Luhmanns Judgment

Claudius Messner

Springer Science+Business Media Dordrecht 2013

Abstract This paper explores what is apparently a non-topic for Luhmann.Luhmann is preoccupied with decision-making rather than with judgment. The

paper argues that Luhmann, attempting to find a way out of the dilemma between

the fundamentalism of positivistic legal theory and the relativism of anti-founda-

tionalist post-modern thinking, presents the epistemologicalethical doublet of a

self-binding of the law. In this bootstrapping manoeuvre decision plays the central

part. The paper begins by examining judgment in its relation to decision as con-

sidered by non-system-theoretical thinking. Against that background it unfolds the

distinction between distinction, form and decision in systems theory and in the

system-theoretical observation of the law. The article then discusses Luhmanns

description of the functioning of decision(-making) within the legal system. The

hypothesis is that Luhmann blends here cognitive with ethical aspects. Finally, the

article addresses Luhmanns polemics against alternative approaches to his own.

The suggestion is that judgment, in Luhmanns systems theory, re-enters by the

back door as an ethicaltheoretical imperative that commands theorys responsi-

bility for society and law.

Keywords Judgment Decision-making Decisionism Foundation Paradox Contingency Responsibility Ethics Constructivism

Modernism Derrida

1 Introduction

Judging is a central act in law. It matters how judges decide cases. It matters most

to people unlucky or litigious or wicked or saintly enough to find themselves in

C. Messner (&)Dipartimento di Scienze Giuridiche, Universita` del Salento, 73100 Lecce, Italy

e-mail: claudius.messner@unisalento.it

123

Int J Semiot Law

DOI 10.1007/s11196-013-9344-7

court reads the incipit of Ronald Dworkins seminal 1986 work, Laws Empire [15].Judgment matters by making a difference between dignity and ruin to people in

the real world outside of court- or classrooms. It matters, Dworkin writes, because

unfair judgment implies injustice, and, finally, because judicial decision-making

is unquestionably law-making in that new judgments can not but claim to be

required by a correct perception of the true grounds of law even though this has not

been recognised previously [15, p. 6]. Dworkin expounds his post-positivist chain-

novel model of judging at a high level of abstraction, by asking questions about the

nature of interpretation, by making large claims about authority, legitimacy,

constitutionalism, and democracy. The price he pays is not only a heroic picture of

judicial capacities, but is the replication of the medieval idea of judicial sovereignty

as based upon a process of judgment through interpretation. Ius dicere, the processof interpreting and declaring the law, means nothing other than a specific kind of

government by empowered decision-makers: The courts are the capitals of laws

empire, and judges are its princes, but not its seers and prophets. It falls to

philosophers, if they are willing, to work out laws ambitions for itself, the purer

form of law within (and beyond) the law we have [15, p. 407].

What does Niklas Luhmann say about judgment? Nothing at all. The entry is not

to be found in any of the table of contents or indexes of his groundwork SocialSystems [44] or the specifically relevant Law as a social system [48]. Judgment is anon-topic for Luhmann. The topic he is interested in is decision: decision-making

in courts commands a central position in the system [48, p. 282]. But decision is

fundamental not only in the legal system, it is fundamental to all social systems, and

notably to organisations. This again makes it fundamental to systems theory [44,

4749]: as a theory of society, systems theory needs to grasp the nature, the pure

form of decision, in order to justify its claim to universal applicability. On the other

hand, decision as such is a subject matter only within law. This, indeed, may clarify

the perseverance of Luhmanns preoccupation with the legal system. If one

succeeded in showing for the law, the classic functional system of modern society,

how decisions are made [49, p. 172]self-made: auto-poieticallythen therewould be reason to assume that the mechanism demonstrated is not purely

coincidental, but indicative of the functioning of decision in other functional areas

of society too [48, p. vii]. Luhmanns description of decision is decisive for systems

theorys claim to be, as exemplary communication, as processing of meaning, and

as observing, the paradigmatic theory.Luhmann is not really interested in a model of empirical explanation of

decision which would be in line with the system-theoretical description of the social

and, consequently, in the rejection of sociological or philosophical theories of

judgment based upon psychological, decisionistic or otherwise humanistic [44,

pp. 210213] assumptions. The old European inheritance of such theoretical

buildings consists in the fact that they are designed and constructed in order to found

the law on its true grounds. Luhmanns own decisionism,1 the one-sided

1 The eventual reproach of decisionism, as the preface of Social Systems gives to understand with awink, would not be entirely unjustified. A systems capacity to evolve depends on its ability to decide

what is undecidable [44, p. xlviii].

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distinction which gets judgment on the bad side of decision, might rather be seen as

a sensitive overreaction to interpretative and/or deconstructionist constructions

which are competing with the system-theoretical description of what they falsely

declare as the post-modern situation of law and society [48, p. 455]. Luhmanns

mood might be well reflected in Clifford Geertz early observation that Taken

together they conduce to a nervous and nervous-making style of interpretation in the

social sciences that mixes a strong sense of the formal orderliness of things with an

equally strong sense of the radical arbitrariness of that order: chessboard

inevitability that could as well have been otherwise [21, p. 24]. Geertz remark

appears, indeed, to be an ante litteram critique of that rather loosely defined group of

studies nowadays called law and literature.2

Now this is not the place to go over the different literary theoretical approaches

and methods of the law-and-literature enterprise, especially, the now almost

infinitely ramified debates about and within that movement. It might simply be

observed, however, that it rose up within the wider context of the linguistic turn in

the humanities which brought about substantial epistemological changes and urged

a rethinking of existing theories and methods. Correspondingly, what gave

momentum to law and literature was what Luhmann would call the unmasking

motif: the intent to reveal, by confronting law with literature and literary theory, the

classical legal-positivist ideal of method as a sheer illusion or ideology. The

assumption underlying the progressive enterprise is that law, just like literature,

consists of and deals with texts which have to be (written and) read (or listened to)

and interpreted. In accordance with structuralist and post-structuralist literary

theory, representatives question the understanding of a stable subject and take the

basic plurality of meaning of any text into account. Consequently, basic concepts

such as truth and objectivity traditionally associated with a science such as

jurisprudence are challenged [64].

From Luhmanns point of view, all this ends up in naive game playing, in

childish, capricious, wild thinking that remains, and this is Luhmanns point,without any consequences [46, p. 255; passim]. Luhmanns way out of the dilemma

between the fundamentalism of positivistic legal theory and the relativism of anti-

foundationalist post-metaphysical thinking is, to borrow from Foucault, the

epistemologicalethical doublet of the self-binding [43, p. 291] of the law. In this

bootstrapping manoeuvre decision plays the central part.

2 Binder and Weisberg, trying to classify law as literature according to the viewpoint the criticism

adopts, distinguish hermeneutic, narrative, rhetorical, deconstructive and cultural criticisms of law [4].

The hermeneutic current [15, 16], studying parallells between the interpretation of literary texts and legal

texts, represents a criticism of method in the narrower sense. Here, the interpreter turns from a sheer

deciphering receiver of a communication into a constitutive part of its production [see 58; 61]. Others

insist that there are alternative rationalities within and beyond the law we have. Law has not only a

moral dimension, there is also a polyphony of justice, and there are different inherent criteria, e.g.

narrative [29, 31] or rhetorical [77, 78] ones. Deconstructionists, following Foucault and Derrida, state

the impossibility to produce, through language, juridical obligations and question, as a consequence, the

declared function of law to guarantee and control social order. The bracket cultural criticism, where the

wide label literature is substituted with the still wider culture, seems not very helpful, take James B.

Whites thinking of law as a culture of argument: The law is a set of ways of thinking and talking,

which means, as Wittgenstein would tell us, a set of ways of acting in the world (and with each other) that

has its own configurations and qualities, its own consequences. Its life is a life of art [79, p. xiii].

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The dream of an ultimate foundation [43, p. 294] may be over, Luhmann

argues, but the foundation of the law is nonetheless possiblein paradox, more

precisely through the paradox decision is: Decisions can only be made ifundecidability is given as a matter of principle (and it is not merely something

which is undecided!) [48, p. 282; cf. 49, p. 131f.]. It is true, he admits, decisions

are not deducible from rules, but it does not follow that there would be no un-

deconstructable frames, schemes, or forms. Agreed, contingency means that there is

no necessity (we will come back to the concept in more detail infra, p. 19) andtherefore no obligation. But this does not lead to the universalization of decisionism

or hopeless relativism. Ultimate foundation is possible only paradoxically, but

actually so: by means of a re-foundation [49, p. 55] on the principle of paradox!

