Auctoritatis Interpositio How Systems Theory Deconstructs Decisionism

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Auctoritatis Interpositio: How Systems Theory Deconstructs Decisionism

Andreas Fischer-Lescano and Ralph Christensen Social & Legal Studies 2012 21: 93 DOI: 10.1177/0964663911423698 The online version of this article can be found at: http://sls.sagepub.com/content/21/1/93
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Auctoritatis Interpositio: How Systems Theory Deconstructs Decisionism
Social & Legal Studies 21(1) 93119 The Author(s) 2012 Reprints and permission: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0964663911423698 sls.sagepub.com
Andreas Fischer-Lescano and Ralph Christensen University of Bremen, Germany Translated by Michelle Everson
Abstract A deconstructivist interpretation of Luhmanns systems theory can provide a new basis for the understanding of legal decision-making. While legal scholars traditionally describe the process of judgement either as a stylized conclusion whose content educes from legal sources (judicial deduction) or in the tradition of Carl Schmitt as an act of will, whose normative content entails a creatio ex nihilo (judicial will), contemporary legal thought supports, for the most part, some form of compromise between the two theories. In a systems theoretical perspective, however, the opposing notions of will and deduction have to be traced back to a fundamental paradox of law, the paradox of legal decision-making. We argue that this paradox-oriented approach is not just another variation of decisionism of a Schmittian nature. Rather it goes well beyond decisionism in that it takes account of the societal context of the decisionmaking process and insists on the importance of the legal form and the autonomy of law as a social system. A deconstructivist interpretation further sets the stage for a new conception of the political dimension within law, by pointing out that legal decision-making in the light of undecidability is itself a political act. This conceptionalization calls for an identification of real-world social conflicts and their reformulation within the quaestio iuris.
Corresponding author: t Bremen, Zentrum fu ische Rechtspolitik (ZERP), Universita tsallee Andreas Fischer-Lescano, Universita r Europa GW 1, Bremen, 28359, Germany Email: fischer-lescano@zerp.uni-bremen.de
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Social & Legal Studies 21(1)
Keywords critical systems theory; critical theory; global law; world society Under conditions of modernity, the exercise of political power is increasingly being transferred from the legislature to instances of case-by-case decision-making by individual judges. Such a statement reanimates one aspect of the discussion on the distinction made between the Judge-King and the subsumptive automaton (Ogorek, 1986: 198ff.) a debate typically associated with Carl Schmitt. Public lawyers have continually asserted that this example of the transformed exercise of power is the epiphenomenon of a far deeper process of the erosion of the state, whereby Constitution, law and executive action are subject to a specific logic of attrition (Vesting, 1992: 32), since none can be clearly differentiated in the face of rapid technological/scientific advance (Schmitt, 1988: 270). In Schmitts pessimistic analysis: subsumptive legal science, together with methodological approaches founded within the natural science ideal of exactitude, as well as precision legislative techniques deriving from Kants demand for precise mathematical concepts (Kant, 1964: 340), form a major part of occidental rationalism, will culminate in a systematically conceived Jus Publicum Europaeum, and will finally founder with it (Schmitt, 1988: 269). In Gesetz und Urteil (Law and Judgement), published in 1912, Schmitt accordingly furnishes us with a very early account of disintegration within the classical method of legislative interpretation, likewise providing us with a contrasting model of emancipatory judicial norm identification (Vesting, 1992: 32); as well as an analysis which seems, at first glance at least, to coincide with descriptions developed within more contemporary legal sociology (Maus, 1976: 22). Niklas Luhmann, in particular, has made much recourse to the classical European legal scientific tradition and criticized its dogmatic approach, its assertion of value redundancy and its simplifications of democratic theory; an approach which has often provoked the forceful counter-critique that Luhmanns theoretical vision entails an apology for the emerging order, for the sake of maintaining its existence (Habermas, 1974: 170), or that his self-referential system of law, within which legal operations may only be evaluated with reference to legal operations, derives directly from Carl Schmitt (Bolsinger, 1998: 474; Maus, 1976: 22), and, above all, from the assertion found in Gesetz und Urteil that: Practice is justified with reference to itself. The justice identified in this manner is not an absolute, but is, instead, the justice of modern praxis (Schmitt, 1912: 86). At second glance, however, the comparison made between the Luhmann-inspired systems theoretical observation of legal operation under the conditions of systemic autopoeisis and the concept of law that derives from Carl Schmitts decisionism, indicates the existence of a far more fundamental problem, which, in turn, precludes the overly rash drawing of parallels (Wirtz, 1999: 175ff.). This problem relates to our understanding of legal decision-making; of the curious metamorphosis of non-law into law through an intermediate, a problem which was addressed very early on in the history of legal science by virtue of Ulpians deployment of the term auctoritatem interponere (Ulpian, 11.25) to characterize the Roman tutors transformation of the external into the internal material of law. Where this legal concept, educing from the
Fischer-Lescano et al.
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Roman law of guardianship, is viewed in the light of the work of Carl Schmitt and Hermann Heller, as well as that of the German Constitutional Court, who have sought to reformulate the term (Heller, 1992: 225; Schmitt, 1979: 41ff.; Vesting, 1992: 33) in order to address issues of inter-legality (Amstutz, 2005: 766ff.; de Sousa Santos, 2005: 404ff.), the discussion concerns no more nor less than the establishment of a suitable understanding of the mechanisms of legal signification in intermediate legal worlds: how does non-law become law; how might we describe the traversing concept of auctoritas; how are general norm and concrete decision brought together?
Judgement between Cognition and Decision

