CEPA eprint 3077

Autonomy and regulation in the autopoietic perspective: An introduction

Febbrajo A. & Teubner G. (1992) Autonomy and regulation in the autopoietic perspective: An introduction. In: Teubner G. & Febbrajo A. (eds.) State, law, and economy as autopoietic systems regulation and autonomy in a new perspective.. Dott. A. Giuffrè Editore, Milan: 3–16. Available at http://cepa.info/3077
Table of Contents
I. The paradigm of autopoiesis in the social sciences
II. State, law, economy as autopoietic systems
III. Regulation and autonomy: The concept of “reflexive law”
IV. Law in a world of autopoietic systems
References
The relationship between law, politics and the economy has become once again the grist for scholarly controversy. While traditional jurisprudence and legal sociology tend to view law, politics, and the economy as semi-autonomous spheres, two contemporary schools of thought reject hard and fast distinctions between these fields. The law and economics movement (“law is economics”) and critical legal studies (“law is politics”) insist that law, politics, and the economy are essentially intertwined. Against both the traditional and contemporary views, the theory of social autopoiesis rejects the notion of intertwinement as well as the notion of relative autonomy. It claims that politics, law, and the economy are discourse formations that are radically autonomous and inaccessible to each other in their self-production. Autonomy and heteronomy of social fields are not seen as a zero-sum-game relation, but as mutually reinforcing. The pointe of social autopoiesis is that law, politics, and the economy do not possess simply a relative autonomy of their internal structures, but produce and reproduce autonomously their very components and are thus operationally closed. Autopoietic theory also claims that these social spheres do not exchange information between each other but rather produce information of their own under the impression of external “noise.”
This theory is a rather radical departure from accepted positions. It is based on theoretical and epistemological premises that are worked out in detail in the first volume of “Autopoiesis in Law and Society” (TEUBNER, 1988). The present volume offers a more elaborate discussion of the autopoietic approach to the relationship between law, politics and economics. The book’s first section examines the foundations of autopoiesis in social theory and epistemology. The second section defines each of these fields in terms of autopoiesis and develops some concepts about their interrelations. Political-legal regulation of the economy in light of the idea of “reflexive law” is explored in the third section. The final section looks at specific regulatory strategies suggested by the autopoietic approach.
I. The paradigm of autopoiesis in the social sciences
In his contribution to this volume, ALBERTO FEBBRAJO tries to distinguish the different meanings of autopoiesis, each of them connected to a typical form of social and juridical theory (‘radial’, ‘linear’, ‘triangular’, ‘circular’). The fully fledged concept of autopoiesis appears thus not so much the result of the influence of fashionable biological paradigms as the product of a logical development in social and juridical thinking. Such development emerges in a relatively new model, the ‘hypercyclic’ one, which could encompass all the previous theoretical forms and conceptual contents, as well as combine the static moment of system ‘closure’ and the dynamic moment of the opening up of a system to other systems. But the ‘hypercyclic’ model can be in turn further developed, so as to lead to an even more complex model, the ‘network’ one, which enables us to relativize the ambitions of relativization shown by the mature autopoietic approach connected with the hypercyclic model.
Autopoiesis can be used in a variety of ways in the social sciences. While some scholars doubt the application of autopoietic theory to the social sciences and prefer to speak of organizational closure in social contexts (e.g., VARELA, 1981: 15), others analyze human societies as autopoietic systems of a higher order, namely as “systems of coupled human beings” (e.g., MATURANA and VARELA, 1980: 118). This perspective has been elaborated by HEIL (1984), who describes social systems in terms of “ synreferential systems.” A different approach is represented by STEIN BRATEN’s contribution to this volume. He argues that two positions must be combined for the analysis of social systems: symbolic representation and organizational closure. The problem of organizational closure, according to BRATEN, is that it cannot account for the interaction of closed systems. “Beginning with monads, we are likely to end up with monads.” To break up this closure of the monads, BRATEN proposes the idea of dialogue and shifts between modes of dualities, including shifts between the two points described above. In this way, FEBBRAJO and BRATEN attempt to resolve a problem that appears throughout the book, especially in those contributions concerned with legal regulation: if the concepts of organizational closure and circularity can be seen as advances in the analysis of social and legal systems, how does one account for the mechanisms of openness, of exchange, and of interaction between these systems?
