Systems theory with discourse ethics: squaring the circle? · Systems theory with discourse ethics:...

Systems theory with discourse ethics: squaring the circle?Comment on Marcelo Neves’s Zwischen Themis und Leviathan

Kimmo Nuotio*

The title of Marcelo Neves’s Zwischen Themis und Leviathan suggests that the law has to do with the relationship between Themis and Leviathan (Neves

2000). The goddess Themis represents the feminine voice, the call for justice, whereas Leviathan is the name of ‘an artifi cial man’ and thus the symbol of masculine domination and power. We cannot of course be sure that Themis and Leviathan could ever be reconciled and decide to unite their virtues. Sophocles’s Antigone, which – or who – teaches that the most ethical and tragic moment of law, Antigone’s inner law of justice, can never be that of Creon’s, the ruler’s, is too well remembered.

Despite the use of the philosophical metaphor, Neves’s book is not really – at least not directly – about the general ethical impossibility of people enacting laws and backing them by force. It moves within the frame of modern, positive law, and modern society, as we already know them, dealing with the relationship between Themis and Leviathan in the limited context of a modern democratic constitutional state. The study seeks a constructive relationship rather than aiming to end all family quarrels. (Neves 2000, 10.)

The two poles under consideration are the models presented by Habermas and Luhmann. The extremely complex structure of both Habermas’s and Luhmann’s way of locating modern, positivistic law within the context of the modernisation of society makes it necessary to introduce these two theories fi rst in outline in order to make use of them later.1 Neves’s study proceeds in a form we could call comparative social theory.

* Author is a member of Centre of Excellence in Foundations of European Law and Polity Research at University of Helsinki.

1 A similar description and comparison of Habermas’s and Luhmann’s views on law and politics is offered by Sand 2000.

60 NoFo 7 [April 2010]

Habermas

Many important aspects of a theory of the constitutional state seem to depend on the possibility of speaking normatively of the ‘ought’. The legal theory of argu-mentation and rational decision-making is one such testing point. No normative-ly binding doctrine of legal argument (and of the legal sources) can be presented from a purely systems theoretical perspective, because this can only be achieved from the point of view of external rationalisation. In Perelman, Aarnio, or Alexy, the auditorio theory or an equivalent theory of communicative discourse ration-ality has been represented as expressing the regulatory ideal of rational legal deci-sion-making. They all presuppose that a connection exists between (procedural) ethics or rhetoric and the legal system. Habermas conducts his reconstruction in terms of the premises of the possibility of the Rechtsstaat. This goes far beyond the traditional legal theories focusing on the legal domain.

The idea in Habermas’s model is a reconstruction of normative foundations. He reinterprets the main structures of political and legal systems in a Rechtsstaat to show how both the democratic elements and the discourse theoretical pro-cedural elements can be used to render the modern state legitimate. This opens the institutionalized positive legal system to the infl uences of political decision-making. The inception of the state and its system of law (the law as a system of rights) is an act of mutual recognition by the individuals, the citizens. The law and the state thus represent a unity at a symbolic level. The reconstruction of the legitimacy of the constitutional state entails the possibility of showing the logical genesis of the ‘positivization’ of the individual’s rights. In a sense, the legal realm, compared with ‘application-oriented’ legal theories, grows in scope. The basic individual rights point in various directions and can also function as a source of material guidance in solving legal problems of systematization or application internally.

According to Habermas, law, politics, and the constitutional state are answers to the question of legitimating social order under conditions of ethical pluralism when the normative moral structures of the life-world no longer deliver answers to such questions. The ethical questions can no longer be solved simply by rely-ing on abstract practical reason capable of giving criteria for rational action. The ethical questions now have to be dealt with in common, from a ‘we’ perspective, by letting all concerned seek an acceptable solution by exchanging arguments and establishing a fi nal consensus. This fall of ethics which was formerly based on abstract principles and backed up by a subject philosophy of consciousness also has an impact on normative claims of legitimacy concerning politics and

NoFo 7 [April 2010] 61

law. The guarantees of normative legitimacy cannot be channeled to the legal and political systems directly and materially. Intermediate ways of procedural arrangements have to be found instead.

The main problems in Habermas’s model arise from his strong belief in the linguistic medium and communicative rationality as sources of legitimacy for ethics and social order. Can the potential for rationality of the life-world really justify the legitimacy of even the use of force by state authorities, not only at the abstract level, but also in practice? Can the Habermasian reconstructive approach accommodate the reasons for and particularities of why law has developed as it has, refl ecting the development of society? And can it serve as a basis for discuss-ing the legitimacy problems of the global order?

Despite criticism by the systems theory, Habermas tries to construct a social theory which recognizes both perspectives, that of the ‘environment’ (the life-world), and that of the system. Society incorporates both of these aspects simultaneously and, according to Habermas cannot be defi ned solely in terms of closed social systems. Social evolution is understood by him as a differentiation of these two dimensions (Neves 2000, 61). The life-world forms the background of all understanding and communicative activity and is only reproduced by way of communicative action. The life-world consists of culture, society and person-hood. As summarized by Neves, society is then defi ned as those legitimate orders over which the participants in the communication regulate their membership of social groups, thus securing solidarity. The defi nition of a system is narrow and covers the goal-rational fi elds of action, the economy and the administrative force (Macht), whereas law and politics mainly belong to the life-world as its refl exive levels of reproduction (Neves 2000, 62, 65-66). According to the famous thesis of the colonisation of the life-world, the systemic, goal-rational fi elds of action may have destructive effects on the reproduction of the symbolic structures of the life-world.2

Habermas operates with the terms of the development of the moral con-sciousness in society, and is interested in the logic of this development generally. He seeks to reconstruct this moral evolution of society using the individualistic psychological theories of Piaget and Kohlberg. These theories of the moral de-velopment of an individual are given a social reinterpretation. This moral basis allows for a wider perspective than with a narrow systems theory. In Habermas too, the increasing complexity of society is recognized as a phenomenon but, to-gether with the big changes in the production techniques (as analyzed by Marx),

2 Below Ladeur criticizes especially this polarization.


it constitutes merely the conditions of this social evolution, whereas the normative moral and legal development constitutes its ground. (Neves 2000, 30.)

As against the systems theory approach, Habermas emphasizes the need for ethical support of both law and politics as systems in his reconstruction of the constitutional state. Habermas’s view on the reasons behind the need for ethical support of political decision-making clearly has a Kantian background. The posi-tivity of law is understood as legitimate only if backed up by the legitimizing, presumptively rational will (Wille) of the people, who thus regulate their forms of living together. The law is located, as mentioned above, not simply at the level of a separate system, but is seen as operating as a kind of a transformer or bridge between the ‘System’ and the life-world.