The client of Luhmanns advocacy of decision as theoretical foundation is

undoubtedly the laws status quo, i.e. the actual functioning of the legal systemas

observed by systems theory. But the foundation laid down by the theory is also the

theorys own foundation. Here, the system-theoretical observation of the law,

neither disposed nor able to give explanations, converts into justification and

apology. It is at this point, that systems theory assimilates to its object to a notable

extent [81, p. 185]. Luhmanns habitual tone of irony turns into the serious register

of paradox. He summons the inescapability of the decision against the impenetra-

bility of the paradox [48, p. 310; 45, p. 46] and opposes the final justification

through decision to the uncertain trembling of the boundary between actuality and

possibility observed by Robert Musil [63, p. 765].

The last, commanding albeit not final, word of decision has to be pronounced in

order to be able to continue speaking and acting. This holds true not only for the law

whose rationality can then be understood as meaning an increase in the

possibilities, which are liable to restrictions, and as a broadening of the latitude

for decision-making with an increase in the limitations on decisions, which depend

on time [48, p. 474]. It is also true for other functional systems, and, in particular,

for democracy which according to Luhmann essentially is the remarkable keeping

open of possibilities of a future alternative [39, p. 131]. Decisions introduce

indeterminacy in history. A decision produces an uncertain future. It produces,by presenting plural possibilities as given side by side, un-knowledge concerning thequestion of how it will go on [49, p. 167]. What is even more, decision is, for this

very reason, the basis of the kind of liberty that constitutes itself as self-binding,

and so of ethics. Making decisions under conditions of uncertainty and un-

knowledge: thats exactly what one usually calls responsibility [49, p. 146].

Accordingly, under the modern conditions of globalisation and polycontexturalism

(i.e. world society [45, p. 48]), the perennial (old European) question of the

good lifehow should we live?has to be reformulated as How does one go

on?, how to continue cognition and action [43, p. 294]. In Luhmanns opinion,

the only way to respond is: by deciding. Only decision brings about new

possibilities of existence, if existence means living in a world where observers

produce latitudes for deciding and differences are experienced as interplay of

constructive interpretations.

I begin with considering the distinction between judging and deciding made by

traditional, i.e. non-system-theoretical thinking. The object is to draw a broad

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outline of established thinking, to differentiate judgment and decision, and to

indicate some prominent points which characterise Luhmanns elaboration of

decision. Against that background, then, the argument unfolds the distinction

between distinction, form and decision and their relationship in systems theory.

Luhmanns difference-oriented constructivist approach puts forward a radicalised

and highly abstract concept of observation where observation means the actual use

of a distinction to indicate one side rather than another. Luhmanns question is about

the role played by distinction in the production of social systems such as the law. I

then continue with a brief account of how distinction and decision are dealt with in

the system-theoretical observation of the law before turning to Luhmanns

description of the role played by decision within the legal system. This approach

is gathered into the concept of decision-making. As already said, the hypothesis is

that Luhmann blends (overt) cognitive with (covert) ethical aspects. I will conclude

by considering Luhmanns rather harsh criticism of alternative approaches to his

own. My suggestion is that these criticisms show, more or less explicitly, that

Luhmanns last word is an ethical word. Rather than criticising Luhmann, the object

is to find a productive way of reading him in the context of the recent evolution of

legal and social theory.

2 Judging and Deciding: The Traditional Approach

In everyday life, there seems to be no problem with judgment. Judgments are

omnipresent and polymorphic. They might be founded or unfounded, crushing or

constructive, hitting the mark or failing, reflected or absurd, hasty or well-

considered, leading to consensus or conflict; they appear couched in decision,

opinion and mind, or simply pass as such. Who is interested in knowing what

judging means has to differentiate between the levels of logic (dealing with acts and

forms of judgment), pragmatic (considering its use in different situations:

epistemological, aesthetic, moral, juridical), and political (who is in a position to

judge, who is a legitimate judge, whose judgment is valid [2, 9, 13, 55, 75]. Turning

the gaze to the sphere of law, one learns that judging is a social practice with a large

range of conception and acceptance and very different historical shaping [18].3 The

juridical is also the field where judging is methodically well reflected and staged in a

particular way [20, 30]. My purpose here is not to map judgment in its rich

phenomenology, but to provide, very summarily, a background that would allow us

to understand its relationship with decision and, in particular, with decision as

elaborated on by Luhmann. As a guide through the jungle of connotations can serve

3 Foucaults lectures on truth and juridical forms, originally given at a conference at the Catholic

University of Rio de Janeiro in May 1973, belong to a series of preparatory works to Discipline andPunish. This text stands out because Foucault is interested here not just in penal procedure and legallogics, but in laws claim to rationality. Inquiry, the form of production of juridical truth, is shown to be

a general form of knowledge, a form that is simultaneously a practice of power and a mode of

acquiring and handing down knowledge [18, p. 94] and to know the form is to know our

experience. One is tempted to say that law is in the sphere of visible forms what is art in the sphere of

invisible forms, as Salvatore Satta would have added [67, p. 85].

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Ludger Schwartes definition according to which judging means a normative

abstraction of something, founded upon the social practices of deciding, namely on

responsibility, taste, experience [72, p. 12]. An illustration of this slightly cryptic

remark may be found in Franz Kafkas short story The Judgment (Das Urteil),where, at the end, the protagonist commits suicide after having heard his father

sentencing: And therefore take note: I sentence you now to death by drowning!.

The formula of judgment is a linguistic sentence that denotes what it is doing. But

speech act theory cannot explain all the elements the judgment consists of. Kafkas

narrative shows judgment as a process which includes (a) the conflict between father

and son, (b) the inquiring proceeding and the pronouncement, (c) the acceptance and

(d) the execution. Once pronounced, the judgment is in the world as the marking of

a decision, and it may be right even without producing effects. But to have the

judgment producing effects, enforcement is needed.

All that did not remain a secret to legal theory. From the medieval and neo-latin

legal language one could learn that judgment means the way of movement and

transformation from the abstract rule (lex generalis) into the concrete ruling (lexspecialis) of the sentence and, finally, its enforcement. Here, the trial proceedingwas not understood as a series of single acts (of single protagonists), but as a

passage, as a dynamic complex of legal relationships [7]. Once it was called

processus iudicii, a leading representative of German civil law theory of the mid-

nineteenth century, Oskar von Bulow, writes with reference on the authority of

Johannes Andre, where judgment is clearly defined as actus trium personarum

sc. iudicis rei et actori [8, p. 2]. The iudicium is a unitary, step by step developinglegal relationship, but, against the unilateral modern emphasis on its character as

proceeding, Bulow stresses that it is a relation of public law, between the court andthe parts, that is, a matter of power.

Still in this sense, in the midst of twentieth century, the Italian jurist Salvatore

Satta states with reference to the twelfthcentury jurist Bulgarus that the judgment is

not only the decision [67, p. 48]. The trial proceeding, he explains, is nothing

other than judgment and producing of judgment trial proceeding and judgment

are acts without ends, the only acts of life which do not serve a particular purpose. A

paradox? No, its a mystery [67, p. 24]. Undergoing judgment, action halts and

folds itself. Hence, in general, the law appears to be nothing other than the human

relationship, Satta argues, we all live juridically even without having ever opened

the code of laws, and, living, we constantly produce law and recognise it through the

same act we posit it. The way of this cognition is the judgment, ius dicere,marvellous word which expresses simultaneously recognising and producing, the

really creative act of cognition [67, p. 45].

Decision is central to judgment, but far from being as relevant an act as it appears

to be from a formalist point of view. In this view, the making of a decision,

processus iudicii, is the unfolding of a new version of the world between theiudicium and its audience, a process based upon specific cultural models whichallow for the framing of different situations and related interactions. As the law is

always already informed by the facts, so the factual is crisscrossed by the juridical

in view of meaningful judgments. That is to say, in the words of Stanley Fish, that

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the law is continually creating and recreating itself out of the very materials and

forces it is obliged, by the very desire to be law, to push away [17, p. 135].

