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Citation: 14 Cardozo L. Rev. 995 1992 - 1993

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ARTICLE

THE CODE OF THE MORAL*

Niklas Luhmann**

In the rhetorical tradition of the late Renaissance, in the Six-teenth Century, the custom spread of attracting attention and shock-ing through paradoxical assertions.' Not only playful artistry andentertainment were at stake. The aim of shock was to stimulate re-flection. The concept of paradox was still meant literally as some-thing that lies beyond the sphere of correct opinion, an offense againstthe commun parere.2 This vogue for fashioning paradoxes may beassociated with the decline of the medieval technique of disputation-posing a problem (quaestio), then referring to contrasting opinions,and finally giving the right answer on the basis of a claimed authority.However, after religious strife and printing dissolved the certainty ofauthoritative solutions, all that remained was the bare difference ofopinion, which was presented in the form of paradox in order to sug-gest that one should not conveniently follow tradition, but should in-stead be on the lookout for new and reflective solutions to problems.3Even today, one occasionally finds formulations that recall thislargely forgotten tradition. 4 According to its form, paradox is a self-

* Revised version of the paper presented at the Benjamin N. Cardozo School of Law on

September 24, 1992. Translated by Jonathan Feldstein, Benjamin N. Cardozo School of Law,Yeshiva University, class of 1993; Arthur J. Jacobson, Max Freund Professor of Litigation andAdvocacy, Benjamin N. Cardozo School of Law, Yeshiva University; Gabriel Motzkin,Visiting Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University" SeniorLecturer in History, Philosophy, and German Literature, Hebrew University of Jerusalem.The translators would like to thank Christoph Schbnberger, Visiting Assistant Professor ofLaw, Benjamin N. Cardozo School of Law, Yeshiva University, for reviewing and commentingon the translation.

** Professor of Sociology, Bielefeld University, Bielefeld, Germany; Jacob Bums Fellow,Benjamin N. Cardozo School of Law, Fall 1992.

I Cf. ROSALIE L. COLIE, PARADOXIA EPIDEMICA: THE RENAISSANCE TRADITION OF

PARADOX (1966).2 ["Commun parere" is Italian for "common understanding."-TRANS.] See, e.g.,

ORTENSio LANDO, PARADOSSI: CIOE SENTENTIE FUORIO DEL COMMUN PARERE, VINEGIA(n.p. 1545); ORTENSIo LANDO, CONFUTATIONE DEL LIBRO DE PARADOSSI NUOVAMENTECOMPOSTA, IN TRE ORATIONE DISTINTA (n.p. n.d.).

3 In connection with the rhetoric of paradox in the scholastic quaestio technique of dispu-tation, see A.E. Malloch, The Techniques and Function of the Renaissance Paradox, 53 STUD.PHILOLOGY 191 (1956).

4 Thus, Kenneth J. Gergen recommends for theory's "generative capacity, that is, the

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referential oscillation in itself, hence a formally closed mode of opera-tion. According to its function, it is but an allusion to itself, sug-gesting the conclusion that one must somehow escape this trap. Inthis double sense of a self-referential allusion to the absence of escape-hatches from this form of self-reference, a paradox is simultaneouslyan invitation to the unfolding of paradox and to resolution of its circleby means of a distinction of stable identities.

The consequences of enjoying the fruit are, and remain, veiled.All one knows is that bifurcations or binary schemes are at play. Theleap from paradise to paradox' is broad and risky. Hence, preferringa comfortable middle position, one settles down with the moral6 so asto obtain a position of tranquillity that is itself good and permits oneto distinguish all other things as good or bad.'

Let us risk a broader leap. The paradox with which I should liketo begin runs: The moral is not something good. Of course, thatshould not lead us to say that the moral is something bad. Indeed,this would merely be an opposite opinion, and would only lead us tothe theories that sent the Marquis de Sade to jail. Our paradox, then,does not lie only in what is verbally shocking;' it lies much more inthe nature of things itself.

The moral functions only as a distinction--or, in the terminologyof George Spencer-Brown, as a "form" 9-that has two sides. Whenthe distinction is used operatively, whether it be in thought or com-munication, the user must decide to which side of the distinction hewishes to refer, which side he wants to indicate. He cannot indicateboth sides at once, because that would make the distinction itself use-less.1" And "to make useless" means "to let appear as paradox." The

capacity to challenge the guiding assumptions of the culture, to raise fundamental questionsregarding contemporary social life, to foster reconsideration of that which is 'taken forgranted,' and thereby to generate fresh alternatives for social action." KENNETH J. GERGEN,TOWARD TRANSFORMATION IN SOCIAL KNOWLEDGE 109 (1982).