Habermas’s well-known core argument is that the two forms of human autonomy , the private and the public (political) are internally linked in the struc-tures of the democratic Rechtsstaat. The system of basic rights is simultaneously made positive as legal rights, since popular sovereignty is recognized as the principle rendering law-giving legitimate. Within this structure, the normative ethical demand of legitimacy can be maintained if the legal institutions act as safeguards ensuring that the system of (basic) rights establishes the core of the legal system and that the political processes are formed according to the princi-ples of popular sovereignty.3 Luhmann’s conception of structural coupling thus has a rival defending the need for ethical justifi cation of all law and politics. The positivation of fundamental rights is being regarded as fundamental.

The normative-ethical claims of justifi cation are dealt with in Habermas’s theory mostly by leaning on procedural discourse ethics. The principles of dis-course ethics are seen as generalizable guarantees of impartiality and as arrange-ments furthering communicative rationality, especially when enacting legislation on morally relevant issues. The main principle of this discourse ethical idealism is that basically everybody affected by a legal norm must have a say as to its contents. In principle, the same procedural rules can be applied to different types of dis-pute. Habermas makes a distinction between moral, ethical-political, pragmatic and legal discourses. The democracy principle presupposes a combination of the moral, ethical-political and pragmatic discourses. Discourse ethics would seem to require that – according to the complete proceduralization of the ethical qualities – any outcome of an actual procedure would be as justifi ed as any other.

3 See Neves 2000, 94. According to Neves, Habermas in fact raises the moral self-determination (system of rights) over the popular sovereignty claim when he refuses to draw the full consequences and see the legal system as an autonomous system in a systems theoretical sense. See Neves 2000, 96.


Luhmann

Luhmann’s systems theory model has been especially tailored to observe the changes and complexities of a modern society. Since the separation of law as a distinct, specialized social system, it no longer needs any general external justifi -cation. Neither is it possible, because the law’s positivity has also meant respon-siveness to societal needs. The tools (concepts, etc.) of positive law have developed far beyond the limits of ethical arguments.4

For Luhmann, the main focus of the study is the increasing complexity of society leading to the differentiation between various social systems. The systems theory tools aim at an accurate description of the actual developments of the social evolution. However, this description has to be produced only from an internal systemic or sub-systemic perspective. No other possibility remains, because there can be no unifying outsider’s point of view to look at the developments (the system/environment distinction cannot be looked at from the point of view of an external environment, because the distinction system/environment is already internal to the system in question). The social systems are seen as self-referring, controlling their own operations, and forming an environment for each other. Modern society is a polycentric, polycontextural set of social systems. Subjects such as a person with a consciousness cannot be part of such social systems. The only rationality remaining possible has to be systemic, whereas any rationality or the changes of it in the life-world have to be excluded from a social theory (Neves 2000, 47, 55-60). The social systems are made up of communications, not of individuals.

Luhmann understands the positivity of modern law mainly in terms of operational closure of the legal system. The normative meaning of legal deci-sions is always based on elements that are already part of the legal system. This emphasis on the autopoiesis of the development of the legal order has partly been developed as an answer to the critics who were worried about the decisionism implied by his previous interpretation of the positivity of law. Operational closure means normative closure only, while the legal system remains cognitively open towards its environment. The legal concepts represent autopoietic aspects of normative closure and internal reference, whereas interests, in turn, represent the legal system’s external factors and reference. The legal system’s ability to ‘learn’ depends on its cognitive openness to the externalities, the complexities of the environment, but this learning can only result in the reordering of the legal

4 See, e.g., Luhmann 1981, 113-153.


system itself and not in any direct goal-orientation ‘towards’ the environment. All legally relevant criteria of justice and legitimacy have to be part of the legal system. Thus, Luhmann’s conception excludes any possibility of external criteria of legal validity or legitimacy. In internal terms, justice has to be dealt with simply as a question of the adequate complexity of the legal system and as a question of the consistency of the legal decisions. (Neves 2000, 69-73.)

For an understanding of a democratic constitutional state, it is of course not enough to concentrate on the legal system. The political system has to be taken into account as well. In this respect, Luhmann operates on the presupposition that politics is also a system which has basically the same structure as the legal system. Politics deals with different environments, but always translates them into its own terms. However, from the point of view of the theory of the democratic constitutional state, the interrelationship between politics and law as systems is crucial. The code of a political system (power/non-power) has to be recoded with the (albeit secondary) legal code (lawful/unlawful) for the political system to gain a completely autonomous nature vis-à-vis the other social systems. In the systems theoretical model of a Rechtsstaat, this relevance of the legal code for the political system is of crucial importance. The interdependence works both ways, the legal system with its authority drawing on the variables of the political system as well. (Neves 2000, 75-76.)

From a systems-theoretical perspective politics and law in a Rechtsstaat are interconnected in a horizontal, non-hierarchical manner. They cut across both of the systems, thus allowing for an increase in their complexity.5 The constitu-tion (Verfassung) in particular can be seen as a ‘structural coupling’ between the political and legal systems. The constitution is a stable form through which the mutual infl uences of law and politics are fi ltered. However, seen only from the legal perspective, the constitution also closes the legal system operationally, thus preserving the separateness of each system.

The constitution not only closes the two systems externally, but enables a new internal hierarchic ordering of them (‘tangled hierarchies’). The normative structures of the constitution ‘determine the main yardsticks of the normative closure and cognitive openness of a legal system’ (Neves 2000, 83). Should the constitution not guarantee an adequate structural coupling of the political and

5 Neves 2000, 77-78. Teubner’s interpretation of this phenomenon, which he calls ‘interference’, is also represented in this connection.


legal systems with these reciprocal controls, this would be a crucial failure in terms of establishing a constitutional state.6

Ladeur

From the point of view of law and politics, perhaps the most problematic assump-tion in Luhmann’s model concerns the unity of law as a system, and the strict connection between this system and the state. Gunther Teubner and Karl-Heinz Ladeur, to mention two important fi gures, have both departed from Luhmann’s position and shifted the focus of analysis to decentralized and non-state-bound aspects of reproduction of law (or autopoiesis). They both want to analyze law using systems theory tools, but without leaning on the unitary perspective presupposed by Habermas and Luhmann equally. There are thus several ways of theorizing on the autopoiesis of law.

Instead of only one perspective on observing the law, the network-like understanding of the observations of law opens it up to a ‘pluralization of perspec-tives’. The abandonment of a unitary systemic model as proposed by Luhmann would in fact present new opportunities for the understanding of legal doctrines as well (Teubner 1988, 272-276). In Ladeur’s perhaps somewhat radical reading, systemic unity is replaced by interactive networks, self-organizing units, which operate fl exibly with the uncertainties of life (Ladeur, 1999a). Ladeur’s critical remarks on the possibility of a unitary subject-philosophical or, as its surrogate, an inter-subjective discourse theoretical foundation of legal knowledge (Ladeur 1992 and 1999b) should have deserved more particular attention.

According to Ladeur, the complexities of modern societies require a full understanding of the limitations of current wisdom in dealing with information and needs for future-oriented problems. The political handling of uncertainties cannot be understood only as a ‘pooling of arguments’ in the public sphere as sug-gested by the discourse theoretical model (Ladeur 1992, 57-58 and Ladeur 1995, 37-45). Systems such as law, which develop under the strict obligation to decide all possible cases, are able to produce specifi c new forms of knowledge which would not have been possible simply within the framework of the life-world.