Thus, codes of procedure determine not only the formal process of producing and

eliminating alternative possibilities, that is the production of the decision, they also

channel, like a plot, the presentation of the production of this decision (for an

example, see [61, p. 149]). Laws performance is the staging of pleading.4 It is a

social practice that produces social reality. Its perspective, therefore, is irremediably

local. Laws proceeding is not procedure, judgment is not decision, law is not a rule,

but is an event.

Performance is not application as application would imply representation. But the

positing (not: the foundation) of law has its own representational force whosemanifestations are the mystical foundation of its authority [13]. Law is always in

the business of producing the very authority it retroactively invokes [17, p. 158].

Positing the law involves presupposing the law. Like language and art, the law

represents the world to us not by mimic mirroring, but in ways that are not exactly

the world itself, but which allow us to preserve essential features of the world. As

well as the law, judgment is rather to be understood as a mode of apprehension and

expression, a way of seeing, not a thing to be seen [51, p. 193]. Governed by the

desire for order and coherence, rationalistic legal doctrines about basic structures,

territories, boundaries or empires ignore the singular, the opaque, the uncontrol-

lable, the material, embodiment, contingency, temporality, and communication

although the meaning of whatever we may call ius dicere depends upon all that. To

understand what is said as law (by an observer that could be law itself to another

observer that could be law itself), one must grasp not only the what of juridical

communications, but also what else has been said sotto voce, at the marginsorotherwise submit to what one might call the white mythology of modern law [12].

The ability to grasp the particular is formed by aesthetic experience. Every act of

perception involves an act of distinction of different qualities of an object (which

could also be events like actions and communications) [53, p. 267f]. Imagination,

then, produces what will be subject to judgment [25, p. 212]. It does necessarily

so, as Luhmann concedes [49, p. 141], and in accordance to certain criteria such as

existence, beauty or truth. Cognition wishes to perceive its object clear and

distinctively. What is perceived is then accepted or denied and presented (in

communication). Cognition, in other words, refers to a distinct form, by indicating

its elements and stating (predicating) whether the facts do or do not exist. But this

distinction is posited, not merely detected. The object is transformed by its

judgment.

The issue at stake in this circular movement is the nexus of immediacy and

mediation, before and after, presupposition and position. Defining cognition as a

positing that just as much immediately defines itself as presupposing, Hegel [23, p.

503f] treats it as a complementary nexus, showing that its lever, and the very tool of

judging, is reflection. Immediacy is reflections presupposition in the double sense

4 Rechten, in the language of the bible, as distinct from richten: The Lord stands to plead, and He

stands to judge the peoples: (Book of Isaiah 3, 13). The Septuagint translates both times as crisis: , .

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of the subjective and the objective genitive: it is the presupposition from which

reflection starts, and it is the point of departure posited by reflection. Presuppo-

sitions are posited as initial characteristics of a process of cognition or

demonstration which will be overcome by that very process. They are recognisable

as presuppositions only if connectedby exclusive reasons of the inner logic, not

for external motiveswith the results of the cognitive process. So, reflection is at

once the same (because there is a unitary proceeding from presuppositions toresults) and not the same (because presuppositions are presuppositions and as suchabandoned in the further proceeding). As we will see below, the interplay of

positing/presupposing in reflection is noteworthy because reflexive, in view of other

possibilities necessarily selective positions constitute contingency. Reflection

shows selections as decisions, and decisions make contingency visible.

Judgment, however, is not only a positing, it is also the presentation of a specific

practical dealing with the world. As processus iudicii in the illustrated sense (fromits beginning in perception via reflection, expression, and language to execution and

acting in a culturally structured context), it is event in the world. Its practical

orientation excludes universalisation. Judgments respond to open questions not only

by answering, but by deciding. In this sensenot in the sense of declaratory theory

of lawit is true that law is the formal decision on law or, in Luhmanns laconic

words, the law is what the law says it is [65, p. 124; cf. 48, p. 72; 38, p. 113].

From the point of view of its pragmatic, judging means every time transforming the

world. Hence, the judgment and the world which we live in emerge one from the

other. Judgment then may well be seen as marking the disorder, the normless open

state of the world before [13]. The function of laws formally saying the law, in turn,

could be defined as to stand between us and the contingency out of which its own

structures are fashioned [17, p. 170].

Let us see, just to sum up, how Luhmanns elaboration of decision stands out

against the profile of judging and deciding in traditional thinking. From a

sociological point of view, judging is a social practice. Rather than being a

theoretical positing, judgment reveals a specific practical referencing to the world.Luhmann, considering the legal order (as any) as a negotiated order [34, p. 19],

seems to accept the pragmatics of juridical communication. However, focussing on

the act of deciding, he tends to misjudge the symbolic side as ornamental or even as

mystifying trimmings of that very core of judgment.

From the point of view of legal theory, judgment appears as an unitary process

involving several phases and spheres. The unfolding of judgment transforms its

object. In contrast, Luhmann tends to dissolve the whole process by focussing on

judicial decision-making. He accepts that decisions emerge from a series of

preceding decisions. But his analysis is restricted unilaterally to the centre of the

legal system. Peripheral legal communication is marginalised. The question of other

dimensions, such as aesthetic or political, inherent in legal communication is left

aside or denied.

From a cognitive point of view, judgment is the constitutive act of ius dicere i.e.the construction of law. Decision plays a central role within the evolving context of

judgment, but deciding does not coincide with judging nor is it the only relevant act.

Luhmann cuts out decision from judgment and puts deciding as a cognitive act

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down to distinction. Whereas the very tool of judging is reflection, decision builds

upon cognition. Reflection is preoccupied with its own conditions, cognition is

preoccupied with determining its distance from reality. Reflexive positions

constitute contingency, cognitive positions fix identities. Luhmann wishes to escape

cognitive indeterminacy by claiming paradoxical foundations. But foundations

which cannot be conceived of remain mysteries.

These assumptions will be tested in the following two sections.

3 Distinction, Form and Decision: Theory of Different Order

As we have seen, distinction is the form of cognition. Cognition is always an ex-post

achievement tied to precedent operations. As the production of meaning that in turn

structures further distinctions, the positing of a distinction [46, p. 244] constitutes

the world, transforming it [44, p. 297]. Based on these premises, Luhmanns

question is the one about the role played by distinction in the production of social

systems such as the law.

Luhmann uses the theories of distinction and, afterwards, of form, with a

constructivist attitude inspired by two basic theorems. One is Humberto Maturanas

premise which, interestingly, is rooted in our use of language and, in its complete

version reads: Everything said is said by an observer to another observer that could

be himself [54, p. 29]; the other one is the (practical) instruction Draw a

distinction at the beginning of George Spencer Browns calculus of indication

[73] which presupposes a difference between an act of observation and the

observation of this act. This way, epistemology can focus on how a world comes

into being [73, p. xxxv] as a direct result of the specific operations actualised by

observers who could be individuals, organisations, or systems.

Constructivism, as is well known, relates to a philosophical tradition that is

concerned with the internal conditions of thinking. The point is not to delineate the

existence of something, but, instead, to ask how objects are distinguished as objects

and how they are thereby constituted as this or that something. Reality here

appears as the product of cognition, rather than as its criterion. Realism, on the other

hand, is an epistemological habit in which it is assumed that reality exists

independently from the observer. Reality is given, and is the precondition of

cognition. Cognition should mirror reality.

Well-equipped5 with these ideas, Luhmann shows to be so interested in the

how of phenomena rather than in a substantial what that some critics feared he

would consider objects only to dissolve them into distinguishing operations [53,

p. 269]. According to Luhmann, in fact, we are always using meaning in

5 But in need of argument. Luhmanns discursive strategy seems to be limited to postulate an adequacybetween the way functional differentiation conditions the possibilities for societal self-observation and to

denounce as ontological whatever does not appear unambiguously constructivist [26, p. 581; 66, p.28]. In fact, Luhmanns programme rests simply on the why not of his own preference: But why are

we supposed to observe the world with this primary distinction of being and non-being, and why are we to

treat the distinction finite/infinite as a supplement to this primary distinction? Why dont we [45, p. 49]

start otherwise, for example, from the distinction between system and environment? [41, p. 524f].

