Critical Autopoiesis and the Materiality of Law

Autopoietic theory is increasingly seen as a candidate for a radical theory of law, both in relation to its theoretical credentials and its relevance in terms of new and emerging forms of law. An aspect of the theory that has remained less developed, however, is its material side, and more concretely the theory’s accommodation of bodies, space, objects and their claim to legal agency. The present article reads Luhmann’s theory of autopoietic systems in a radical and material manner, linking it on the one hand to current post-structural theorisations of law and society, and on the other hand extending its ambit to accommodate the influx of material considerations that have been working their way through various other disciplines. The latter comprises both a materialisation of the theory itself and ways of conceptualising the legal system as material through and through. This I do by further developing what I have called Critical Autopoiesis, namely an acentric, topological, post-ecological and posthuman understanding of Luhmann’s theory, that draws on Deleuzian thought, feminist theory, geography, non-representational theory, and new material and object-oriented ontologies. These are combined with some well-rehearsed autopoietic concepts, such as distinction, environment and boundaries; Luhmann’s earlier work on materiality continuum; more recent work on bodies and space; as well as his work on form and medium in relation to art. The article concludes with five suggestions for an understanding of what critical autopoietic materiality might mean for law.     

Autopoietic Law and the 'Epistemic Trap': A Case Study of Adoption and Contact

This paper examines autopoietic theory with reference to functionally differentiated social sub-systems, particularly law, science, and politics. It sets out to 'test' the practical relevance of autopoietic theory in relation to ongoing debates about post-adoption contact and personal identity issues. Law has resisted social scientific pressure to regulate post-adoption contact in the context of a social policy approach, which emphasizes the relationship between identity development and genealogical continuity. I argue that law's response to this pressure relates to the particular nature of adoption as this is expressed through legislation and case law. Law's refusal to intervene in post-adoption contact reflects its self-referential operations and its attempts to avoid epistemic entrapment by a social scientific discourse. Applying autopoietic theory to law's practical operations in adoption clarifies its explanatory value, provides a conceptual framework for understanding the relationship between law, politics, and social science and indicates areas that require theoretical refinement.     

Exploring System Boundaries

Autopoiesis is normally considered to be the systems theory in law. In this paper complexity theory is presented as an alternative systems approach. In order to position complexity theory as a plausible alternative to autopoiesis I discuss the differing understanding of boundary within each theory, and use this as a vehicle to critique autopoiesis. My critique is situated within systems theory thinking but is external to both autopoiesis and complexity theory (although I must oscillate between the two objects of critique). Because both approaches possess an understanding of boundary it provides an effective tool to contrast their differences, while permitting each to be described in its own language. It is argued that complexity theory offers an approach to boundaries as contingent, emergent interfaces, which the autopoietic construction of boundary can learn from in several ways. More generally it is suggested that the complexity approach to boundaries offers lawyers engaging with systems theory a new critical perspective to assess legal constructions.     

Teaching to shift people’s thinking toward peace: the relevance of Colman McCarthy’s work for peacemaking criminology

Peacemaking criminology is often conceived as a theoretical perspective built upon linkages between religious, feminist, and critical traditions. Equally important in peacemaking criminology is its teaching tradition, which promotes educating people about the values of peace, integration, cooperation, and caring over the values of control, repression, power, and domination. Teaching from a peacemaking perspective has generally involved efforts to design crime‐related courses that feature core concepts, readings, and policies within peacemaking criminology writings. However, such peacemaking teaching and writings have not commonly provided a central focus upon what needs to be taught to shift people’s thinking. This article thereby illustrates the work of peace educator Colman McCarthy, whose teaching experiences in high schools and universities are predicated upon influencing teenagers and young adults to embrace the idea that nothing can matter more than the struggle for and embracing of peace. This article also explores the ways in which Colman McCarthy’s books, I’d Rather Teach Peace and All of One Peace: Essays on Nonviolence, offer a foundation to help people shift their thinking toward a culture of nonviolence and peace.     

Kant, Copyright and Communicative Freedom

The rapid recent expansion of copyright law worldwide has sparked efforts to defend the ‘public domain’ of non-propertized information, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors’ rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ – though only if balanced by an extensive public domain from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant. For Kant, progress towards a fully emancipated (i.e. a ‘mature’ or ‘enlightened’) culture can only be achieved through the critical intellectual activity that public communication demands: individual expressive freedom is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’. The main thesis defended in this article is that when Kant’s writings on publicity (critical public debate) are read in relation to his writings on the legal organization of publishing, a necessary connection emerges between authors’ rights – as distinct from copyrights – and what Jürgen Habermas and others have named the public sphere. I conclude that it is the public sphere, and not the public domain as such, that should serve as the key reference point in any evaluation of copyright law’s role in relation to the possibility of a free culture.     

