Immunological Theory of Law

Willis Santiago Guerra Filho

To Niklas Luhmann in memoriam

TABLE OF CONTENTS

Introduction 02

I The postmodern condition of post-industrial society 03

II Major Features of Law in Contemporary World 06

III Autopoietic Law 11

IV Unsolved Problems regarding Law in the Theory of Autopoietic

Social Systems 16

V From Autopoiesis to Autoimmunity in Legal Systems 21

VI Autoimmunity generalized 37

References 40

Introduction

The following aims to address the adequacy of Luhmann´s (and others

like Teubner) systemic approach to describe the legal order of so-called

"peripheral" (democratic) states under the present post-modern historical

conditions, that leads to a globalization of (post-industrial) society. It is a

reappraisal of my 1994 presentations in the Oñati International Institute and

the World Congress of ISA in Bielefeld, which I translated to Portuguese and

published in 1997 as a book in Brazil, along with some interviews I made with

Niklas Luhmann, then my friendly colleague at the Bielefeld University in

Germany. A first version was presented at the Critical Legal Conference in the

stream organized by Bald de Vries together with Lyana Francot-

Timmermans on "Critical Autopoiesis", 10-12 September 2010, which was

held at the Utrecht University, on the September 11th. 2010. In the

background we may found the major question posited in both of the

mentioned meetings, where the previous versions of this book was delivered,

that is to say, what kind of relationship has such an approach in socio-legal

studies to the critical approach, especially that of so-called poststructuralists

such as Deleuze and Derrida.

In the concept paper for the above mentioned Oñati Conference

Berman/Lewis/Klare (1994: 2) refer the autopoietic social systems theory as

a Luhmann/Teubner enterprise, although his main author is undoubtedly the

former. As it is well known, Teubner in collaboration with Willke advanced the

theory of "Reflexive Law". This is rather an attempt to combine Luhmann's

systemic approach to the Habermasian theory of procedural rationality and

Nonet/Selznick's theory of "Responsive Law" (See Luhmann, 1985; Neves,

1992: 41; Teubner, 1982, 1983; Id./Willke, 1984.) We are to try to go beyond

those efforts although having them as requisites.

But prior to the treatment of the former questions (at IV) and latter

issues (at V) is the depiction of such a society we live in worldwide nowadays

(at I) and its legal order's general features (at II), as well as a sketch of the

theory we want to address here (at III), to end up with the proposal of a

paradigm shift into the autopoietic systems theory towards an immunological

approach (at VI)

I

The postmodern condition of post-industrial society

By "post-industrial society" is not meant, for instance, the original

concept proposed by D. Bell (1977), as a society in a development stage

where the service sector of the economy is prevalent. What is envisioned

here is the emergence of societies where a new, "fourth" sector is developed,

since those societies rely basically on the circulation and exchange of

information - and that in an increasingly intense and sophisticated way. (See,

v.g., Baudrillard, 1978.) Those are societies where the cybernetic process of

information becomes absolutely necessary to the production both of goods

and technological knowledge. It represents the main factor of fastening the

rotation of capital, causing the "flexibilization" of its accumulation which is

typical to the present "postfordist" phase of capitalism. (See D. Harvey, 1992:

121 ff., 140.)

The great amount of information available - and the velocity of its

circulation (see Mazor, 1991) -, its fast substitution for new information due to

the manner they are transmitted by the media, plus the very nature of such

information, makes it not fashioned to the preservation of individual or

collective memory and values. This also why it is impossible for any

ideological coordination of action in a determined "historical path" to succeed.

So we live in a "postmodern condition" (J.-F. Lyotard, 1979), that is to say, in

a very much complex and different world from that of the recent past, where

there is no more place for "Grand Theories" viz. "big stories" (grand récits),

ready-made formulas to solve every social problem based upon pretense

scientific truth. (See Arnaud, 1992: 32 ff.)