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constructing reality. So the problem is to think of distinction, of observation without

the idea of seeing out of the eyes [65, p. 115]. Reality is what you dont see,

namely a sign of successful operations [ibid, p. 117/118]. For science, this implies

that the what-questions change into how-questions. This excludes definitive

accounts [41, p. 95]. What once seemed to be given naturally, waiting to be

discovered by a researchers curious gaze, is now considered as the consequence of

selections, i.e. decisionseven if the identity of the decision-maker could not

always be established [66, p. 29]. But, one might say, is not this to say, quite

simply, that everything existing exists only because it is observed? This, indeed, is

the conclusion radical constructivism would draw. And it is just this consequence

that Luhmann seems to fear. Because it would lead directly into a relativistic

anything goes. This is part of the postmodern idea that there is no right beginning,

no beginning in the sense that you have to make one certain distinction and you canfully describe the start of your operations. And thats the background against which

I always ask, What is the unity of a distinction? [65, p. 130]. As we will see

below, according to Luhmann, this unity is given only paradoxically. And this fact

is crucial because, for Luhmann, the issue is not simply about a theoretical

transition, his re-description of description is of eminent practical interest. Take

organisations, for example. According to Luhmann, the question is not what they

are doing or not doing in the relative contexts, but how an organisation decideswhat could be done in view of its dependencies [49, p. 7f]. What is more, Luhmannimplies the ethical problem that one can never produce better worlds, and,therefore, never can experience and act in a justified way [49, p. 127], but only rely

on the contingent differences drawn.

Luhmanns pessimistic hope for a better world and final justificationmay, at least

in part, explain the strange way he treats the problem of reality. Approaching the

question, traditional theory operates with related terms such as signifier and signified,

equivalence and correspondence. Luhmanns constructivism, on the other hand,

redefines reality: the signified is no longer considered real as opposed to the signifier,

nor is the object more real than its name. What is real, as a real process in a real

world, is the difference used in observation [36, p. 48]; The reality of cognition is to

be found in the current operations of the various autopoietic systems [ibid]. Spencer

Browns basic distinction between observation and operation replaces the traditional

distinction between cognition (subject) and object. Out of the self-referentially

produced knowledge comes a new reality, a reality that is neither attributable to

cognition nor to the object of cognition [71, p. 141]. This would eventually lead to the

radical conclusion illustrated above. But, Luhmann ends up claiming a heteronomy

between the existing reality (world) and cognition [26, p. 583]: if, on the one hand,

cognition produces distinctions, distinctions of distinctions and, thus, meaning as a

plurality of possibilities, reality, on the other hand,must be conceived of as free of such

distinctions, i.e. as free ofmeaning: If cognition requiresmeaning as well asmeaning

requires distinctions, the last reality must be thought of as free of meaning (sinnlos)[36, p. 47]. But, as Gumbrecht asks,

would anything change on the side of cognition, if, instead of insisting on the

reality-status of the other side, Luhmann simply suspended the question

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regarding the existence of reality? We do not have to answer this in order to

perceive something excessive in his thematization of the reality-side,

something excessive at least in relation to the subordinate role this question

should play in a constructivist context [26, p. 583f].

Of course, one cannot simply escape ontology. Every epistemology entails an

ontology. But one can work with a bracketed ontology that suspends judgment about

existence in favour of the observation of operations required to arrive at judgment.

This is what Luhmann usually does, and before him, Husserl methodically did.

Luhmanns ambiguous phrase about the Sinnlosigkeit of last reality: is it free ofmeaning, is it senseless, or does it make, ultimately, no sense to talk about it,

recalls Husserls equivocal observation according to which philosophys dream is

over.6 For now, we may leave the question suspended.

Luhmanns difference-oriented constructivist approach puts forward a radicalised

and highly abstract concept of observation. Observation here means the actual use

of a distinction to indicate one side rather than another. Distinction does not depend

upon the difference between real facts, or between contextual perspectives, but is

an act that is required each and every time an observation or description is to be

performed. The actual structure of a distinction is never given beforehand. It

emerges anew in every communication.

Distinctions are made and used by an observer: Distinction, then, means to posit

a form, and making a distinction is an operation that, as all operating, presupposes

time. Form here has no ontological status, its all about using it [46, p. 245].

Form is the form of a distinction, or the discerned unity of a discerned difference.

Form, including an indicated side, a not indicated side, and a boundary, is a ternary

term [42, p. 98]. Made with pragmatical intention, in order to indicate one side, but

not the other one [46, p. 246], forms are oriented by processes and dependent on

functions. Forms are produced by observations within a context [35, p. 6]. The

perspective, then, constructs both the observer and the observed. The observerconstituting a form is always included in it as agent [58, p. 67f].

But the observer, concentrated on what he is observing, cannot see this. The

distinction used in order to indicate and observe something cannot itself be

distinguished while it is in use. The operatively used but not-observable distinction

constitutes the blind spot of the observer. Indeed: any observation will rest on its

operative distinction, but that distinction produces its corresponding observation

(and nothing else), and thus is bound to remain blind to what falls outside the scope

of its observation.

6 What does such a conclusion mean? Does it confirm ones enterprise, given that one can continue now

with a sharpened consciousness? Or does it imply resignation from a hopeless project? It is not clear

whether Husserl wished to characterise the Zeitgeist or his own position (the complete remark readsPhilosophy as a science, as serious, rigorous, even apodictically rigorous sciencethe dream is over:

The crisis of the European sciences, Husserliana VI, p. 508). In Husserls late philosophy, justificationhad taken the place of unconditionedness as a prerequisite of rigorous science. Justification, however,

depends for Husserl on philosophys historically conditioned capacity for self-foundation. Hence, he did

certainly not give up phenomenologys claim to ultimate justification. Luhmann seems to argue,

mutatis mutandis, in somewhat the same way.

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To observe himself as observing, a further observation, discerning observing

system and environment, is needed. Because this operation also produces a form,

the form enters in itself. The unity of the form is paradoxical. A paradox is the self-

containing form without indication of an external point of view which it could be

observed from. Thus it is, at once, beginning and end [46, p. 247]. To be sure, the

paradox would not block the operating of a system, but the observation of its

operations. But, going on with distinctions, the observer goes away from paradox.

So, not all ends up in paradox.

Moreover, the form producing observers can be observed through the forms

produced. In this respect, the boundary of the form that constitutes an observation is

critical, because it shows how the observer is dealing with the world and how he

is motivated, in a word, it shows the contingency of his position [34, p. 16]. Again,

the instrument of observation is distinction. Given that an observation is an

indication within a frame of difference, a distinction is a selection that requires

certain other distinctions. Observed as a selection, a distinction shows to be a

decision that excludes other possibilities [44, p. 41] Decision is the marking of a

distinction. The reiteration of consistent decisions creates identity and order.

Luhmanns point here is to make observations apparent as exclusionary distinctions:

if you do that, if you begin with this first-distinction, you will have no room for

manoeuvre, you will no longer be able to move in all possible directions. In short,

for the second-order observer, all observations are based on their particular guiding

distinctions. As Luhmann in his usual laconic style summarises in an essay on

Paradoxie der Entscheidung, the events of deciding are, in other words, the way bywhich the organisation distinguishes itself, recognising thereby what it is doing. No

more, and also no less [43, p. 287]. And commenting on the parallelism between

theory of organisation and epistemology in producing constructions of reality, he

adds:

Every organisation operates in a world which it cannot know. This world is

transformed through the absorption of uncertainty into a known world, is

replaced by a known world. This presupposes retrospectively a first decision

which cuts into the world by means of a decision the first-decision

actualises the unfolding of the paradox, obeys the starting instruction of

Spencer Brown: draw a distinction, lays down something at difference to

something other thereby differentiating a sphere where the events of deciding

[das Entscheiden] can happen [43, p. 302].

By surveying its boundaries, decision makes society, social order, visible [81, p.

181]. As has been observed [71, p. 155], Luhmanns foremost experience is

surprise at the fact that order exists at all despite an unlimited horizon of other

possibilities. What seems to be naturally or normally given, is neither

normal nor natural, but the improbable construction of an observer. Accordingly,

in Social Systems Luhmann defined his theorys foremost analytic interest as tobreak through the illusion of normality [44, p. 114]. But the answer seems to be

improbable itself, because circular: it is overwhelming contingency which forces

systems to establish order [34, p. 16].