Typically, legal thinking characterizes judicial decision-making in one of two ways: on the one hand, the Judgement is viewed as a stylized conclusion whose content educes from legal sources;1 by contrast, other authors, amongst them Carl Schmitt, reserve an alternative function for the judicial elite, characterizing judgement as an act of will, whose normative content entails a creatio ex nihilo.2 Accordingly, for Schmitt, the auctoritatis interpositio
[i]s justified by the specificity of the normative and arises since a concrete judgement must be made of a concrete fact, even though the only available evaluation criterion is a general principle of law. Accordingly, every decisional instance entails a transformation . . . every transformation entails an auctoritatis interpositio . . . the very essence of judgement is the fact that there can never be absolute declaratory judgements. With regard to the content of the decisional norm, each constitutive and specific decisional moment entails something new and foreign. Normatively speaking, the Judgement is born out of nothingness. (Schmitt, 1979: 41)
Contemporary thought largely supports a compromise between judicial deduction and judicial will (Seelmann, 2001: 100, 102; Rafi, 2004: 41ff.). With regard to the texts produced by classical state theory, this compromise can most closely be identified with Hermann Hellers vision, which describes the auctoritatis interpositio as an answer to the observation that the supposed clarity, infallibility and comprehensive nature of legislation only exists within a very narrow perspective (Heller, 1992: 225). We know, writes Heller, in justification of his own compromise,
that every judicial or executive concretisation of statute entails an interpositio auctoritatis with a large number of consequences. Despite all apparent legislative binding, the individual and social relativism of personal judgements made by decisional organs introduces an element into legislation, which cannot be rationalized away by the legislator, and which precludes theoretical redefinition of the sociological hierarchy of the state. (Heller, 1992: 225)
Thus, Heller rejects the path of creatio ex nihilo chosen by his antipode, Schmitt, and adheres, instead, to legislative binding and parliamentary primacy, even though he also unveils the intentionalist moment within the notion of personal judgement. In its
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Soraya decision, the German Constitutional Court explicitly concurred with Heller and oriented itself in line with this approach:
the judicial duty can require, in particular, the identification and case-by-case realisation of values that are immanent to the constitutional legal order, but which are either absent from, or incompletely detailed, within written laws, through an act of evaluatory deduction that also encompasses elements of will. The Judge must, at the same time however, remain free from any arbitrary caprice. (BVerfGE, n.d.: 293; see also Rafi, 2004: 42)
With this, the Court is not merely pursuing neo-voluntarism in the tradition of Schmitt (Wietho lter, 1968: 56): granted, the Court concedes an intentionalist moment within the Judgement; but it likewise demands that the will of the decision-maker be free from capriciousness. Much as is the case with regard to the paradoxes that mark natural rights (Luhmann, 1995: 229ff.) and the concept of sovereignty (Fischer-Lescano, 2003), the immediate impression is that the legal world is not amenable to comprehensive logic, that the active and passive metaphors deployed contradict one another, or, in other words, that the compromise established between deduction and will is far from clear. This doubt is also confirmed by analysis of the full text. The Court commences with a textual analysis of legislation, but states that such analysis is mostly an insufficient basis for a decision. Luhmann, who rejects the notion that the wording of the text establishes a large pool from which small decisions derive, would not disagree:
Having a written form of the text does not necessarily guarantee that there are limits to the boldness of the interpretation. But it guarantees the unity of the social medium for the acquisition of new forms, namely good reasons for a certain interpretation of a text. (Luhmann, 2004: 324)
To this degree, textual analysis is thus an insufficient deductive tool. Nonetheless, acting as a focal point for proceedings, the text prompts argumentation and gives rise to conflict on the validity of differing interpretations. Neither conventional wisdom, nor the Constitutional Court in Soraya, however, are keen to tread this argumentative path: the effort remains one of marrying deduction with judicial will. Where the legal text fails to furnish a deductive focal point, other elements must, in general, act as substitutes, in order to facilitate deductive recognition of principles. However, this flight from argument into deductive recognition is still, ultimately, a chimera: those who represent conventional legal wisdom
do not want to acknowledge the difficulties they will get into if they have to respecify the principles that they abstract from the practice of the system. Here the reduction ad unum falters and results in a great number of conflicting good reasons and values, making it necessary to proceed . . . opportunistically. (Luhmann, 2004: 442)
The dubious nature of this process becomes clear when the Constitutional Court states that the whole of the constitutionally-constituted legal order forms an intentionalist whole. Surely, the enduring imperative to reconcile contradictory texts by means of
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systematic interpretation (Mu ller, 1979: 190ff.) proves the contrary in each and every concrete judgement? Equally, even were the legal order to form an intentionalist whole, doubt must surely remain as to the ability of judges to unveil this whole, and to derive from it criteria for judgement in concrete cases. The Constitutional Court, however, is only able to pretend that the entire legal order is available to be plundered for individual judgements since it declines to pose these questions. Nonetheless, such judicial formulations do implicitly admit of the fact that they are seeking to colonize the intentionalist whole with particularist visions. The problems inherent to facilitative colonization of the intentionalist whole become explicit when the Court refers to the evaluation criteria of practical reason and the justice objectives of the community in the plural. Within a pluralistic society, neither practical reason, nor social justice objectives prove to be sufficiently homogenous to facilitate a process whereby their varying elements can be represented as having only one meaning:
In the old European tradition, this norm was understood as social harmony and was related to society as a whole which, in turn, was understood as a legally ordered communal life. This did not lead to any concrete directives, if only because the premiss of a legally constituted society is unrealistic. But even if one tailors the norm of justice to a differentiated legal system, any respecification of the norm of justice remains undetermined. (Luhmann, 2004: 213)
However, where during the process of legal application justice is transformed, or, swaps its settled identity for a multitude of explanatory meanings, the apparently immutable and closed hierarchy of legal sources begins to tumble. Neither the idea of law, nor that of justice can settle conflict between conflicting principles. The objective deductive basis for judgement that is posited within the western legal tradition remains inexorably elusive. As a consequence, Luhmann treats the esteemed hierarchy of legal sources as a simple metaphor (Luhmann, 2004: 124). With this, he explodes the shortcomings in Carl Schmitt that are revealed by Ingeborg Maus critique that Schmitt oscillates between decisionism and substantiality, between ex nihilo legal judgements and his conception of concrete orders (konkretes Ordnungsdenken) (Maus, 1976: 19ff.), between Thomas Hobbes and Donoso Cortes (Meuter, 1994):
The concept of positivity suggests that it can be understood through the concept of decision. Positive law is supposed to be validated through decisions. This leads to the charge of decisionism in the sense of a possibility to decide in an arbitrary fashion, dependent only on the coercive force behind such decisions. Thus, this leads in fact to a dead-end; after all everybody knows that in law decisions are never simply made arbitrarily. Something went awry with this line of reasoning. (Luhmann, 2004: 76)
A fundamental problem is thus to be identified, both within the antagonism that exists between theories of legal sources and decisionism, as well as in efforts to reconcile the two (Christensen and Kudich, 2001: 118ff.).3 Conventional legal sources wisdom conceives of the judge as a handmaiden to the law. His judgements are mere recitations
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of legal truths already determined within the hierarchy of legal sources. In each concrete case, the judge assumes the mantle of quasi-subject of the legal source. In legal proceedings, the judge must master the content of the law in order to assert his understanding of the legislation against others, without, thereby, assuming any personal responsibility. Subjection to the legal source is the facade behind which the operation of intentionalist decision-making can be performed. Legal source wisdom thus furnishes law with a ready mechanism of self-projection towards other social systems, which, above all, facilitates defensive insulation against all critique. Decisionism, however, entails a second variant of legal self-reflection (Mu ller et al., 1997: 28). According to this theory, judgement criteria neither end in, nor serve the aim of legislative subsumption:
Every judgement even those judgements examining whether the factual criteria for a crime have been fulfilled or not contains an element of pure decision-making, which cannot be deduced from the content of the legal norm. I have called this decisionism. . . . The aim here is not one of furnishing overwhelmingly convincing arguments, but, rather, one of providing judgement by means of the authoritative setting aside of doubt. (Schmitt, 1996a: 46)
The Judge alone decides what law is. This is more a matter of internal projection of a particular form of legal consciousness towards professional colleagues, than a matter of external projection to a lay public. As a review of Soraya demonstrates, legal practice seeks to reconcile this binary alternative and places its faith in the non-arbitrary will of the decision-maker. Each altera pars is complemented within a classical dual relationship model: the legal sources model furnishes external social legitimation, meanwhile, decisionism provides judgements. Decisionism lurks behind the veil of the hierarchy of legal sources and provides us with all of those answers, which hierarchical instances cannot identify. The collapse of traditional western legal thinking into contradictions, as well as the forlorn effort to channel the unitas oppositorium into intentional, contemporaneously non-arbitrary, judgement, are clear indications that the law of modernity is inexorably permeated, both in relation to its aspirations and in practical reality, by antagonism between legislative-binding and decisional-freedom; or a contradiction which law can only ever address through praxis and from which it can never, qua the very nature of the conflict itself, find peace. This is a contradiction which has its very deep-seated roots in the fact that legal self-description is not governed, in a final instance, by whichever determining societal structure prevails; is not fashioned by an external actor, to whom law seemingly owes its own representative existence. The legal self-descriptions, as they appear within the theories of adjudication presented here, are, instead, more easily traced back to a complex network of powerknowledge relationships. They are not simply concerned with the question of how and by means of which operations the symbolic validity of law is transformed; instead, they themselves also play a direct part in the constituting of the legal medium. Urs Sta heli is, accordingly, correct when he concludes, with regard to law, that the existence of such continual processes of reconstitution requires us to react: on the one hand, with a genealogical analysis of symbolicallygenerated media; and, on the other, with an analysis of the permanent purification
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strategies, which must be applied in order to secure the functionality of the medium (Sta heli, 2000). This means, both for the theory and for the practice of legal decisionmaking, that the question of the identification of the border between the interior and exterior of the functional system of law the expression of law and non-law must be shifted to be answered in the light of conflicts about the articulation of the medium of law and debate on the determination of what can ever be considered to be a valid judgement (in abstract form, see Sta heli, 2000: 184ff.). The relevance of such a form of analysis of the symbolically-generated medium of law is then confirmed since it demonstrates that the unveiling of lacunae within legal self-referencing processes the incomplete nature of the deductive relationship established between legal decisions and legal norms inevitably ends in an everlasting process of dislocation within law. In elucidation: the process of abstraction upon which the law medium rests, has always carried with it the seed of impossibility, or the germ of legal self-representation of law within law. All processes and attempts designed to normalize the daily social appropriateness of legal operations are, thus, in the final analysis, a contemporaneous attempt to rid the system of its paradoxes. The problem is that there is neither a pre-existing legal system representing its societal exterior nor a pre-constituted societal signifier for what is law. Societal structure and legal semantic are thus linked with one another in a circular process; and it is to exactly this process that the concept of auctoritatis interpositio refers. However, even the interposition of this authority cannot furnish an end to the infinitely regressive question of whether law is lawful, or whether it is correct that legal judgements are intentionally made in all potentially capricious freedom; and not least so since the opposing alternatives adopted by Carl Schmitt and Hermann Heller readily demonstrate that strategies designed to deal with laws need for decision-making, themselves require a decision to be made.
The Judgement Paradox