I am aware of the fact that the expression "postmodernity" is very

emotionally-laden, since it usually provokes in the most part of intellectuals

today two kind of opposite and extreme reactions: to reject or to adhere to it,

as if it was some kind of modern viz. postmodern credo. People "against"

postmodernity mostly insists in the permanence (or incompleteness) of

modernity. Often in those attacks it is linked some kind of conservative

ideology with the defense of postmodernity - frequently the "ideology of the

end of ideologies". As a matter of fact, there are many versions of

postmodernisms and, correspondly, of anti-postmodernisms. (See, e.g.,

Rosenau, 1992.) I would like to use the expression in a as neutral as

possible way, just to remark a historical change in material an intellectual

process within contemporary (world-)society, when it arrives to a

"Informationszeitalter". (See Acham, 1989: 218 ff.) If I can chose an

ideological categorization of approach I want to propose here, then I would it

qualify it as a "postmodern critical theory", i.e., as Boaventura de Souza

Santos (1991) calls his socio-legal theory.

Nowadays, the lack of trust in false pretensions that claims to possess a

privileged access to reality and the (only) right solution to the complex

questions we are dealing with is what requires the assumption of an

"epistemological democratic" standpoint. This means that we have to promote

a wide debate to include the greatest number of positions, so that without an

excluding ideological bias we can gather the correct aspects from each one in

order to build appropriate answers to our questions. What is meant here is

not the "end of ideology", but, on the contrary, the assumption of a new type

of ideology, that is a (self-) consciously assumed ideology, opened to include

assumptions of other ideologies and credos, even those strictly religious,

since in every ideology there are some fundamental faith that connects them

to a kind of religious posture, even if it is secular and atheist. No wonder that

critical theorist such as the already mentioned Boaventura de Souza Santos

(2013) and Jürgen Habermas (2012) in their lately contributions or before

them the self-defined communist Alain Badiou (2003) are willing to stress

the positive impact that religions committed to human and cosmic solidarity

might have in the struggle to defend the increasingly menace of humanity that

is inherent to the development of capitalism, which has unquestionable

religious roots. The former evokes in a poetic mood that “There must be a

God/that doesn´t govern us” (2004, p. 241). If we look to Italian contemporary

political philosophy we would also find a kind of “religious turn” in Giorgio

Agamben´s (2000, 2009, 2011, 2012) to be found especially in the most

recent publications of the Homo Sacer series, where he shows with massive

material the incompatibility of such an anarchic idea with the Roman Catholic

Church, and with Nancy (2003) this could be extended to the whole

Christianity and Monotheism in general, but as in regard to Agamben’s

countryman Roberto Esposito (2013) we might well notice Agamben´s

(2013) continuing deep enrollment with political theology. Notwithstanding a

concern akin to those manifested by critical theorists are to be found from a

catholic point of view is in the book by my fraternal colleagues Ricardo

Sayeg and Wagner Balera (2013). In short, religions and sciences should

not at any case compete but rather be open to mutual acknowledgement and

eventually cross-fertilization.

We then might call the type of ideology we propose as a "super-

ideology" and correlate it, for instance, with what I called once in an essay

"inclusive theories" in legal epistemology. (See Guerra Fo., 1989.) To this

assumption would agree so much different social theorists such as K. Popper

and J. Habermas.

What I wish to stress here is the fact that in postmodern society there is

a plurality of equally valid descriptions of it - and prescriptions based on them

-, which to a certain degree can be combined to give a more adequate -

because more comprehensive - solution to social problems. (In this sense,

Luhmann, 1991: 44, 55 et seq., in spite of the fact that he advocates, like

Habermas, the continuity - and accomplishment to the latter - of modernity

nowadays and prefers to call "middle modernity" what I consider as the last

phase of it.)

II

Major Features of Law in Contemporary World

As Habermas (1987, 1989) points out, a change in modern moral

consciousness has overcome the Kantian straight separation between the

fields of law, morals, politics etc., that now (re-)articulate themselves in

another level, without losing their autonomy. This new consciousness

diferentiates norms, justificatory principles and procedures to (self-)regulate

and (self-)control their adequacy to each other. So the legitimacy of law

depends most of all upon the procedures, as far as their outcomes must meet

one of the possible contents of the principles and norms, to be conform with

basic values such as rationality, democratic participation, pluralism, economic

efficiency, that are already pursued in the making of the procedures. (See

further R. Alexy, 1987; E. Denninger, 1989: 481; R. Dworkin, 1978: 22 ff.,

passim, 1985: 72 ff.; Gomes Canotilho, 1990; W. Guerra Filho, 1991: 195,

1992; Ch. Joerges, 1989: 627 ff.; Luhmann, 1990: 192; Rawls, 1972: 197;

Teubner, 1984: 109 ff.; and the special issue on "procedural justice" of the

Zeitschrift für Rechtssoziologie, 1993.)