From the point of view of Ladeur, Habermas does not recognize the law’s inherent but dispersed institutional and societal knowledge contributing to the

6 See Neves 2000, 84. On the important contribution to the ‘allopoiesis’ as against ‘autopoiesis’ of law, see esp. Neves 1998, 116-152.


growth of the knowledge of societal life. According to Ladeur, the law oper-ates as a vehicle securing certain forms of societal self-organization, but within these forms the solutions to actual problems have to be produced not only on the basis of general legitimacy and acceptability by all concerned, but by way of trial and error, by experimenting, taking risks, and refl ecting on the unintended consequences of the action in question. For Ladeur, the liberal model of law is historically badly understood, if it is seen as a formalist, individualist and petri-fi ed market oriented model not allowing for development, and if only the mate-rialist welfarist critiques based on a call for social justice can instill some life into it. In Ladeur’s reading, the liberalist law and its theories has been able, quite the contrary , to remain open to transformation and develop ways of incorporating new forms of knowledge and learning mechanisms into the system by constantly renewed self-descriptions. The private, market based and other network-like co-ordination between individuals and their cooperation contribute signifi cantly to the emergence of a social order.7

What Habermas sees as the main point, namely, guaranteeing the rational-ity of action based in the last instance on the debates in the public sphere, where the society refl ects collectively on its preferences, remains too abstract from the Ladeur’s cognitivist point of view. The practices of dealing with dangerous (risky) actions generate and necessitate learning mechanisms which, however, spread across the society and cannot be restored as general discourses in the public sphere. The Habermasian approach thus misses an important point in how the law functions in modern, non-centralized societies. These workings can perhaps best be described as networks of interrelated actors and decision-makers (‘net-works of networks’). The social order, if there is one, is an unintended conse-quence of the activities within the networking society. For Ladeur, the cognitive problems of legal and political decision-making are much more prominent than the abstract problems of legitimacy.

From Ladeur’s point of view, the discourse ethics based constitutionalism does not recognize the complexity of the society and the political and legal order, because it reconstructs these orders only from a limited normative, proceduralist perspective, neglecting the more specifi c questions of the maintenance of social order. For Ladeur, the emergent qualities of the system can only be perceived when the modernist unitary perspective of viewing those systems is abandoned. For him, this requires rethinking the philosophical premises of modern knowl-edge and, in the end, drawing postmodern conclusions. In fact, there seems to be

7 See, e.g., Ladeur 2000, 12, 34, 49, 53, 60-61.


a lot to be achieved even on these new premises. The cognitive side of complex legal and political issues can be understood better, and the conception that the law is a social super-structure capable of regulating the society at will can be avoided.

Ladeur is also critical of the idea that the private, pre-political and pre-legal relationships between individuals could be termed, as Habermas does, as some-how egoist and irreconcilable, which means that basically all questions of social order need to be dealt with at the ethically ‘higher’ public level, be it the public sphere of politics, or other levels of public decision-making.8 This reproduces the Hegelian model of two liberties, in which true liberty is seen in the exercise of political rights, whereas private actions are clearly a secondary phenomenon. The multi-faceted ways in which the ‘private’ level contributes to the emergence of the social order remain unobserved because of the unnecessary antagonism between the lower private and the higher public spheres.9 This point is also of general importance because the primacy of the ‘public’ and the ‘political’ seems to imply a strong ‘state-orientation’ when the focus is shifted to questions of transnational and global action.10

Ladeur also criticizes the Habermasian model for forgetting the perspectives of action and accountability. Modern law is about producing accountability for actions committed under conditions of uncertainty – and even these necessary developments of law have to be produced and applied under conditions of imper-fect information. In the age of a risk society and an information society, dealing with accountability is a highly specialized task that requires not only strategies but also the incorporation of complex forms of knowledge into the procedures. If the liberal models of individual accountability are not capable of producing liabilities, there is a danger that the collectivization of liability will lead to hasty political efforts to solve the problems, which are partly caused by the lack of analysis of their causes. The likely result is that the regulatory legal measures will introduce plenty of negative side-effects into the social action system.11

The proceduralisation of all ethics and the forms of mediation from life-world structures to the systemic ones leads Habermas – if we follow Ladeur – either to an artifi cial emphasis on the potential for rationality of the public sphere compared with other levels of communication or to the exclusion of systemic

8 See Neves 2000 63-64, 137-142, 161-165.9 For Hegel, the level of ‘Sittlichkeit’ represented pragmatic social morality. 10 See Habermas, ‘Die Postnationale Konstellation und die Zukunft der Demo-

kratie’, Habermas 1998, 91-169.11 Cf., e.g., the fi ne-tuned conceptual analysis of the problem in Luhmann 1991.


emergencies indicating the taming of these forces on the grounds of rationality presuppositions located closer to the life-world.

Ladeur would probably also criticize the discourse ethics based theory of the constitution as seen by Habermas for its implicit teleology: the reconstruction of the democratic Rechtsstaat seems also to imply the rationality of the basic sub-stantial qualities of the system of rights resulting from communicative procedures. Habermas could thus be over-interpreting the developments of modern western constitutions as if they were merely the signs of a progressive communicative rationalist ordering. This ‘projectory’ teleological nature of present-day consti-tutions (Habermas 1999, 62-63) would thus be rationalized and legitimized in a manner which in fact narrows down the scope of actual politics. Habermas’s theory could be seen as reconstructing the system of rights from a point of view which does not allow for the description of the complex questions the law is about. It could be seen to emphasize, perhaps even excessively, the system of rights as working on two levels: between the individuals (the horizontal dimen-sion) and between individuals and the state machinery (the vertical dimension). The problem is that such a theory does not directly perceive matters such as the regulation of the market with actors like big companies.

The theory of basic rights should also be trimmed in order to meet the challenges facing the modern complex societies, because otherwise the consti-tution cannot really function as a mediator between law and politics. The theory of social rights within the constitution needs to be re-elaborated if the view of social rights as natural rights based on participation (citizenship) is abandoned. Ladeur takes for granted that the system of social rights cannot just be added to a system of negative liberty rights as an extra layer. In any case, the social rights may impact negative liberty rights and thereby the way they contribute to the social order. (Neves 2000, 252.)

The challenge Neves is facing

Both the discourse theory idealists and the systems theory realists must be wor-ried when confronting such an eclectic and unorthodox project as Neves is trying to create.12 The easiest way to verify this would be just to point out the comments

12 In fact, Habermas’s whole theory model may be seen as suffering from such a tension because of its debt to both normativist and non-normativist fundamental premises. See, e.g., Scheuermann 1999, 168-169.


Habermas and Luhmann have made on each other’s projects.13 This eclecticism is a risk, but not the only one. The other risk is that concentrating heavily on the contributions of two social theorists, too much might be shared with them, despite the seemingly critical fi ltering of them.