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An observer, then, is supposed to decide whether something is natural or

artificial, necessary or contingent. But who can observe the observer (as

necessary for this decision) and the decision (as contingent for the observer)?

The observer may refuse to make this decision, but can the observer observe

without making this decision or would the observer have to withdraw, when

refusing this decision, to the position of a non-observing observer? [44, p. 28].

Luhmanns post-ontological social theory conceptualises forms of communi-

cation [44]. From this theory we must expect no definition of law, but the

description of the specic juridical form of communication. Law serves to continuecommunication by other means [44, p. 375]. Rather than elaborating on legal

institutions, norms and argumentation, this theory might be expected to consider

dichotomies such as law/not-law, legal/illegal, legitimate/illegitimate as coded

distinctions deployed, evoked, or used by the observer. Thus this theoretical model

observes who (which observer) operates (i.e. observes and describes) with which

concepts (coded distinctions). Since no exception can be made for its own mode of

observation, it will claim for the knowledge so produced neither critical awareness

nor superiority, only difference.

4 Law and Legal Decision

For Luhmann, modern law is neither language nor literature or text. Under the

conditions of functional differentiation of modern society, all law is positive law

which, of course, is not necessarily statute law but can also be created by the courts

and by contract. In this sense, functional subsystems of society are always self-

referential systems: They presuppose and reproduce themselves [38, p. 112].

Observing the legal system, legal theory observes an object that observes and

describes itself [48, p. 160; 42, p. 123]. The legal system constitutes itself in view

of its function. Founded upon self-reference, paradox is fundamental to the order

and reason of law. Obviously, this thesis is diametrically opposed to modern legal

theories (such as Dworkins) searching for the laws true origins and coherent shape

as well as to a vast literature (such as Critical Legal Studies) that celebrates laws

indeterminacy, plurality, and ambiguity. Luhmann would agree, I believe, that both

converge in what Lon Fuller once called the fiction of the unity of the law. To the

alleged critique that the legal order is (nothing but) an aesthetic-political invention,

Luhmann replies annoyed that, certainly, If the law cannot be found, it must simply

be invented, but only by the law [48, p. 289]. Only within the legal system

adjustments can be recognised as changes of the law. Therefore law can be

explained only by the unfolding of a paradox, that is, through the introduction of

identifying decisions [48, p. 181], that is to say through decision. My point is that,

for Luhmann, this theoretical foundation or explanation is equivalent to ethical

justification.

It might be noted, however, that Luhmanns foundation of the law upon self-

reference has a consequence with far-reaching implications. To reconstruct them

here would go beyond the scope of this paper. But it might simply be observed that,

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123

in Luhmanns theory, law has no origin, and not even a beginning. Not that the

beginning could not be known or that it would bring about aporetic impasses of

reflection, it simply does not exist. According to Luhmann, when the legal system

emerges in the processes of societal differentiation, it always already has (had) a

past. Law never has to begin. It can always join traditions as they are found [48,

p. 153]. This holds for autopoietic systems in general because their already-having-

started is implied by the notion of autopoiesis [49, p. 133, n. 20]. Should one

consider Luhmanns argument as a denial of a beginning or a ban from

theorising it, as Thomas Wirtz [81, p. 191f] suggests? What seems to be clear is that

Luhmann regards the fact as an advantage (or a merit?) of the law. But, what does it

mean to join traditions, if not that juridical communications are organised as

interpretation [48, pp. 221, 297; 44, p. 375; 42, p. 123], and that decisions

expected by the law (not being different from norms or statutes in respect to their

quality as texts to be interpreted) are always also commenting the causes to

which they respond. Thus, laws own traditions would explain the continuity of

commentary knowledge, and, thereby, the continuity of the law. This circular

description, in turn, has not only historical implications (which would be rather

irrelevant in a constitutive context), but political and ethical implications, as shows

a comparison between Luhmann on the one hand, and Carl Schmitt [70] and Jacques

Derrida [13] on the other [81, p. 192f]. Schmitt, insisting on the possibility of a

dating of the beginning, sustains the political nature of a first-decison that founds

the law and is repeated by every single verdict [56, 74]. Derrida, on the other hand,

recognises in laws talking a constant stuttering rather than discursive continuity.

Like Luhmann, he considers legal decision as the unity of difference between law

and not-law, like Schmitt, he insists on a positing decision which necessarily is

before and out of the law, preceding it. The very emergence of law, Derrida

writes, implies a performative force:

Its very moment of foundation or institution (which in any case is never a

moment inscribed in the homogeneous tissue of a history, since it is ripped

apart with one decision), the operation that consists of founding, inaugurating,

justifying law, making law, would consist of a coup de force, of a performativeand therefore interpretative violence that in itself is neither just nor unjust and

that no justice and no previous law with its founding anterior moment could

guarantee or contradict or invalidate [13, p. 941f].

According to Derrida, the inseparable intertwining of law with force, power and

violence demands responsibility for the impossible justice [55].

So, when we turn now to the question of the role that decision plays in the

production of law, we could start by saying that Luhmann has no interest in decision

that would go beyond the factum brutum of its systemic production [76]. Systemstheory seems to be a science that does not seek to know its objects but rather to

observe autonomous patterns of emergence [25, p. 201].

Indeed, the beginning is a form. Form is beginning, construction, artifact,

configuration, event. The form of form is a paradox. Observed as such, everyform symbolises the world. It is at once, beginning and end [46, p. 247]. But, the

thorn in its flesh, the scandal of form would be, as we said, the uncertain

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trembling of the boundaries that are required by distinction and posited by

decision. This seems to be the very reason why

the legal system, for its own reproduction of legal events by legal events,

needs a binary structure in terms of which all events can be described as not

being their counterpart. The system uses the code of right and wrong to

duplicate all meanings the right events being not wrong, the wrong events

being not right. By this very description, whatever happens and whatever can

be done becomes contingent. It remains possible to select the right or to select

the wrong but not without committing oneself to negate the opposite value

[38, p. 115].

Luhmann, of course, is aware of the fact that a legal case derives its relative

unity from references to certain texts, which have to be interpreted in relation to the

two parties and the conflict requiring a decision [48, p. 221], or, as Philipp Bobbittsimply puts it, that cases do not arise because the litigants want to test what a

particular judge thinks, litigants want justice [6, p. 40]. Anyway, The fact that

courts have to decide is the point of departure for the construction of the juridical

universe [48, p. 289]. From this point of view, one might rather agree with

Salvatore Satta in considering legal form as an emerging Gestalt, taking shape in theprocessus iudicii. Here again, it is easy to see that Luhmann ignores (the confusionof what evidently is an ascription with a description in the above cited passage

might prove it) the importance of contexts or frames for the social. But systems

theorys lack of focus on the function of context is not an isolated technical

problem [28, p. 71]. It is, as we have seen, in any sense a fundamental defect.

When Luhmann came to state that distinctions are typically made within a context

[e.g. [47, p. 285], he had erased a long time ago the concept of (pragmatical) context

from Spencer Browns calculus of indication.7

The binary schematization of closed contrast sets (note that, here, on the other

side of true can stand only untrue, and not, say, ugly or bad) links the

reproduction of the law with the reproduction of the contingency of the law. Based

on this prerequisite, the legal system can be erected as a network of conditions pre-

programming legal events. Programming, but not determining: the key point is that

the scheme makes appear contingency as the basis of decisions [49, p. 141]. The

problem of contingency is one of the vexing questions of philosophy. However, the

vanishing of the onto-theological ideology of order in early modern society allowed

for the conceptualisation of contingency in a new way i.e. as a judgment of reality

from the point of view of necessity and possibility [5, p. 47]. The idea is that what is

given, is disposable, that is it must not be as it is. In this sense, the term does not

7 In his later work on Organisation und Entscheidung Luhmann comments on Spencer Browns remarkaccording to which the introduction of distinctions cannot take place at will, but is of course relative to the

motives of the observer: This is an equivalent to the observation that the mathematical calculus itself

has to introduce all presuppositions which he is based upon. Apart from the fact that precisely this had

been the thesis about the relationship between position and presupposition in Hegels logic, Luhmanns

observation cannot but confirm the dependence upon contexts of distinctions, that is the very fact that the

boundaries can not be drawn anywhere we please [49, p. 131, n. 16]. To borrow from Stanley Fish:Theres no such thing as free distinction and its a good thing, too.