Here must be mentioned with emphasis the frankfurtian legal

philosopher R. Wiethölter (1989), according to whom in post-industrial

society we find the most distinctive feature of law in its "proceduralization"

(Prozeduralisierung). To be noticed here is what Roberto M. Unger (1976:

192 ff.) convergently states for the "Postliberal Societies" and also the

importance that Trubek/Esser (1989: 126 et seq.) assign to legal processes

in their defense of "Critical Empirism".

I deduce from such a discussion that M. Weber's thesis about law in

modern society being essentially formal, with the prevalence of general and

abstract norms - in contrast with the more substantive type of law in pre-

modern societies - is no longer adequate to the description of law in today’s

postmodern society, since its major problem is not the protection of individual

liberty against arbitrary action of the State, but the enforcement of collective

interest by the State and social agencies. In attaining those collective

interests there are also public and individual interests to be respected, what is

very hard - if not impossible - to be thoroughly done by general and abstract

statutes in advance. There must be a case-by-case, contextualized

consideration. In this way, the best we can do is to assure fair procedures, in

order to achieve decisions that are shaped to equate all conflicting interests

and/or values. Nowadays, those procedures have to be shaped anew in order

to adjust to collective demands presented by social movements, which are so

organized that we can speak of them as being a "collective subject" (Souza

Jr., 1991: 131 ff. See further Rojas Hurtado, 1992; Paoli, 1992, and, for a

support from the autopoietical theory of law, Teubner, 1989).

The Court, competent because of its expertise, or the highly

specialized administrative body, comes to a policy decision only after a

thorough discussion of possible consequences with representatives of the

interests concerned. This occurs mainly through the "balancing" (Abwägung)

of these interests and/or values according to a "principle of proportionality"

(Grundsatz der Verhältnismäßigkeit). In his self-definied as post-modern legal

theory of K.-H. Ladeur (1983, 1985) the Abwägung is considered as the most

distinctive characteristic of legal paradigm nowadays, since it permits to bring

about the (individual) solution that each (individual) case deserves. M.

Neves (1992: 43) accurately observes that "in der paradoxen Perspektive

des Postmodernismus ist das allgemeine Paradigma (die Abwägung) die

Negation von allgemeinen Paradigmen". But Ladeur follows here one of

Luhmann's main attitudes: the willingness to generate paradoxes to make a

theoretical creative use of them, by transforming them in tautologies, in order

to make more complex our representation of the already (hyper-)complex

reality we are faced with. (See Luhmann, 1986: 15 ff., 1987', 1988', 1990':

716, and, for the paradoxical viz. antinomic nature of self-referential

systems, Varela, 1975.)

As Wiethölter (1986: 66) himself explains, "[i]n the fundamental legal

principle of proportionality I have sought to define the most influential

machinery of transformation for the osmosis, translation, and covariance of

law and society, as the supreme and most general productive principle of an -

admittedly silent, and absolutely unavoidable - justification of conflict rules for

the decision of conflicting rights, interests and needs".

We may find this as a good example of Hofstadter’s “strange loop”,

since such a principle, that has constitutional nature, is located in the highest

level of legal hierarchy and would be applied to decide concrete conflicts and

legal problems bringing harmony to multiple possibilities of lawful solutions to

them, in a way that is not previously ruled. This means that such a principle is

valid not only due to its constitutional status, but also because it validates the

solution offered to rule a specific case. It accomplishes an oscillator function

(Spencer Brown) that is needed to switch back and forth from hetero-

reference to self-reference, which is vital to the system’s autopoiesis. Here

the relevant distinction, instead of those of true/false or fair/unfair, would

rather be something like flip/flop, as Luhmann (2000) once pointed out. The

closest that the “contingency formula of justice” as a code of higher order

(that is to say the unity of the difference in the “metacode” fair/unfair and also