I would regard the following as candidates for non-refl ected reception:

1) Habermas’s view on language and the related concept of life-world. According to this view, the rationality potential of the use of language (argument) can really provide the normative, procedural justifi cation for law and politics under the current framework of complex social prob-lems and complex social relations.

2) Luhmann’s view on the unity of systems and his view of law as a system of communication does not leave room for a normative legal doctrine or other normative points of view, such as the substantial, material contents of a constitution (e.g., fundamental rights).

The fi rst point is related to the possibility of following the originally Kantian project of a philosophical critique with a linguistic theory of communicative rationality. Here I fi nd Neves’s well reasoned effort to overcome some of the consensualist premises in Habermas’s theory by way of introducing a dissensionist approach crucial. From the point of view of the possibilities of politics and the functions of the law, the articulation of and dealing with dissension is far more important than the presupposed horizon of emerging consensus. The problem remains, however, whether this change of perspective already transcends the potential of a Habermasian discourse theory and thus requires further consid-eration of its general premises.14 The Habermasian ‘public sphere’ may also be incapable of producing support for what is needed in law and politics for the abstract normative legitimation.

From a Luhmannian system theory perspective, the social systems develop new emergent qualities when differentiating from the simple structures of the life-world, which no longer simply correlate to the phenomena of everyday life. Luhmann’s perspective is cognitive and operative but not normative in any de-

13 See Habermas 1992, 67-78, 405-407, Luhmann 1993, 518, 554; Neves 2000, 75-76.

14 What I have in mind is that such confl ictual political theorizing seems also to presume a new view not only of morals and rights, but also of politics (and law) more in general. As opposed to liberalist theorizing, this may presuppose a move towards republicanism. See, e.g., Bellamy 2001, 41–70.


ontic sense, although the normativity is reinterpreted.15 The separation of law as a system of communication from other social systems clearly means that law develops its own conceptual tools for making observations.

Neves tries to reconstruct some aspects from the life-world in order to gain a legitimacy perspective under the dominant rule of a systems theory model. This is problematic for reasons similar to those that made Neves’s use of Habermas problematic. As far as Habermas clearly distinguished between the law’s two faces, law as an institution and as a medium, the former being part of the life-world and the latter being part of the system, it must have seemed a justifi able to enrich the Luhmannian systems theory with a mediation reaching the life-world. But, since this dichotomy has lost much of its importance for Habermas as well, the distinction can perhaps no longer be consistently carried out along those lines. Habermas’s newer view on law as a transformer (Habermas 1992, 108) and a mediator means, to some extent, that the law belongs neither to the system nor the life-world but constructs a bridge between them.

Concerning Neves, the particular question to be raised is whether the em-phasis on dissension instead of consensus in politics can solve the problems pointed out by Ladeur in Habermas’s approach.

Neves seems to be theoretically rather conservative in the sense that, after the necessary adjustments have taken place, he seeks maximal application of the grand theories. This conservatism has to do with the reluctance to extend the critical assessment of the target theories. This might, however, have been useful in order to discuss the hidden or problematic assumptions underlying the two grand theories. We must also bear in mind that neither one of the founding fa-thers wrote their theories from the traditional legal perspective dominating con-stitutional discussions, which of course stresses the importance of the possible limitations to the chosen theory inputs. The rich academic discussion surround-ing Habermas’s and Luhmann’s theories could have provided important inspira-tion, and perhaps even distance. Keeping these unfair and illegitimate prejudices in mind, it is time to examine the book itself.

15 As regards the difference between ‘legal theory’ and ‘sociology of law’, cf. Luhmann 1993, 9-37. Legal validity is here seen as a symbolic aspect of the law itself, and not as a distinct reference to an external ‘Sollen’ criterion of validity. Luhmann 1993, 32; cf. also Luhmann 1993, 98-110.


Analysis and synthesis

The two juxtaposed theories required are the discourse and democracy theory of Habermas and the systems theory of Luhmann. Neves seems to be aware of the fundamental impossibility of marrying Habermas’s discourse theoretical approach to the systems-theoretical approach of Luhmann. Neves’s main empha-sis is on the interpretation of the theory of a democratic constitutional state as an answer to the dilemma of ensuring at least reconciliation between the legitimacy claims of Themis and the power and authority claims of the Leviathan. Themis is thus supposed to civilize and to some extent tame Leviathan and turn him into a positive fi gure. The main tone is Habermasian in that the conditions of the nor-mative legitimacy of law and state have to be elaborated and interpreted.

Thus Neves does not strive at ending the family quarrel by bringing in a third party to settle the dispute. What he has in mind is, by way of abstraction, to point out the elements needed in the construction of a reconciliatory theory of Rechtsstaat fi t for a highly complex modern society (Neves 2000, 99-100). The systems theory part seems to be particularly connected with the empirical and conceptual complexities such a theory has to face today. Habermas’s theory, on the other hand, seems to preserve aspects of normative legitimacy better than a theory focusing merely on the observations made from one (or several) systemic point(s) of view.

Despite the great differences in the outlook of the theories, the possibility of combining them seems to be offered by the fact that the phenomena the theo-ries interpret are almost identical, only the focus of interest and the aim of the theories themselves being different (Neves 2000, 112).

Neves seems to accept much of Habermas’s general analysis. The most important critical remark concerns the unnecessary limitation of the concept of the life-world by interpreting it too strictly against the background of consensus -oriented action and communicative rationality. According to Neves, this ‘reduces the analytical potential of the Habermasian contribution in understanding the highly complex world-society as well as the democratic constitutional state’. (Neves 2000, 68.)


Theory of a democratic constitutional state: the outcomes of Neves’s critical reflections

At the outset, Neves notes that the differences in Habermas’s and Luhmann’s conceptions could be reduced if the former’s consensualism allowed more room for confl ict and dissension. In general, it seems that the life-world’s horizon of common understanding delimits the ability the law and politics have to react to the complexities of modern society, especially taking into account the lack of a common cultural value basis. The life-worlds are fragmented to such an extent that communicative rationality cannot guarantee agreement on basic questions on morals. This is, of course, one obvious reason for the need for legal regula-tions as complementing the lack of common morals and ensuring social integra-tion. (Neves 2000, 99-102.)

The life-world should thus also be seen as protecting the diversity of opinion articulated in the dissension. The point of this dissension seems to be that the participants in a discourse, even though they cannot hope for a common ration-ality capable of solving the moral dispute, still recognize each other as rational human beings worth of a dispute. The result of Neves’s interpretation seems to be a combination of a consensus on procedure and a disagreement on substance. The common basis of substantial morality of a life-world seems, therefore, to require a form of dissension-morality.

For this reason, the Habermasian concept of the public sphere (in a narrow sense) is given a reinterpretation as a sphere of tension between the life-world and the constitution as a structure coupling the legal and the political systems. This relocation of the public sphere emphasizes its connection with the legal and the political systems, but still preserves its discourse-based roots in the rationalized life-world. This tension on two frontiers is captured by the term structural interfer-ence. The constitution not only couples the legal and political systems with each other, but also works as a mechanism together with the institutionalized forms of the public sphere, capable of mediating the life-world and the two systems. In a wider sense, the public sphere can be seen to mediate not only between the life-world and the two coupled systems, but also between these and other sub-systems of society. (Neves 2000, 104-106.)