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indicate, as Luhmann states, the possible in general, but what is otherwise possible

from the viewpoint of reality [44, p. 106]. Because the concept presupposes the

reality of the world as it is given (experienced, imagined), it would be a mistake to

ontologize contingency as a fact preceding the social. Rather, contingency has to be

described as an indeterminacy that is produced and detected as a specific tension

between reality and possibility only within society.

Luhmanns notion of contingency draws on Aristotles modal logic conceptu-

alisation [80]: contingent is what is neither necessary nor impossible [42, p. 96].

Characteristically, the term is achieved by two negations which are not reducible to

each other. On the one hand, the relation between contingent and necessary

indicates a contrary, substantial contrast. Contingent is what also could be

otherwise. And if there is the possibility of a something to be different, this

possibility exists because that something has no necessary reason (causa) in thesense of the classical ontology, that is it is not determinate. On the other hand, the

relation between contingent and impossible (or not-possible) indicates a contradic-

tory, formal-logical contrast. A statement is possible (note, that one does not speak,

here, about the possibility of being false of that statement) if it holds true at least in

one of the possible worlds, and necessary, if its true in all possible worlds.

Trivially, therefore, all necessary facts also are possible. A statement, however, is

defined as contingent, if it is true at least in one possible world, but also false at least

in one possible world; such a statement is possible, but not necessary. Thus,

contingency is an unambiguous term neither in a systematic nor a historical sense

[50]. The adjective contingent indicates only that something is possible; it does not

indicate what is excluded as not-necessary or impossible. This unity is paradoxical

insofar as it includes the latently (co-)presented counterpart which is excluded quaconcept. The paradox, in turn, is produced by an observer who, therefore, is a part of

the unity which then has to be treated as the operation of an observer. Luhmanns

notion of observation, implying this fact, is the correlate of the contingency problem

[3].

Observing in itself, Luhmann writes, is the indicating distinguishing, and is,

therefore, more elementary than concepts such as decision or action. Observation

is, in fact, the ultimate concept [49, p. 126]. It is no surprise, then, that in treating

the problem of decision in his Organisation und Entscheidung, Luhmann againarrives at the fundamental paradox of observation: something becomes unobserv-

able, if something is observed [49, p. 127]. It must surprise, however, that,

precisely at this point, Luhmann states that a solution would not be in sight and

therefore one could only attempt to name things [49, p. 129]. Thus, decision is to

be considered as theoretically fundamental albeit conceptually not observable.

But what remains possible is the unfolding of the paradox, and that means that

the paradox is removed by a distinction which uses identities that can be

communicated in a relatively convincing way, because a decision is a

communicative event and not something happening in the mind of a person[ibid].

The importance of these events for law is obvious: the legal system reproduces

itself by legal events and only by legal events. Only legal events (e.g. legal

decisions) warrant the continuity of the law. A simple fact never bestows the

quality of being legal or illegal upon acts or conditions [38, p. 113].

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4.1 Decision

What makes a decision a decision, is alternative: Alternatives are particular

kinds of distinction [49, p. 133]. But decision is not choice, nor is it one of the

selectable alternatives. By alternative is meant a comparison of possibilities of

decision, and precisely under the condition that only one possibility can be

realised. The selection of one brings about the renunciation of the other [49, p.

125]. Quite indifferent to the past history of decision, Luhmann now presents

decision as a perfect break and sacrifices again contexts, contents, and argumen-

tation. It is true that the history of a trial proceeding is centred on the verdict as the

end of an old story and the beginning of a new story [49, p. 171]. But, decision is,

as we have seen, more than the unity of a difference. Ultimately, as Luhmann

observes, unity is to be conceived of as the crossing of the boundary, as oscillation

[49, p. 128]. And this going back and forth implies the presence of time, a

proceeding that consumes time and, thereby, introduces uncertainty and history into

the unity. Thus, time appears to be the excluded third in Luhmanns analysis of

decision. Not the code, but the temporalisation of its application allows law to

appear so binding Uncertainty owns to the difference between law and not-law

without having to do with it substantially [81, p. 184].

The problem remains: What does decision mean? A choice? That is to say

action? [49, p. 123]. In an attempt to conceptualise decision as a psychological

fact, Luhmann argues, theories of decision often distinguish between judgments and

choices as components of the decision-making process, but then it seems as if this

distinction would eliminate decision itself. Because decision is not a psychological

fact. What is more, those who try to classify decisions as stereotyped, routine etc.

ignore the fact that only a few decisions are linguistically marked as decisions.

Thus, as Luhmann had rigorously defined in his Social Systems:

One can speak of a decision: if and insofar as the slant of meaning an actionhas is in reaction to an expectation directed to that action. An action is, self-evidently, always oriented by expectations. This generates no pressure to

make a decision. Situations in which a decision is made emerge only, if the

action is expected, when the expectation is directed back to the action or its

omission. The expectation creates the alternative of conformity or deviation,

and then one must decide [44, p. 294].

Decisions are path dependent and ascribed, they have a social address.

Decisions are communicative events.

Insofar as it is a decision, action is always a decision for someone often for

the actor, but sometimes only for others Thus decision making actualises the

self-reference that occurs in expectation. Action refers to itself in that being

expected is part of its meaning. Obviously, consciousness is required for this,

but consciousness is only a presupposition, not a characteristic of decision-

making. Decision making is not a state of consciousness, but a structure of

meaning. We must leave it to psychological investigations to determine the

adequacy of the consciousness required, whose consciousness it is, and how

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much the conscious contents of different psychic systems agree concerning a

decision[44, p. 295/296].

Who in the shoe shop is going to choose between high and low hiking boots will

make a decision without a speech act. Of course, one can say that the decision to

take the higher shoes presupposes the judgment that these would be more apt and

preferable. In this sense, judgments are omnipresent. But the crucial point is that

such judgments are judgments only in a metaphorical sense, because they have not

the form of judgment.

4.2 Decision and Choice

To clear the relation between decision and choice, let us elaborate our example.

Now equipped with good boots, you can go on a hike. But, given that there are two

paths which both will lead to your destination, and you do not know which one to

take because you are undecided about preferring the nicer, but longer one or the

shorter, but less pleasant, then you have to choose. Both options are possible. There

are, for both, good and bad reasons, and you can roughly assess them. But a decision

based on a preference will emerge only if you cannot set off reasons and counter-

reasons or perfectly evaluate your options. Otherwise, the choice would not require

a decision. In the case of decision, you will have to detect only afterwards that

yours was a bad choice because the road you chose was much longer and less

pleasant than you expected.

The fact that decision depends upon a structure of expectation conveys the

essential quality of decision: one cannot compare, one cannot know what one is

choosing.

With the help of a structurally guaranteed, relatively stable, orientation to

expectations, the decision can bridge the before/after difference. If one can say

so, decision is different before a decision and after it. Before a decision, the

alternatives formed by expectation lie open. It is not yet determined which will

be chosen. Every option could also be otherwise. One can seek grounds for

one or the other choice, or can, under certain circumstances, put off deciding

[44, p. 296].

One speaks of decision, if one does not know exactly in favour of what one is

deciding. The decision absorbs uncertainty:

Thus before the decision there is a difference between alternatives; after the

decision there is, in addition, a relation to this relation, namely, the relation of

the chosen alternative to the difference between possible choices. Two forms

of contingency, open contingency and the decisions having-been-also-

otherwise-possible, are unified. The decision transfers contingency from one

into the other form, and it can do so because contingency is constituted along

with the expectations that structure the situation. Similarly, the semantics of

decision making are necessarily ambivalent. The standard definition of

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decision making as choice indicates only one aspect of this overall behaviour

[44, p. 296].

The just decision can never be deduced from a comparison or by an assessment

of its consequences.

4.3 Decisions that are Judgments

When deciding, one is occupied with the consequences produced by the decision.