an “Überbegriff”, but not an Überprogram that is internal to law, as it seems to

be for Derrida in his book on Marx) can get to the legal system without

properly getting into it seems to be through such a principle, which is also

responsible for the introduction of an exception in the system, that pushes it

downward dangerously close do the negation of law by violence and

arbitrariness. Those circumstances makes it tempting to conceive

proportionality as the best candidate do be located at the legendary place of

the Kelsenian “Grundnorm”, especially if it is taken in account his last version

of it, as a fictional norm (“eine fingierte Norm“) in the Vaihingerian sense, by

means of what the illusion of (knowing) justice and satisfaction of

fundamental rights as the illusion that is necessary to the operational closure

to/with the environment to be easily elicited as the cognitive openness to the

future is maintained.

This is not the place to exploit in its whole extension the theoretical

features of this principle. A previous study (Guerra Fo., 1989') has shown, for

example, that it might be seen as a "principle of principles", since it can

equate the problem of conflicting principles in a concrete (hard) case. This

means that it can do a "hierarchical loop", i.e. from the highest point in the

legal order's "pyramid" according to the well-known conception proposed by

Kelsenean Schools (and scholars) it can go to its very bottom and be used to

validate different (judicial, administrative etc.) decisions in different situations

according to the same set of rules, thus implementing the circular and

"topical" kind of legal validation that is needed in today's hyper-complex

societies (see Calvo González, 2013). And to this purpose seems valid

Laurence Tribe´s (with the assistance of Barack Obama) 1989 plaidoyer for

a curvature of constitutional space, that would lead to overcome both the

classical Euclidean and modern Newtonian prevailing concept of the legal

order (see the criticism by the Tulane University scientist F. J. Tipler, 2008).

Last but not least, as Broekman (1992: 178 et seq., passim) asserts,

"proportionality", "balancing", equilibrium is congenial to the (legal)

understanding of justice and the necessary counterpart of a "poetic justice",

to attain the "beauté géométrique" of a "juristic art" (Commaille, 1988: 35). In

my Ph.D. thesis presented in 2010 to the Federal University of Rio de Janeiro

I propose that it must be considered much more than it is the case, especially

since the scientificist turn in modern thought, the fundamental philosophical

meaning of a poetic understanding of law and everything else.

In this context the judicature turns out to be of central importance to the

efficiency of legal order in present societies with a democratic political

organization. To be recalled are the acute remarks made by L. M. Friedman

(1976) on the change of the role played by Courts in the industrial societies of

modern world, which became much less occupied with the settlement of

individual litigations, as with the solution of social problems. As a result we

observe the need for change in the role to be played by judicature in

comparison to other state powers. Judges can no longer be only "la bouche

de la loi", as they were referred in the classical doctrine of Montesquieu.

They must also become "la bouche du droit".

It is interesting on this matter the conclusions made by V. Ferrari,

based upon the observation of the judicature in Italy, which has been

overcharged with political responsibility as a result of an intensive

engagement on the solution of social conflicts with an "alternative use of law".

"Benché i giudici, da anni ormai, rivendichino il ritorno alla rassicurante

formula montesquiviana della bouche de la loi, la loro creatività è ormai un

fatto acquisito, proprio per volontà della classe politica, che pure afferma

ricorrentemente l'esatto contrario" (V. Ferrari, 1992: 449).

Legislation no longer furnishes the required guidelines to a satisfactory

judicial treatment of issues, such as those that we have to cope with in the

hyper-complex postmodern society, brought into light after the body of

statutes were enacted. (See Arnaud, 1992: 30, 2nd col.) This will only lead to

an extreme degree of dependency upon judicial creativity in order to provide

solutions which are at the same time adequate and legitimate. And this

means also an emphasis on the importance of the procedural laws, that

regulate the judicial exercise of power. Such a conception is congenial to N.

Luhmann's thesis of "legitimacy through procedure" and might very well be

understood as a “call to judicial responsibility” (Drucilla Cornell).

In this sense as P. Barcellona (1994: 101) rightly asserts, we might see

Luhmann's theory of social systems as an Aufhebung of the "paradigma

kelseniano dell'ordinamento senza soggetto, che funziona secondo il

principio della autoproduzione normativa (del diritto che regola la produzione

di se stesso) e della democrazia procedurale come selezione dei

rappresentanti...". (See also Luhmann, 1969: 11, note 2; and in general

Machura, 1993; Röhl, 1993: 19 ff.)

