Usually regarded as a 1970s phenomenon, this article demonstrates that the debate between Jürgen Habermas and Niklas Luhmann continued until Luhmann’s death in 1998, and that the development of the two theorists’ positions during the 1980s and 1990s was characterised by convergence rather than by divergence. In the realm of legal theory, the article suggests, convergence advanced to the extent that Habermas’ discourse theory may be characterised as a normative superstructure to Luhmann’s descriptive theory of society. It is further shown (...) that the debate’s result was an almost complete absorption of Habermas’ theory by Luhmann’s systems theoretical complex – an outcome facilitated by Luhmann’s deliberate translation of central Habermasian concepts into systems theoretical concepts. The article argues that both the debate and Habermas’ conversion were made possible because not only Habermas’ but also Luhmann’s work can be considered a further development of the German idealist tradition. What Luhmann did not acknowledge was that this manoeuvre permitted the achievement of Habermas’ normative objectives; nor did he notice that it could eradicate a central flaw in the system theoretical construction, by allowing the context within which distinctions are drawn to be mapped – an issue of pivotal importance for grasping relationships between different social systems, and coordinating them, via the deployment of legal instruments. (shrink)

Tthis book is likely to receive its warmest reception form advanced students of the philosophy of law, who will welcome the relief provided from the frequently sterile tone of much recent work in the field.

Systems theory and deconstruction alike conceive of modern law as self-reflective: Modern law entails in itself its own other; from this follows its paradoxical structure which is exemplified by the concept of legal person as a “two-sides-form” (Zwei-Seiten-Form: Luhmann) of “social person” and “concrete individuality”. Systems theory and deconstruction differ, however, in how they conceive of modern law’s paradoxical self-reflection: Systems theory grants it the power of form-constitution. This is shown by Luhmann’s interpretation of the figure of subjective right; in (...) it, law’s paradoxical self-relation has become legal form. Deconstruction instead consists in unfolding the undecidable ambiguity in the relation between paradox and form: Modern law’s paradoxical self-reflection as much constitutes as dissolves legal form. This may be called the “paradox of paradox” of self-reflective law in which Derrida sees its essentially political character. (shrink)

Lambert Zuidervaart examines what is living and what is dead in the social philosophy of Theodor W. Adorno, the most important philosopher and social critic in Germany after World War II. When he died in 1969, Adorno's successors abandoned his critical-utopian passions. Habermas in particular, rejected or ignored Adorno's central insights on the negative effects of capitalism and new technologies upon nature and human life. Zuidervaart reclaims Adorno's insights from Habermasian neglect while taking up legitimate Habermasian criticisms. He also addresses (...) the prospects for radical and democratic transformations of an increasingly globalized world. The book proposes a provocative social philosophy 'after Adorno'. (shrink)

In this volume, Niklas Luhmann, the leading exponent of systems theory, explores its implications for our understanding of law. The volume provides a rigorous application to law of a theory that offers profound insights into the relationships between law and other aspects of contemporary society, including politics, the economy, the media, education, and religion.Readership: Academics and students of sociology, law, philosophy, and legal philosophy.

This celebrated work is the keystone of the thought of the Frankfurt School. It is a wide-ranging philosophical and psychological critique of the Western categories of reason and nature, from Homer to Nietzsche.

Dialectic of Enlightenment is undoubtedly the most influential publication of the Frankfurt School of Critical Theory. Written during the Second World War and circulated privately, it appeared in a printed edition in Amsterdam in 1947. "What we had set out to do," the authors write in the Preface, "was nothing less than to explain why humanity, instead of entering a truly human state, is sinking into a new kind of barbarism." Yet the work goes far beyond a mere critique of (...) contemporary events. Historically remote developments, indeed, the birth of Western history and of subjectivity itself out of the struggle against natural forces, as represented in myths, are connected in a wide arch to the most threatening experiences of the present. The book consists in five chapters, at first glance unconnected, together with a number of shorter notes. The various analyses concern such phenomena as the detachment of science from practical life, formalized morality, the manipulative nature of entertainment culture, and a paranoid behavioral structure, expressed in aggressive anti-Semitism, that marks the limits of enlightenment. The authors perceive a common element in these phenomena, the tendency toward self-destruction of the guiding criteria inherent in enlightenment thought from the beginning. Using historical analyses to elucidate the present, they show, against the background of a prehistory of subjectivity, why the National Socialist terror was not an aberration of modern history but was rooted deeply in the fundamental characteristics of Western civilization. Adorno and Horkheimer see the self-destruction of Western reason as grounded in a historical and fateful dialectic between the domination of external nature and society. They trace enlightenment, which split these spheres apart, back to its mythical roots. Enlightenment and myth, therefore, are not irreconcilable opposites, but dialectically mediated qualities of both real and intellectual life. "Myth is already enlightenment, and enlightenment reverts to mythology." This paradox is the fundamental thesis of the book. This new translation, based on the text in the complete edition of the works of Max Horkheimer, contains textual variants, commentary upon them, and an editorial discussion of the position of this work in the development of Critical Theory. (shrink)

