and
empirical
research
is
actually
deepened
by
the
emergence
of
theories
of
self-organization
and
autopoiesis.
This
is
our
first
thesis.
Secondly,
if
we
look
more
closely
at
con-
crete,
detailed,
historical
research
carried
out
in
the
name
of
autopoiesis,
we
can
discern
clear
discontinuities
from
’normal’
practices
of
empirical
research.
Autopoiesis
calls
for
a
redefinition
of
empirical
work
and
requires
different
empirical
tools -
tools
which
are
capable
of
analysing
the
transfor-
mational
dynamics of
recursive
meaning
processes.
As
a
consequence,
every-
thing
changes:
research
questions,
the
phenomena
to
be
identified,
the
concepts
to
be
made
operational
and
the
analytical
instruments.
But,
as
if
that
weren’t
enough,
there
are
even
stronger
anomalies
in
the
socio-legal
relation-
ship
between
the
empirical
and
the
theoretical.
The
constructivist
orientation
of
legal
autopoiesis,
we
submit
in
our
third
thesis,
works
against
the
omnipo-
tence
fantasies
inherent
in
the
process
of
empirical
falsification.
Legal
autopoiesis
is
not
anti-empirical,
but
it
does
suggest
a
role
for
empirical
research
which
is
different
from
straightforward
Popperian
theory-killing.
It
suggests,
instead,
a
quasi-therapeutic
relationship
between
the
speculators
and
the
data
collectors.
But
who,
then,
is
the
therapist
and
who
is
the
patient?
II
Why
is
there
a
structural
hiatus
between
theory
and
empirical
research
in
law
and
society?
In
the
classics
of
legal
sociology,
Marx’s
historical
methods,
Durkheim’s
choses
sociales
and
the
ideal-typical
method
in
Weber’s
interpre-
tive
sociology
were
guarantees
of
the
unity
of
empirical
research
and
grand
theories
of
law.
But
then
the
’theory
disaster’
happened
with
the
introduction
of
modern
empirical
methods.
’The
dissolution
in
data
and
their
recombina-
tion
with
the
help
of
newly
developed
methods
of
data
analysis
destroyed
the
high
level
of
theorizing
which
had
been
built
up
in
the
classics
without
being
able
to
substitute
it
adequately’
(Luhmann,
1990:
410).
Today,
the
field
is
still
suffering
from
this
deep
hiatus,
which
renders
theory
rather
empty
and
empiricism
rather
blind.
Or
to
put
it
more
mildly,
empirical
research
in
law
and
society
has
developed
a
highly
sophisticated
methodology
which
is,
however,
based
on
poor
and
rather
ad
hoc
theorizing,
while
theorizing
about
law
and
society
has
become
more
and
more
philosophical
and
speculative,
relying,
however,
on
poor
and
rather
ad
hoc
empirical
support.
453
And
today
the
hiatus
is
deepening.
Desperately
seeking
theory,
empirical
legal
sociologists
are
giving
in
to
the
temptation
of
trying
economic
models
and
theories
for
their
data
with
the
predictable
result
that
they
are
losing
their
sociological
identity.
The
theory
camp,
on
the
other
hand,
is
tempted
to
follow
the
famous
’linguistic
turn’
in
sociology,
and
thus
sober
law
and
society
people
are
transformed
into
esoteric
literary
critics
and
Nietzsche-
Heidegger-Derrida-style
philosophers
who
express
their
sarcastic
contempt
for
systematic
data
collection
and
patient
data
analysis.
Usually
it is
the
micro-macro
problem
that
is
held
responsible
for
the
empirico-theoretical
gap.
Empirical
methods
are
good
at
gathering
individual
data
at
the
micro
level
of
legal
action
and
aggregate
data
at
the
macro
level
of
socio-legal
relations.
But
they
fail
when
it
comes
to
analysing
law’s
’organized
complexity’
which
good
theory
regards
as
central
to
understand-
ing
law
as
a
social
phenomenon.
Without
denying
the
importance
of
the
micro-macro
difference,
we
prefer
to
name,
blame
and
claim
another
famous
petite
diff6rence
as
responsible
for
the
great
hiatus:
the
difference
between
law
as
operation
and
law
as
observation
(von
F6rster,
1981).
This
little
difference
has
sharply
divided
socio-legal
theoreticians
and
empiricists.
Empirical
analysis
has
opted
for
first-order
observation
of the
law.
It
takes
legal
action
as
simple
operations,
as
spatio-temporal
events
which
can
be
correlated
in
their
empirical
models
with
other
social
events.
This
drives
empirical
analy-
sis
of
law
in
two
directions:
towards
models
of
logical
and
mathematical
for-
malization
on
the
one
hand
and
towards
attempts
at
causal
explanation
and
prediction
on
the
other
(Black,
1989).
In
contrast,
ambitious
sociological
theories
of
law -
whether
from
Paris,
Frankfurt,
Edinburgh
or
Bielefeld -
are
usually
second-order
observations.
They
see
legal
action
itself
as
observation,
as
a
trinity
of
utterance,
information
and
understanding,
as
the
recursive
transformation
of
differences,
as
constructing
a
special
space
of
meaning
and
an
autonomous
world
of
knowledge.
This
drives
socio-legal
theories
deeper
and
deeper
into
the
hermeneutic
tradition,
into
a
tradition
that
allows
for
sophisticated
analyses
of
the
’operation
called
Verstehen’,
but
that
ridicules
attempts
at
formalization,
causal
explanation
and
prediction.
And
attempts
to
combine
both
traditions
are
sucked
into
the
black
hole
at
the
centre
of
the
Bermuda
triangle
of
formalization,
causal
explanation
and
hermeneutics.
If
this
is
an
adequate
sketch
of
the
intellectual
map,
how
does
self-refer-
ence
and
autopoiesis
change
the
somewhat
desperate
outlook
for
law
and
society?
At
first
sight
it
looks
like
Columbus’s
egg,
as
Franqois
Ewald
(1987)
has
called
it.
It
nourishes
hope
for
a
recombination
of
both
the
empirical-
analytical
and
the
normative-hermeneutic
traditions.
It
seems
to
promise
a
bridge
between
law
as
operation
and
law
as
observation
since
it
compels
us
to
combine
first-
and
second-order
analysis.
Since
law
is
defined
as
a
closed
system
of
self-reproductive
observing
operations,
legal
action
is
seen
as
being
at
the
same
time
both
operation
and
observation.
This
requires
the
normative
tradition
to
leave
Popper’s
World
III
and
to
search
for
’law
in
action’
as
its
social
base,
and
it
requires
the
empirical
tradition
to
include
in
its
observations
the
complex
chains
of
normative
observations
of
the
’law
in
the
books’.
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