III

Autopoietic Law

As a matter of fact, according to Luhmann (1990a, 1990b), there exists

a dependency between judicature and legislature, which is clearly seen in

such a rule as that in art. 97 of the German Constitution: "Judges are

independent and subject only to the rule of law". This means that they are

free from the political task of furnishing the general rules of conduct for a

given society, and cannot be politically responsible for their own decisions

that enforce those rules. On the other hand, they are free to operate with the

law, in so far as they use only legal arguments to solve the social problems

that are brought to their consideration. We are faced here with what

Luhmann calls "the paradox of coercion that becomes freedom", since

judges are subjected to legislation but not to legislature, as far as every

statute enacted by legislators is subjected to the interpretation of judicial

officials - even rules like the one mentioned above in art. 97, of the German

Constitution, where "rule of law" (Gesetz) is understood as "law" in the most

broad sense (Recht) to include, for instance, constitutional rules and

principles. (See Hesse, 1984: 210, note 54.)

In such a view, the indeterminacy viz. the subjectivity of judicial

decisions (since they can be grounded in many - and even opposite -

plausible ways), pointed out by D. Kennedy, doesn't brings about, as he

states, the "nonclosure in the legal system according to its own criteria"

(1985: 999). This would happen if we were representing an "alopoietic (= non-

autopoietic) system". In an autopoietic legal system the result of a judicial

decision has always the nature of a prima facie valid statement of what is to

be considered "right", "lawful" (Recht) in the system, since the system itself is

the condition of this validity (Geltung). (See Luhmann, 1991: 278.) Here we

may also remind the observation made by Trubek (1990: 43), that "[t]he more

that post-modernist ideas advance within legal culture, the more we begin to

see law not as a set of determinate commands, or even as contraditory-yet-

structured sets of rules, principles, and visions, but rather as a series of

fragments which are deployed though a wide range localized process or

practices". Those process can be seen as media to the circulation of legal

communication in the legal system.

These circumstances make of judicature the unit of the legal system

that by definition operates recursively (i.e., in a feedback and self-

referentiated relationship) only with elements of this system, what makes of it

a "functional differentiated" system. Although there are elements to be found

in the environment that also belong to other systems - of morals, economics,

politics, etc. -, as long as they are used by judicature to justify decisions, by a

sort of "Midas touch" they are converted into elements of the legal system:

the system is closed with, not to the environment. "Nur in der Welt ist das

System ein operativ geschlossenes System" (Luhmann, 1991: 305,

emphasis as in the original). A. Goldsmith (1993: 257) sees much in

common in Luhmann/Teubner's conception with Stanley Fish's basic thesis

of "permeable autonomy of law".

That is why it is postulated that judicature occupies the core of legal

systems and because of that it is autonomous, or "self-produced" (=

autopoietic - Maturana/Varela, 1973) systems, while legislature, together with

other units, are peripheral. On the political system, conversely, legislature

occupies the core, while judicature appears on the periphery. Here is of

interest to refer a study by Mario Bunge (1990: 219), where he asserts that

(a) peripheral in a system is what occurs in its boundary; (b) a specific

function of the system's boundary is to carry out the system-environment

exchanges; (c) in the boundary one finds the system components that are

directly coupled to environmental items.

W. H. Clune (1989) also uses the image "core" and "periphery" in his

construction of a (topological) "Basic Model of Legal Thought". At the

dimension of decision making agencies, processes and decisions he also

puts the courts in the core and legislature in the periphery (ib.: 190 et seq.).

Also Boaventura de Souza Santos (1988) uses the distinction in his attempt

to design a "cartographie symbolique du droit".