The founding paradox within law, which makes itself felt as a paradox of application within legal decision-making, determines that assertions made in theories of adjudication, which characterize the legal duty within a decision-making situation as a simple one of making a legislatively-appropriate choice between the legal positions presented during proceedings, appear, at best, to be mere truisms. By elucidating contrast: the legal positions presented during proceedings might thus only be viewed as worthy of comparison when they are recognized as having equal value as law. It is exactly at this moment that each position must work to undermine the other: parties to the proceedings attempt, through argument, to emasculate their counterparts claim to embody the law. To what degree then is a decision still required? Clearly, a decision is initially required on the issue of whether the positions might even be viewed as legal options. This immediately constitutes the first element within a binary alternative: although both parties might lay claim to the law, only one will be able to assert their claim to exemplify law in fact. This, in turn, constitutes the second element of binary choice: simply stated, the emphasis placed on judgement as choice inevitably traps discussion in a circle whereby a choice is made possible between two conflicting positions because a choice can only be made in favour of one, that is, the choice is made
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possible since there are two options to choose between. This tautology is thus an indication of the existence of a fundamental problem: a difficulty that cannot easily be resolved within any effort to pre-furnish the judgement with a pre-existing point of reference; a problem that is no more or less than the fact that a decision must be made, in order to ensure that we are dealing with a judgement. A further paradox is thus lurking in the shadows, one which, according to Luhmann, can be expressed in the abstract as follows:
Sometimes the majority of available possibilities are denoted as alternatives; sometimes, only one restricted vision of alternatives out of the legion of non-simultaneously realisable possibilities is given this accolade; and it is often unclear which of these two mutuallyincompatible meanings is meant. This linguistic ambivalence appears to be an indicator for the fact that we are dealing with a paradox. (Luhmann, 2000a: 124)
For the law, the question is then the vital one of whether such situations can be solved by means other than an abrupt decision. With this, the decision-making paradox can initially be modelled in line with the notion of the observation paradox (Luhmann, 2000a: 123). Thus, in analogy to the observation paradox, decision-making paradoxes can never be resolved because every decision incorporates its opposite (Luhmann, 2000a: 131). Here, Luhmann makes renewed recourse to George Spencer Browns (1979) formulations, in order to emphasize that we can only speak of a decision, of an act of distinction, when something exists from which our decision must be distinguished. In other words, decisions do not arise following a more or less tortuous process of calculation, but, rather, only where a contingent choice is made between alternatives (Luhmann, 1999a, 2005). Luhmann concurs with Heinz von Foerster: Only those questions that are in principle undecidable, we can decide (von Foerster, 1992, cited in Luhmann, 1999a: 289). In elucidation, a decision cannot be understood in the simple terms that its pre-requisite is one that can and must be taken. A similar problem arises where the decision is represented as an alternative: and does so to the degree that the possibility of alternative choice extends far beyond binary choice, such that the decision not only encompasses the equally possible the matter impacted upon and incorporated within the decision but also refers to matter impacted upon through its exclusion from the decision. These are the alternatives that arise by virtue of the fact that the decision is an act of observation: The formula alternative is the formula that transforms the decision into an act of observation. The decision is an indication of which facet of alternative choice it prefers (Luhmann, 2000a: 131ff.) So far so good; but the problem nonetheless becomes a virulent one when we question how the decision relates to the form of alternative choice, within which it must opt for one of the possibilities (Luhmann, 2000a: 133). Thus, the only possible answer is one where:
the decision itself does not appear within the choice of form of alternative. The decision is not one of the options, which one might choose . . . But, in the absence of alternatives, no decision can exist; alternatives alone make the decision a decision. Thus, the decision seems to be the incorporated excluded third party; or, the act of observation, which employs the distinction, without being able to characterize itself within this operation. (Luhmann, 2000a: 134)
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In other words, just as an act of observation cannot observe itself, the decision cannot decide itself; and it is here that we must greet the appearance of the abyss, which some think could only be bridged in law with the aid of Carl Schmitts decisionism. The modelling of the judgement as an application of the law does not help us to leap across this abyss. Historically, this was the unsuccessful effort that was so exhaustively made by positivism, but which, however, was not only to fall at the hurdle of the incomplete nature of deductive relationships within the legal order as a whole, but was also unable to overcome, or even address, the following problem: although lawyers must make themselves invisible within the decision-making process, such that a decision can be delivered as an act of legal application; nonetheless, as both Luhmann and Jacques Derrida note, decision-makers constantly leave trace[s] de leffacement de la trace (Derrida, 1972: 76ff.), traces of the effacement of traces, by means of which the judgement can always be traced back to the lawyer (Luhmann, 2000b: 379; Luhmann, 2005: 87). In the classical tradition, judgements might never be the decisions of lawyers; an imposed stipulation, since judges would otherwise be substituting their decisions on the law for the judgement of law. In any case, as Luhmann notes in reference to Michel Serres (1987), the decision-maker is
the parasite of his own decision. He profits from the fact that the decision rests upon an alternative. The decision comes and goes, he remains. The decision can nonetheless still be the subject of further communication; questions can be posed to the decision-maker (thereby identifying him). (Luhmann, 2000a: 134)
With this, the possibility arises, not of dissolving the decision-making paradox, but of tackling it in the light of the rationality of law:
The decision must give information not only about itself, but also about alternatives, must give information about the paradox, which arises since the alternative exists (because the decision would otherwise not be a decision) but, at the same time, is no alternative at all (since the decision otherwise would not be a decision). (Luhmann, 2000a: 140)
In an act of re-entry, interrogation of the decision-maker through an act of observation that requires reply to the question of whether the decision on law correctly or incorrectly came into being, can give relevance to the communicative element within the decision, and can do so in both a priori and ex ante contexts. Retrospectively, the decision communicates an elucidation of its justificatory grounds; prospectively, it transmits a critique. Thus,
does not each decision communicate self-critique, since decisions, just as surely, indicate that they could have been very different? One might also argue that the decision must also entail communication of a piece of meta-information, which states that the decision-maker had the right, the authority or good reason to decide as he did. (Luhmann, 2000a: 141)
The decision, thus, only reaches a final point of crisis where it is taken out of time and colonised (to whichever end), rather than being received in a contingent context. Where a
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decision is divorced from its antecedents, and placed in a context where it is alienated from them, we are forced to concur with Thomas Wirtzs observation that argumentation is not at all relevant for decision-making and is a mere retroactive veil for the lack of decisional justification (Wirtz, 1999: 183) By contrast, however, Gunther Teubner correctly notes that exposing the irrational is not the end of the analysis in the spirit of Carl Schmitts (1996a) decisionism but, instead, constitutes its very beginning (Teubner, 2001a: 29ff.). From this it follows that the demand for justificatory quality must be intensified in the face of its paradoxes: Exposing the irrationality of a decision does not . . . mean suspending the claims concerning social justice but, on the contrary, it means taking the normative requirements of justice even more seriously (Teubner, 2001a: 30). It is exactly this effect that arises when the paradox is no longer obscured by means of reference to facticity, but is instead given fresh life force by virtue of the question of why the judgement was not decided differently, or even in its opposite constellation.
The Decisionist Reading of the Paradox