While circularity and closure of autopoietic systems are the very premises of FEBBRAJO’s and BRATEN’s sociological analysis, they are the target of DANILO ZOLO’s epistemological critique. ZOLO examines the epistemological status of autopoietic theory and its application to the social sciences. He reconstructs and criticizes the epistemological assumptions and consequences of autopoiesis as a biological concept, as presented in Humberto MATURANA’s and Francisco VARELA’s original formulation. In his view, MATURANA and VARELA arrive at a coincidentia oppositorum, at the (impossible) co-existence of “idealistic metaphysics” and “gnoseological realism.”
This epistemological flaw in autopoietic theory, ZOLO contends, is not corrected in Niklas LUHMANN’s complex and sophisticated extension of autopoiesis to the social sciences. ZOLO points to an oscillation between idealistic and realistic outcomes in LUHMANN’s social theory. When LUHMANN (1984: 648) asserts that “reality is structured circularily, independent of cognition,” ZOLO replies that this typically “realistic” proposition contradicts the basic thesis of circularity and closure in the cognitive process. ZOLO extends this epistemological critique into a general attack on the methodological adequacy and theoretical utility of LUHMANN’s attempt to metaphorically apply autopoiesis to, general sociology, political theory and legal theory.
ZOLO proposes to distinguish and clarify diverse “circular” concepts in the autopoietic lexicon. He highlights four different theoretical areas: (1) logical circularity in the form of paradoxes of self-reference; (2) linguistic and epistemological reflexivity in the sense of language speaking about language; (3) mechanisms of self-regulation, particularly homeostasis, feedback and self-catalysis; and (4) psychological self-reference as an “interior experience.” On the basis of this conceptual clarification, ZOLO examines the practical political question of whether autopoietic theory can clarify and rationally formulate the legal policy problems that lie at the centre of the reflexive law debate.
Humberto MATURANA and Niklas LUHMANN have replied to Danilo ZOLO’s critique. In his essay, “Closure and Openness: On Reality in the World of Law” in the first volume of the Florence-conference on o Autopoiesis in Law and Society” (in TEUBNER, 1988: 335, 347ff.), NIKLAS LUHMANN characterizes ZOLO’s discovery of a “grave contradiction” between metaphysical and constructivist elements in autopoietic theory as a “grave misunderstanding.” LUHMANN claims that the discoveries of autopoietic theory can be applied to the theory itself. The statement that “autopoietic systems exist,” LUHMANN maintains, means nothing other than that the theory of autopoietic systems is built upon this assumption. This universalistic position presupposes that the observer’s own contribution is inseparably bound up with his system structures and his autopoiesis.
HUMBERTO MATURANA, in his “Restatement,” restates the basic concepts that make up his biological theory of autopoiesis. These concepts include (1) the criterion of acceptability; (2) organization and structure; (3) the observer; (4) the living system; (5) social systems; (6) explaining and self- reference; (7) the praxis of living; (8) observation; and (9) the biology of cognition. His main thesis is that if one does not explain the observer and observation as biological phenomena one fails to explain cognition as a biological phenomenon and is forced to assume cognition as an unexplainable given.
II. State, law, economy as autopoietic systems
It is one thing to describe society as a whole in terms of autopoiesis (see HEJL, 1984; LUHMANN, 1984; MATURANA and VARELA, 1987, for diverse attempts). Under this approach, social phenomena are analyzed through concepts of organizational closure, cognitive openness, self-reference and self- observation. In its most radical form, society is seen as a closed network of communications, while human actors are part of society’s environment. It is, however, quite another thing to apply the idea of autopoiesis to social spheres within society. Are the state, the law, the economy autopoietic systems of their own? If so, classical ideas of functional differentiation take on a very different shape. The autonomy of social spheres like the economy, politics, law, science, education is radicalized to a hitherto unknown degree if they are seen as autopoietic systems within the autopoietic system of society. Modern societies are then viewed as fragmented into discursive practices that are closed off and inaccessible to each other in their self-reproduction. Models of exchange between social spheres are rendered pointless. Political regulation of social fields would then have to deal with the organizational closure of the political process and of the regulated field. More generally, specialized social system must confront the problem of how to cope with polycontexturality.