The assumption of the legal system as an autonomous - in the

sense of autopoietic, self-referential (see Varela, 1975: 20, 1st. col., principio,

et seq., 2nd. col., in fine) - social system doesn't mean to advocate its

isolation from the others social systems of morals, religion, economics,

science, politics etc., that are functionally differentiated from one another in

present complex societies. (See, v.g., W. Kargl, 1991, and for a different,

misleading view A.-J. Arnaud, 1989, 1991, and J. Bjarup, 1992: 328.) By

autonomy is not meant "autarchy". This autonomy means only that the legal

system functions with its own (binary) code, that is to say, in the

determination of what is legal viz. right (Recht) or illegal viz. wrong (Unrecht)

there is no need to import criteria from other systems, although they are

connected with the legal system by means of procedures of many sorts -

legislative, administrative, contractual and, specially, judicial -, which are

essential to the system's operations of juridical self-reproduction (=

"operational closedness", operative Geschlossenheit). As G. Teubner (1987:

20) exemplary formulates, "[t]he more the legal systems specializes in its

function of creating expectations by conflicting regulation, the more it

develops and refines norms and procedures, which can be used for future

oriented behavior control. This can only be formulated in the following

paradoxical terms: Law, by being posited as autonomous in its function -

formality - becomes increasingly dependent on the demands for performance

from its social environment - materiality". (Emphasis as in the original)

Proceduralization to my view represents the way out of the aporetical conflict

between the modern feature of formality and the pre-modern materiality of

law in postmodernity. (See for a dissent understanding Blankenburg, 1984,

and the reply of Teubner, ib.)

The autonomy of the system is condition of possibility of its connection

with other systems, that is to say, of its "openness" (Offenheit). (See

Luhmann, 1987: 603 ff.; Neves, 1992: 36 et seq.)

In the maintenance of the legal system's autonomy the judiciary is

above all supported by a "cognizing unit", which is the legal doctrine. Perhaps

because aware of this state-of-affairs is that E. L. Rubin (1988) advances his

thesis of the "unity of discourse" between judicature and legal scholarship.

That unit (and the mentioned unity” as well) is absolutely necessary to

the autopoiesis of social systems, since it is responsible for its self-

observation (that is, for instance, what makes social systems differ from

biological or chemical systems - Luhmann, 1987: 64) and for the recognition

of the elements that are from this specific system - and not from another one,

placed in its environment (see Luhmann, 1987: 60 ss.): "Auch die

Beschreibung des Rechts muß noch rechtliche brauchbar sein" (Id., 1988:

13). Critical theories appear to this view as an advanced moment in this

process of the system's reflexive self-observation, thus contributing to its

operational closure. (See Id., 1991: 277.) The as same it happens with

jusnaturalistic and axiological theories, they do not have to be rejected by

(autopoietical) systems theory, but rather included in its more comprehensive

theoretical framework. (See Id., 1988: 15 et seq.) Here we must remind that

the conception of "society as a system" is considered by Trubek (1990: 5) as

"a major advance in legal thought" brought to North-America by the

law and society movement, what makes it congenial also to the critical

tradition.

Legal theory not only improves the interpretative apparatus used by

judicature, but it also furnishes interpretations that can possibly be adopted

by judges, and by doing that helps them to fulfill their fundamental task of

defining the conflicts and solutions that are to be seen in accord to the law, by

modeling a specific juridical perception of social reality. "These perceptions

differ significantly from our day-to-day understanding of these phenomena as

well as from sociological or economic theories. The legal system develops

certain specific social constructions of reality (Berger and Luckmann) in

order to decide social conflicts under the guidance of legal norms. In creating

its own reality from the perspective imposed by the exigencies of conflict

resolution, the legal system abstracts highly selective models of the world,

thereby neglecting many politically, economically, and socially relevant

elements" (Teubner, 1983: 279).

As P. Barcelona (1994: 105) points out, referring to Luhmann's theory,

in a critical, but accurate manner, "non esistono infatti per il sistema nessi

causali oggettivi, giaché è `il sistema stesso che sceglie criteri per risolvere i

propri problemi interni', formando in tal modo `una certa interpretazione del

reale'. Il sistema è una trama d'istituzioni che selezionano le possibilità

indeterminate dell'ambiente e le trasformano in alternative e strategie

compatibili con gli obiettivi della stabilizzazione e della conservazione". But

here is necessary to recall that, according to Luhmann (1986': 112, note 2),

the purpose of autopoietic systems' theory is not to support the static

conservation of society's identity, but it rather reaches to stimulate autonomy

and evolution to a stage of dynamic stability. And as he also asserts, changes

in social systems "will always require operating within, not against `the

system'" (id. ib.: 135). In this context might also be of interest to remind that

the thesis of th production of reality as being a feature of the law is sustain by

Edelman (1973) in a already classic work of the french critical tradition. In the

north-american critical tradition the notion of "discursivity" (see Trubek, 1990:

34 et seq.) could also be correlated to this. The same idea seems to be

central in the interpretative approach to socio-legal research (see

Harrington/Yngvesson, 1990: 144 ff.) and to legal anthropology (see L.