The reinterpretation of the public sphere and its connection with the con-stitution is probably the most original result of Neves’s systems theoretical read-ing of Habermas or his normativist, communication-oriented reading of systems theory. It seems to me that this reinterpretation of Habermas’s concept is easier to justify than that of Luhmann’s non-systems theoretical reading. Habermas’s


model clearly calls for it to be adapted to the modern conditions of complexity and pluralism. However, Luhmann also seems to support a proceduralist, legitimacy creating reading. Neves himself stays closer to Habermas than to Luhmann in that the strict limits of systems theory are crossed in his reinterpretation of the public sphere as an arena of interference. The dissension, in turn, moderates some of the idealist consensualist premises in Habermas, but preserves the rationalised life-world as a source of consensus in fundamental procedural matters.

Neves ends up fi ghting on several frontiers. One of the issues is surely the question of how much consensus needs always to be presupposed as a necessary background. Neves speaks of the public sphere mainly as a heterogeneous, sub-stantially constantly changing, almost chaotic fi eld of public discourse. Implicitly, however, the public sphere refl ects an underlying consensus on procedure, but even this limited consensualism, the consensus on procedure, is a remarkably vague presupposition, and remains open to many interpretations. The ques-tion of the kinds of rationality the discourse ethical procedural arrangements bring about depends on the deeper philosophical premises of this consensual-ism. The seemingly very similar proceduralism of Kelsen, Rawls, Habermas and Luhmann, for instance, is based on very different views on the ‘added value’ of procedural guarantees.

For Neves, proceduralism seems to be associated with a substantial demand to enforce and protect pluralism, which thus gives the public sphere a substantial task and defi nition. The recognition of ‘individuals as equal’ also seems to be built into the public sphere as a consensualist condition of its proper existence.16 Viewed from another angle, the interpretation given to the fundamental rights in a democratic constitution also goes beyond taking these rights only to be of a procedural nature, which thus supplies some legal structure for the preservation of dissension in the public sphere. (Neves 2000, 120.)

Dissension also brings Neves close to the post-modern position. Here he also seeks a mediating position, however. For him consensus/dissension divide seems to be two-sided, both of which he hopes to make use of.17 The consensus side leads, via a proceduralist bridge, to a systemic and thus unitarian conception

16 See Neves 2000, 131-132. ‘Treatment as equal’ is thus the external aspect of equality, whereas ‘equal treatment’ is the inner-systemic perspective towards this principle. Against the background of this ‘treatment as equal’, Neves tries to give a justifi cation for the reverse discrimination problem (‘affi rmative action’); Neves 2000, 132-134.

17 This should not be taken to mean that the distinction between dissension and consensus is here made in any systemic context. (But how can it be made otherwise?)


of law and politics in line with Luhmann. After all, a systems theory view of law and politics actually seems to require at least some constitutionalist backing.

The consensualist side not only theoretically restricts the impact of the dis-sension in theory building, but also works as at least some kind of an answer to the more radical systems-theoretical postmodernist skepticism. The effort deserves merit, but if I am right, the results would have required a more solid foundation for the social philosophical premises in order to convince opponents. Here again we face the problem of the nature of the consensus on procedure.

A second, related topic chosen for closer scrutiny is the relationship between state sovereignty and the sovereignty of the people. This topic brings us back to the systems theoretical understanding of the coupling of the political and legal systems. The clearest answer to the problem (or paradox) of securing both state sovereignty and popular sovereignty seems to be by interpreting sovereignty as systemic closure, and then understanding the structural coupling as a tool for guaranteeing the mutual ‘recognition’ of these two systems. Political sovereignty in particular is under pressure today. Politics itself, a functionally differentiated sub-system of the world society, must extend its reach. Thus, political systems of states should also respond to the new needs of a world society, exceeding the borders of the individual states.18

Neves seems to accept Habermas’s crucial view on sovereignty concerning the existence of an internal link between the private and the public autonomy of the citizens. His main critique is directed against the manner in which Habermas refuses to draw radical conclusions from this inner connection, requiring a full proceduralization of popular sovereignty within the structures of a democratic constitutional state. Habermas seems to account for other uses of popular sov-ereignty as well.

In Habermas’s democratic constitutional theory, the system of rights mediates between popular sovereignty and legal and political state sovereignty. If popular sovereignty is understood in terms of participation in the political will-formation, it hinges crucially on the legal rights of the citizens constituted by a sovereign state. In this perspective, citizenship is nothing more than a legal construct only denoting the bearer of those legal rights. From a broader perspective, citizen-ship is more, since it is a political-legal means to political integration and social inclusion.

For Neves, social inclusion connected with citizens as bearers of funda-mental rights is not mere ideology, but a crucial test of quality: is the state con-

18 As to the point last mentioned, see Neves 2000, 125-126.


stitutional? Indeed, it is possible that constitutionality only remains at a symbolic level serving, as a facade legitimation. According to Neves, this is actually the case in many states of peripheral modernity. These states share most of the le-gal and political structures with states of central modernity, but they lack actual autopoiesis of the legal and political systems in these countries results in grave shortcomings as regards the access to citizens’ rights. Neves wishes to test sys-tems of constitutional rights against the political: is the constitution actualised? (Neves 2000, 140.)

As already mentioned, the constitution has several functions. It safeguards the structural coupling of political and legal systems (Luhmann) and enables them to interfere with the life-world through the public sphere (Habermas). The system of constitutional fundamental rights is crucial for Habermas in construct-ing this structure. From a systems theory perspective, however, the structural coupling is still more fundamental. Neves interprets the procedural aspects of a democratic constitutional state along these lines as well. The structural coupling entails ‘tangled hierarchies’ within the two systems, but it does not imply a hi-erarchy between them. The legislative procedure, for instance, is not the leading procedure. Thus, the view adopted by Neves allows for a horizontal complemen-tarity of the different procedures characteristic of a constitutional state. It also reads the important constitutional principle of the division of powers as setting a requirement of plurality of procedure. (Neves 2000, 142-143.)

One of the weak points in many democratic constitutional theories seems to be the over-emphasis on political procedures and the system of rights, whereas the complicated nature of structural couplings of the political and legal systems as a set of mutually dependant procedures attracts little attention. Neves points out that a realistic understanding of the procedures implementing political deci-sions and basic rights (application/interpretation) also contributes to the collapse of hierarchical orders, because every procedure necessarily has a constitutive role regarding its outcome.

