The autopoietic approach and its form
Febbrajo A. (1992) The autopoietic approach and its form. 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: 19–33. Available at http://cepa.info/3078
Table of Contents
2. Some theoretical models
a) The ‘radial’ model
b) The ‘linear’ model
c) The ‘triangular’ model
d) The ‘circular’ model
e) The ‘hypercyclic’ model
3. What is new in the autopoietic approach
4. Autopoiesis and intersystematic relations
5. Autopoiesis and beyond
Autopoiesis appears to have made a substantial impact on the fields of sociology and socio-legal theory. In both contexts it is seen as a theory inspired by recent developments in biology. As such it is supposed to contain a truly new concept, to imply the mutual closure of various areas of society, and to represent the most advanced variant of general systems theory.
I shall try to show, however:
that autopoiesis is the product of a logical development of a set of requirements inherent to sociological theory, and consequently is not a truly new concept, because its novelty lies merely in the synthesis and application of previous models;that autopoiesis is not so much a static theory concerned with system closure as a dynamic theory concerned with the way a system changes and opens up to other systems;that, seen in this light, autopoiesis represents an intermediate stage of development which already contains within it the seeds of its obsolescence.
In what follows I will start from the hypothesis that, seen as a specific ‘form’ of thinking, autopoiesis easily finds its place within a series of different models already popular in social and legal sciences.
The ideas behind autopoiesis, as in many other theoretical models, are expressed in a language which implies a certain ‘form’ of thinking. It is thus not surprising that in this case also, both partisans and opponents seem, albeit surreptitiously, to adopt the same argumentation which is typical of the theory criticised.
2. Some theoretical models
Having focused on some typical forms of thinking currently adopted in social science, I shall draw a distinction between ‘radial’, linear’, ‘triangular’, ‘circular’ and, finally ‘hypercyclic’, ‘theoretical models’. The latter seems to encompass the concept of autopoiesis better than the others.
a) The ‘radial’ model
The ‘radial’ model is based on one of the simplest theoretical forms in social sciences. As its name implies, this model establishes, from a ‘central’ point, connections between the various conceptual elements that enter its field of relevance. In this context a central point explains everything that is derived. This theoretical movement from a ‘centre’ to a ‘periphery’ is typical of every interpretation of social reality which starts from the identification of an element considered to be original as well as essential. The researcher’s task, therefore, consists in the discovery of as many ‘peripherical’ elements as possible being connected with each other in terms of their relative ‘distance’ from the centre. Thus, if we consider that, within the framework of a particular concept of history, a certain set of concepts is relevant, it is not sufficient merely to determine their source. We have also to trace their path back to their central point of origin. So, ‘materialist’ or ‘idealist’ theories can be seen to be equivalent. They differ only in respect of which element is seen as central. They share the same explanatory project, that is of subsuming all the peripheral elements within the central one.
It is here, however, difficult to set non-contingent limits to the connections between the various elements. For though we can stop at elements which we cannot break down further, and set pragmatically acceptable limits, within these there is no rational limit to interconnection. Concretely it is true that this theoretical boundlessness is reduced by having regard to the contingent requirements of the particular research. However, what can be considered peripheral still depends on material distance from the centre which is anything but univocal. The researcher seems to be left to his own devices. The need to set some non-contingent limits to the derivation of interconnections forces us to move to a different theoretical model.
b) The ‘linear’ model
The ‘linear’ model is characterized by connections between the various elements making it up, such that they can be set out in potentially endless chains. Unlike the previous model, it is representable not as an endless array of radii emanating in all directions from the central point. Rather it can be seen as a straight line stretching backwards or forwards according to the requirements of the research in question. The problem here, then, is one of seeing how each element is produced by another. Causal theories provide an example of this model. Here the various relevant elements are usually set in order with a clear temporal distinction between proceeding and following clauses. Correlation rules of the ‘if … then’ type are thus established: if we have a certain cause and perhaps certain circumstantial conditions, then we shall definitely or in all probability have a certain effect. The result is a ‘time sequence’, where every successive step is achieved by an inversion of the cause and effect relationship.