Is it at all possible for law to engage with this refocused question without falling victim to a process of infinite regress that might cripple its operations? Luhmann initially places his faith in the decisional power arising during laws dealings with the paradox; recognizing, at the same time, however, that the decision is not the sole source of power, since a decision also entails an explicit statement that it could have been made differently. Thus, decisions must be accompanied by a statement of reasons, which nevertheless furnishes an additional semantic, thus offering a supplementary opportunity as they form an ideal focus for processes of deconstruction (Luhmann, 1999b: 107). Luhmann accordingly points out that:
reasons have to keep silent on something, namely on their redundancy. They use distinctions with reference to their signified side and not their unsignified side. What cannot be signified cannot be used. Because it is concealed, redundancy cannot assume the function of a criterion. Or can it? This leads to the question whether, and how, that which is concealed can be used for criticism, or even for the deconstruction of legal argumentation. At any rate it cannot be used to say: I really dont know myself how it works. Deconstruction does not lead to reconstruction but at best to the need for therapy according to the maxim hit the bottom. One can reject the advice until one is at the end of ones wisdom. But who is to give therapy to the legal system? And who is to take over its function in the meantime? (Luhmann, 2004: 329)
And it is by virtue of this question that Luhmann repents of application of the full deconstructive potential to law: one might live very well without religion and, possibly, without art . . . but not without law and without money (Luhmann, 1987: 79). Luhmann fears for the economy and for the legal system, and it is perhaps this, biographically-conditioned,4 underlying fantasy of political order (Demirovic, 2001: 17; cf. Visman and Koschorke, 1999: 14) or his fixation with the order-creating functions of the social sphere, which, in turn, form his blind spot and lead to too hasty an end to his reflections which has inspired Thomas Wirtz attempts to ascribe decisionist elements to him:
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Processes of legal application are categorically divorced from the law. Rather than seeking after an impossible notion of substantive justice, law is temporal and thus is forced to decide. The legal norm is not confirmed, but, rather, only the veneer of its validity. A concrete case meets a general law within the as-if of an idealized process of reconciliation although uncertainty is suppressed in this manner during judicial proceedings, it is nonetheless perceivable under the harsh light of speculation. Thus, where no order exists and rules are not the norm, both are dependent upon a decision for their existence. A decision is not an act of deduction since nothing exists from which it can be deduced. It exists, where previously there was disorder. Both approaches (Schmitt and Luhmann) to the decision entail a moment of substantive indifference. And it is in this moment that the history of the judgement is abruptly dispensed with; a judgement, which, in turn, can only be rhetorically related to its subsequent justification. The systemic narrative of the judicial proceeding is centred on a caesura: case, judgement and justification encounter one another within a vacuum. (Wirtz, 1999: 182ff.)
This decisionist reading of the systems theory approach to the act of decision-making, however, fails to recognize that Luhmann does in fact place the decision in its societal context and takes fright only at the radical nature of the results of his analysis of the paradox. In other words, as was also the case with regard to his theorizing of a global model of law that dispensed with radical forms of transnationalism in order to insist, in accordance with western European tradition, that global law in which rules can be translated from one legal order to another (Luhmann, 2004: 481; see also Buckel, 2003: 50ff.) that is, within the international private legal order, within public law conflicts of law norms and within international rules regulating the status of the stranger his approach to legal judgements is decisively occidental in nature. Accordingly, the judicial decision is not the only means whereby contextual deferrals of meaning and, thus, processes of textual slippage, are pacified. Instead, Luhmann declines to view the problem solely from the perspective of the applier of the law/legal text relationship:
One does not interpret in order to enlighten oneself but in order to engage in communication, no matter how selectively the outcomes, reasons, or arguments are presented and no matter how much the certainty of being able to add further arguments contributes to claims to and the acknowledgment of authority. (Luhmann, 2004: 324)
The specification of the text does not simply occur by virtue of the decision, but is, instead, supplemented by good arguments and justifications. However, Luhmann can similarly not deny that justifications give birth to texts, and that texts increase the opportunity to say no. In Law as a Social System, Luhmann (2004) identifies the solution to this problem as being the stylized form in which judgements are given. Within the continental European tradition, justificatory reasons are postulated as the correct exegesis of the text and thus take on the character of an objective act of deduction. Within the Anglo-Saxon tradition, by contrast, differences of opinions amongst judges are published and, thereby, revealed. Luhmann, however, does not regard this as a problem: However, the differences, especially in modern times, should not be exaggerated. Further, it should be noted that an individual controversy by no means reveals the full exclusive effect of a well-reasoned rule (Luhmann, 2004: 329). Taking somewhat ironic note of the occidental logical tradition, Luhmann hypothesizes the semantic, such that
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the auctoritatis interpositio occurs by means of the fact that good justifications are ascribed a legitimating power as a part of judicial proceedings. Within Schmitts decisionist model, by contrast, justifications for the judgement are wholly superfluous. The decision is only given legal auctoritas by the decisive judgement questions of: Quis judicabit; or, Quis interpretabitur? (Schmitt, 1982: 174; 1994: 50, 206). Departing from his early approach in Gesetz und Urteil, which ascribed the justification a function in the review of the correctness of the judgement, not with regard to its result, but in relation to the principle of legal certainty (Schmitt, 1912: 82ff.), Schmitt later explicitly dispenses with the view that judgements might have anything to do with their justifications (Schmitt, 1979: 42ff.). The purpose of a decision is not one of furnishing overwhelmingly convincing arguments, but, rather, one of providing judgment by means of the authoritative setting aside of doubt (Schmitt, 1996a: 46). Thus, Schmitt reformulates the fundamental problem of law away from communicative and correlative issues to the purely formal question of the identification of the final decisional instance, whereby his approach to sovereignty comes into play since legal norms, in his final analysis, are nothing more than indicative statements of who possesses the monopoly of decisional power (Bolsinger, 1998: 481). Schmitt certainly recognizes the problem of legal form, which is conceived of by Luhmann as a paradox, and the radicalization of which he retreats from (Recht der Gesellschaft); however, in setting his iterative focus, Schmitt continually underestimates the issue. Thus, with regard to the independent meaning of the decision, he states that:
the decisional subject has a meaning independent from its content. The decisive factor in legal life is the question of who decides . . . The problem of legal form is manifest within the disjunction between the subject and the content of the decision and within the independent meaning of the subject. (Schmitt, 1979: 46)
In an approach that might even be described as neo-Kantian (cf. Spindler, 2002: 430), Schmitt thus leaves the individual decision-maker alone with the text. To him, the problem of legal form is one of the subjectcontent relationship; a problem already touched upon in Gesetz und Urteil, where he decontextualizes the criteria for correct decisionmaking and concentrates upon the personal. Schmitts formula is as follows: A judicial decision is correct today, where we can assume that another judge would have decided in a like manner (Schmitt, 1912: 71), whereby another judge is the modern empirical ideal of a learned lawyer. It is from this ideal that Schmitt thus derives an autolegitimation for legal praxis through legal praxis (Schmitt, 1912: 86). This nonetheless remains a subjectivist approach, which is dismissive of communicative operations, and which pays regard only to individuals and decision-makers. With this, Schmitt underestimates the peculiar character of the decision, disregarding its full alternative potential, limiting his alternative range to the included excluded, which is only constructed by the empirical ideal-type of the modern lawyer. Schmitt blends out the social environment within which these processes occur, failing to address the paradoxical structure whereby the decision is generated by the decision-maker through the construction of choice. Although he also, and correctly so, details the fragmentation of connected social spheres at other points in his work, and, likewise describes economy, law and politics as
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relatively independent areas of expertise (Schmitt, 1996b: 26), he nonetheless retreats into an isolationist subject-text-form position and, thus, makes the elementary voluntaristic mistake of neglecting the circularity marking the relationship between semantic and social structure, which lies at the very core of every decision on inclusion and exclusion. The problem of form, which exists between non-law and law, is thereby reduced to a process of understanding (Schmitt, 1912: 98), an intellectual operation (Schmitt, 1912: 98), which, in the final analysis, is not in a position to describe adequately, either the divorcing process of distinction undertaken by law, or the decentralisation of the political. Each process is disregarded, since Schmitt concentrates upon the idiosyncratically individual, thereby ignoring social processes of ascription, the purification impact of generalized media, and the constituting of symbolic worlds. This deficit is also apparent within his fundamental friend/enemy distinction, which derives finally from the assumption that this distinction can be made with reference to the specific political distinction, from which political operations and motives derive (Schmitt, 1996b: 26).5
The Deconstructivist Reading of the Paradox