Despite the fact that, i.a., the ‘pure theory of law’ provided a totalistic view on law as a system of norms, traditional legal theory has been focusing more on questions on legal methods of interpretation than on discussing the law as a system. This restriction has enabled legal theory to preserve its identity as a separate fi eld of study, but it has meant a kind of closure on social theoretical in-fl uences on the other. Thus, the inward-looking refl ections of traditional legal theories in fact express a social-theoretical closure. They recast and indeed draw the boundaries of the law as a system. The legal system turning towards itself is refl ected in the peculiarities of legal interpretation.


Since the 1970s, the research on legal theory has, however, shown more interest in the social and political theory frameworks seeking to defi ne its limits from the outside. In addition to this, the social theory has also had an increasing interest in questions of law and legal theory. This is easily demonstrated by the two grand theories discussed. For Luhmann, of course, the legal system is a social system par excellence. And the law is a crucial element of Habermas’s social theory, as we have already seen. Against these two ways of setting a doctrine of legal interpretation in a social theoretical context, it is worthwhile to have a look at Neves’s contribution.

Neves does not focus on legal interpretation in general, but on the issues concerning the legal interpretation of the constitution. Despite this, his remarks apply to some extent to other, more standard aspects of legal interpretation as well.

Neves shares with the systems theory the understanding that the increased complexity of social life creates new diffi culties for all legal application and in-terpretation practices, thus also when these are carried out at the constitutional level. He considers that the questions of interpretation cannot be dealt adequately without a combination of semantic and pragmatic criteria. Even then there is no guarantee of the existence of a justifi ed single interpretation, or, of the possibility of ever knowing what that is.

The internal legal validation of interpretation does not seem enough under these circumstances. This leads Neves to consider the possibility of an external validity basis (‘Heterovalidierung’) of constitutional interpretations. This would enable taking a public sphere in a broader sense into account.

The discourse theoretical founding of a legal doctrine of interpretation is also problematic. Neves abandons the Dworkinian view of a single right answer in the weaker version where it serves only as a ‘regulatory idea’ (Habermas). Aar-nio’s theory based on the idea of a ‘particular ideal auditorio’ accepting some in-terpretation as justifi ed is also rejected for similar reasons. The concept of a life-world involved in the construction of a rationalistic auditorio would presuppose a homogeneity of values. This takes too much for granted. Here, Neves invokes the Wittgensteinian concept of a life-form. For Wittgenstein, the sharing of a life -world necessary for mutual understanding presupposes nothing more than that linguistically constructed rules of the game be shared. It does not presuppose the sharing of common values.

After his critique, Neves turns to the constructive part. He wishes to make use of a Wittgensteinian understanding of the rules of the language game in seeking the limits of justifi cation for constitutional legal interpretations. For


Wittgenstein, the limits of understanding are exceeded only when a meaning (‘Sinn’) is given to a text which could not have been produced according to the rules of the language game. Neves sees that the public sphere has a controlling function in the application of constitutional texts, but the public sphere can only have a limited and indirect impact on the justifi cation of an interpretation. The production of meaning as the result of interpretation has to be seen as a product of the pre-existing rules of the constitutional language game. Only interpreta-tions which cannot be seen as applications of the rules of the game belonging to the constitution are forbidden. (Neves 2000, 159-160.)

Neves’s idea is that this limited interpretation of Wittgenstein’s life-world remains open to substantial dissension which is the typical starting point of all mod-ern communication and thus also typical of the conditions of the public sphere. A shared life-world indicates only proceduralist acceptance of the rules of the game constituting the particular life-world.

This understanding of the external legitimation of legal interpretations warrants some comment. First, external legitimation is minimal, because it ef-fectively excludes only interpretations that could be termed absurd. Therefore, it cannot actually be seen as emphasising the aspect of external validation of constitutional interpretation. Second, the exclusion of interpretations which are not backed up by already-existing rules is question-begging. Only applications of a rule are justifi ed which are applications. Therefore this view does not reach beyond the legal realm to the public sphere in an interesting way. Third, is there a difference between different types of argument here? If the external legitimacy of an interpretation is so conspicuously weak, can a more legal doctrine of inter-pretation be developed to further narrow down the discretion of the interpreter? This seems to be possible because Neves emphasizes the complementarity of internal and external justifi cations. Then, what is the relationship between the actors within the system, i.a., the members of a court and those participating in the legal communications as ‘outsiders’, that is, only as fellow citizens?

The result, the theory of legal interpretation put into the context of public debates on the constitution, seems to some extent to draw on Luhmann. The norms are considered not as directly identical with the text of the constitution . The interpretation and application of the constitution is considered as a phenomenon contributing signifi cantly to the normative dimension of the constitution. Neves’s point is, still, not so much to show the limits of the possible interpretations of legal issues generally or of constitutional issues especially when these are dis-cussed publicly. Instead, the question at stake is the exploration of the limits of external rational communication as regards the meaning of legal texts. This is a


crucial issue prompted by the fundamental plurality of the public sphere in any substantial terms. Perhaps Neves should have given more concrete examples of constitutional interpretation in order to provide more convincing support for his idea of external validation of constitutional interpretations.

Peripheral modernity – and the law and society of the world

Neves is aware of the fact that the problems modern constitutional states face no are longer simply domestic ones. The rapidly growing impact worldwide of economic forces and technological innovations threatens to weaken the states’ legal-political ability to keep up with the ideals of democratic constitutionality. Interpreted in a systems theory fashion, this phenomenon threatens the autopoiesis of the structurally coupled but distinct systems of law and politics. The economic code of possessing/not-possessing takes over and the communication aspects of the constitutional state are also put under pressure, because the communication fl ows cross the borders of individual states freely. Seen from an internal point of view, ethnic confl icts and fundamentalism threaten the pluralistic premises of the public sphere. Neves refers to Luhmann’s remarks on confl icts which have to be solved politically tending to be deeper and more fundamental and non-trivial in character.

Although globalization of the economy and its implications threatens the ability of all states to maintain basic legal and political structures, the economi-cally and politically less developed countries of peripheral modernity are in danger of falling into a degenerated form of democratic constitutionalism. Only under the conditions of central modernity can a state maintain its systemic structures. Neves points out that democratic constitutional states also tend to protect hu-man rights even under new circumstances. (Neves 2000, 167.)

Neves does not generally favor the approach of strengthening the state (the Leviathan) in order to defend itself against the internal and external threats to democracy. The Leviathan, he claims, needs even under highly complex soci-etal circumstances, to preserve a constructive relationship with Themis. Neves’s interesting analysis of this fi eld presents two different types of problems fac-ing the constitutional states of central and peripheral modernity. In peripheral modernity, democratic constitutionalism, if ever developed, neither reaches the systemic autopoiesis of the political and legal systems nor is accompanied by an authentic public political sphere. Therefore, democratic constitutionality under


conditions of peripheral modernity only imitates the state form functioning in central modernity.

Neves analyzes the problems faced by states in central modernity, by in-terpreting them against the background of the wide theoretical literature on juridifi cation. His point is that extending the tasks of the states threatens the non-systemic spheres’, such as public sphere’s ability to mediate and channel the dissension morality into the legal-political system, which could lead to isolation of the state in relation to the society. (Neves 2000, 175.)