This is not the case of who is making a decision, i.e. passing a judgment. So far, we

were speaking only about real world decisions. Decisions that are judgments are of

a different order. Their characteristic is that they are made under the fiction of being

disinterested in the consequences of a decision. The decision of a court terminates

the relative trial proceeding. These decisions have the same alternative structure, but

their logic, or, more precisely, their grammar is different from that of real world

decisions. Following Bobbitt, we might say that whether a lion with stripes is a

tiger or simply another lion, is a matter of judgment, and whether or not nuclear

weapons can be used by the government, too. But, within the legal system, the

decision of the question, gains a legal purpose, and a legal grammar. Both,

judgment and decision have the same logic [i.e. structure, CM], but not the same

grammar [6, p. 178]. A theory such as systems theory, aiming at grasping the very

nature of decision, cannot see this difference. In his Law as a Social SystemLuhmann puts the question again: But what is it, really, that courts have to do:

make decisions [48, p. 281]. And he answers, surprisingly undecided, that

certainly, here, he could not give an elaborate theory of decision-making (of the

type he presented in [49]), but it would be important to gain at least a basic

understanding of the fact that the system becomes an enigma for itself at this point

[44, p. 282]. This point is clearly a blind spot [71, p. 156; 158, p. 26]. Elsewhere,

Luhmann will be explicit on this: The decision hides what is decisive [43, p. 288].

Here, however, he recalls the description given in Social Systems:

a decision is always a matter of an alternative, which consists of two and

frequently more paths that can be chosen. They may contain, in turn, further

states and events, but also further decisions which are enabled by the decision,

that is, which could not be realised without the decision, but which are

foreseeable only to a limited degree, and which are, as far as further decisions

are concerned, in principle unforeseeable. The decision itself, however, is not

a component of the given alternative [48, p. 282].

However, this future-oriented description holds only for decisions already made

by a court, but not for those still to be made. A decision that is made as a verdict

defines thereby certain consequences, for example by fixing the penalty. This of

course does not determine all the consequences of a decision. It remains open

whether the convicted person accepts the sentence or appeals, whether she serves

the whole sentence, whether the sentence is the point of departure of a criminal

career etc. But all such possibilities do not concern who is, as a judge, making a

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decision. It is the function of the trial proceeding to fix consequences. What

otherwise may happen is not part of the proceeding.

4.4 The Paradox of Deciding

According to Luhmann, the paradox of deciding becomes apparent itself in the

particular temporal structure of decision.

The decision assumes the past as immutable and the future as changeable and

it, therefore, turns around the relationship of determination. It cannot bedetermined by the past but attempts to treat the future differently; this,

however, has no determining effect because there will be more decisions lined

up in the future. [48, p. 283].

Is this relation between past and future also true for the passing of judgment?

Judgment aims at defining something in the future, but it wants to be considered as

dependent on the past. It seems not to be a coincidence that Luhmann adds a remark

that is meant to qualify this difference: one can easily understandeven given all

the problems which ensuethat courts are careful about the consequences of their

decisions and try to legitimate decisions by an evaluation of their consequences

[ibid]. Even if an observer may recognise that the assessment of consequences plays

a role in judicial decision making, this is not what the courts pretend to do when

deciding a case: in respect to this case consequences are not estimated, butestablished. The de facto production of decisions is not the same as their de iure

legitimation. The observer of the legal system may well consider an illusion the

idea that a decision should and could be determined by the past, at least in the legal

system with its capacity to capture the past in its proceedings [ibid]. But, the law as

institution is founded on this illusion. Thus, it is not the acknowledgment that the

past cannot determine a decision which is unacceptable for lawyers [ibid]. This is

implied by the very concept of decision. Moreover, what seems to be unacceptable

is the idea that the reconstruction of the past during the trial proceeding would be

co-determined by evaluations of the consequences of decisions. These evaluations

could be included in a decision only insofar as the decision cannot be defined by the

past (including, of course, laws which were passed, acts which were committed)

[ibid]. Luhmann completes his analysis of judicial decision with a curious

consideration which re-formulates once again the paradox of decision:

Hence a decision is a paradox, which cannot make itself its own subject and

which, at best, can only mystify itself. Authority, decorum, limitation of

access to the mystery of law, texts to which one can refer, the pomp of entries

and exits of judgesall that is a substitution at the moment at which one must

prevent the paradox of decision-making from appearing as a paradox, so as not

to disclose that the assumption that one could decide legally about what islegal and what is illegal, is a paradox as well, and that the unity of the systemcan be observed only as a paradox [48, p. 283/284].

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To Luhmanns eyes appears to be a mystification whatever could collocate the

decision within the sphere of the symbolical. In The paradox of deciding one reads:The mystery of decision and the mystery of hierarchy support one another. Both

unfold an indescribable (or should one say: divine?) moment which makes them

become what they are. Or appear to be? [43, p. 288]. The mystification makes

visible that the decision has been transferred to the instance that has to make it, and

this is the reason for its categorical difference from other decisions. Even if the

observer sees that judicial decision is nothing but the mystification of a decision

already established time ago, and the ostentatious covering of the procedure of

deciding serves only to deviate attention from a series of pre-decisions, this

difference, however, must be made in order to judge, in order to say the law. There

is, independently of the fact of the factual production of a decision, the fact of the

transfer. This is the consequence of Luhmanns own re-description of the paradox: if

deciding paradoxically presupposes that one decides lawfully on law and not-law,

then this is true only for decisions within the legal system. It is not true for decisionsmade in the real life of individuals or organisations: not being made in the name

of, they are not even mystified. Paradoxes may be obstacles for the observation of

observers, but they do not prevent individuals, organisations or social systems

operations. Whoever it is that cannot indicate what it is he cannot decide, continues

nonetheless to live his life. The paradox of deciding lawfully on law and not-law isresolved by transfer [59]. Here, transfer means that it has been posited as true thatdecisions are made lawfully. And this position, too, is based on decision.

5 Conclusion: Everything That Can Be Said Can Be Said in Passing8

It should go without saying that Luhmanns constructivist programme could also be

turned on itself. All observation depends on distinctions. The blind spot of cognition

is constituted precisely by the distinctions used in producing it. (Self-) observation

does not mean (self-) control. If this is true, one has to give up all attempts to

persuade the observed observers or to convert them to ones own distinctions and

observations. Theory might go on hoping to have consequences, but it will never be

able to calculate its effects on communication and, therefore, on other systems.

Thus, a kind of thinking is needed that is able to recognise and accept its own

blindness, rather than a theory that will strive to eliminate it (in vain).

Astonishingly, Luhmann seems to disregard this consequence of his argument.

Moreover, he refutes that level of reflexivity in favour of systems theorys claim to

self preservation. This implies a theoretical reductionism, visible, for example, in

the attempt to elevate Spencer Browns calculus to the basis of all other system-

theoretical concepts and in the insistence on paradox as the alpha and omega [46, p.

247], both of which are seeming to reach fundamentalist levels. Foundational claims

do not only, theoretically, orient Luhmanns critique of (otherwise very diverse)

8 or else: everything that can be said must not be said in the end everything that still can be said is

eventually only a variation of the known, everything than can be said has eventually already been said

(please?): this is the Austrian writers Elfriede Gerstls answer to the question if and to what ends artistry

would be needed: [22, p. 61].

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competing reality constructions, but lead him to derive, one might say: arch-

philosophically, ethical positions.

Luhmanns point of departure is, as we have seen, the ontological metaphysics

which conceives of the world as a sphere of necessities. Luhmann, objecting to this

view the suggestion that the world is contingency itself, accepts relativism: the

problem is not the facticity of the mere possible, but, inversely, the facticity of

necessities. In other words, the world does not provide order, but only the problem

of order. More precisely: how is social order possible, if it is differentiated modern

society itself that produces all the paradoxes which are discussed under the title

contingency? Decision is Luhmanns answer to the question of how systems

select what they select. Second order observation shows as a (contingent) selection

what the first observation must take for granted, and shows, at the same time, the

necessity of the first observers blind spot. To be sure this does not imply any

superiority of second order observations. They cannot see better, only differ-

ently. No observer can any longer know where he stays, but he can well know

how he is moving. What remains to him is only the actuality of his individuality,

the way he responds to the instruction draw a distinction [46, p. 252]. But,

relativity means by no way arbitrariness, it does not lead to an anything goes

but to processes of self-binding, de-flexibilisation and the establishment of

traditions [66, p. 26]. Thus, the operations of selectively blind observing systems

can, in Luhmanns theory, take the place where earlier epistemologies had seen the

self-conscious subject as the agent of ultimate foundation. Systems theory is

Luhmanns option to replace the philosophy of the subject (and, thereby, the

metaphysics of the law) indeed [74]. The paradigm change in systems theory,

Luhmann writes, has to be well understood:

[T]he distinction between system and environment offers the possibility of

conceiving human beings as parts of the societal environment in a way that is

both more complex and less restricting than if they had to be interpreted as

parts of society, because in comparison with the system, the environment is

the domain of distinction that shows greater complexity and less existing

order. The human being is thus conceded greater freedom in relation to his

environment, especially freedom for irrational and immoral behaviour [44, p.