Polycontexturality is the problem which NIKLAS LUHMANN addresses in his essay, “The Coding of the Legal System.” Although the title suggests an analysis of law, the real subject concerns how autopoietic subsystems of society – state, law, economy – can interrelate despite operational closure. If autopoiesis means that social subsystems develop a high degree of separation via the specializaticn of a binary code, how can they simultaneously take account of the autopoiesis of other social subsystems which have likewise developed their own specialized code? How can binary coding cope with polycontexturality? This dilemma substitutes the new question of how different social discourses relate to each other for the old question of exchange between different social systems (PARSONS and SMELSER, 1956).
LUHMANN starts with the assumption that binary coding organizes the autopoiesis of a functional subsystem of society. He posits a circular closure of the reproductive connections of all operations oriented by a particular code (legal/illegal in the case of law; government/opposition in the case of politics; having/not having property in the case of the economy). In the course of social evolution, these codes reach a high degree of formality and technicality and thus exclude the perspectives of other social systems. They exclude the polycontexturality of social life. To reintroduce polycontexturality, a society that provides binary coding for different functional systems must provide rejection values that reject the criteriality of the codes, but not the relevance of their valuations. One technique for this reinstitutionalization of the richness of social context into highly technical discourses is the “liberal” solution of building multilevel structures (legislation and adjudication in law; quantity decisions and distribution decisions in the economy). Since these solutions are increasingly under assault today, contemporary attempts of re-contextualization are searching for new forms. In the case of law, LUHMANN points to ongoing experimentation with the distinction between code and program. While the code legal/illegal remains intact, programs are increasingly altered in order to take account of social polycon-texturality. This apparently successful strategy, however, has its costs: an increasing vagueness of the law, a phenomenon that, under the label of indeterminacy, has been the object of a recent fervent critique.
BOB JESSOP is also concerned with the interrelations of the great functional subsystems of society, but he approaches this theme from a different angle. He attempts to confront two different paradigms: Marxist theories of the relative autonomy of law and state in capitalist societies and the autopoietic theory of closure and openness in social systems. Among the Marxist theories, he distinguishes between the capital-theoretical, the class-theoretical and the state-theoretical approaches. He then criticizes them by focusing on their insufficient accounts of input-output or representational models, of the “internal-external” dialectic, and of articulatory practices. He proposes to rethink the problem of relative autonomy in autopoiesis terms. This tactic would establish the conditions not only for the institutional separation of law and the state in capitalism, but also the conditions for their autopoietic take-off into radical autonomy.
JESSOP then provides a concentrated and concise account of the relations within and among the political, legal, and economic system in terms of autopoietic theory. JESSOP’s own contribution consists in developing the concept of third order autopoiesis.” If first order autopoiesis refers to general communication in society and second-order autopoiesis to the differentiation of autopoietic subsystems, third-order autopoiesis, JESSOP argues, concerns contingent articulation among differentiated subsystems in a social formation. He goes on to suggest a possible synthesis of Marxist and autopoietic approaches. While no functional subsystem could occupy the apex in a single hierarchy, that subsystem with the highest degree of organized complexity and flexibility – today still the economy – would tend to dominate society. This occurrence would allow a redefinition of the “external-internal” dialectic in Marxist thinking about the dynamics of law and the state.
In a sense, MICHAEL HUTTER’s paper can be read as an elaboration of JESSOP’s concept of “third order autopoiesis.” Using three important innovations in patent law as a case study, HUTTER develops ideas about “how the economy talks the law into co-evolution.” HUTTER constructs the intersystem relations bridging economy and law as autopoietic systems in their own right. These “conversation circles” penetrate and stretch in web-like fashion between both autonomous systems. Internally, conversation circles develop an Eigendynamik through the interaction of “cases” (vehicles of communication), “codes” (forms understandable to both systems), “media” (transporting mechanisms) and “context” (the mapping of new horizons into the self-interpretation of the autonomous systems). Using this model, HUTTER analyzes those processes in which the economy produces new cases of conflict and reorganizes the actors that converse with the law. These processes lead to changes in the form of conversation that induce a reinterpretation within the law and in turn change legal self-reproduction.