The problems in central modernity are mainly connected with the external references of the two state systems (Fremdreferenz), whereas in peripheral mo-dernity the self-reference (Selbstreferenz) of those systems is problematic already. The differentiation of the two systems occurs only ‘topically’. This means that in peripheral modernity systems, which themselves are necessitated by the in-creasing complexities of social life, are not fully differentiated from the society. The end result is not a simpler model of society, but complexity in a more un-structured form (Neves 2000, 179). The systemic character of law is disturbed by lack of full operative closure of the system, producing a kind of identity crisis within the system. This is not an adaptation crisis only, as is the case with central modernity. The problem of systemic colonization of the life-world turns upside down: the society colonizes the law. Under these circumstances a dejurifi cation takes place in a specifi c form, the legal code being affected by other codes such as the economic code of preferences. For this reason, the problems of dejurifi ca-tion cannot be overcome by constitutional reforms or similar measures. Instead, the autopoiesis of the legal system should be improved, in relation to the political code as well.

In Habermas’s diagnostic terms, the problems of peripheral modernity could be expressed as the lack of suffi cient development of the fundamental rights and the public sphere based on them. The weakening of traditional morality is not followed by the ordinary Western development of a new ‘complementary’ form of universal morality, the public sphere.

The analysis of the problems of the constitutional state in peripheral mo-dernity is a crucial test case for Neves. It also allows a constructive use of the elements picked out of systems theory and of a normative view constitutionality based on discourse ethics. But does Neves really succeed in analyzing the prob-lems of peripheral modernity?

It is diffi cult to assess whether the analysis is, in the last instance, a correct one despite being very learned and helpful one. The problems lie, in my opinion, in the idealizing approach to the centralized modernity which is presented as a


model of democratic constitutional statehood. One could ask whether this model, against which peripheral modernity is contrasted, is itself any longer ‘valid’. Is not the problem of describing peripheral modernity more or less applicable to societies and states of central modernity as well? With the example of Ladeur’s analysis of the network society in mind, is it not actually the similar disillusion-ment of unitary conceptions of law as a system which motivates his criticism of such approaches in general? Is not the legal code’s weakness a typical feature of all modern law?

It seems that a fully convincing analysis of the shortcomings of less devel-oped constitutional democracies would have required the more detailed support of studies dedicated to these problems. Without that, the fi ndings remain highly abstract. To what extent are the abstract models implied by grand theories, or developed on that basis, themselves too idealistic? At least some kind of implicit teleology of general social development seems to be assumed by Neves. The con-stitutionalist basis may be leading to a somehow idealistic point of view. Clearly, Neves is reluctant to give up the unitarian legality perspective in considering the problems of constitutionalism. We can admit that there are risks related with more radical perspectives, however.

In the case of Brazil, Neves points out that the privileges of some groups of citizens threaten the universal character of rights. The weakest citizens, the dis-enfranchised, lack access to their legally recognized rights. Consequently, they see themselves mainly as having legal duties rather than rights. This imbalance can be seen in the numerous confl icts these citizens have with the repressive state machinery. From the point of view of social integration, this group remains un-der-integrated, whereas the privileged are over-integrated.

Although Neves’s analysis is in this respect fairly convincing, I have some doubts concerning the possibility of drawing such sharp lines between the nor-mally integrated and those under or over integrated. It is also quite a normal phenomenon in ‘centrally modern’ states that many people are prevented using their legally guaranteed rights effectively. Even the same person can in some re-spect enjoy a particular right, in another sense the same person may lack adequate legal protection. The nature of the legal system also determines the role that state actors take in their relationships with the citizens. The welfarist or repres-sion-oriented roles depend to a considerable extent on the substantial qualities of legislation. Even non-repressive negation of rights can be humiliating. It may also be too simplistic to consider all margins of discretion in the functioning of the criminal justice system as signs of undue privilege – a view perhaps implied by the analysis. The exclusion/inclusion topic should be approached with tools


allowing for more nuances, because developing legal systems also increasingly operate on and recognize such distinctions. This phenomenon is familiar as the abandonment of abstract role concepts in material legislation, and replacing them with more contextualized ones.

Regardless of the general viability of such an ‘integrationist’ analysis of Brazil or similar countries, Neves’s critical comment on Luhmann’s conception of a world society deserves notice. According to Neves, the exclusion/inclusion problem shows that the world society cannot be based only on the distinction system/environment (that is, on the functional differentiation). Instead, the exclu-sion/inclusion distinction may be regarded at least as fundamental as the former. According to Neves, these two distinctions compete with each other at the level of the world society. (Neves 2000, 189.)

Neves seems to view constitutional democracies as crucial factors on the world scene. New private governance models functioning worldwide cannot, according to him, even in principle have the ability to solve the basic problem of the structural coupling of law and politics. Neves brings the basic question of structural coupling dealt with domestically to the global level. Is there a way in which a legal system could emerge on the world scene in such a way that the system would have a mediated relationship with the system of world society?

This option has been studied at some length by Habermas under the term ‘world home affairs’ (Weltinnenpolitik). Habermas has pointed out two different problems calling for solutions at this level of politics: the economic threats to the welfare structures (calling for welfare policies at world level) and human rights violations (calling for new solutions).

In regards to welfare politics, Neves is skeptical: Habermas merely gener-alizes welfarist expectations which so far have only been met in a small group of central modernist states. The global perspective of welfarist politics is highly idealistic, even utopian, as shown by the Brazilian example.

In regards to world home affairs, here too Neves criticizes the Habermas’s utopian view of on the possibility of developing such democratic proceduralist forms of world government. The world home affairs policy would too often be read as Western foreign affairs policy (Neves 2000, 207). ‘Military humanism’ (humanitar-ian military interventions) is the well-known test case. The skepticism of Neves is well founded. It is diffi cult to imagine how these kinds of weakly controlled military actions could be seen as a (primary) means of upholding high standards of respect for human rights.

Compared to Habermas, Neves is clearly more cautious in producing visions for a future world legal system. Nothing suggests that the world society will be


able to create structures amounting to ‘the law of world home affairs’ in the fore-seeable future. Too many barriers would need to be removed fi rst. Against this background, Neves emphasizes the importance of functioning democratic con-stitutionality among states, as well as in solving the problems of world society.

I fi nd myself basically sympathetic to the tendency in Neves’s analysis to emphasize the fl ow of legitimacy through the states capable of complete social inclusion of their residents. Somehow, however, I feel that it just is not enough to lean on imprecise social theoretical backgrounds when making such compre-hensive assessments of the role of democratic constitutional states in general. For example, many recent developments in international law should have to be considered, such as the foundation of the permanent international criminal court (ICC), the developing (regional) human rights supervision systems, or the in-creasing role of non-governmental organizations in international law. Between the domestic national level and the global level there may be opportunities to produce special regional arrangements for home affairs, as is the case with the European Union. Sometimes the cooperation between the member states grows deep enough to take the form of a transnational regime with complex network structures of cooperation.19 The theoretical solutions should not be pressed into choices between a very few options. The state-centered view somehow seems to restrict imagination and leave the state itself as the blind spot of the theory.20 Under the conditions of globalization this seems a problematic restriction. (Held-McGrew 2000.)

