A better world through law? The implications of the theories of Niklas Luhmann for green economics
This paper considers the implications of the theories of Niklas Luhmann for attempts at achieving social change through law. According to Luhmann, modern society consists of all that can be communicated and understood as having meaning. Such communications are structured according to functionally differentiated subsystems such as law, politics, science, economics and education. Luhmann applies the biological term, 'autopoiesis', to explain how social systems produce and reproduce themselves by the interaction of their own elements and in so doing, participate in society's construction of reality. Each system distinguishes itself from its environment through binary codes and then reconstitutes phenomena entering its environment by applying its own internal binary code (such as legal/illegal in the case of law). This normative closure means that direct or simple exchanges or communications between social systems, or between individuals and social systems, are impossible. We therefore need to abandon notions of 'steering' social systems in predetermined ways and bringing about social change directly through legal norms. Progressive change may occur but this will depend more on how events entering each social system are reconstituted by those systems, rather than on the motivation and planning of social campaigners. Luhmann offers a way of describing society that seeks to engage with, rather than avoid, the increasing complexity and contingency of modern society, and which enables us to see that whether law achieves 'justice' depends on the viewpoint from which law (or any other social system) is being observed.
Beyond Procedural Legitimation: Legality and Its ‘Infictions’
The legitimacy of a legal and political order is a challenging modern legal, philosophical, and sociological problem. It has many practical aspects and consequences for social, political, and legal activity. Its importance increases especially during times of complex socio-political and legal changes or reconstruction.' The relation between legality and legitimacy was an important topic for legal philosophy and sociology in the first half of the twentieth century. For example, Max Weber classified legal political domination as a domination legitimated by general legal rules, rational administration, and bureaucratic procedures.2 Another German scholar, Carl Schmitt, worked on the principle of formal or technical legality and its power to legitimate political authority.3 Schmitt reduced conditions of legitimacy to the legal exercise of political power and, according to him, legality is the justification of the state.4 The topic of the legitimacy of law also appears, though only as a marginal problem, in the pure theory of law developed by Hans Kelsen. Hans Kelsen, and most legal positivists, define the legitimacy of a legal rule in two ways: formally, as a fact that a rule has been issued by the legally empowered body or, substantively, legitimacy is identified with the efficacy of a legal rule within the system of positive law and society itself.5 Joseph Raz's book, The Authority of Law, in which the author attempted to harmonize a formal legalist approach with substantive political and moral principles, does not break this positivistic framework in spite of the fact that Raz has greater respect for the interdependence of law and political or moral principles.6 Analytical jurisprudence, even after the fundamental innovations brought about by H.L.A. Hart or, more recently, by Joseph Raz, still builds on
The Standing of Psychoanalysis
Much of the early philosophic debate about psychoanalysis focused on one question: Is it possible in principle to test Freudian theory? Several philosophers have now argued that it is (Wisdom [1967] Glymour [19741; Griinbaum [1979]), and, at the moment, the issue appears to have been settled. More recently, some philosophers have begun to examine the clinical and experimental arguments in the Freudian literature (Griinbaum [1980], [1983]; Erwin [1981]; Neu [1977]). B. A. Farrell's book [1981] is likely to enhance this recent trend: it contains one of the first attempts by a philosopher to make a comprehensive assessment of the scientific standing of Freudian theory and therapy. Farrell is sceptical about many of Freud's views, but he does argue for some important favorable conclusions. If he is right, he has not only answered Popper [1962] and Nagel [1959] on the testability issue, but also those critics (e.g., Eysenck & Wilson [1973]; Wolpe [I981]; Rachman [1971]) who find no merit whatsoever in Freud's ideas. In some of his conclusions, Farrell employs a distinction between 'High' and 'Low' level Freudian theory, one that is analogous to the more traditional distinction between the Metapsychological and Nonmetapsychological hypotheses. He does not give any operational criterion for identifying the High Level hypotheses, but he does say that they give an account of the way the mind works as a whole (p. 37), and helps to explain the Low Level generalizations of the theory as well as the observable conduct of people. An exarfiple is: The mind contains mental elements, each of which has two aspects, an ideational presentation and an effective charge of energy. The Low Level theory contains at least some ground floor generalizations, such as: All young boys are sexually attracted to the mother and are sexually jealous of the father. Some Low Level generalizations, however, resemble the High Level type; they also contain theoretical concepts, such as 'repression' and 'regression,' and say something about the way the mind works. Consequently, it is not always clear exactly which hypotheses Farrell intends to include in each category. For most of his purposes, however, his distinction is clear enough. Using the High-Low Level distinction, Farrell reaches five favourable