Chapter 12 - Three Encounters with Niklas Luhmann

Summary

A New Tone

In 1968, when I worked as a court clerk and was writing my dissertation, I suffered from acute symptoms of horror vacui. My somewhat naïve hopes in the rationality of legal arguments, but also in the potential of the social sciences to enlighten them, had been disillusioned. I had worked my way through the relevant literature on law and the social sciences, but, of course, without finding a solution to my problem. I doubted the scientific quality of legal scholarship, equated legal doctrine with absurd conceptual acrobatics, and found in legal sociology nothing but irrelevant fact-gathering or artificial theory exercises. In those days, the critique of law as an instrument of brute power was en vogue and I agreed wholeheartedly. My own experience in the courts contradicted what I had learned in law school about the inner persuasiveness of law when it came to solving social conflicts. I realised that in day-to-day practice, legal arguments would neither determine judicial decisions, nor produce plausible reasons for the parties concerned, nor satisfactorily resolve social conflicts. Likewise, as a doctoral student, I had to learn that legal arguments are neither participating in an interdisciplinary debate nor realising social values, not to speak of producing discursive rationality.

Suddenly a new tone! Norms in sociological perspective– a short but brilliant article by a still unknown Niklas Luhmann which radicalised the usual critique of law in a cool and distant language. He showed that legal methods of attribution are untenable in scientific terms. So far, so not astonishing. But what impressed me was that starting with this critique of law, Luhmann developed sociological arguments for legal autonomy which he later transformed into a whole theory of law’s autopoietic self-production. When social or moral conflicts seem to be unresolvable, the law still finds an additional perspective that makes these conflicts resolvable and thus endurable in social life. The argument contradicted the Zeitgeist of these days. Law is not supposed to mirror social communities’ shared understanding of conflicts – but the opposite, to alienate drastically social conflicts is law’s well-founded stubbornness.

Suddenly the absurd legal doctrine made sense.