Since it is quite normal that the states develop forms of cooperation at very different levels, it is natural that states are still the key to the legal and political developments. Moreover, there are also many problems which are at least partly caused by ‘badly behaving’ states. It seems rather diffi cult to construct proce-dural models for legitimate statehood which in the end would prevent this from happening.

The necessity to produce legitimate social orders at a transnational level does not imply that the nation states are the only players in the game. For instance, human rights protection can be promoted by economic actors active in the global market. They can even be quite effi cient in this, because the poorer economies are usually highly dependent on foreign investment, creating clear incentives even

19 Cf. the discussion in Ladeur 1997, 33-54.20 As a related point we could mention that although the view of law is very state-

centred, the ‘internally’ systemic legal theories, or legal doctrines, are not really much taken up. It remains unclear how the legal system is seen as reproducing itself, and what the role, if any, of legal science is in this task.


for non-democratic rulers to cooperate. The cooperation paradigm underlying such possibilities is not restricted to inter-state structures only. Especially when market related activities are discussed, the ordering forces of the markets them-selves should be taken into account. Somehow the legitimacy claims and needs increase in importance the closer we come to the core areas of international order, warfare and similar matters. In these areas, ‘state-mediation’ is necessary, but, as often noted, more diffi cult to satisfy. This relates to the general weaknesses of public international law as a guarantor of the international legal and social order. (Koskenniemi 2001, Koskenniemi 2000.)

There must be some logic as to why this is the case. My guess is that the inter-dependences of the networking world society, not only of states but of so-cieties and communities, can produce some sort of a social and legal order, but do not prevent superpowers or other ‘non-accountable powers’ from causing dis-turbances. Therefore, there is reason for both pessimism and optimism.21

As another last point, we could come back to Ladeur’s critique of the lack of future-orientation in the Habermasian model of law and politics. As we remember, Ladeur emphasized the cognitive openness of legal and political decisions because the causalities attached to the various choices are often extremely complex and uncertain. One might thus also ask whether the model delivered by Neves really contributes to the ability of a system to function adequately in various complex social situations. This question becomes more acute the more substance matters of legal regulations no longer take the form of general moral issues.

If I understand Neves correctly, he believes in the end that the theory of democratic constitutionalism can deliver a model of a normatively legitimated state worth taking as a universal starting point in all developed societies which face the problems and opportunities of functional differentiation. Compared to Habermas, Neves’s model, taking dissension as a starting point, is more mini-malist and easier to defend.

When the society functions partly in differentiated systems, the problems of social inclusion have to be dealt with seriously, which is one of Neves’s merits. To return to the original metaphor used by Neves himself: in order to ensure social inclusion, Leviathan needs Themis and the force of her love.

21 It is worth keeping in mind that even Luhmann himself was unsure whether the central role of the legal system in a society is a permanent feature or rather a ‘European anomaly’ which will weaken alongside with the evolving world society. Luhmann 1993, 585-586.


References

Bellamy, Richard: ‘“The Right to have Rights”: Citizenship Practice and the Political Constitution of the European Union’. In Richard Bellamy & Alex Warleigh (eds): Citizenship and Governance in the European Union. Pinter, Continuum 2001, 41–70.

Habermas, Jürgen: Faktizität und Geltung. Suhrkamp, Frankfurt 1992.Habermas, Jürgen: ‘Die Postnationale Konstellation und die Zukunft der Demokratie’.

In Jürgen Habermas: Die postnationale Konstellation. Politische Essays. Suhrkamp, Frankfurt 1998, 91-169.

Habermas, Jürgen: Wahrheit und Rechtfertigung, Philosophische Aufsatze. Suhrkamp, Frankfurt 1999.

Held, David & Anthony McGrew: ‘The Great Globalization Debate: An Introduction’. In David Held & Anthony McGrew (eds): The Global Transformations Reader. Polity Press, Cambridge 2000, 1-45.

Koskenniemi, Martti: ‘Carl Schmitt, Hans Morgenthau and the Image of Law in Inter-national Relations’. In Byers (ed): The Role of Law in International Politics. Oxford University Press 2000, 17-34.

Koskenniemi, Martti: The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960. Cambridge University Press, 2001.

Ladeur, Karl-Heinz: ‘Perspectives on a Post-Modern Theory of Law: A Critique of Niklas Luhmann, “The Unity of the Legal System”’. In Teubner (ed): Autopoietic Law: A New Approach to Law and Society. Walter de Gruyter, Berlin, New York 1988, 272-276.

Ladeur, Karl-Heinz: Postmoderne Rechtstheorie. Duncker & Humblot, Berlin 1992.Ladeur, Karl-Heinz: Das Umweltrecht der Wissensgesellschaft, Duncker & Humblot, Berlin

1995.Ladeur, Karl-Heinz: ‘Towards a New Theory of Legal Supra-Nationality: The Viability

of the Network Concept’. 3 European Law Journal (1997) 33-54.Ladeur, Karl-Heinz: ‘The Theory of Autopoiesis as an Approach to a better Under-

standing of Postmodern Law’. 1999 (3) The EUI Working Paper (1999a).Ladeur, Karl-Heinz: ‘Can Habermas’ Discourse Ethics Support a Theory of the

Constitution: Towards a Critique of the Attempt to Replace the Unity of Substantive Universal Reason by a Procedural Rationality of Argumentation’. 1999(4) EUI Working Paper, Law (1999b).

Ladeur, Karl-Heinz: Negative Freiheitsrechte und gesellschaftliche Selbstorganisation. Mohr Siebeck, Tubingen 2000.

Luhmann, Niklas: Ausdifferenzierung des Rechts. Suhrkamp, Frankfurt 1981.Luhmann, Niklas: Soziologie des Risikos, Berlin 1991.Luhmann, Niklas: Das Recht der Gesellschaft. Suhrkamp, Frankfurt 1993.Neves, Marcelo: Symbolische Konstitutionalisierung. Duncker & Humblot, Berlin 1998.Neves, Marcelo: Zwischen Themis und Leviathan: Eine schwierige Beziehung. Eine Rekonstruktion

des demokratischen Rechtsstaates in Ausandersetzung mit Luhmann und Habermas. Nomos Verlag, Baden-Baden 2000.


Sand, Inger-Johanne: Changing Forms of Governance and the Role of Law: Society and its Law. 2000 (14) Arena Working Paper.

Scheuermann, William: ‘Between radicalism and resignation: democratic theory in Habermas’s Between Facts and Norms’. In Peter Dews (ed): Habermas, A Critical Reader. Blackwell, Oxford 1999, 168-169.

Systems theory with discourse ethics: squaring the circle? · Systems theory with discourse ethics:...

Documents

Transcript of Systems theory with discourse ethics: squaring the circle? · Systems theory with discourse ethics:...