Legal Autonomy and Reflexive Rationality in Complex Societies
| Published date | 01 December 2002 |
| Author | Henrik Palmer Olsen,Patrick Capps |
| DOI | 10.1177/096466390201100404 |
| Date | 01 December 2002 |
| Subject Matter | Articles |
LEGAL AUTONOMY AND
REFLEXIVE RATIONALITY IN
COMPLEX SOCIETIES
PATRICK CAPPS AND HENRIK PALMER OLSEN
University of Bristol, UK and University of Copenhagen, Denmark
ABSTRACT
Proponents of the idea that law has assumed an endemically closed character consider
that there are severe limits to the possibility of successful legal regulation in highly
complex and socially differentiated societies. This idea reaches its most radical form
in the theory of law as an autopoietic system which suggests that the autonomous
individual at the core of most traditional legal theory should be replaced by the self-
creating and self-maintaining legal system. Advocates of this theory suggest that legal
scientists and practitioners should reject traditional rationales of legal regulation and
adopt a new, and more modest, mode of legal rationality called reflexive law. In this
article, we argue, first, that the idea that specialized autopoietic subsystems have epi-
stemic primacy is flawed and, second, that this initial argument coupled to a concep-
tion of the function of law which is held in both autopoietic theory and more
traditional conceptions of law reveals an insight into the possibility of effective legal
regulation in complex societies. Specifically, effective legal regulation in complex
societies requires a reformulation of reflexive law so that basic principles of political
morality are incorporated within its autonomous domain.
INTRODUCTION
ROSCOE POUND wrote in 1954: ‘I am content to see in legal history
the record of a continually wider recognising and satisfying of human
wants or claims or desires through social control; a more embracing
and more effective securing of social interests . . . in short, a continually more
efficacious social engineering’ (1954: 47). Pound would have been greatly
dismayed to have learned that his characterization of the relationship
between law and social interests was to become the antithesis of the un-
deniably influential view introduced by the proponents of autopoiesis. The
theory of autopoietic law as developed by Gunther Teubner and Niklas
SOCIAL &LEGAL STUDIES 0964 6639 (200212) 11:4 Copyright © 2002
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 11(4), 547–567; 029253
Luhmann suggests that the days of law as a mechanism of social engineering
are past. Specifically, they consider that as social complexity increases, the
various elements of society – such as law, economics or politics – will fracture
and close themselves off from one another in various subsystems. This leaves
the legal system as one among a number of subsystems which is unable to
effectively achieve fixed, substantive goals in society via regulatory processes.
In what follows, reflexive law – which is seen as a plausible alternative to
more traditional forms of legal regulation – is examined. Through a critique
of the epistemological and ontological assumptions made by proponents of
autopoiesis we reconceive the relationship between substantive and reflexive
forms of legal rationality so that legal dysfunction, in light of increasing social
complexity, can be avoided.
LAW’SAUTONOMY AND AUTOPOIETIC LAW
At the core of Teubner’s and Luhmann’s theories (e.g. Luhmann, 1981,
1995a, 1995b; Teubner, 1985, 1986, 1988, 1993) are two key presuppositions:
(a) that the production and enforcement of legal norms represent an attempt
to solve problems of coordination in complex societies and (b) that law is a
social subsystem, which is isolated from other subsystems in the sense that
it is normatively closed.1These two presuppositions are common in legal
theory and are in fact shared by a variety of characterizations of law which
Gerald Postema has usefully drawn together under the label of ‘the
autonomy thesis’ (see Postema, 1996).2Postema considers that a key presup-
position of the autonomy thesis is that while ‘. .. law’s ultimate aspiration
may be justice, its proximate aim and defining task is to supply a framework
of practical reasoning designed to unify public political judgment and co-
ordinate social interaction’ (1996: 80). Furthermore, it is this fundamental
function that holds the key to explaining the nature of law. Moreover, for
Postema, the autonomy thesis contains three logically indispensable and
logically interrelated features which purport to solve the problem of social
coordination. First, law forms a distinct sphere of practical reason which
offers reasons for action to officials and citizens alike. Second, the norms
within the limited domain are preemptive in the sense that they offer exclu-
sionary reasons for action which override non-legal reasons for action.
Third, legal norms must be readily identifiable at source without recourse
to moral argument or political evaluations outside of the limited domain.
All these features point to the idea of law as an autonomous normative
system. What, then, is the difference between an autonomous system and an
autopoietic system?
Autopoietic theory derives many of its concepts from systems theory in
evolutionary biology (Maturana and Varela, 1980).3At the core of auto-
poietic theory lies the assumption that society is comprised of a number of
subsystems.4These systems operate in society independently of each other
and create the conditions for their continued existence and evolution by
548 SOCIAL & LEGAL STUDIES 11(4)
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