ABSTRACT
Karl-Heinz Ladeur, ‘Recht und Gerechtigkeit bei Derrida und Luhmann: Eine Kritik auf systemtheoretischer Grundlage.’ Rechtstheorie 43(3) (2012): 271-323.
This article sets out an extensive analysis of the critique of the legal subject in deconstructionist theories of law, especially as proposed by Derrida. It claims that the critique of legal subjectivity in such theory misidentifies the factual decentration of the law in contemporary society, which is oriented around the cognitive processing of uncertainty in highly differentiated environments, and through which legal subjectivity is exposed to multiple processes of relativization. Against this background, the deconstructionist association of the legal subject with metaphysical patterns of individual sovereignty is no longer valid. As an alternative to deconstructionism, the article proposes an approach to law, based in systems theory, which also accepts the dissolution of overarching models of legal subjectivity; it argues in fact that systems theory necessarily fragments privileged epistemological standpoints into diverse polycontextural observation systems. At the same time, however, it claims that systems theory, in contingent post-metaphysical fashion, permits a mode of serial thinking, which, while distinct from classical concepts of order, is able to interpret the formation of relatively ordered structures in society. On this basis, the article concludes by offering an alternative systems-theoretical construction of subjectivity, centred, not on organized models of subjectivity, but on the observation of the ongoing occurrence of differentiation.