5 I picked up this formulation in Vienna.6 ["Der Moral" is translated as "the moral," because both English and German make a

distinction between "the moral" and "morality," and Luhmann exclusively uses "der Moral"in this essay.-TRANS.]

7 People continue to settle down with the moral so as to obtain a position of tranquility,despite the fact that the archangel banned from heaven reported that "God has a distinctlypoor opinion of [the Moral Sense of human beings] and did what he could in his clumsy way tokeep his happy children of the garden from acquiring it." MARK TWAIN, LETTERS FROM THEEARTH 17 (1962).

8 This too may succeed, but only as a side effect. A well-known philosopher, who had tohear this thesis recently, expressed "indignation" about it; other philosophers also oftenshowed little understanding. This shows, by the way, that our philosophic tradition can notonly lead, but also mislead.

9 G. SPENCER-BROWN, LAWS OF FORM 1 (Julian Press 1972) (1969).10 Dialecticians say here "sublate" [aufheben--TRANS.] and connect joyful experiences

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user, whom we will henceforth call the observer, I' would insist on thedifference and on the sameness of the different, hence blocking hisobservation by means of a self-constructed paradox. He can avoidthis only if he takes seriously the distinction that he uses in the verymoment of its use, and that means employing one but not the otherside of the distinction as a point of departure for the next operation.The next operation can then (but must not) cross the boundary. Theinitial operation then indicates X as good, and the next operation indi-cates Not-X as bad.

Thus, an operational systems theory always starts from systemsconsisting of operations (that is, events) which need time in order toproceed from one operation to another. 2 An observer encountersparadox only if that which is possible successively is observed simulta-neously. Seen this way, the sameness of the different is nothing otherthan the simultaneity of successiveness. An observer can always usenew distinctions-for example, the distinction between future andpast-so as to resolve the paradoxes, to resolve them into stable iden-tities, to unfold them.

In the case of the familiar view, favored by so-called "ethics,"that the moral is good, we are dealing with a special case of this gen-eral problem of the two-sided form. When the directive instructs oneto "distinguish between good and bad,"' 3 one cannot, at the sametime, use one side of the distinction as identical to the distinction it-self. This does not exclude one, as we shall see, from morally valuingthe use of the moral. But that must then be done in the mode ofsecond-order observation, that is, with the question whether it is goodto use the distinction of good and bad or whether one should ratherabstain from it in certain cases. The unqualified presupposition thatthe moral is good can consequently be unmasked as a paradox. Onesees then that this paradox serves to unburden ethics of problems thatit could not solve in the context of its tradition as a theory for ground-

with using this expression. It suffices that we merely allude to the very different, Hegeliantradition of theory that had sought to control the potential for irritation in making paradoxesby means of a "dialectical logic."

11 Compare SPENCER-BROWN, supra note 9 with HUMBERTO R. MATURANA, ERKENNEN:

DIE ORGANISATION UND VERKORPERUNG VON WIRKLICHKEIT-AUSGEWHLTE

ARBEITEN ZUR BIOLOGISCHEN EPiSTEMOLOGIE (1982) and HEINZ VON FOERSTER, OB-SERVING SYSTEMS (1981).

12 Here, it should only be noted, systems theory research indicates that a system needs

boundaries in order to differentiate its own time from the environment, and needs structures inorder to find suitable connecting operations.

13 This directive, in the sense of the starting instruction of the calculus of forms of George

Spencer-Brown, "[d]raw[s] a distinction," without which compliance cannot happen-neithercognition nor action. SPENCER-BROWN, supra note 9, at 3.

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ing moral judgments. That one cannot see and accept this paradox asa paradox also shows that traditional ethics is not open to the ques-tion as to which cases it is appropriate to use the moral distinction(the moral form) and in which cases it is not appropriate.