Luhmann constantly and lastingly distances himself largely in ironical terms6 from Schmitts theory-orienting decisionist twist to the occidental logical construction. In The paradox of form, for example, he writes that Regardless of our views on thinking: it is by no means as reliable and peaceful as perception (Luhmann, 1999a: 102). His mode of unpacking the paradox similarly decisively distinguishes itself from Schmitts subject-text-formulation:
Terms like decision rationality or motivation for action are normally taken to refer to achievements of the people participating in the organization, people working in it. Consequently, we ought to subject the corresponding phenomena to biological, neurophysiological or psychological examinations. But this would probably not be very effective. (1999a: 101)
Luhmann therefore regards deconstructing these conceptualizations to be an imperative (1999a: 101). The decisional component of intention is not a psychological one, but, rather, creates a need for the localization of the decisional node within the communicative network. We must identify the instances which attribute intent: Arbitrariness appears to be a fiction that serves attribution; or perhaps even the impossibility of attribution is a precondition for attribution (Luhmann, 1999a: 86). He thus formulates the paradox as being one of the equivalence of differences and is referring to the unity of difference when he observes that this is where Hegelians experience the bliss of sublation (Luhmann, 1999a: 87). Thus, the auctoritas is neither located within the authoritative decision as such, nor in the character of the decision-maker, but, instead, is explicit only within the interpositio, the intermediary legal world, which is a different world before and after the decision. Neither decisional justification, nor argumentation, leaves legal rules unaffected, causing slippage within them instead. With this, each decision is a contemporaneous marker of the potential for different decisions:
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This dilemma of the incorporation of the excluded, this problem of systemic memory, which also secures non-actualizable potentialities, is disseminated as text. This multiplies the number of the potential manners in which the text can be accepted or rejected which denotes, use of the decision as a premise for further decisions, or the contrary (non-utilization). The information that is, the constative components of the text which assert that the text is binding by virtue of its origins, is not yet a guarantee that it will subsequently be treated as being binding. In the meantime, time passes and time denotes inapplicable or, openness to influence from the uncharacterized sphere of the excluded. Seen from the perspective of text theory, this conclusion means that the distinctions envisaged within the text are open to deconstruction and that the text itself provides the key to this process. (Luhmann, 1999b: 106)
Deconstruction is, therefore, not merely an external act of critique, which is performed by romantic individuals (cf. Luhmann, 2004: 179). Rather, it is far more, not only an internal, but also a constitutive moment within law. Deconstruction alone allows us to grasp the distinction between the decision as an assertion of the law and the communication of law as a decision in all its fundamental import. The performative decisional element cannot be prescribed by the constative assertion of legal deduction. This is the strength of law. It can adapt itself, responding to irritations, to structural social change. Judicial justification texts do not simply archive the past in order to make it available to the present in the selfsame form; instead, they archive non-actualized potentialities in readiness for appreciation of new contexts, whereby changes in meaning derive from learning. With this, law is opened up to the uncharacterized sphere of the excluded (Luhmann, 1999b: 107). By virtue of its constant re-justification, the rule is neither fixed nor immutable, but rather shifts and metamorphoses. Law does not end conflict between citizens through decisional stability; instead, legally-contingent conflicts continually alter law and force it to undergo metamorphosis (Levi, 1948; Smith, 1995). Yet, can it truly be a strength that law is not imposed upon citizens, but is, instead, continually nudged into change by them? Seen from the evolutionary theory perspective, a functionally differentiated society must temper the difficulty and variability of restabilization. In other words, society has dynamized its stabilisation, such that change is a constant. It is at exactly this point that deconstruction gains its relevance. In relation to justifications given, it highlights both the reductionist moment and the moment of variety, thus opening up the law to external influences and to potentialities that are unobservable within the system. It is here that we might identify the blind spot within predeconstructivist descriptions. The undoubted achievement of systems theory in explaining both the foundation of social autonomy and, contemporaneously, the establishment of the system/environment distinction, nonetheless makes this theory (in its Luhmanninspired variant) blind to the symbolic space where the monades of communication and consciousness meet each other (Teubner, 2001a: 40). This determines that observation of the various speech games, which have seeded themselves within particular institutions, is always accompanied by the risk that these systems might thereby be isolated. Systems theory then requires the aid of the categories of structural coupling and interpenetration, in order to translate relationships between these speech games into the internal sphere of each speech game. This process is not commensurate with the generalization of
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a happening for a multiple of systems. Instead, systems theory only observes irritations within one of the participating systems, and not conflict between them:
The necessary blindness of the system/environment distinction has important consequences for a concept of justice. In contrast to popular prejudice, Luhmann does not dispose of justice as a hackneyed old-European idea but places it in a central position in his theory of law. Nor is justice the highest internal norm of law, nor an external political or moral value which positive law must comply with. Instead, justice serves as laws contingency formula, problematizing the relation between law and its social environment. As compatibility between adequate social complexity of law and its internal consistency of decisions, justice mediates internal and external requirements. But here again systems theory cannot deal with the environmental relation as such, but only asymmetrically, either from the inner perspective of the legal system or from the external perspective of an observer. The interrelations between law and society, the processes of translation from one system into the other, disappear again in the blind spot of the system/environment distinction. To be sure, this formulation of justice reflects adequately the internal requirements of modern positivized law. (Teubner, 2001a: 41)
Therefore, where the effort is one of the legal-theoretical incorporation of the definitional criteria of the binary law/non-law code, one is better advised to adopt the legal praxis of supplementation through description within theory. Legal praxis works with descriptive supplements in order to heighten its environmental sensitivity, and, in addition to the creation of redundancies, to fulfil its second function of furnishing variety. The theoretical observation of the contingency formula deployed within praxis must, at this point, be supplemented by observation of the manner in which the decision takes note of argument within proceedings. Teubners close structural coupling of decisional- and argumentation-webs, his decision-structuring argumentative power and argumentative determination of decisional redundancy and variety (Teubner, 2004a: 71ff.), can only be integrated following this deconstructive twist. The passage beyond decisionism thus does not lead to linguistic facades, whose sole function is that of suppressing the brutality of the act of decision; instead, it leads to a new not yet highlighted within decision theory problem definition: How can law establish the precedence of reconciliation between redundancy and variety above the conflicts between, and arguments made by, legal subjects? When the justification, acting as supplement to the decision, incorporates the arguments of parties to the proceedings, it thereby relativizes the imposition of power by the decision. The underlying legal norm is thus not merely plucked from normative nothingness, in order to manipulate the parties; rather, argumentational and presentational constraints placed upon the judge by the justification requirement, open up the process of the identification of the norm for co-determination by the parties, by amici curiae, by a critical public and by politics. The decision is thus connected in multifarious combinations with past proceedings, affected parties, mass media scrutiny and political observation. The rule of law generally contains mechanisms whereby a lost case can be reviewed in order to ascertain whether the decision was simply a decision, or was a legally founded decision. The opportunity for review, for the stimulation of scandal, for legal campaigning, for alterations in contractual terms, etc., is created by the supplement of justifications (cf. Seibert, 2001). In addition, Rudolf
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Wietho lter ascertains that attainment of the status of law is justification in application, creation rather than presentation, a context of discovery rather than a context of jurisdiction, a question rather than an answer, a finding of potentiality rather than a quest for truth, a perception rather than a truth statement (Wietho lter, 2005: 65).
The Decision as Political Dimension Within Law

