ABSTRACT

Autopoiesis likes to think of closed systems as open. A system is closed in its operations, but open cognitively to other systems. This openness is a necessary precondition for the system’s evolution, without which the system would not be able to learn. One has the impression, however, that it is also a concession in view of the explanatory problems of constructivism, an impression strengthened when reading either Luhmann or Teubner. Luhmann, for example, started by reiterating Morin’s paradoxical adage ‘the open rests on the closed’,1 and proceeded into accepting that there exists what he calls a ‘legal periphery’, which is the contact zone between legal and other communications – an obvious concession to what is generally seen as the implausibility of structural coupling.2 Likewise the early Teubner espoused an indisputably staunch form of constructivism, which was progressively moderated with the acceptance of a greater, more ‘realistic’ emphasis on openness.3 Openness in Teubner acquired historicity: through a sophisticated analytical mechanism, Teubner argues that autopoietic systems are not ‘born’ but progressively formed.4 The concept of hypercycles describes the process whereby elements of the system – in Teubner’s case, the legal system – become independent through self-description and selfconstitution, or else, self-observation and self-production. These elements begin to free themselves from social values and acquire a life of their own, a legal life. But the system is not autopoietic until these elements generate further elements through the utilisation of existing elements and processes. Thus, the self-referential cycles are linked together in a selfreproductive hypercycle. Only then can we talk about closure in the autopoietic sense.