In this model too it is difficult to set non-contingent limits to the connections between the various events. Though we can fall back on a fictitious limit to the research, we still have, each time we reach a link in the causal chain, to choose which path to follow: to decide which causes are primary and which we intend to omit as secondary. This implies more or less explicit selection criteria which may lead us to adopt ‘asymmetric’ structures. Some causes may end up being more important than others, not only contingently, but because they happen to be further down the line. This then leads us to a different model.
c) The ‘triangular’ model
Unlike the previous model, the ‘triangular’ model is characterized by a relationship between each of its constituent elements. This relationship is limited on the one hand by an apex and on the other by a base. In this mode of thinking, the connections are not ascertained by moving from cause to effect, but hierarchically from top to bottom. This model is based on the view that there is an ‘apex’ which acts as a point of reference and a supreme selection criterion. Selection is marked by an increasingly limited cognitive and decision-making competence the further down from the apex it takes place. What is presupposed here is a ‘structure’ where the higher echelons select the input relevant for the lower echelons. Here causal connection is complemented by a normative connection without which the structure itself would be incomprehensible. Thus what is most important here is not ‘reference’ to a central element or ‘production’ by a previous element but organisation, i.e. the determination of the relative positions of the elements. The Weberian type of bureaucratic formalism provides an example of this model. It represents the social order as a pyramid separated from the environment and composed of differing roles, each distinguished by its own area of competence and relevance. Here the criterion of delimitation is given by abstract norms that establish the boundaries, both for the decision-maker and for the observer. For both of these, then, the most important selection criterion is that of the validity of the order. For it is precisely that which collects these norms together in a unitary and coherent way. We may talk about ‘order’ here as a closed system. However, we do not mean by that something that is totally indifferent to external events. Rather, for something external to be relevant, it must be filtered through selective interpretation. There are a number of difficulties in connection with this model. There is the logical problem of showing that the apex of the structure is supreme and cannot be subsumed under a higher norm. There is also the practical difficulty of knowing where to draw the line at the base of the triangle. Nor may we forget that the various roles within an order might have cognitive capacities insufficient for their tasks and thus be forced to use external help. This brings us to a further model which is capable of transforming the vertical relations which are typical of the ‘triangular’ model.
d) The ‘circular’ model
The ‘circular’ model uses a radical approach to overcome the problems of selection inherent in the previous model. It adopts a circular rather than a hierarchical structure. Thus the distinction between higher and lower levels is relative. There is no escape at the top or at the bottom but a circular movement which continues endlessly. A good example of this is a simple thermostat system for controlling temperature. The ‘circular’ model can be useful in the context of theories of social regulation, where the object is to maintain certain functions which are considered necessary for the survival of social institutions considered as integrated, autonomous and well-delimited sets. It is therefore appropriate in functionalist approaches. By considering these institutions to be ‘systems’, it is characterized by its ability to contain the ‘material’ dimension (centre-periphery), the ‘temporal’ dimension (before-after) and the ‘social’ dimension (above-below) which featured in the previous models discussed.
However, there are some problems with the ‘circular’ model. The most obvious in the context of society seen as a whole is that it is not always possible to determine the systems (or rather the social subsystems) unambiguously by reference to clearly determined functions. There is no guarantee that any particular function is either possible or necessary. In the same way, it is not always possible to determine these functions unambigously by reference to already determined systems.
These observations explain the recent introduction in cybernetics of model rather more complex than the circular or cyclic one. We now turn to one such model.
e) The ‘hypercyclic’ model
The ‘hypercyclic’ model is marked by a multiplicity of interconnected circular relationship. It can be represented, therefore, as a meta-circuit that includes and stabilizes minor circuits whose criteria for functioning it determines. It brings material, temporal and social dimensions together, and also manages to determine the limits of their relevance from case to case. It thus gives rise to the phenomenon of ‘controlling the control’. A good example of the ‘hyper- cyclic’ model is the approach that uses the concept of autopoiesis. In fact, the autopoietic mechanism is indispensable for interpolating within a meta-system the functional points of reference which remain extraneous and problematic in the cyclic model. The hypercycle involves a second degree of circularity, a sort of ‘circuit of circuits’. This double circularity constitutes an autopoietic metasystem by choosing itself as its functional point of reference. It enables its own autopoietic components to reproduce themselves, thus remaining functional to the hypercyclic function to which they belong. Seen in this light, the complex equilibrium of the metasystem acts as a point or reference, as a ‘function of functions’. The distinction that prove to be decisive in the ‘hypercyclic’ model is not therefore internal/external but compatible/incompatible. It is on the basis of the latter distinction that self-reproductive processes can ensure development of the meta-system without questioning the identity of the systems involved and their internal and external ‘equilibrium’. Consequently, the ‘hypercyclic’ model typically has the capacity to absorb both operational and ‘reflexive’ tasks, i.e. the capacity for self-observation.