212/213].

In succeeding classical German philosophy from Kant to Husserl, Luhmann

proves to be, as Habermas once observed, the true philosopher [27, p. 393], firmly

rooted in occidental philosophical thinking. In my view, Luhmanns attitude is

arch-philosophical. Not just, because he evidently presupposes the subject as a

product of western European culture, formed by Christian faith as well as by

metaphysics and enlightenment. Not just, because he, like all inventors of grand

narratives, tries to establish his theory as the all-knowing theory machine [65, p.

55]. Not just, because he demands the sole and exclusive representation of

theoretical understanding of the functioning of modern society and the role of man

(an understanding so full, we cannot fail to notice, that it might even concede

greater freedom). Arch-philosophical, to my eyes, are Luhmanns attacks against

theoretical as well as artistic postmodern temptations: these are modernist attacks

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which, launched in the name of a theoretical model called system and a cultural

ideal named responsibility [24, 69], bear much resemblance to Platos campaign

against poetics [57].

There is no doubt that systems theory brought about a paradigm shift in the

epistemological foundations of social and legal theory. However, as modem

historians and philosophers from Alexandre Koyre to Thomas Kuhn have argued,

what mutates radically from one epoch to another is not theoretical principle alone,

but scientific imagination, vision, and desire as well. The change from the pre-

modern to the modern denotes a break not only in science and technology, but also

in art and music. A paradigm change, in other words, is marked by an aesthetic no

less than an epistemological shift [51, p. 173]. As a consequence, one would expect

from Luhmanns reformulation of social and legal theory not only the sophisticated

recognition of the structural indeterminacy of law-saying and of the legal system,

but the acknowledgment of a new aesthetics that would not merely accommodate

but rather embrace and develop new ways of seeing. Instead, Luhmann proves to be

committed to a specific modernist aesthetics of order that remains governed by the

desire for order and coherence. This aesthetics sees the beauty of the system in its

integrity, in the completeness and perfection implied in its concept [25, 51].

Regardless of all discourses about selective blindness, parasitic perturbations, and

paradoxes which all produce unpredictable results, it celebrates as beautiful the

autonomy and closure of the systemfreedom, in fact, translates in systems theory

as operative closurerather than complexity, surprise, or the sheer event that

does not disclose what it is and where it will end up [62].

Modern art, striving to break away from the logic9 of space and time [68], aimed

also at constituting an autonomous aesthetic sphere. Art, therefore, was offered in

exhibition spaces which should have been as neutral, unbiased, and objective as

possible. Such places were then deemed to be the same everywhere in the world [1,

52]. Contemporary (postmodern) art goes beyond the idea of arts autonomy as

universal uniformity, and it does so in order not to merely play with the other, but

because it, just like Luhmann [46, p. 256], distrusts this kind of modernity. The

eternal repetition, the interchangeability, and the claim to universal validity of its

models : all that seems to be suspicious. Like Luhmann, contemporary art is not

engaged in the faith of rationalism and standardisation. It is, on the contrary,

concerned with constructing a world view where the world is considered a

becoming, a process not a state, where ontological certainties do not exist and

multiple faces of truth are recognised and accepted. Certainly, this construction

requires the conversion to a new form of cognition that, as elaborated by systems

theory, starts from the ulterior motive of the necessity of functional thinking, i.e.

the assumption that human behaviour has to be explained and understood on the

9 More precisely: the aesthetics of a clockwork regulated time and a geometrically defined space. See, for

the clock as a model, Hobbes famous Preface to his Philosophicall rudiments concerning governmentand society (Concerning my Method, I thought it not sufficient to use a plain and evident style for asin a watch), or, Leibniz observation in the New Essays on Human Understanding, II.xx, 1704 ( thebalance of a clock and we can take that for a model); regarding the (Newtonian) space, one might

simply note that political society is still envisioned according to the model of the Westphalian mapping

of political space, i.e. the Treaty of 1648 as basis of the modern international state system [19].

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basis of its rationality potential, and, precisely, even when it does not deliberately

seize these possibilities for its orientation [32, p. 57]. But, if the motive of the

ulterior motive holds true something more seems to be required, a stylish thing,

and precisely irony as the form of presentation where not specific semantics or

contents, but the form of presentation itself makes sense. Irony follows (the rule of)

what has been said casting a shadow on it. Irony is the form of an indirect rationality

which rather than aiming at truth or falsehood makes reality appear as questionable,

thereby provoking the observer into changing his point of view. Irony presupposes

an observer who knows that the same something he observes the way it is could also

be some other way, and that it must be related to itself. Thinking in terms of what

Robert Musil once called the sense of possibility opens up possible worlds and

possible ways of life which can no longer be assessed from the viewpoint of the

binary codes of true/ false or good/ bad. What is required is a form of observation

and differentiation that does not take the sense of reality more seriously than the

sense of possibility whose realm is that of possible reality. Art, then, ordains the

world by making emerge a new kind of reality in relation to which that which had

been presupposed as real, existing reality, proves to be a mere possibility.

This is not the way Luhmann goes or is prepared to complete. Ironically so,

because Luhmanns otherwise distant attitude and gender touches of irony [26, p.

578] have often been noticed. His routinely restrained and ironical style

corresponds indeed very well with the theorys foremost orientation toward

creating distance, demarcating boundaries, and making distinctions [71, p. 165].

But, when it comes to artistic or theoretical alternatives to systems theory, Luhmann

changes register and his voice resounds from a rather dramatic meaning of

thoughtlessness, ethical failure, and scientific irrelevance. In general, Luhmanns

judgment is that alternative approaches are not serious, they are unable to

understand the functioning of modern society as well as the role of man, they deliver

no results and have no consequences. This is what he holds against not just

deconstruction, but the whole lineage of thinking that runs from Nietzsche through

Heidegger to Derrida. In their work, Luhmann writes, paradox is not avoided or

evaded, but, rather, openly exhibited and devotedly celebrated At present, it is

not easy to form a judgment of this [It] has so far not produced significant

results [40, p. 134]. But why would systems theory have to pronounce a judgment

on its fellow post-metaphysical theories that start from differences [47, p. 269f]?

Apparently, non-system-theoretical treatment of paradoxes, the monsters of truth

[46, p. 257], gives birth to other monsters. A world founded on paradoxes would be

monstrous, because one never can produce better worlds and, therefore, never

experience and act in a justified way [49, p. 127]. True, paradoxes are an

irresolvable problem because of form. But this does not imply that one has to lose

heart and surrender to an anything goes. The question is only under what

conditions which unfoldings of paradox do function [49, p. 131]. The fundamental

issue seems to be the lack of a sense of the fundamental which Luhmann, who

evidently is following Max Weber here, recognizes in the duty that science owes to

society or to the creation of a better world. Systems theory is as science, this thepoint, an ethics. Its mission is, as we have seen, to watch over societys evolution

(see supra, n. 1).

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At the level of social theory, that means that it is absolutely imperative topreserve the autopoiesis of social systems [65, p. 92]. Luhmann anticipates as

traumatic the possibility of societal de-differentiation as indicated by the diffusion

of wild thinking outside of functional systems and the invasion of the classical

systemseconomy, law and politicsby parasitical secondary codes such as

morals. This, in fact, characterises the postmodern situation in which the fragile web

of differentiated autonomy and pluralized rationalism constitutive of societys

modernity is fading out. Translating, as we said, the old question of What shall I

do into How to go on, individually and collectively?, for Luhmann the central

problem consists in the continuation of the modern social condition in the sense of a

world for all where observed observers produce more flexibility, and where

increasing complexity can be experienced as enrichment. The actual condition of

functional differentiation of society is, Luhmann judges, a good condition inasmuch

as it is the condition of plural rationalities, rational democracy and democratic

rationality. The fundamental issue, here, is to keep open as much possibilities of

future alternatives