From the Autopoiesis to the Allopoiesis of Law
| Author | Marcelo Neves |
| Published date | 01 June 2001 |
| DOI | http://doi.org/10.1111/1467-6478.00188 |
| Date | 01 June 2001 |
JOURNAL OF LAW AND SOCIETY
VOLUME 28, NUMBER 2, JUNE 2001
ISSN: 0263-323X, pp. 242–64
From the Autopoiesis to the Allopoiesis of Law
Marcelo Neves*
This article discusses the empirical limits of the concept of autopoiesis of
law in world society today. The argument is based principally on
observation of the problems of reproduction of the legal system in
`peripheral countries'. The central thesis of the article is that, in the
countries of `peripheral modernity'the reproduction of the legal system
is blocked by a wide variety of social factors, in such a way that one can
speak more of the allopoiesis than the autopoiesis of law. Beginning with
a biological concept, the article considers the sociological concept of
autopoiesis, and then analyzes the concept of autopoiesis of law. Based
on this theoretical parameter, the argument about the allopoiesis of law
in the `peripheral countries'is presented. Finally, the article returns to
the central theme of the allopoiesis of law in `peripheral countries'and
points to the indications of a normative concept of autopoiesis of law in
the theories of Niklas Luhmann and Gunther Teubner.
I. INTRODUCTION
In this article I intend to identify the empirical limits of the systemic concept
of autopoiesis of law in world society today. The argument is based
principally on the observation of the problems of reproduction of the legal
systems in ‘peripheral’ countries also known as ‘underdeveloped’, ‘in
development’ or Third World. From a theoretical point of view, in the
foreground is a confrontation of this observation with Luhmann’s systems
theory, but I also consider the postmodern model of the autopoiesis of law.
The central thesis of the article is that in the countries of ‘peripheral
modernity’, the permanent and generalized impediment to the reproduction of
the legal system created by a wide variety of social factors, such as money,
power, and relationships, makes the operational autonomy of law practically
242
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*Federal University of Pernambuco, Recife. Brazil. Presently Visiting
Professor at the University of Frankfurt, Robert-Mayer-Str. 5, D-60014
Frankfurt am Main, Germany
This article was translated by Margaret Griesse and Jeffrey Hoff.
impossible, in such a way that one can speak of the allopoiesis of law in
contrast to the idea of an autopoietic law. This means that the reproduction of
law is over-determined by variables of its social environment.
It is obvious that in the space of this article, I cannot completely develop
my argument. I will first briefly present the central thesis contained in
arguments more broadly elaborated and discussed in previous works.
Unfortunately, these studies have not been published in English. This article
serves, nevertheless, as an introduction to the ideas which I present in these
other works in much greater detail.
In the following explanation, I will point in the first place to the biological
origin of the concept of autopoiesis, to consider its reception and
transformation by the social sciences, concentrating on the Luhmannian
paradigm (II). I will then specifically consider the concept of autopoiesis of law
as a social system, underlining Luhmann’s theory without failing to consider,
however, the post-modern variants of the concept of autopoietic law (III). Once
the parameters are established, I will then discuss the central thesis of the
article, the idea that the autopoiesis of law has no empiric plausibility in the
majority of countries of the world society today, and will maintain that in the
circumstances of social and legal reproduction of the ‘peripheral modernity’, a
miscellany of codes and criteria of communication are destructively imposed in
all of the spheres of social life and thus imply the allopoiesis of law. To support
this point I will highlight that the relations of under-integration and over-
integration in the legal system constitute determining factors and at the same
time, result from the allopoietic reproduction of law (IV). In the final
considerations, I will focus on the central thesis, emphasizing the empirical
limits, both of the functionalist concept as well as the post-modern notion of
autopoiesis of law, considering legal reproduction in extensive parts of current
world society; in this step, I will point to the indications of a normative concept
of autopoiesis of law, which appears to me to be present in the theory of Niklas
Luhmann and in the concepts of Gunther Teubner (V).
II. FROM BIOLOGICAL TO SOCIAL AUTOPOIESIS
The concept of autopoiesis has its origin in the biological theory of Maturana
and Varela.
1
Etymologically, the word comes from the Greek auto
´s(‘self’)
and poiesis (‘creation’, ‘production’).
2
In the first instance, it refers to the
quality of a system to build for itself the components of which it consists.
The life-systems are defined accordingly as autopoietic machines:
243
1 Compare H.R. Maturana and F.J. Varela, Autopoiesis and Cognition: The
Realization of the Living (1980) 73–123; H.R. Maturana and F.J. Varela, Der
Baum der Erkenntnis (1987, 3rd edn.) 55–60; H.R. Maturana, Die Organisation und
Verko
¨rperung von Wirklichkeit. Ausgewa
¨hlte Arbeiten zur biologischen
Epistemologie (1982) 141–2, 157 ff., 279–80.
2 Maturana and Varela, id. (1980) XVII.
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