II

Every observation must distinguish, otherwise it does not suc-ceed as an operation that singles out something and leaves others forthe moment unobserved. This is valid not only for cognition but alsofor action, for singling out objects as for singling out ends. It is validfor operations of observation in psychic systems (perception andthinking) as well as for operations of observation in social systems(communications). And it is valid for first-order observations as wellas for second-order observations-that is, for observing observers.The concept of the binary code fits into this general theory of observ-ing systems, but indicates a special case. We wish to speak of a codewhen the passage from one side of the distinction to the other is madeeasier-made technically easier, one could say.' 4

The concept has been deliberately kept imprecise so as to be opento historical research into the genesis of codings. However, a variableis built into the concept that one could designate as an indicator of theschematization or technisization of codes. In the case of perfecttechnisization, a bare negation suffices to cross the boundary and passover from one side to the other. By using technisization, the distinc-tion gains precision and can easily be distinguished from other dis-tinctions.- Value and countervalue then stand closer to each other incomparison with the problem of crossing to totally different distinc-tions. When one knows what is good, then one also knows what isbad. Whether the good man or woman is also beautiful, tells thetruth, is also rich, etc. (and this is what the tradition's doctrines ofvirtue impute as the normal case) is another question. Then the sche-matization of the code also allows the establishment of specific pro-grams (rules, criteria, and conditions) that can help one to decidewhether the positive or negative side of the code is to be taken intoaccount. The more thoroughly a code is schematized and the passagefrom one side to the other made easier, the more necessary it is to

14 It should be noted that linguists use a completely different concept of code. See, e.g.,ROMAN JAKOBSON & MORRIS HALLE, FUNDAMENTALS OF LANGUAGE (1956). They therebyunderstand a set of symbolic instructions for the correct use of language. Id. at 5. Earlier,sociology absorbed this linguistic concept of the code. See, e.g., BERNHARD GiESEN, DIEENTDINGLICHUNG DES SOZIALEN: EINE EVOLUTIONSTHEORETISCHE PERSPEKTIVE AUF DIEPOSTMODERNE (1991) (containing additional references).

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develop programs that prevent passage from happening arbitrarily.Therefore, the fixing and schematizing of specific codes leads to a cor-responding development of code-specific programs in socio-culturalevolution. One can study this in the evolution of a code-specific law(legal/illegal) or in the development of a code-specific field of knowl-edge (true/untrue).15 This fixation or schematization makes "switch-ing" between the different codes ever more difficult, because in suchan operation the complete apparatus of the program must also alwaysbe changed together with the schematization. Such a tendency in theconceptual world of social semantics supports the differentiation ofcorresponding systems, while at the same time the old hierarchicalorder is being dismantled-the order that had presupposed that thepositive values of all codes converge at the peak of the hierarchy, inthe ruler, or ultimately in God.

If one seeks to carry out historical research based on this theoret-ical foundation, one must be in a position to distinguish a number ofdistinctions: first, the positive/negative distinctions of codes; second,the question whether certain operations accept or reject specificcodes;16 and third, the distinction of the level of coding from the levelof programming. Only against the background of a theory capable ofspecification can one conceive of working out the specificities of mod-em society in their possibilities of dealing with the moral and compar-ing them to the peculiarities of traditional society. It may thenemerge that our thinking is still far too determined by the conceptualworld of a society that no longer exists, and that using shocking para-doxes in societal therapy, as in family therapy, to stimulate a transi-tion to other forms of distinction is therefore appropriate.

III

The moral always concerns the question whether men esteem ordisesteem one another.1 " Social regulation of the market for esteemtakes place through conditioning the process of distribution of esteemand disesteem. It is taken for granted that these distributions holdgood for self-esteem as well as for esteem of others. The socially in-

15 Cf. NIKLAS LUHMANN, DIE WISSENSCHAFT DER GESELLSCHAFT 194-209, 271-74, 401-06 (1990); Niklas Luhmann, Die Codierung des Rechtssystems, 17 RECHTSTHEORIE 171(1986).

16 Gotthard Giinther uses the term "transjunctional operations" to refer to the accepting/rejecting primary positive/negative distinction, and considers a polyvalent logic to be required.See I GoTrHARD GONTHER, Cybernetic Ontology and Transjunctional Operations, in BEi-TRAGE ZUR GRUNDLEGUNG EINER OPERATIONSFAHIGEN DIALEKTIK 249, 278 (1976).

17 See Niklas Luhmann, Soziologie der Moral, in THEORIETECHNIK UND MORAL 8-116(Niklas Luhmann & Stephan H. Pfrirtner eds., 1978).

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tegrative function of the moral rests upon this prevalent conditioning.This means that whoever expresses moral judgments gambles his self-esteem at the same time. He must submit himself to that which hedemands from others. In this way, the moral is distinguished frombare judgments of performance-for example, from professional skill.

