ABSTRACT
It is clear from the title that this book is about Niklas Luhmann. What is less clear is its precise focus: in their listing, ‘law, justice, society’ seem to be vying for some sort of priority or at least an arrangement of focus versus field, object versus horizon. And while the reader would reasonably expect the law to be the main focus of the book, and possibly its connection to justice to unfold against the background of society, this is not so. There is no one single focus in this book. In fact, it would seem that the book suffers from a foundational blurriness, an absence of focus in general. No point can be put forth to which adequately sustained attention has been given in order to be called ‘the focal point’. The three candidates, law, justice, society, appear throughout the book in a kind of continuous penumbra, and even when one of them steps into a momentary limelight, the others never leave the stage, but carry on pulling the author’s arm for attention. And this author usually obliges. This apparent confusion can be justified both in view of Luhmann’s gen-
eral approach, and in terms of personal choice. At risk of oversimplifying, Luhmann makes a point of constantly shifting perspectives, not only in terms of his chosen object of description but significantly in terms of his own position. What has been referred to as Luhmann’s ‘quantum’ quality,1
namely his ability – one could even say, his taking liberty – to shift his theoretical stance without, however, compromising the impressive consistency of his writings, can probably justify the way this book approaches Luhmann’s writings: not unlike Luhmann’s shifts and frames of reference, themselves fleetingly recognisable and attributable to some or other theorist, this text employs a broad arsenal of perspectives without necessarily tying itself down to any one in particular. And this is where the personal justification comes in: I do not see myself as a ‘Luhmannian’, whatever aftertaste the word may be leaving. Rather, I see myself merely as a reader of Luhmann’s texts, and as
such I am entitled to shut the book and go for a walk, or indeed open another book, usually written by someone other than Luhmann. Thus, I lose focus, I expressly buzz over different textual flowers and I end up with a consistent presence of an irreducible paradox in my mind: I want to deal both with this and that and I refuse to let any of these go. Hence the commas between society, law, justice; hence what follows in the rest of the book. Of course, this is not a smooth process. This text is largely the product of a
conflict: the one between Luhmann’s theory and the adjective ‘critical’ in the title of the series of which this book is part. This conflict is explicitly referred to and probed right at the beginning of the first chapter. While I would not like to spoil the plot or indeed rescue the reader from torture by revealing my position so early on in the text, it is perhaps relevant, again at risk of oversimplification, to mention that while Luhmann has written a great deal about law, he has not done the same about the concept of justice. This means that, on the rough map of critical versus ‘other’ jurisprudence, where critical would focus on justice whereas ‘other’ would focus on the mechanics of the law, Luhmann rather unproblematically falls under the ‘other’ category.2
Needless to say, this is exactly the kind of thinking that my obsessive loss of focus prohibits me from indulging. I see justice everywhere, just as I see law everywhere, and this ‘everywhere’ is continuously ruptured by a concept of society that ebbs and flows in such a provocative manner that I am disallowed from ignoring it. To put it differently, just as a work of art becomes a work of art if placed in the right space, in the same way I am happy to start from the presupposition, tongue firmly in cheek, that what makes Luhmann critical is the appearance of this book under the series of Nomikoi Critical Legal Thinkers. Whether the series editors have made a mistake in suggesting it, it remains to be seen. So, out of this conflict, a frequently abrupt oscillation between justice, law,
society arises. The oscillation takes various forms. One of them is the previously described blurriness. Another is the contracting and expanding of each of these concepts to the effect that the other two become engulfed by it. Thus, in Chapter 2 law is effectively described as justice while in Chapter 3 society retreats only to emerge as tautologous with the legal system. Or, another form of oscillation is not talking about, say, law when talking about society, yet implicitly (after reading the book, one could probably say ‘absently’) referring to it until an opportune crack comes up through which the law resurfaces. The point I am trying to make here is that, in its palin-
2 This is also supported by the fact that, as Rasch and Wolfe, 2000, observe, Luhmann has developed a ‘systemic’ theory, namely a potentially systematising and controlling super-theory, which inevitably raises at least a suspicious eyebrow from the left. This is, however, only impressionistic. Any systematicity quickly dissolves in the face of fully acknowledged and even augmented societal uncertainty and – if not the main part of the
