The Negative Dialectics of Law: Luhmann and the Sociology of Juridical Concepts
| Author | Rodrigo Cordero |
| Date | 01 February 2020 |
| DOI | 10.1177/0964663918819173 |
| Published date | 01 February 2020 |
| Subject Matter | Articles |
Article
The Negative Dialectics
of Law: Luhmann
and the Sociology
of Juridical Concepts
Rodrigo Cordero
Universidad Diego Portales, Chile; Institute for Advanced Study, USA
Abstract
This article proposes to read Niklas Luhmann’s sociological theory of law from the per-
spective of what may be called the negative dialectics of law: namely, the irreconcilable
tension between law as a mechanism that reproduces institutional orders and stabilizes
normative expectations, and law as a medium that empowers transformative action and
motivates social innovations. Drawing on this tension, the article advances an interpreta-
tion of the critical potential of Luhmann’s conceptualizationof law by pointing out that the
normative form of society emerges out of conflicts about the form of the normative within
society. This formulation supposesthat the unfolding of law is not the rational completion
of higher principlesinto unified social structures,but a contradictory outcomesemantically
produced through endless iterations of the difference between what is legal and what is
illegal. In doing so, it argues for a sociological reconsideration of the work of juridical
concepts in the everyday operation of legal communications, as well as in the normatively
guided searchfor what is non-actualizedwithin the existing scope of positivelegal forms. By
reading Luhmann along the lines of a critical engagement with the law, the article further
calls for exploring constituent moments as instances of reflexive instability that signal the
unmarked space of normativity and bring the politicality of concepts to the fore.
Keywords
Critique, dialectics, Luhmann, legal system, norms, sociology of concepts
Corresponding author:
Rodrigo Cordero, School of Social Sciences, Institute for Advanced Study, 1 Einstein Drive, Office W-312,
Princeton, NJ 08540, USA; Escuela de Sociologı
´a,Universidad Diego Portales, Avenida Ejercito Libertador 333,
Santiago 8370127, Chile.
Emails: rcordero@ias.edu; rodrigo.cordero@udp.cl
Social & Legal Studies
2020, Vol. 29(1) 3–18
ªThe Author(s) 2019
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DOI: 10.1177/0964663918819173
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I
In this article, I intend to read Niklas Luhmann’s sociological theory of law from the
perspective of what may be called the negative dialectics of law. The dialectic refers to
the idea that the development of normative forms of modern society is crossed by a
contradiction that is integral to the concept of law, that is, the fact that law serves as an
instrument to stabilize existing political arrangements and social imaginaries that repro-
duce forms of rule and domination, as well as a medium of protection that empowers
possibilities of action and critical transformation of the self-affirmative operati on of
normative orders (Fine, 2001, 2014). This dialectic is negative to the extent that law
can never reconcile the paradox of being ‘a motivator for innovations’ that exceeds the
existing normative structure of society, and at the same time a mechanism that
‘encourages the rejection of innovation for the sake of stability, consistency and justice’
(Luhmann, 2004: 259). The concept of law is thus defined by the conflictive tension
between both impulses but also by the way in which the paradox that constitutes law as
law is rendered invisible in the ordinary operation of juridical concepts within and
beyond the legal system.
A sociological engagement with law cannot avoid but must deal with this equivocal
form of law in society. To do so, sociology should find a space to empirically explore the
configuration of normativity as a contradictory sociohistorical achievement, as well as
the critical edge to recognize the radical absence of fixed principles and the impossibility
of the normative closure of society. My argument in this article is that Luhmann
advances an innovative way to meet this challenge by transforming juridical concepts
into primal objects of sociological analysis. This essentially means to understand jur-
idical concepts as concrete social abstractions and observe how they play out in events,
practices, and institutions by transforming nonlegal entities into legal forms and making
them subject to contradictory normative determinations. The development of a socio-
logical approach to concepts is consistent with a central feature of Luhmann’s overall
theoretical framework, namely, to account for the emergence of social systems as the
result of a complex interplay of social-structural differentiation and semantic change
(Sta¨heli, 1997; Stichweh, 2016).
Be that as it may, I think that reconstructing Luhmann’s sociology of concepts may
also be a fruitful resource for critical theory if one acknowledges, as Adorno remind us,
that a critique of society cannot do without a critique of concepts (Adorno, 2005; see
Cordero, 2017a; Cordero et al., 2017). The motif that underpins this endeavor is that, if
we are ever going to reach what is beyond the reassuring form of concepts, we must
liberate ourselves from the ontological treatment of concepts so as to follow their contra-
dictory movement in social life. For it is in the form of concepts, I would like to contend
that society sustains the contingency of norms and encodes them into a form of existence.
What is at stake here is the attempt to unlock the experience of nonidentity between
conceptual forms and social reality, the constitutive gap from which actors may defy the
closure of the social world as a unity without question as well as recognize the realm of
possibility.
From the perspective of Luhmann’s theory of the legal system, the claim of a sociol-
ogy of concepts may be translated as follows: concepts are ‘building blocks’ for the
4Social & Legal Studies 29(1)
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