We can summarize what has been said so far in the following table:
ModelConceptual coupleProblemDimensionApproachMethod of connectionRadialcentre/peripheryoriginspatialemanationistreferenceLinearbefore/aftersequencetemporalcasualproductionTriangularabove/belowstructuresocialformalistorganisationCircularinside/outsideefficiencysystematicfunctionalistcorrectionHypercycliccompatible/incompatibleequilibriummeta-systemicautopoieticself-observation
3. What is new in the autopoietic approach
The above typology has important restrictions. It must be stressed that the sequence sketched in the previous paragraph is not necessarily an evolutionary one, culminating in the most advanced approach, the autopoietic. Moreover, we can observe that the latter approach is not radically opposed to the other models. Rather, we may say that the entire scale of theoretical models here presented is based on accumulative logic, both on the conceptual and problem level. This has important implications. We can find traces of the key concepts that characterize the ‘radial’, ‘linear’, ‘triangular’ and ‘circular’ models (origin, sequence, structure and efficiency respectively) in the problem of ‘equilibrium’, which, as we saw, characterizes the hypercyclic model. Thus, each of the previous models can be said to have more or less rudimentary forms of autopoiesis. The ‘hypercyclic’ model is only the one which exhibits the most complex and comprehensive version of autopoiesis.
If we look at the example of the legal system, it cannot be denied that a certain degree of autopoiesis, understood as a simple capacity for ‘self-reference’, is a feature of even’ legal order. This includes even the extremely simple kinds that can be studied with the ‘radial’ model. Here ‘self-reference’ means ‘coherence’. This kind of autopoiesis can include constructions of law inspired by a vision of ‘natural justice’, seeing all legal systems, even the most widely diverse, to be emanations from a certain set of fundamental ‘values’.
It is possible to have a slightly more complex form of autopoiesis in the ‘linear’ model. Here the autopoietic mechanism is based on a form of ‘legal realism’. It is claimed that a sufficiently long causal chain of facts tends normatively to modify its factual links autonomously. The presumption here is that if a norm has a factual force of its own, then the facts also have a normative force which they tend to produce more and more explicitly by reproducing themselves.
In the ‘triangular’ model, we can find an even more complex form of autopoiesis. In the ‘normative’ view, we can assume that in the process of concretization, each individual norm is presupposed by a higher norm. The autopoietic mechanism here is the fact that a normative order tends not only to reproduce itself but govern itself from a highest point, which supplies the logical presuppositions for the activity of the lower instances, and is not itself depending on any further presupposition.
In the ‘circular’ model, autopoiesis can be seen as connected with a ‘teleological’ view of law, which postulates its functional interaction with the other sectors of society. The law makes use of constant functional points of reference, which, as well as reinforcing the system, also set the limit to the range of its variability. Here the normative system is capable of self-correction.
All of these simple variants on the concept of autopoiesis show that there are various methods of considering autopoiesis: as self-reference, as in the case of the ‘radial’ model; as self-production as in the ‘linear’ model; as self-organization as in the ‘triangular’ model; and as self-correction as in the ‘circular’ model. The more complex ‘hypercyclic’ model focuses on self-observation.
In fact, the theory of autopoietic law can include at least six different approaches to law: a ‘self-referring approach, which refers to its own values for orienting social actors (natural law); a ‘self-producing’ approach, which refers to situation-oriented actions (realism); a ‘self-organizing’ approach, which refers to norm-oriented roles (normativism); a ‘self-correcting’ approach, which refers to aim-oriented programs (teleological law); and finally, a ‘self-observing’ approach, which refers to identity oriented images (reflexive law). In reflexive law the law is able to observe itself and check its own many-sided image without betraying its own identity.
We can summarize this in the following table:
ModelLevel of autopoiesisKey conceptsInspirationRadialself-referencevalues/actorsnatural lawLinearself-productionfacts/actionslegal realismTriangularself-organizationnorms/rolesnormativismCircularself-correctionaimes/programmesteleogical lawHypercyclicself-observationidentity/imagesreflexive law
4. Autopoiesis and intersystematic relations
What we have said above implies that the autopoietic approach does not represent the absolute and necessary ‘closure’ of systems. For we can see, paradoxically, that it must be equipped with the capacity to ‘come out of itself’ and proceed to a complex operation of self-observation. Although the ‘hypercyclic’ model doubtless represents an important contribution to making the external processes of stabilization ‘internal’; it can also easily be applied from outside the legal system. We can see this if we look, for example, at the relation between legal systems and other social systems. At the moment when an autopoietic system rakes another system into consideration, it tends to activate a series of processes. On the one hand, these receive and decod‑ify the information that arrives from the other system so as to construct a coherent image of it that can be translated into its own language. On the other hand it constructs its own image in a language that can be translated into the language of other systems.