Moreover, the range of application of the moral should reason-ably be limited to communicative operations. Neither life as such, northe functions of the brain, nor the conscious operations of perceptionand thinking have intrinsic moral quality. With this we emphaticallycontradict the ethical tradition that based the moral on leading thegood life, in the manner of Aristotle, or on the inner facts of con-sciousness, in the manner of Kant. It fully suffices for us to assumethat psychic systems are impressionable through participating inmoral communication, which allow these systems, as sociologists say,to be socialized morally. But just as judgments about the moral andimmoral use exactly the same neurophysiological operations, so toothe actualization of conscious attention remains the same whether itconcerns fantasies about the moral or immoral. The moral makes animportant difference only in communication (and then secondarily inthe conscious notion that one could be observed or exposed to com-munication some other way), namely, a difference in the communica-tive reaction to the expression of esteem or disesteem. It is, from thepoint of view advocated here, merely an inherited burden of ethicswhen one normally thinks otherwise about this question. Indeed, theordinary conception requires that one act in a morally unobjection-able manner even when unseen, so as to confirm to oneself that one isgood.' 8 But one conceals an important problem in this, namely, thefact that moralizing is not only psychically easy (no other type ofneurophysiological or psychic operations required) but can be sociallydangerous.

Hence, moral coding is always coding of communication. Thereare, in other words, no good or bad people, but only the possibility ofindicating people as good or bad. As an ethical theory, the moral will(perhaps, must) decide the question otherwise. It is still free to do so.

18 Of course, one also hopes thereby to be observed, and that these acts will come to light

on Judgment Day. Sir Thomas Browne writes in Religio Medici as follows:This is the day whose memory hath onely power to make us honest in the dark,and to be vertuous without a witness.

Ipsa suipretium virtus sibi, that Vertue is her own reward, is but a cold princi-ple, and not able to maintain our variable resolutions in a constant and settled wayof goodness.

SIR THOMAS BROWNE'S RELIGIO MEDICI: LETTER TO A FRIEND &C. AND CHRISTIAN

MORALS 74 (W.A. Greenhill ed., MacMillan 1926) (1643) [hereinafter RELIGIO MEDICI].

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But a sociological observer of ethics, then, can recognize that themoral avoids certain problems in this manner (and this perhaps ongood ethical grounds).

On the basis of these conceptual determinations (that remain, ofcourse, verifiable and revisable in their theoretical efficiency), we caninquire after the historical evolution of morally related semantics andthe semantics' ethical reflection. The key variable here appears to bethe schematization of the binary code. For, on the basis of the out-lined premises, an easing of the transition between moral values musthave led to the differentiation of a specifically moral semantics thatleaves as contingent the coupling of the moral with other socialcodings.

The interiorization of the moral that began in the Middle Ages islikely to have been decisive for this differentiation. Since Peter Abe-lard's Ethics, moral judgement has been related to the questionwhether the individual has inwardly concurred or not in the goodnessor badness of his or her actions. 9 In this process, the fundamentaldistinction of good/bad was presupposed, in the first instance, as thesubject matter of agreement, but was supercoded in the distinction ofgood/evil. This led to complicated problems that the moral casuistryof confessional practice sought to solve in a quasi-juridical manneruntil traditional ethics exploded in the seventeenth and eighteenthcenturies. A few of the unsolvable problems include the following:the question of whether communication can be understood; the in-communicability of the authenticity and sincerity of one's own inten-tions; and the beneficent consequences of malevolent designs,20 or,conversely, the maleficent consequences of benevolent intentions.2

These problems led ethics to constitute itself anew as an academicdiscipline concerned with laying the foundations for moral judgments.Ethics attempted this with the help of refined theoretical constructs

19 See PETER ABELARD'S ETHICS (D.E. Luscombe ed. & trans., Clarendon Press 1971).

This issue is raised formally in the context of a definition of the concept of sin. For Godcannot be injured through damaging behavior, but only through the Dei contemptus that ismanifested in concurrence with that damaging behavior (quod non convenit). Id. at 55-67. Itmay be a coincidence, which nevertheless should attract our attention, that the differentiationof a specifically legal culture arose simultaneously, namely, in the late eleventh century. SeeHAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL

TRADITION (1983). Since then, the European tradition has attached great importance to thenonidentity of law and morals in a manner that is unique in the world, which ultimately de-

rives from the fact that the legal code was in a position to differentiate a distinct functionalsystem for law, which the moral code was not able to do.