The Critic’s Love of The Law: Intimate Observations on an Insular Jurisdiction

This article, which should not in any sense be taken to reflect the views of the Editorial Board of Law and Critique, argues that the political project of critical legal studies in England remains overwhelmingly in the future. Lacking academic identity, political purpose and ethical conviction, critical legal scholarship in England has been too insecure in its institutional place and too unconscious of its individual and collective desires to resist absorption into the institution. Critical legal studies – as distinct from feminist legal studies, gay and lesbian studies or critical race theory –has tended to teach and so reproduce the core curriculum in a passive and negative mode. Resistant, ostensibly for historical and political reasons, to self-criticism and indeed to self-reflection upon their institutional practices, critical scholars have ended up repeating the law that they came to critique and overcome. This revised version was published online in July 2006 with corrections to the Cover Date.     

R.S. Thomas: Ministering Otherness

This article is built around a deeply personal `response to text' –of a poem in response to a poem, where both deal with notions of identity. For myself, writing poetry is a cathartic (though infrequent) source of resolution; a space subject to different constraints from those present in the production of analytic scholarship. A consideration of the broader ideological matrix at work behind the poems suggests links between nationhood and language, class and religion, private and public identity, history and politics. Vast subjects, explored but briefly in the thoughts and notes produced for this article as `background' to the story of the poem cited at the end. For legal and political theory it is a reminder of the delicate interstices of influences traversed in any assertion concerning broad policy. As `scholar' I am constrained in the provision of any further assessment of my own process as `poet': what is provided attempts honesty. This revised version was published online in August 2006 with corrections to the Cover Date.     

War and International Order in Kant's Legal Thought“*

Abstract. Kant's writings on international law and especially his Toward Perpetual Peace have been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “just war.”¹     

Thomas Craig’s Aetiology of Law and Society: Literary Dependence and Independence in the Jus Feudale

While Craig's relationship to, and emergence from, the French legal humanist tradition has always been widely recognized, this paper constitutes a deeper analysis of the specific threads connecting Craig to the humanist literature of the sixteenth century. It examines the first chapter to the Jus feudale and, by studying Craig's aetiology of law and society, assesses the literary and cultural influences on his historiographical product. It demonstrates that Craig's understanding of the earliest human society and of law's evolution was highly dependent on continental humanist literature and, above all, on the writings of Jean Bodin. Yet it also shows that Craig was capable of independent thought and rigorous critical analysis of sources. The article examines Craig's relationship to the writings of his fellow Scot and humanist, George Buchanan, whose De jure regni apud Scotos constitutes a vital intertextual frame for many aspects of Craig's thought, particularly as it relates to sovereignty, monarchy and the limits of royal power. Moreover, it will be seen that the first chapter, though seemingly an antiquarian digression, actually reflects Craig's thoughts on many significant political issues that were current in Scotland at the time he was writing.     

Totemism of the Modern State: On Hans Kelsen’s Attempt to Unmask Legal and Political Fictions and Contain Political Theology

This paper argues that the writings of Hans Kelsen deserve more attention from those engaged in the debate on secularization and political theology. His lifelong struggle with various forms of legal‐political metaphysics is an identifiable thread in many of his writings. Kelsen’s concern with the theological‐political issues found in the theory of the state (Staatslehre) is far from being marginal. Kelsen claims that his theory aims at resolving the traditional dualism of law and state prevailing in the Staatslehre and contributes  to an “uncompromising destruction of one of the most effective ideologies of legitimacy.” Kelsen maintains that the contents of this “ideology of legitimacy” derive from both political metaphysics and the deep‐seated ancient ways of thinking on nature and society. In order to illustrate this thesis, I propose calling this phenomenon “totemism of the modern state.”     

No Five-Finger Exercise: Digital Law to Manage Legal Complexity

This article considers the following. Digital coding of information is far less extensive than the complexity and much less radical than the digital coding of selection among information which establishes the legal system. Niklas Luhmanns theory is the principal example of an appreciation for the latter. Luhmann presented the design for understanding law as autopoietic, a law legitimated and sustained by legal procedure.     

Learning Pain: Poetry in Emotion

This paper asks the question; is a poetic response to law and suffering legitimate? It reflects upon Robert Duncan's poem Persephone and imagines the (dis)connections between law, literature and poetry. It muses upon the “Trauma” of the poem and the “wound” considered in the context of both public and private law and considers the politics of sentimentality, dominant within the political agenda of the 21st century. The article uses the poem as a lens which reveals that the law fails to address the question of suffering as the wound of the poem is used by the poet as a pedagogical argument to teach us about loss.

     

Translation of the Language of the Common Law into Legal French: Myth or Reality

Translating (and so construinga specialized source text) means producing afunctional text in a linguaculture target textthat is needed for specific communicativepurposes by processing the information given ina previous text in a different linguaculturesource text. Consequently, the comparison oflegal texts and terms from English to Frenchinevitably involves a theory of equivalence –if ever possible. The aim of this article is toreview the various hindrances or pitfalls inlegal translation and also a possible theory ofhow to avoid misunderstandings between thesource and the target texts.     