While HUTTER’s analysis focuses on the relation between economy and law, BERND MARIN’s essay on “Contracting Without Contract: Economic Policy Concertation by Autopoietic Regimes Beyond Law” deals mainly with the precarious relations between the economy and politics, treating law as only a background factor. MARIN argues that the economic policy necessary for macroeconomic management typically takes the form of risky, highly precarious exchanges without the legal protections that support analogous business transactions. Examples of successful attempts at interest mediation demonstrate that these practices constitute institutions without bureaucratic organizations, while inter-organizational transactions can be neither understood as political markets relations nor be regulated by modern aw and contract. MARIN, parallel to JESSOP and HUTTER, also examines the potential of “third-order autopoiesis.” He focuses on empirical cases of cooperative economic policy mediating between the political and the economic spheres. This inves-tigation leads him to the query of whether the transaction chains structuring generalized political exchange can be fruitfully interpreted as autopoietic regimes.
III. Regulation and autonomy: The concept of “reflexive law”
What can autopoiesis contribute to dealing with the regulatory crisis, a crisis that affects the relations between law, politics and the economy? Regulation is one of the fields in which the new paradigm shows its fruitfulness. Autopoiesis opens new perspectives in three areas of research. (1) The regulatory crisis can be viewed as a problem of social closure, that is, as a resistance against regulation in terms of the regulated field’s self-referential circularity. (2) “Regulatory law” can be identified as a type of legal structure that challenges the internal reproduction of law. This challenge leads either to excessive strain or to new forms of legal self-reflection. (3) New forms of societal guidance through law can be developed which are reflexive, decentral and poly-contextural. Under the title o reflexive law” the following contributions aim to work out the consequences of autopoietic theory for the political-legal regulation of social fields.
HELMUT WILLKE raises the central question of “reflexive” legal regulation: if autopoietic systems re-organize themselves and adapt to operational criteria which they define themselves, how is mutual influence, intervention or even regulation possible? He concentrates on the crucial mechanisms linking openness and closure and discusses three types of interrelations: (1) Epigenesis, a co-evolution of different autopoietic systems based on the mechanism of structural coupling” (MATURANA); (2) Planning, a form of controlled structural change bound to transform the system’s complexity into a “hypercomplexity” which turns out to he uncontrollable; and (3) Guidance, those “transferential operations” which make it possible for the legal system to shift between self-referencing and other-referencing and thus produce a perspective that goes beyond autonomy and self- observation. WILLIE develops a typology or intcrsystemic instruments: interreference, modulation, conditioning, and re- flexion.
NIKLAS LUHMANN seems to have “Some Problems with Reflexive Law.” In his view, concepts like legal autonomy, self-reference and reflexivity should not be related to traditional liberal or neo-critical ideas of freedom, but rather should be founded on new theoretical and epistemological principles. Following SPENCER BROWN (1972), VARELA (1979), and FOERSTER (1981) he redefines the concept of autonomy as o self-indication,” that is, the application of a distinction to itself. This move leads him to his main thesis that modern society’s nature as a plurality of self-referential systems leaves no alternative but self-referential law. The only relevant question then becomes to what extent the conceptual apparatus of the law is capable of perceiving and taking into account autopoietic systems in its environment. LUHMANN claims that this is nothing but an observation process internal to the law. “Reflexive law can only be self-reflexive law.” To illustrate what these general considerations could mean LUHMANN discusses three examples: the concept of “action” in legal doctrine, evasive behaviour of the norm addressees as a problem of legal policy, and the role of argumentation in legal theory.
GOTTHARD BECHMANN’s argument follows similar lines. He doubts the evolutionary elements of reflexive law as well as the possibility of maintaining a control perspective. For BECHMANN, reflexive law is neither a theory of legal evolution nor a theory of social guidance through law, but rather a self-description of the legal system that reacts to the “positivity” of law, that is, its own societal contingency. Reflexive law is the theoretical reflection and reconstructive analysis of the failure of other theories. It is the explication of a state of society where the legal system develops theories about itself and thus regulates its relationship with the environment.
PAUL VAN SETERS criticizes, like LUHMANN, the attempt to synthesize, different theoretical traditions in the concept of reflexive law. He demonstrates that what separates strands of responsive law” (NONET and SELZNICK, 1978), “emancipatory theories of law” (HABERMAS, 1985) and “self-referential law” (LUHMANN, 1985) is more essential than what they have in common. His main point is to defend purposive orientation in law against its replacement by a purely procedural orientation.
SETERS supports his argument by drawing on empirical evidence about certain trends in administrative law.