20 See BERNARD MANDEVILLE, THE FABLE OF THE BEES: OR PRIVATE VICES, PUBLICK

BENEFITS (Irwin Primer ed., Capricorn Books 1962) (1714).21 See EDMUND BURKE, REFLECTIONS ON THE REVOLUTION IN FRANCE AND OTHER

ESSAYS (J.G.A. Pocock ed., Hackett Publishing Co. 1987) (1790).

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(transcendentalism, utilitarianism, and value-ethics) that always foun-dered on their inherent problems. Only at the end of our century didone find the solution of speaking of ethics without saying what onemeans by it. This solution evidently worked in public communica-tion, because one was at a loss in dealing with the most difficultproblems confronting modem society, and, therefore, opted for "eth-ics" as a patent medicine.

But now, neither recourse to the five-star heroes of philosophy,nor to something like "civic culture," whose social structural founda-tions have long since disappeared, help here. Nor, on the other hand,does it make much sense to appeal to nature, so as to expose oneself tocosmic rays in the thin air of principles. That which is called "ethics"today is nothing other than a utopia, in the exact sense of ThomasMore's original utopia, namely, in the sense of the paradox of the"topos," which is nowhere to be found and which does not exist at all."Ethics" is then nothing other than the consequence of the autonomyof the social system-namely, the autonomy of operative closure,which demands that the negation of the system be introduced into thesystem itself. In the name of ethics, society can rebel against itself.This may be stimulating, and may provide incentives to look for new,but then juridical, regulations. However, the problems that socialstructure generate in modem society are, perhaps, much too grave tobe left at that.

IV

Let us continue with the moral, and try to find out what can beobserved in the mode of a second-order observation. Here "second-order observation" means that one does not identify oneself with mor-ally oriented observers under the sign of the idea of the good, butrather poses the question, what do they see and what do they not seewhen they are observing within the scheme of the moral code?

For this we take as a basis the interiorization of the moral thatwas introduced in the Middle Ages. The issue thus concerns the codeof good/evil. Then the moral is no longer a question of the habitus,the good constitution of men that is no longer dependent on birth andestate, but rather a question of individually attributable guilt. Thisforces differentiations. On the one hand, in the early eighteenth cen-tury, there developed a moral oriented to sentiment and feeling thatdistanced itself from the world of seemly appearance, from the worldof salon culture. On the other hand, in the course of the eighteenthcentury, there developed a sharp distinction between the moral andthe law, in the sense of a difference between inner and outer condi-

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tioning, between freedom on the one side and coercion on the other.Moral offenses as such were no longer permitted to have legal conse-quences. Law served, in other words, as the guarantor of freedom formoral and immoral behavior (which, of course, does not exclude thepossibility that immoral behavior can also be legally prohibited).

The code of law was now technisized. A mere negation sufficedto cross over the border and to transform legal into illegal or permis-sion into prohibition.22 Just for that reason, there arose an immensenumber of legal regulations to provide criteria in each case for legal orillegal. Such a technisization was not possible for the moral code.The interiorization of the moral evidently stands in the way. The rea-son for this interiorization may be that the moral is reserved for spe-cial pathological cases. Everyday behavior is always clearly lawful orunlawful before courts-whatever problems jurists may have in find-ing or interpreting norms. This is not so for the moral. When viewedmorally, unproblematic behavior is neither praised nor blamed.23 Themoral restricts itself through the criterion of the ridiculous.24

One may now already suspect where this development is head-ing. In place of a technisization of the code and more complex 'andvariable programmings with a corresponding differentiation of a dis-tinct social system, the moral breeds a highly selective sensitivity forremaining problems of the social order. We already said that ethicshas become utopian, and now can add that society alarms itself bymoralizing communication. Alarm has that same paradoxical struc-ture which struck us precisely in the case of the moral: It becomessuperfluous when it is successful and useless when it is not.25

22 A great number of legal institutions serve here to weaken the consequences of the sharpcoding of law. For example, one might consider the behavior in risky situations. The behavioris permitted (though it should have been prohibited because of its riskiness), but will then besaddled with liability in case of an injury. The classic maxim of "qui suo iure utitur neminemlaedit" ["whoever uses his right does not violate others."-TRANS.] is thus abandoned. In caseof an injury, permitted behavior is thus treated as if it had not been permitted. In this way, lawrecognizes that direct normative intervention into risky behavior is not possible (or is possibleonly for highly risky limiting cases), and is, in fact, possible neither legally nor morally, sincepractically every orientation towards the future can be viewed as risky. In place of that, lawexecuted a retrospective revaluation of behavior in case an injury would occur. In ethics, acorresponding problem is resolved by the distinction between an ethics of intention (withoutrevaluation) and an ethics of responsibility (with revaluation). In each case, normative codesmust use byways, because one cannot subject large areas of risky behavior to a binary coding.