Social systems of politics and law are structurally coupled with one another. Law makes use of this structural coupling that is, the Constitution to compensate for its lack of a stabilizing central purpose or final instance, which might act as anchor for judicial decision-making (Luhmann, 1990). According to the western legal sources tradition, however, transference of decisional responsibility should serve to ensure that the legal order is a self-contained one. Nevertheless, Luhmann does not feel that the closed nature of the legal system a closure upon which he lays repeated emphasis (Luhmann, 2004: 76) is thereby comprised. Stabilization is, instead, facilitated by the distinction made between codes and programmes: within law, coding entails the distinction made between law and non-law; programmes are rules, which dictate the apportionment of these values in concrete cases (Luhmann, 2004: 196). Within complex societies, programmes facilitate a large measure of openness to changing environmental conditions.
This never leads, however, to the dissolution of the unity of law as long as this unity is present in the system through one, and only one, binary code, which cannot be used in the same way anywhere else in society. (Luhmann, 2004: 118ff.)
The formula as long as is decisive: the closure of law is dependent upon the stability of coding. The system deploys coding in order to combat contingency and to overcome the variety exhibited by a multitude of external observers. Coding achieves this by transferring contingency to the level of the programme. Nonetheless, with this, coding is also faced by the selfsame problems observable in relation to the notion of justice. Central purpose and coding only furnish decisive rule where they remain empty. As soon as coding is given a fixed substantive content, it becomes only one of very many contestable assertions. It must, therefore, be insulated semantically from the level of the programme.
But, how can an act of code identification be distinguished from the making of semantic or semiotic distinctions? Does the true/untrue code merely encompass a simple functional and unreferenced act of distinction, or, does it also comprise a semantically-induced act of observation? Equally, is a semantically-empty act of observation ever possible? (Binczek, 1994: 260)
Observation is, of course, dependent upon an act of distinction and, to this degree, can never be empty of meaning. Accordingly, the as long as element within the closure of the legal system constitutes a practical question, which may be posed in each set of legal proceedings. The closure of the legal system is not a simple given, but must constantly be maintained. Yet, such maintenance is only possible to the degree that the so long as
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legal concept remains an empty signifier (on this concept see Laclau, 2002); law is otherwise exposed to the risk of secondary coding through additional distinctions. Secondary coding occurs when the law/non-law distinction is given substantive meaning and the concept of law is fixed. Such substantive colonization need not be an explicit process; rather, it more generally occurs silently, that is, within the lacuna of the lack of a final decisional instance. The resulting enthymematic construction hints at the deduction of the decision from the general, but never makes this explicit. The enthymeme concludes without explicit reference to its decisive premises, since it leaves those premises that it expects everyone to know unstated (Seibert, 2004: 81ff.). It gleans its decisive power from the credibility of a system of immutably-held convictions. It rests upon plausibility. Aristotle was thus early on able to describe the enthymeme in terms of the treatment of probability: certain premises are not uttered since they are, in any case, understood, such that their explication would be found to be tortuous, unnecessary and boring. This becomes highly troublesome, however, when this vehicle of self-evident meaning serves dubious premises: cannot law also be unlawful? The sole protection against such inconvenient doubt is the degree of residual conviction; a force most effectively called into existence where premises are not stated, thereby evading all possible attack through negation. The enthymene plays to acceptance. Self-evident premises remain unspoken and thus amenable to their desired mode of completion. The syllogism formally appears to derive conclusion b from a, thus silently suppressing reasoning ground c. In this manner, c appears to be incontestable. In the overwhelming silence of the leading premise, the thundering of hegemony is often not heard. Thus, the leading premise is usurped by power; an appropriation which is all the more effective, the greater the degree to which the persuasive force of a leading premise is increased by means of the silencing of all doubt about its persuasive facticity, and the greater the extent to which paradox is suppressed through silence. The question posed to law as to what is law, is then substituted for by the question of what is plausible within social relationships (Sta heli, 1998). Equally, however, an answer is readily found within a polycentric, differentiated society. Amongst others, politics, the economy, science, technology, the media, social relations and codes of morality, are constantly poised to colonize law through secondary coding, which offers particularist powers an opportunity to overwhelm the normative capital of universal rationality. The transformation of law from the focal point for conflicts to the implementation vehicle for political, religious and scientific, etc., rationalities is a constant threat (Teubner, 1997). This is true both for cost-benefit thinking and, for example, for the military threat-defence calculation. Notions of power, efficiency, truth, instrumentality or security, seek to take the place of justice and to institutionalize their partial system logics across the whole of society, to the inevitable cost of social pluralism. This brings with it a danger that the democratically legitimated ordering power of law will be subsumed within the imperialism of each particularist rationality. The political opportunity arises within these processes because legal internal treatment of paradoxes is itself political (Sta heli, 2000: 271ff.; Blecher, 1991: 165ff.). In contrast to the institutionalized politics of the political system, the political expresses itself within law as: as decision in a context of undecidability: as the resolution of breakdowns of meaning into antagonistic arrangements . . . as dissolution of the paradox of
