Self‐subversive Justice: Contingency or Transcendence Formula of Law?
| Author | Gunther Teubner |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00731.x |
| Date | 01 January 2009 |
| Published date | 01 January 2009 |
THE
MODERN LAW REVIEW
Volume 72 January 2009 No 1
Self-subversive Justice: Contingency or Transcendence
Formula of Law?
GuntherTeubner
n
LAWAND SOCIETY WITHOUT JUSTICE
‘Towards the middle of the sixteenth century, there lived on the banks of the
Havel a horse dealer by the name of Michael Kohlhaas, the sonof a schoolmaster,
one of the most upright and at the same time one of the most terrible men of
his day. . . the world . . . would have every reason to bless his memory, if he had
not carriedone virtue to excess. But his sense of justice turned him into a brigand
and a murderer.’ This is how Heinrich von Kleist begins his novel on Michael
Kohlhaas, one of the most stirring tales ever written of the quest for justice.
1
‘He
rode abroad one day with a string of young horses, all fat and glossy-coated.’
At one of the many tollgates in old Germany he was told to stop and was
requested to pay a toll fee as well as to present a pass document which was sup-
posed to be the seigniorial privilege bestowed upon the Junker Wenzel von
Tronka. The whole story about the pass was a fable. Under the pretext that he
had to leave a pledge behind as security before he could get the pass, Kohlhaas
was forced to hand over two of his horses to the Junker.They then were used for
heavy labour in the ¢elds and treated so badly that when Kohlhaas returned after
some weeks,‘instead of his two sleek, well-fed blacks he saw a pair of scrawny,
worn-out nags’. Kohlhaas tried to seek justice at the law ^ in vain. The Junker
had so many kinship relations in the bureaucracy that he was always privileged
against the horsedealer.
Deeplyhurt in his sense of justice,Kohlhaas sold his house, collected a group of
armed men around him and began aprivate vendetta. Relentlesslyhe pursued the
Junker who escaped from his castle and, when he was hiding in Wittenberg,
n
Professor of Private Law and Legal Sociology, University of Frankfurt am Main, and Centennial
Visiting Professor, London Schoolof Economics. For critical commentso n an earlierdraft, I would
like to thank Sonja Buckel,Eva Buddeberg, Andreas Fischer-Lescano,Rainer Forst, RogerFriedland,
Malte Gruber,Vagias Karavas,Fatima Kastner,Richard Nobles, Soo-Hyun Oh,Andreas Phil ippopou-
los, Marcus P˛cker, Hubert Rottleuthner, David Schi¡, Anton Schˇtz, Fabian Steinhauer, Thomas
Vestingand Rudolf Wieth˛lter. Mythan ks for careful editorial help go to Chris Foley.
1 H. v.K leist,‘Michael Kohlhaas’in KleistsWerke Bd.1 (Weimar:Volksverlag,1963). English transla-
tion: H. v. Kleist, MichaelKohlhaas: ATalefrom an OldChronicle (NewYork: Melville, 2005) 3.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(1) 1^23
Kohlhaas set ¢re to the city.Then the Junker £ed to Leipzig and Kohlhaas burnt
down this city to the ground. Finally, the authorities were so terrorised that they
assured Kohlhaas a fair trial and he surrendered. He won his civil law suit against
the Junker, however, in a criminal trial he wassentenced to deathfor breach of the
public peace.
Butthenamysteriousgipsywoman,endowedwithwitchcraftandfortune
telling, takes a hand in the events. She gives Kohlhaas an amulet which would
one day save his life. In the capsule there was a piece of paper which contained
the date onwhich the Elector of Saxony would lose his power. The Elector was
readytodoeverythingto¢ndoutthecontentoftheamulet^hewouldevensave
Kohlhaas fromthe sca¡old.O nthe day of the execution Kohlhaas,before the eyes
of the Elector and the people, drew out the capsule, removed the paper unsealed
and read it through, looked at the Elector ^ stuck the paper i n his mouth and
swallowed it. Kohlhaas was decapitated. His children were dubbed knights.The
Elector lost the crown.
Has legal sociology something to sayon the case of Michael Kohlhaas? Appar-
ently not, legal sociology has no idea of justice. There is plenty of empirical
research on local justice, collecting people’s opinion of what they think is just
and fair in di¡erent contexts, and there is much theorising about legal norms
and sanctions, about the legal professionand the courts. Butthere is no socio-legal
theory of justice.
2
While critical andcultural studies of law have produced alarm-
ing reports oflaw’s injustice in relation to gender, race, povertyand culture, they
refuse to associate a positive idea of justice withthe law itself. Instead, the norma-
tivity of justice appears, if at all, as a political, not as a legal project. So, is justice
itself, the most profound expec tationt hatp eople have of the law, the blind s poti n
the distinction between lawand society?
Two external observers of law and society, Jacques Derrida and Niklas Luh-
mann, shed light on this blind spot and pose the question: is there something
speci¢c that the sociologyof law ^ as compared to moral,political or legal philo-
sophy ^ has to contribute to a viable concept of justice today? Autopoiesis and
deconstruction, in my view the most important theory irritations to law and
society of the last decades, contribute two directions of thought. These are, ¢rst,
reconstructing the genealogy of justice and, secondly, observing the decisional
paradoxes of modern law.
3
Derrida on these two styles: ‘One takes on the demon-
strative and apparently ahistorical allure of logic-formal paradoxes. The other,
more historical or more anamnesic, seems to proceed through reading of texts,
meticulous interpretations and genealogies’.
4
2 Even Roger Cotterell takes a cautious stance:‘Social theory has no directli nk with the promotion
of justice’, R. Cotterell, Law’s Community: LegalTheory in Sociological Perspective (Oxford:Clarendon
Press, 2006) 2, 60.
3 J. Derrida,‘Pre
Łjuge
Łs: devantla loi’ in J.Derrida, La faculte
Łde juger(Paris: Minuit,1985); ‘Forceof Law:
The Mystical Foundation of Authority’(1990) 11Cardozo L Rev 919; Specters of Marx (New York:
Routledge, 1994); N. Luhmann, Rechtssystem und Rechtsdogmatik (Stuttgart: Kohlhammer, 1974);
‘Gerechtigkeitin de n Rechtssystemen der modernen Gesellschaft’ in N. Luhmann, Ausdi¡erenzier-
ung des Rechts: Beitra
ºge zur Rechtssoziologie und Rechtstheorie (Frankfurt am Main: Suhrkamp, 1981)
374^418;Law as a SocialSystem (Oxford: OxfordUP,20 04) 211.
4 Derrida (1990)ib id,959.
Self-subversiveJustice
2r2009 The Author.Journal Compilation r200 9 TheModern Law Review Limited.
(2009) 72(1) 1^23
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