Beyond the European void? Reflections on Peter Mair's legacy

Peter Mair was one of the world's leading scholars of party politics. Though he wrote at some length about the European Union, there has been no systematic exploration of the implications of his comparative work on political parties for European integration. His writings on the EU have generally been studied in isolation from his wider oeuvre, with the result that we have missed the important analytical and logical connections between Mair's work on parties and his writings on the EU. This article argues that Mair's path‐breaking middle‐range theoretical and empirical work on the decline of party democracy can form the basis of a radical reappraisal of the project of ‘ever closer union’. The article studies Mair's arguments against the backdrop of more recent empirical evidence and evaluates the normative implications of his work for the future of the European project.     

Madness and the Law: The Derrida/Foucault Debate Revisited

In this article the Derrida/Foucault debate is scrutinised with two closely related aims in mind: (1) reconsidering the way in which Foucault’s texts, and especially the more recently published lectures, should be read; and (2) establishing the relation between law and madness. The article firstly calls for a reading of Foucault which exceeds metaphysics with the security it offers, by taking account of Derrida’s reading of Foucault as well as of the heterogeneity of Foucault’s texts. The article reflects in detail on a text of Derrida on Foucault (‘Cogito and the History of Madness’) as well as a text of Foucault on Blanchot (‘Maurice Blanchot: The Thought from Outside’). The latter text shows that Foucault was at times acutely aware of the difficulty involved in exceeding metaphysics and that he realised the importance in this regard of a reflection on literature. These reflections tie in closely with Foucault’s History of Madness as well as with Derrida’s reflections on literature and on madness. Both Derrida and Foucault contend that law has much to learn from literature in understanding the relation between itself and madness. Literature more specifically points to law’s ‘origin’ in madness. The article contends that a failure to take seriously this origin, also in the reading of Foucault’s lectures, would amount to a denial by law of itself.     

The Politics of Jurisprudence Revisited: A Swedish Realist in Historical Context

This article argues that juristic theories must be understood in relation to the historical conditions in which they have emerged. This is not to reduce theories to their context but to gain essential insight into their aims, meaning, and scope with the aid of such “external” reference points. Here I use the ideas of the Swedish legal realist Vilhelm Lundstedt to illustrate these claims, choosing his juristic theory for this purpose specifically because it has been so widely seen (at least by non‐Scandinavian interpreters) as deeply puzzling and “extreme.” The article argues that his central ideas are readily intelligible in historical context. But such a contextual examination of juristic ideas also makes it possible to assess what in them can properly travel beyond immediate context: in other words, what insights about the nature of the jurist's task can legitimately be taken from them for more universal application. Lundstedt's work, despite having been largely ignored or excluded from international juristic debate, has something to offer here if seen through a contextualising lens that sets the possibilities for its broader application in sharp relief.     

Ethics of Emotions as Ethics of Human Rights: A Jurisprudence of Sympathy in Adorno, Horkheimer and Rorty

This article considers in a different light the relationship between legal theory and ethics by means of an interpretation of the thought of Adorno and Horkheimer, and of the writings of Richard Rorty, as two moments of a marginal stream of ethics of passions that runs beneath the history of rationalist Western philosophy. It departs from the critique of Modernity as a dialectic of barbarism and civilisation, and from a genealogy of Auschwitz that finds its antecedents in Kantian morality. It also characterises modern culture as one of apathy and bourgeois stoicism, and establishes a link between the cold modern ethos and the dynamics of Nazi hardness. The article turns then to a consideration of some of the responses to the comprehensive crisis of Modernity: the imperative ‘Auschwitz never again’, Adorno’s ‘general enlightenment’ and Horkheimer’s ethics of sympathy. Finally it reflects upon Rorty’s proposal of sentimental education as an effective strategy to foster a human rights culture in Postmodernity, with the aim of bridging the tradition of moral sentiments and contemporary struggles for human rights. I am very grateful to Costas Douzinas, Sonia Romero, Shaun Haselhurst, David-Alexander Smith, José Bellido and the two anonymous referees for their comments, and to Alexander García-Düttman for his suggestions. This text is dedicated to Paul Gready.     

The Tiruttoṇṭar Tiruvantāti of Nampi Āṇṭār Nampi

This paper presents an English translation from the original Tamil of the canonical Saivite hagiographical work, the Tiruttoṇṭar Tiruvantāti of Nampi Āṇṭār Nampi. The date of this work is disputed, but it was probably composed at some point between 870 and 1118 CE. This classical Tamil poem gives in summary form the lives of the sixty three Saivite saints of the sixth to ninth centuries known as the Nāyaṉmār, or Tiruttoṇṭar (“holy servants”, sc. of the Lord Siva). The paper also includes an Introduction, setting out the context of the poem and its place in the Saivite literary tradition from which the Saiva Siddhanta philosophy subsequently developed, and Notes which explain the mythological and other references which the poem contains.