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law into conflicts between law and non-law (Teubner, 2006: 57). The political campaign against the usurpation of law by instrumentalist theories of law7 a battle fought constantly, amongst others, by Martti Koskenniemi within the realms of international legal theory debate (2000, 2004) is not, when understood in this manner, a struggle of institutionalized politics against institutionalized politics, but, rather, a legal politics of self-reflection, which has as its goal the maintenance of the openness of the legal code as an empty signifier and the defence of the legal form as being free for heterogeneous determination (Sta heli, 2000: 255ff.). Where legal decisions are commensurate with happenings within a process of legal signification, they may thus be understood as specific legal operations, which unravel the paradox, and which attain their political status through the simultaneous existence of a variety of potentialities, and through the fight to secure realization of one of these potentialities within law (Sta heli, 1998: 61ff.). Regardless of the fact that Carl Schmitt had no time for such a form of pure independent law (Schmitt, 1996a; and in explicit disagreement, Kelsen, 1968), he was similarly unable adequately to describe these decentralized political phenomena, because he defined the political as the potential for an indisputable, clear distinction (Schmitt, 1996b: 11), and sought, in line with conceptual logic, to locate it within the binary friend/enemy code (Bo ckenfo rde, 1985: 16). By virtue of the fact that he structured the realm of public relationships with reference to the political that is, the realm exhibiting the greatest degree of variety8 Schmitts analysis is an inexorable captive to the mass media machinery of the political system. Polyarchical political tendencies in particular, those found within the legal system (see for the transnational context Fischer-Lescano and Liste, 2005) cannot, however, be portrayed within this theoretical position. In contrast to Schmitts vision, the concept of decision-making and law expounded by systems theory is pluralist in nature. Its deconstructive decisional theory is not antiformalist in the manner of Schmitts decisionism, but is, in stark disagreement, hyperformalistic, to the extent that it takes legal form very seriously indeed. In this regard, it also eschews the efforts of the Constitutional Court to solve conflict by means of an authoritative exposition of a supposedly higher and objective value order (critique to be found in Maus, 2004). This is not least apparent with regard to its treatment of the rationality conflicts noted above that is, antagonistic collisions between the economy, politics, religion, etc. which rejects both camouflaging formulas for judicial or interpretative decionism9 and practical consensus, as well as all evaluatory schemes of supposedly universal values and principles, and, instead, demands the identification of the antagonistic societal rationalities, which seek to make use of law, in order to universalize their partial systems logics (Ladeur, 2004: 12ff.). Such real-world social contradictions must be reformulated within the quaestio iuris, and thus reformulated, be framed, in order to facilitate their reconciliation. The critical sphere of collision is, in each case, to be identified by virtue of antagonism between norms, which, in their turn, were fashioned within the individual realms of distinct partial rationalities. At its core, the matter is one of the evolution of abstract-general incompatibility norms in the context of relationships within the large-scale social system, together with the generation, by means of structural coupling, of corresponding legal norms; as well as one of preparing law to respond to destructive conflict between incompatible operational logics (Teubner, 2000). This approach paves the way for an extremely formalistic treatment of the legal
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form. The legal task is thus one of having regard for paradoxes of legal form (Teubner, 2006: 41ff.), of foundational work with legal norms of varying provenance, and of constant struggle to defend law from unilateral instrumentalization by political, economic or religious systems; meanwhile, the democratic challenge is one of channelling concrete factual orders (Wietho lter, 2005: 75) into civil society processes of constitutionalization (Teubner, 2004b). Combining the modes of observation maintained in systems theory with those pursued within deconstructivist approaches similarly proves to be an aid to the clarification of defensive strategies against the constant threat of secondary coding of the law (on this challenge, Teubner 2001a: 34ff.). The simple, pre-deconstructive systemenvironment distinction on its own is blind to the potentiality for secondary coding of law. We must proceed from the assumption that external influencing of law is impossible, since law will either assert its own autonomy or will cease to exist. Luhmann himself recognized the potential for border incursions and invasion (Luhmann 1969: 149, fn. 49). Systematic, personal political decision-making, when taken together with forceful political interpenetration efforts (Luhmann, 2004: 109ff.) can result in a fusing of otherwise autonomous social spheres, which reconstitutes the autopoiesis of law as an allopoiesis, and, within which, secondary coding might be given comprehensive preference above law (Neves, 2001). The communicative approach, however, is also subject to the threat of colonization of the legal code by other social systems. The founding coding of a social system entails an act of distinction, which can only be made semantically. This semantic distinction, however, can never be fully divorced from its context, such that it constantly threatens to become merely a part of the game. Legal conflicts are not simply constituted by opposition between two social systems, amongst whom the law is then divided; instead, they are made up of opposition between two representations of law, two incompatible conceptions of right and wrong, which cannot be reconciled within the concrete case at issue. And it is here that the utility of Teubners theoretical fusion of systems theory and deconstruction becomes apparent, most particularly, his suggestion that they might be mutually deployed to cure each others partial blindness. The primary operation performed within deconstruction is a continual questioning of the accepted usage of the signifier/signified couplet and a continual insistence that the signifier is merely a repository for very many further visions of the signified (Mu ller and Christensen, 2004: paras 507 et seq.). As a consequence, stability is not easily explained, and it is here that an aid may be found through conceptual substitution, or the deployment of the systems/environment distinction. In reverse, the text/context distinction can help to clarify the law/society distinction, taking the place of the system/environment distinction. The conviction that each and every repetition will change the rule undoubtedly makes the form somewhat phantom-like and indistinct; however, this disadvantage within the description of stability, is balanced by the advantage that change might thus be better described, and, more particularly, the shortcomings of coding the fact that it is not isolated from and free of the influences of the programme context be better revealed. And it is from this revelation that the task of the judicial centre to defend against the colonization of the code by the periphery is derived. Concepts of law educing from the periphery must thus be subject to re-entry. To the extent that law is maintained as an empty signifier,
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antagonistic social systems are forced, during the course of social interaction within legal proceedings, to discover exactly where the limits to universal logic are to be found. Law can function as the gentle civilizer of social systems (Fischer-Lescano and Teubner, 2004; see also the formulation of Koskenniemi (2002) in the realm of international law and a world of states), if judges take note of Rudolf Wietho lters formulation of the main duty of the lawyer: the cure of the soul of law is, today, commensurate with ministration to the legal paradox, its simultaneous maintenance and resolution (Wietho lter, 1994: 113).
Conclusion: Decision as Law Delayed