23 It should be remembered that we are not speaking of qualities of behavior, but of

communication.24 See I ANTHONY EARL OF SHAFTESBURY, CHARACTERISTICS OF MEN, MANNERS,

OPINIONS, TIMES, ETC. (John M. Robertson ed., Peter Smith 1963) (1714) [hereinafter CHAR-ACTERISTICS]. More formally expressed, the moral restricts itself by means of an externalreference to modes of social interaction.

25 See Lars Clausen & Wolf R. Dombrowsky, Warnpraxis und Warnlogik, 13 ZEIT-

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This statement may sound excessive, but seems to explain wellenough the key points concerning the establishment of the moral aswell as the situation of ethics around 1780, around 1880, and since1980. Around 1780, it could no longer be denied that a society basedon rank and its world of forms had lost its old meaning. No longerdid one dare to presume irresistible progress when the "social ques-tion" became pressing around 1880, and likewise, when ecologicalproblems became urgent around 1980 with obvious discrepancies inwelfare no longer appearing only between classes, but between thecenters and the periphery of the world societal system. At any rate,the conclusion is manifest that the moral no longer fulfills a sociallyintegrative function, but has on the contrary taken on polemogenousforms,26 which arise from conflicts and aggravate conflicts. In orderto furnish this finding with theory, if not to say in order to be able to''explain," let us return to the concept and problem of coding.

To the degree society adapts to functional differentiation, theparticular function systems are no longer oriented towards society'scentral authorities (rulers, nobility, and metropolitan high society),nor towards society's central values that make moral claims, butrather only towards the function systems' own codes. To considerbasic values as binding then may still be a political necessity (but asone knows, only in a minority of states), but even then still only apolitical or, should the occasion arise, a legal necessity, because thecodes of these systems identify basic values as system-relevant pro-grams.2 The codes guarantee the identity of the function systems andthe recognizability (accountability) of their operations. Provided withthis guarantee, the function systems can treat all other structures andorganizations as contingent and variable, and, in so doing, adjustthemselves to the typical temporal structures of the modern world.

This order does not permit code values of function systems to beidentified with moral values-neither with good/bad nor with good/evil. The government is not morally better than the opposition (butalso not morally worse).2" The power holder is not morally betterthan his public. Whoever determines truths is not morally superior towhomever determines untruths. Whoever has property earns no addi-

SCHRIFT FOR SOZIOLOGIE 293 (1984) (reflecting on the necessity for a polyvalent logic ofwarning).

26 [Luhmann uses polemegenous, translating from the french pol6mog~ne (Julien Freund),to refer to an issue generated from strife and generating strife.-TRANS.]

27 See Niklas Luhmann, Grundwerte als Zivilreligion: Zur wissenschaftlichen Karriero eines

Themas, ARCHIVIO DI FILOSOFIA 1978 (No. 2-3), at 51.28 See Talcott Parsons, "McCarthyism " and American Social Tension: A Sociologists View,

44 YALE REV. 226 (1954).

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tional moral esteem on this account than one who does not have prop-erty. Buying and selling are thus not simultaneous redistributions ofesteem/disesteem.29 One does not earn moral esteem/disesteem bywinning or losing in sports.3 ° Moral sinners, as well as the morallyjustified, must reckon with surprises, when on Judgment Day thetrue meaning of the code, "transcendent/immanent," will becomemanifest.

In part, these are insights that reach back far into tradition. But,modem society, which has been converted to functional differentia-tion, is forced to grasp this incongruence of codes as a renunciation ofthe moral integration of society. Otherwise, the new organic solidaritywill not occur as Durkheim demanded and expected.31 Society is nota moral institution.

Of course, we are once again free to evaluate morally the incon-gruence of codes. In many cases, we would speak of corruption inreferring to direct couplings of codes. We are also morally sensitivewhen the difference in code values between specific codes issabotaged-for example, through doping in sports or Watergate-likeventures in politics. We make claims in such cases by using a mysteri-ous word-"fairness." We establish the codes of particular functionsystems on a level of higher amorality and then once again make amoral principle out of their moral neutralization. In so doing, weonly reaffirm the separation of codes, including the separation of thecode of the moral. It can no longer be expected, then, that the moralprescribes the maxims and rules of function systems-that is, maximsand rules that must have been respected in those systems as a speciesof natural law.32 But they respond with moral irritation to key

29 Moreover, it turns out that antiquity already (at the latest, after the invention of specie)was no longer successful in integrating the economy into ethical-political notions of orderbelonging to the polis, that a long tradition which was striving for money had been deemed tobe morally inferior, and that juridical institutionalization of the contract of sale (in contrast tomorally sanctionable relations of reciprocity) had presupposed a high degree of technical de-velopment of specifically juridical argumentation and, on the whole, had succeeded first inRoman Civil Law.