HANS-GEORG DEGGAU’s paper on “Reflection and Control in the Legal System” can be read as a refinement of the concept of reflexive law. He interprets reflexive law as underscoring the gradation of intervention in social fields in forecasting subsidiary consequences or in calculating costs. DEGGAU suggests making use of the distinction between autopoiesis and the identity of a social system. While autopoiesis refers to the basic self-reproduction of operations, identity refers to the self-description of those operations. Reflexive law, DEGGAU contends, has mainly to do with this second idea. The limits of regulation with which reflexive law is concerned is not the autopoiesis of the regulated system, but the operative and effective identity of the social system that has emerged from the self-description process. On this basis DEGGAU uses the identity concept to distinguish four different stages of intervention: (1) absorption, (2) integration, (3) disgression, (4) disintegration. DEGGAU uses these distinctions to discuss various empirical cases of legal regulation.
IV. Law in a world of autopoietic systems
The last set of contributions focuses on problems within specific regulatory fields. The chief concern here is how to develop autopoietic theory to illuminate regulatory failures and to help design alternative regulatory strategies.
WILLIAM CLUNE’s contribution aims to reformulate implementation theory in terms of autopoiesis. In his model – “Implementation as Autopoietic Interaction of Autopoietic Organizations” – the regulatory law, as well as the regulatory agency and the regulated field, appear as autonomous discourses obeying the logics of their own self-reproduction. This view allows CLUNE to integrate divergent perspectives of informalism and formalism, normativism and realism in law as well as in organizational theory. CLUNE’s Pointe is to construe the interactive discourse of implementation itself as an autopoietic system of structured interaction determined by the rival rationalities of the participating systems. This leads him to new “reflexive” modes of regulation that would concentrate on influencing implementation interaction and to a new “design of politics,” namely a strategy concentrating on political structures and political consciousness rather than on sophisticated policy instruments.
In contrast to CLUNE’s attempt to apply the concept of reflexive law to problems of legal regulation, PETER NAHAMOWITZ, in his paper “Difficulties with Economic Law,” criticizes the whole concept of reflexive law as theoretically unusable, politically naive, and socially dangerous. With its declared goal of combining state and market organizational principles, reflexive law, NAHAMOWJTZ contends, points normatively in the right direction. In its practical application, however, the concept has a false neoliberal and market-oriented tilt. The systems theory on which “reflexive law” is founded does not analyze sufficiently well the inherent instability of the economy. The theory leads to what NAHOMOWITZ calls an “unfounded steering nihilism,” As an alternative, NAHAMOWITZ suggests the concept of “organized capitalism.” This idea adopts from Marxism the analysis of the inherent instability and exploitational character of the capitalist economy, from system theory the concept of self-regulatory mechanisms, and from critical theory the idea of the (potential) steering ability of the state.
ECKARD REHBINDER’s essay on “Reflexive Law and Practice – The Corporate Officer for Environmental Protection as an Example” can be read as a case study of reflexive law in the context of economic organizations. REHBINDER uses the example of a German statute that introduced an intra-organizational ombudsman into economic firms to demonstrate how the abstract notion of reflexive law can be translated into regulatory designs and to examine the practical consequences that follow. The picture that emerges from the empirical data suggests that while the creative role of this ombudsman has not been well developed, his supervisory function and representative function seem to work at a satisfactory level. REEIBINDER concludes that the example of the environmental officer shows that the institutionalization of special representatives of public interests in the enterprise can be useful to stimulate, strengthen and channel the endeavours of the enterprise to take external interests into account.
“Law regulates society by regulating itself” – this is the paradox by which GUNTHER TEUBNER, in his concluding essay, attempts to synthesize two competing constructs in the “galaxie auto.” According to TEUBNER, “order from noise” (von FOERSTER) and “organizational closure” (MATURANA) can be seen as complementary if one defines autopoiesis as a combination of self-reproducing and self-observing operations. In his view, social autonomy as a regulatory problem is characterized by three qualities: (1) circular causality in “non-trivial machines”; (2) the emergence of cumulative self-referential relations in the regulated field; and (3) the resistance of system maintenance understood as maintenance of autopoietic reproduction. TEUBNER’s main thesis is that this social autonomy is inaccessible to direct legislative intervention. “Reflexive” forms of legal regulation rely instead on indirect mechanisms based on three types of inter-system-relations: mutual observation, coupling through interference, and communication via organization. They represent the main directions for “reflexive law” – a legal system that identifies itself as an autopoietic system in a world of autopoietic systems and draws operational consequences from this self-identification.
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