Niklas Luhmann and Jacques Derrida start with a common assumption in their analyses of the law and the economy - the foundational paradox of social institutions. But then autopoiesis and deconstruction move into opposite directions. Luhmann pursues the question of how de-paradoxification constructs the immanence of social institutions and builds a world of autopoietic social systems. By contrast, Derrida's thought aims at the transcendence of social institutions through their re-paradoxification. However, there is a hidden supplementarity of autopoiesis and deconstruction which (...) makes it worthwhile to relate the theories to each other. Derrida's distinction of writing/speech is necessarily blind toward Luhmann's distinction of consciousness/communication, but is, at the same time, continuously provoked by it. On another level, the opposite happens. Luhmann's autopoiesis is permanently irritated by Derrida's différance but is at the same time unable to conceptualize it. This complementary blindness of their distinctions directrices is a permanent source of mutual irritation which requires a reformulation of the social and of the possibility of justice. (shrink)

This work represents Niklas Luhmann's definitive application of systems theory to the understanding of law. In it Luhmann reviews past attempts to create a theory of law and argues they all fail to capture how law operates in modern society. He presents an alternative, critical theory through analysing law as a system of communication.

There are those who believe that modern society's reliance upon law, politics and science to both regulate and emancipate society has reached a crisis point and can no longer provide answers to current social problems. Toward a New Legal Common Sense engages in a series of sociological analyses of law in order to illustrate the need for a profound theoretical reconstruction of the notion of legality based on locality, nationality and globality. In this way the author shows how developments including (...) suprastate organisations such as the European Union and international human rights law can be given their proper place in the sociology of law, and suggests a new set of social structures that might sustain the emancipatory elements that have disappeared from modern society. This 2002 edition, of a title originally published by Routledge, is part of the acclaimed Law in Context Series, whose aim is to develop broad interdisciplinary perspectives on law. Toward a New Legal Common Sense is written for students taking law and globalisation courses, and political science, philosophy and sociology students doing optional subjects. (shrink)

This work has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it. This work was reproduced from the original artifact, and remains as true to the original work as possible. Therefore, you will see the original copyright references, library stamps, and other notations in the work. This work is in the public domain in the United States of America, and possibly other nations. Within the United States, you may (...) freely copy and distribute this work, as no entity has a copyright on the body of the work. As a reproduction of a historical artifact, this work may contain missing or blurred pages, poor pictures, errant marks, etc. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and made generally available to the public. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant. (shrink)

The only way of entering the world of ‘fragmented law’ is arguably to make normative fragmentation correspond with constituent excess. As Foucault would say, once we are involved in an ‘epistemic crisis’, we must then modify those systems that organise knowledge in conjunction with the very forms that produce it. This contribution considers some privileged forms of critique and reconstruction beyond normative fragmentation and essentially argues in favour of governance dynamics, as well as for ontological devices engaged in the production (...) of subjectivity. (shrink)

Law is in paradox movement: it organizes a continuous battle about normative standards deconstructing the restrictions of the global social system on democracy, common welfare and justice. This change of legal standards for political, economic, etc. organization and operation implies the change of law’s own procedural and substantive parameters which were supposed to immunize the social system against uncontrolled transformations. In this process, law acts ‚politically‘ and in affinity to social movements which struggle against social immunization beyond systemic borders and (...) are in continuous self-transformation. The recognition of this affinity and the reconstruction of Iherings ‚battle for law‘ as ‚battle of the movements‘ are the necessary requisites for the continuation of postmodern critical legal thought. The article presents the consequences of this approach for the (re-) organization of the legal system and for legal education. (shrink)