All this is sufficient to redefine the different concepts of ‘order’ to which the law seems to be connected. It is often claimed that what establishes a certain order must be ordered in such a way that there is a correspondence between it and the order that is presumed to be produced. We can call this the presumption of correspondence between legal and social order and it is questioned by the autopoiesis of the ‘hypercyclical’ model. Here the legal order becomes independent and does not necessarily correspond to the social order. Societal order as a whole is the result of the combination of various orders among which legal order occupies an important but not decisive position. None of these orders is able to claim to correspond to the intersystemic order.
Finally, we can add that precisely because of its extreme complexity, the ‘hypercyclic’ model puts forward a sophisticated theoretical relativism. This affects both the concept of theory and the relation between theory and reality. This does not make for a greater rigidity, but rather a greater flexibility in the way that the relationship between theory and reality can be understood. From a legal point of view the concept of theory aims at producing metaphorical, or even symbolic, representations of reality. It does this within the framework of a non-empiricist but ‘strategic’ view of the relationship between theory and reality. This is characterized by seeing things not in terms of valid/invalid, but as more or less acceptable according as to how ‘fit’ within a specific socio-cultural context.
5. Autopoiesis and beyond
The ‘hypercyclic’ model also has implications which can lead us to question its fundamentals. In the context of the legal system, we can group then into three:
(a) The first set of implications is connected with the fact that the self-observation of law can hardly manage to embrace all of law. The representation of law as an autopoietic system does not exclude the possibility that self-observation can itself generate an infinite regress. The system observes itself observing itself… This means that every subsector of the legal system may require a different theoretical model for its analysis, and that in some fields law may remain at lower levels of complexity and may be incapable of self-observation. Indeed, some sectors – such as politics and economics – are more exposed to the enticements of other subsystems, while other sectors are less prone to receive environmental stimuli. One can therefore represent law as a leopard, the darker spots corresponding to a more marked autopoietic content and the lighter zones to a less marked one. This is not necessarily caused by contingent factors which make for cultural backwardness. Differentiation does not only mean that each sector exhibits a different level of development, but also that, from a general system perspective, each sector disposes of a widely differentiated range of possibilities for reaction. In the case of law and its relations with politics and economics, we have differentiation when different sectors are programmed to react differently to the influences exerted by the extra-juridical systems (legislation by purposive programming, jurisdiction by conditional programming). In other words, differentiation is not to be confused with a lack of homogeneity. We have, for instance, a lack of homogeneity when, instead of a set of different complementary programmes capable of being traced back to a common principle (e.g. the division of powers), we have a set of different capacities for reduction (e.g. in some fields of labour law) that are not logically connected to the rest of the system.
(b) A second set of implications is related to the fact that law, understood as an autopoietic system which necessarily maintains relations with other autopoietic systems, tends to relativize its function one can witness, a gradual process of overlapping functions. Thus system A has, in the execution of its functions, to take into account systems B and C, each of which is distinguished by specific functions. In turn, system B must take systems C and A into account, and the same goes for system C. As a result. one cannot say that these systems have mutually exclusive functions, because, in the process of mutually adapting their functions, they assume a different, more general functional point of reference.
Things become more complex, in an evolutionary perspective, when we consider that the processes of reciprocal adaption can go so far as to produce at least a partial overlap of functions. This means that the law may continue to exercise its typical function of controlling the mechanisms of control, not in an exclusive, but rather in a ‘residual’ manner. In the same way as the family becomes the system for ensuring the possibility for loving what otherwise it would be impossible to love; the economy ensures the possibility to trade what otherwise it would be impossible to trade; politics makes it possible to legitimize what would otherwise be impossible to legitimize; law becomes the system capable of ‘regulating systems of regulation’ that otherwise would be impossible to regulate.
(c) A third set of implications is connected with the fact that only by alternating phases of self-observation and self- production can the system manage to observe and develop. Elements of the system cannot live and observe themselves at the same time, as their self-observations must inevitably interrupt their spontaneous vital reactions. This means that, paradoxically, the system in its relations with other potentially autopoietic systems may reach the point of undergoing a process of assiduous self-observation, which suspends its ability directly to influence other system. Things become more complicated when we consider the possibility that these losses of power can be transformed into identity crises. These make the autopoietic circuit no longer virtuous. Instead of the law producing greater certainty, it sometimes can prove to be a factor in social uncertainty.
The legal system, as inserted in the hypercyclic circuit, appear to be less and less equipped with the characteristics that are commonly attributed to a ‘system’. One might, therefore, ask whether it would not be wiser to abandon the ‘system’ model and adopt a more flexible point of view.