30 The artificiality of this separation of codes can be seen from the difficulties that groups

face when their leaders are trounced.31 If one looks more closely, it is evident that Durkheim had in mind a moral related to

occupational roles-exactly like Max Weber, who expressed himself vehemently against thenotion of the moral unity of society. In the last analysis, both were concerned with the ques-tion whether and how society could respond in itself with moral valuations to the fact of itsdifferentiation. Cf. Hans-Peter Miller, Gesellschaftliche Moral und individuelle Leben-sfuihrung: Ein Vergleich von Emile Durkheim und Max Weber, 21 ZEITSCHRIFr FOR SOZIO-LOGIE 49 (1992).

32 Jurists, on this question, think very typically and almost in unison. This results from the

need to legitimate positive law and from problems in providing a foundation for the "hardcases" of judge-made law. Seen from outside, this is a matter only of problems of formulation,

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problems that result from this order. Or, if one wishes, the functionsystems cannot resolve the paradoxes of their own codes-that is, theparadoxes of form and the paradoxes of the sameness of the distin-guished-by means of their own codes. And precisely for that reason,society has recourse at these points to moral sensitivity.

V

In many fields, society has involved itself in its function systemsin the mode of operation of second-order observation, and has madeitself dependent on this mode for achieving integration. The use ofsecond-order observation has decisive consequences for moral com-munication. It now serves as a vehicle for observing morally orientedcommunications and destroys, with or without intention, the immedi-acy of moral evidence. Since the seventeenth century, the impossibil-ity of communicating sincerity has been a topic for discussion. Sincethen, it has also been unclear how to accomplish what is demanded bythe rule that one act for the sake of moral values themselves and notfor the sake of esteem or disesteem.33 Since then, the suspicion ofmotives has become so normal and familiar that one must not onlyobserve it academically, but also reckon with it as a social fact. Thismeans, finally, that the moral code has been released for pure commu-nidative use without having attached to it assumptions about states ofconsciousness.

The example of political communication taking account of publicopinion makes this clear. Obviously the mass media, just as politi-cians themselves, assume that morally pointed communications re-ceive attention sooner than others in the competition forinformation. 34 Communication uses the level of second-order obser-vation even when it apparently comments directly on the conduct ofothers. And if it happens that a recursively operating observationnecessarily produces stable "eigen-values, ' '

15 then these eigen-values

of the designation of a stratum of rules that are themselves constructed in the legal system andmust function only here. Legal theory does not then succeed in developing precise notionsabout the difference between the moral and the legal quality of rules. One aids oneself in thisposition with a confused idea about the confusion of law and morals. For the most part, juristswould be the last ones who could accept that half their clients-namely those that lose theirtrials-appear to be morally inferior, in spite of the great pain one feels in one's circle ofacquaintances to lose one's case.

33 The test case was the practice of "honesty in the dark," that is, action apart from anypossible communicative intent. See RELIGIO MEDICI, supra note 18, at 52; CHARACTERIS-TICS, supra note 24.

34 Incontestably, other selection criteria are also in play, such as newness, conflict, andlocal connections.

35 See VON FOERSTER, supra note 11, at 84, 274-85. [Luhmann draws the term "eigen-

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may not lie in moral principles, but in the (imputed and thereby self-affirming) entertainment value of communication.

But moral communication operates under the constraint of acode, and if self-praise inspires distrust, the better technique is to dis-credit the opponents morally. Political communication is dominatedin this manner through morally negative judgments about others.The seventeenth century controversy, whether the moral questionconcerns the production of seemly appearance or whether it is aboutpropriety in the dark,36 has thereby become obsolete. The moralquestion concerns the production of an unseemly appearance. Thismay determine the self-description of modern society more stronglythan one generally assumes; but, it is in any case harmless, since noone can draw conclusions from it about the internal processes ofindividuals.