The performance of law is distinguished from the performance of power because power is concerned with decision. The result alone has significance. This has little to do with trial and argumentation. Yet, the decisionist promise that conflict will be ended by decision is still not redeemed. Conflict continues even after the decision. For this reason, justification is required. Yet, even this does not suffice, because the decision decided what could not be decided through a simple act of recognition. For this reason legal proceedings and argumentation exist, including parties to the conflict within the decision. Yet, even this cannot guarantee conflict resolution. Rather, during the process of proceedings, conflict changes its nature. The system is also different before and after the judgement. The system must be justified anew through retroactive coupling, thus to remain stable by means of change. Law is accordingly concerned with postponement by means of supplementation. This alone ensures that the social system of law may metamorphose and retain its learning capacity. Conflicts are a precondition for morphogenetic processes of transformation and for their cognitive openness to a societal environment (on the concept of morphogenesis, plundered from Maturana, see Luhmann (1996)). Law employs trial proceedings, argumentation and justifications to treat conflict, thus offering society a means to delay and make the assertion of power more difficult. The derivation of law from legislation during the course of proceedings, its transmission into the decision, the justification of the law and all consequent criticism may be understood negatively, as a form of law which profligates itself within its social environment. Yet this process may also be understood positively, as a well-crafted attempt, governed by rules, to prevent the concretization of justice. (Teubner (2001b) is instructive on the enhanced value of the proprium of law). Law is only created out of conflict between the parties. Legal creation, however, is not commensurate with the generation of something that is absent, the bringing into existence of something that has no existence. This would merely be an extension of the metaphysics of presence. Law is neither present within the legal text, nor within the speech of the parties, nor even within the judicial justification. Legal decisions are similarly not the creatio ex nihilo of authoritative decision-makers but are, instead, events which divide a process of signification into a time before the decision and a time after the decision, but which, likewise, do not determinatively conclude the process of signification by means of the absorption of uncertainty. The legally constitutive impossibility of a distinction between legal and non-legal questions, which underlies this process, and which was
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captured in medieval terminology within the abrogatio/derogatio formula,10 cannot be overcome by means of a decisionist exercise of power. This impossible distinction marks law to this day: legal decisions embody delay in the giving of the law. Law cannot be identified from the text alone, hence it must be discussed and argued over. However, since the speaking of the law only seldom leads to consensus within non-coercive discourses, a decision must be taken. Yet, because a decision could be decided differently, justification is required. And because even this is not enough, an act of legal implementation is needed. However, postponement is equally not ended by implementation, because there are never any final grounds, only penultimate grounds. The auctoritas is delayed within a continually fluctuating interpositio. This is neither personally, contextually nor temporally determinable. Notes
This article was first published in German (Auctoritatis Interposito: Die Dekonstruktion des Dezisionismus durch die Systemtheorie), in Der Staat: Zeitschrift Fu r Staatslehre und Verfassungsgeschichte, deutsches und europa isches o ffentliches Recht, 2005: 213242. 1. The legal sources model makes it easier for judges to shift responsibility for decision-making to legal statutes. The model is likewise supported by studies on assumptions about judicial psychology, such as Schmid, Drosdeck and Koch (1997: 24); similarly foundational for this finding, is Simon (1975) on the dependent Judge (pp. 21ff.), on the independent Judge (pp. 68ff.), and on the tendency of judges to divert responsibility to legislation (see also pp. 95ff.); naturally, the classical German legal description of the theory of legal sources is to be found in Larenz and Canaris (1995), as well as Bydlinski (1991). 2. Naturally, Carl Schmitt claims to represent a quite different tradition, of which his book, Gesetz und Urteil is merely the continuance. See, on this tradition, deriving from Hobbes, Barion (1949). For an evaluation of the methodological elements within Schmitts argument, see Forgo (1995). 3. A related problem is whether justification and application of norms may be kept apart as separate discourses, see, on the one hand Gu nther (1989, 1993), and on the other hand, Alexy (1993). 4. Luhmann was thus drawn to describe, in a radio interview, how his decision to study law had derived from his experience as a prisoner of war: I actually decided to study law, because I had the feeling that it offered an opportunity to establish a measure of order within the chaos that we experience, and against the very many contraventions of valid law [that we experienced] in imprisonment. (Hagen, 2004: 17) By contrast, and in reference to Adornos view that it is the duty of modern art to inject chaos into order (Adorno, 1951), Rudolf Wietho lter finds the paradoxes inspirational (Wietho lter, 1994: 107). 5. Schmitt takes his friend/enemy distinction from Baltasar Alamos de Barrientos: Lo politico es la distinction entre amoigo y enemigo (see the dedication in Alamos de Barrientos (1614)). lamos de Barrientos is now central within a new tradition; see Ferna The work of A ndezSantamaria (1987). 6. Luhmanns distancing observations on Schmitt are generally apodeictic in nature. See, for example, Luhmann (1994: 113); in his radio interview, Luhmann states: I always thought that Carl Schmitt was overestimated (Luhmann, in Hagen, 2004: 27); Luhmanns disapproval of Schmitts critique of parliamentarism is particularly clear:
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9.
10.
Above all, Carl Schmitt, with his unrivalled talent for stating the antiquated, clung to the concept of representation, and thereby deemed the constitutional realization of parliamentarism to be an assault on the principle. Either identity or representation; and representation only as the representation of identity. This certainly gives better voice to the original concept than any other description, but thereby only demonstrates the obsolescence of this semantic self-description of the political system. (2000b: 334) For example, the unrivalled formula found in the work of Myres McDougal, the apparent representative of the US New Haven School: [L]aw is instrumental only, a means to an end, and is to be appraised only in the light of the end it achieves (1941: 834ff.). See also the representatives of the new generation of interdisciplinary science: between these two extremes, where most international legalization lies, actors combine and invoke varying degrees of obligation, precision and delegation to create subtle blends of politics and law. In all these settings, to paraphrase Clausewitz, law is a continuation of political intercourse, with the addition of other means (Abbott et al., 2000: 419; see also Slaughter et al., 1998). Because the political has no substance of its own, the political core can be conquered by every area of life, and each social grouping of church, union, corporation and nation becomes political, and with this, statal, when they are the most intensively active grouping within this core. (Schmitt, 1930: 37) Schmitts evaluatory measure of intensity which assumes the existence of discursive inferences and communicative exclusions within a hierarchy of social relationships and thus works with qualitative (political) and quantitative (greatest degree of intensity) measures reveals the limits to the subjective concept of the political, since such criteria can only be analytically distinguished from one another because communications about communications within different social rationality spheres are included within the analysis; and yet, the economic, legal, religious, etc. character of communications derive from preconditions which no one individual can generate or control, and whose political character arises quite independently out of individual idiosyncrasies and voluntary preferences. On Schmitts intensity model, which substitutes for the concept of individual social spheres, see Maschke (1994: 287). It is a great irony that this decisionist critique emerges out of the Schmitt school, see, Bo ckenfo rde (1974: 1534). In reference to Nicolai Hartmann, Schmitt upon whom Bo ckenfo rde calls in his critique of the jurisprudence of the Constitutional court decries the operationalization of abstract value programmes by legal praxis as the tyranny of values (the text is reproduced in Schmitt (1967), see the documentation gathered on pp. 51ff.). This description of the context is already to be found, in a particularly elegant form, within the teachings of Immanuel Kant on equivocal law, within which as Luhmann formulates the aequitas (captured by Kant in the concept of summum ius summa inuiria) and the ius necessitates (necessitatis non habet legem), as distinct parts of the ius aequivocum, are collapsed so cleanly into one another, as if it were true that paradoxes are to be unravelled by virtue of their presentation as twin, even as symbolon in the original meaning of the word (Luhmann, 1984: 142). Kant importantly attributed the origins of equivocal law to the limits of the semantic, and, further, noted that the problem arose in relation to cases for which no one can be found who will decide them, and which belong for Epikur to the intermundia (Kant, 1964: 341), whereby Epikur conceives of the intermundia (metakosmoi) as the cosmosless space between the worlds.
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Auctoritatis Interpositio: How Systems Theory Deconstructs Decisionism

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Auctoritatis Interpositio: How Systems Theory Deconstructs Decisionism

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Social & Legal Studies 21(1)

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Judgement between Cognition and Decision

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Social & Legal Studies 21(1)

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The Judgement Paradox

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The Decisionist Reading of the Paradox

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The Deconstructivist Reading of the Paradox

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The Decision as Political Dimension Within Law

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Conclusion: Decision as Law Delayed

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