We need, therefore, to tackle the further problem of the constitution of systems and the contingency of their boundaries explicitly. We need to use a model that, unlike the hypercyclic one, is not so much concerned with the stabilization of (systemic) areas in the framework of larger (meta-systemic) ones. Rather, we need a model that is concerned with the processes of symbolic production and decomposition that can also include phases of instability due to lack of homogeneity of contents, lack of specificity in functions and incoherence in the evolution of systems of systems. The implication of what we have said so far suggests that it would be more appropriate to talk of ‘games’ instead. These could be at one and the same time political, economic and legal, and bear their own meta-rationality as distinct from the simple subtotal of the rationalities of the systems involved.
In this context, we should consider a further model of law as a game of mediation. We can give some examples of games that can provide means of intermediation between law on the one hand and the state and economy on the other: the informal mechanisms for representing the interests used by legislative procedures which enable mediation to be exercised through values and actors; the informal mechanisms which enable mediation to be exercised through actions and procedures; the informal mechanisms of administrative procedures which enable mediation to be exercised through norms and roles; the informal mechanisms of concatenation which enable mediation to be exercised through codes and programmes; finally, electoral procedures which enable mediation to be exercised through image and identity.
Such a model could be represented as a ‘network’ of social games and may take on increasing importance in a situation like the present, which is marked by the decline of centralized regulation and the fragmentation of decision-making power into a series of interconnected games with mixed ra‑tionality. It is a concept that has only partially been exploited within a model of law concerned with the possibility of overlapping different, or even opposing logics in one normative, meaningful order. A model which is at the same time concerned with greater flexibility in decision-making on the basis not only of criteria of ‘controlling change’, but also of criteria for ‘changing the criteria of con, trol’.
Finally, it would be possible to discuss further the mutual relationships between a plurality of autopoietic systems. These different system may be characterized not only by different binary codes (lawful/unlawful; true/false; etc.), but also by different forms of autopoiesis (linear, hierarchical, circular, etc.). Generally speaking, it is possible to assume that whenever new forms of autopoiesis emerge in the realms of economics and politics, the form of the legal autopoiesis will tend to become more complex, in order to play its role in maintaining communication between the other areas. It is then possible to imagine that in a given historical situation – e.g. when drives towards modernization intensify (as may be the case in the transition from communism to capitalist democracy) – a hierarchical model in the realm of politics, a circular model in the realm of economics, and a hypercyclic model in the realm of law could coexist at the same time.
Blankenburg E. (1984) The Poverty of Evolutionism. Law & Society Rev. 18.
Dupuy J. (1982) Ordres et desordres. Enquete sur un nouveau paradigme. Paris, Seuil.
Eco U. (1985) Sugli specchi. Milan, Bompiani.
Eigen M. & Schuster P. (1979) The Hypercycle: A Principle of Natural Self-Organization, Berlin, Springer.
Febbrajo A. (1986) The Rules of the Game in the Welfare State. In: Teubner G. (ed.) Dilemmas of Law in the Welfare State, Berlin, De Gruyter.
Foerster H. von (1984) Observing Systems. Seaside CA, Intersystems Publications.
Friedman L. M. (1975) The Legal System: A Social Sciences Perspective. New York, Russell Sage Found.
Hart H. L. A. (1961) The Concept of Law. Oxford, Clarendon.
Kuhlen L. (1977) Typuskonzeptionen in der Rechtstheorie. Berlin, Dunker & Humbolt.
Luhmann N. (1985) A Sociological Theory of Law. London, Routledge.
Luhmann N. (1982) The Differentiation of Society. New York, Columbia Univ. Press.
Luhmann N. (1986) The Self-reproduction of Law and Its Limits. In: Teubner G. (ed.) Dilemmas of Law in the Welfare State, Berlin, De Gruyter,.
Luhmann N. (1988) The Sociological Observation of the Theory and Practice of Law. European Yearbook in the Sociology of Law 1.
Podgorecki A. & Whelan J. C. (eds.) (1981) Sociological Approaches to Law. New York, St. Martin’s Press.
Teubner G. (1983) Substantive and Reflexive Elements in Modern Law. Law & Society Rev. 17.
Teubner G. (1988) Hypercycle in Law and Organization, Eysl, 1.
Teubner G. (1989) Recht als autopoietisches System. Frankfurt am Main, Suhrkamp.
Zeleny M. (1981) Autopoiesis, A Theory of Living Organization. New York-Oxford, North Holland.
Found a mistake? Contact corrections/at/cepa.infoDownloaded from http://cepa.info/3078 on 2017-02-28 · Publication curated by Alexander Riegler