ABSTRACT
In this chapter, I would like to ‘locate’ the law in the broader context of society. Society is Luhmann’s playing field, in which all systems can be observed. As such, it constitutes an obvious way of expanding on the previous discussion on the way the law understands its external reference and indeed its self-description, which necessarily have to do with the broader societal environment. This will, however, prove not to be as straightforward as it may seem at the beginning. Luhmann’s understanding of society is both self-evident (considering systemic structures) and counter-intuitive, and entails a reiteration of systemic operations albeit from a different perspective. One of its most challenging aspects is that Luhmannian society contains its exclusions. In order to contextualise this in the present discussion, I read Luhmann’s thesis on society critically. I attempt to locate society’s barbarians, namely the included exclusion of society, in a way that will constitute a societal absence, very much along the lines of the preceding discussion on absence. This opens up the possibility of a description of the way the various systemic environments (as opposed to a more orthodox understanding of Luhmann that focuses on systems) ‘converge’ and become cross-fertilised without relinquishing either their specificity or indeed their unobservability. To this effect, I employ two examples: a discussion on constitution, which is widely understood as a coupling of law and politics; and a discussion on human rights, which is particularly interesting in view of the ambivalent position that Luhmann has maintained on the issue. Before that, however, a closer look into the role society has for Luhmann
is needed. This will assist both an understanding of its prominence and its critical destabilising. For in the same vein that a self-description is a system’s necessary illusion (‘illusion’ in that it is never synthetic or operational; and ‘necessary’, because it replaces the search for identity without which the system could be perilously close to its unutterable paradox), society is Luhmann’s rather personal necessary illusion. Luhmann has professed time and discipline has traditionally
ignored or actively concealed its relationship with the concept of society by focusing instead on empirically verifiable social ‘structures’ such as agency, action and causality,1 Luhmann radically reintroduces society in sociology. Thus, society is described as a suprasystem that includes all social systems. In this way, Luhmann attempts to rephrase the haunting sociological paradox of how sociology is, on the one hand, just another discipline, and on the other, an all-describing, all-embracing epistemic position. Society becomes the subject of sociology, at the same time transcending the division subject/ object, and replacing it with the schema of observation. From being the subject-matter of sociology, society becomes an observer who can also be observed along with its operations, observations, boundaries and environment.2 Just as any observer, its expanse depends on the second-order observer and how the latter locates it in the broader schema of distinctions. At the same time, society has a slightly enlarged responsibility (at least vis-à-vis sociology and Luhmann himself): it bears the unity of the system within the system and arguably the unity of the theory within the theory. Luhmann professes that sociology needs a concept to express “the unity of the totality … of social relations, processes, actions, or communications”,3 thus confirming that society is both necessary and illusionary in the above sense.4
