Critical Theory and Legal Autopoeisis: The Case for Societal Constitutionalism by Gunther Teubner, edited by Diana Göbel (Manchester: Manchester University Press, 2019, 408 pp., £85.00)
| Author | Marcelo Neves |
| Published date | 01 June 2020 |
| DOI | http://doi.org/10.1111/jols.12230 |
| Date | 01 June 2020 |
CRITICAL THEORY AND LEGAL AUTOPOEISIS: THE CASE FOR
SOCIETAL CONSTITUTIONALISM by GUNTHER TEUBNER, edited by
DIANA GÖBEL
(Manchester: Manchester University Press, 2019, 408 pp., £85.00)
Gunther Teubner has offered one of the most relevant works in the
interdisciplinary area between legal sociology and legal theory, including
constitutional theory, with a solid background in social theory and philosophy.
At the beginning of his career, in the 1980s, he tried to reconcile
Niklas Luhmann’s systems theory with Jürgen Habermas’ discourse theory.1
Subsequently, he took his own creative path, remaining influenced by
Luhmann, but building a new dialogue with Jacques Derrida. It is this mature
phase of Teubner’swork that is presented to the English-speaking reader in the
present collectanea, edited by Diana Göbel with an introduction by Andreas
Philippopoulos-Mihalopoulos (pp. 1–9) and an afterword by Alberto Febbrajo
(pp. 339–348).
The book is divided in three parts: (I) ‘Law, Literature and Deconstruction’
(pp. 13–102); (II) ‘Juridical Epistemology: Reconstructing the Horizontal
Effects of Human Rights, the Private–Public Dichotomy, and Contracting’
(pp. 105–172); (III) ‘The Dark Side of Functional Differentiation: The
Normative Response of Societal Constitutionalism’ (pp. 175–338).
The first part relates to the theoretical and philosophical background of
Teubner’s work, highlighting the dialogue with Niklas Luhmann, Jacques
Derrida, and Rudolf Wiethölter. In this part, the fundamental question (of
the paradox) of justice is addressed in a striking way. It is composed of the
following pre-published articles: (1) ‘Self-Subversive Justice: Contingency or
Transcendence Formula of Law?’ (pp. 13–39); (2) ‘The Economics of the
Gift – the Positivity of Justice: The Mutual Paranoia of Jacques Derrida and
Niklas Luhmann’ (pp. 40–58); (3) ‘Dealing with Paradoxes of Law: Derrida,
Luhmann, Wiethölter’ (pp. 59–83); and (4) ‘The Law before Its Law: Franz
Kafka on the (Im)possibility of Law’s Self-Reflection’ (pp. 84–102).
In this context, Teubner proposes a concept of justice that goes beyond
Luhmann’s model of ‘justice as a contingency formula’ and reviews the
concept of justice as ‘deconstruction’ in Derrida’s terms, giving it a
sociological dimension. For Luhmann, justice is the specific contingency
formula of law, serving as the ‘search scheme for reasons’ to communicate
and act in this social domain, like scarcity in economy, limitationality in
science, legitimacy in politics, and God in religion. It implies the paradox
of legally consistent (internal justice) and complexly adequate to society
1 G. Teubner, ‘Reflexives Recht: Entwicklungsmodelle des Rechts in vergleichender
Perspektive’(1982) 68 Archiv für Rechts- und Sozialphilosophie 13; G. Teubner and H.
Willke, ‘Kontext und Autonomie: Gesellschaftliche Selbststeuerung durch reflexives
Recht’ (1984) 6 Zeitschrift für Rechtssoziologie 4.
344
© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
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