VI

From these analyses, which are oriented towards sociologicaltheory, the question arises, in conclusion, whether it is possible toconceive of an ethics which takes them into account. One can under-stand various things by "ethics." One could almost say that in the oldEuropean tradition, the central issue was a didactic description ofethos, of human beings being well constituted, and of inscribing ortextualizing the moral. The paradox of the code was concealed in theconcept of nature.37 Since the Middle Ages, ethics (in contrast topolitics and economics) has been confined to individual (internallymotivated) conduct. The eighteenth century reacted to the collapse ofthis tradition with attempts to reconstruct ethics as a theory of therational foundation of moral judgments. If there is a uniform point of

value" from the literature on self-maintaining, or "autopoietic," systems. In autopoietic sys-

tems, self-maintenance refers to maintenance of the operations of the system by means of theoperations of the system. The operations of an autopoietic system thus reproduce the system

in the special sense of producing the operations of the system. The operations of an auto-poietic system are thus "stable," since the system incessantly reproduces them. The term

eigen-value comes from linear algebra, denoting a point or value that stays constant in a lineartransformation. Luhmann thus uses eigen-value to refer to "values" in the sociological sensethat stay constant throughout the incessant autopoietic self-production of social systems.-TRANS.]

36 See LA ROCHEFOUCAULD, MAXIMS (John Heard Jr. trans., Houghton Mifflin 1917)(1678).

37 Today's Aristotelians are recommended to read the following line carefully: "It is neces-

sary to observe that which is in conformity with nature in its natural condition and not in itscorrupt conditions." ARISTOTLE, POLITICS 1254a33 (translation by author). (Note the use of

the plural in "conditions.") Nature can thus appear as natural and as unnatural. The parallelsto the moral are obvious, and this indicates that the concept of nature is inserted here asreinsurance against its own paradox becoming visible.

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view at all during such fundamental transformations restricting thedecision as to the scope of the concept of "ethics," then its purportmay be that ethics does not analyze the moral externally and, as itwere, without obligation, but grasps itself as a theory of moral reflec-tion, and in so doing morally qualifies itself. Ethics engages itself forthe good, opts against the bad, and hence views itself as licensed tohold the moral to be something good.

The desolate condition of this academic discipline may be seentoday with naked eyes. Indeed, modern society provides a situation inwhich the moral code can be universally applied wherever a moralcommunication succeeds, but the corresponding programs can nolonger find a consensus (naturally excluding striking cases, whichthen, however, are not worth ethical reflection and, from a practicalstandpoint, are more effectively accommodated in law). What todaygoes under ethics (for example, ethical funds of banks, medical ethics,environmental ethics, and enterprise ethics) exists on account of theurgency of the problems and the aim of presenting one's own opinionseffectively from a rhetorical and journalistic angle-and all the morewhen consensus cannot be presumed.

This must not lead to abandoning traditional titles or makingthem available to charlatans as a trademark. The question is, though,whether ethics can be induced to reflect the problems of coding themoral. That would mean converting itself to thinking what is in prin-ciple a theory of difference. That would mean seeing the task as theunfolding of paradox in the moral code instead of as the application ofprinciples and maxims that reason (who's reason?) identifies as indu-bitable. That would mean conceiving of ethics as the observation ofmoralizing observers, hence, as second-order observation. Ethicsshould then dissolve the latent interests of moralizers, indeed convertlatency, as a rule, into contingency.

In the semantic tradition of the modern, there are numerous ex-amples of taking one's distance in this manner, these, however, alwayspresume specific contexts, such as: the precept of religious tolerancethat provokes religions; the principle of romantic "irony" that pro-vokes aesthetics; the political precept of democracy that counteractsmaking ideologies out of principles (that is, the precept of orientingoneself to public opinion and not confiding oneself to one's own goodwill); and finally the custom of firms of producing for the market andnot for public welfare, for which no rational criteria of decision can beprovided. In the total picture, typical characteristics of modern soci-ety appear directly in such adaptations as the mode of second-order

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observation.38 Ethics has not expressed itself on this point up to now.It faces the question, though, how it can preserve its moral self-es-teem, through participating in this trend or speaking out against it.

I shall refrain from answering this question for ethics for I see noreason to expose myself to moral esteem or disesteem by making pro-posals for a theory. Moralists like to characterize such an attitude ascynicism in view of society's urgent problems. But that is then justtheir language and also evidence for the limits of their theoretical im-agination. Organized knowledge, and especially sociology, can onlyprofit from the fact that moral communication, hence coordination ofcommunication with the code of the moral, has become contingent.

38 See also NIKLAS LUHMANN, BEOBACHTUNGEN DER MODERNE (1992).


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