Assier-Andrieu, 1989: 29 et. seq.; C. Geertz, 1983). The "alternative use of

law" by the Magistratura Democratica in Italy and the posterior "Alternative

Law Movement" in Brazil are examples of the impulse that a theoretical

conception may give to change legal order through a divergent interpretation

by the judicature. (See Arruda Jr., 1993: 169 ff.; Bergalli, 1991: 17 ff.;

Capeller, 1992: 370)

Let us now turn back to the questions mentioned at the beginning.

IV

Unsolved Problems regarding Law in the Theory of Autopoietic Social

Systems

The theory of autopoietic social systems develops a conceptual

framework to be applied on the study of societies that attained a particular

historical condition, to which belongs at first place the democratic feature of

political institutions and the capitalistic domain of economic values in those

societies. This means, in Luhmann's own words, the forthcoming of a

gesellschaftlicher Primat der Wirtschaft viz. wirtschaftliche Gesellschaft

instead of "political society” (societas civilis),so that "das politische Teilsystem

der Gesellschaft seine führende Stellung an die Wirtschaft abgibt, das heißt

sich primär wirtschaftlichen Problemstellungen unterordnet" (Luhmann,

1981: 149). The process of globalization leads us to figure the whole world as

a society, the "world society" (Weltgesellschaft). Considering this society as a

system, we'll have also on this system a "core" (or "center") and a

"periphery". "Central" would be the (participative) democratic and advanced

capitalistic parts of the world society, while the others would remain

"peripheral" until the accomplishment of their integration in the "economic

world society" (wirtschaftliche Weltgesellschaft). Here we must remind that

"core" and "periphery" in terms of autopoietic systems' theory is not to be

seen as corresponding to criteria of geopolitical division of the world, so that,

for instance, Latin America as a whole would be at most a peripheral part of

the West, and so on. As Luhmann explains, modern (or, in my terms,

postmodern) society is the one and only world society, that is to say, a global

system, since "as a consequence of functional differentiation, only one

societal system can exist. Its communicative network spreads over the globe.

It includes all human (i.e. meaningful) communication" (1990': 619). In the

global system some subsystems, as for instance the scientifical and

economical, already overcame territorial boundaries, while others still

attached to it, as it is clearly the case of political and legal systems. Although,

as there is a difference on the distribution of economic capital within any

given society, there is also such difference in the distribution of political

democratic and juridical values from the core to the whole society, be it in the

South or in the North part of the Globe. (See, for a similar view, Souza

Santos, 1988: 376; 1992: 138.) This is not to be comprehend in terms of

countries that are peripheral, since the center and its periphery would be

physically everywhere, as long as its characteristics are shown. But if we

follow the indications of Luhmann in his final masterwork from 1997, when he

asserts that protests always come from the periphery against the center, by

pretending to be out of society, then we come to the conclusion that as the

“society of society” autopoietically unfolds itself so the distance between

desires and its satisfaction tends to vanishes, something that Kojève´s

lectures on Hegel´s “Phenomenology of spirit” would support, as there we

find the (Herderian) idea of “geistige Tierreich“ (see Forster).

The theory of autopoietic social systems is an "evolutive acquisition" (N.

Luhmann - R. De Giorgi, 1991: 221 ff.) of post-industrial society and it is

fashioned to describe its (virtual) reality. It substitutes the epistemological

opposition "subject X object" (= objekttheoretischer approach) by the

functional differentiation "system X environment" (= differenztheoretischer

approach), and regards as its object not the human being, but their exchange

of communication (Luhmann, 1987: 192 ff.), thus generating a conceptual

framework more adequate to the "informational" society of postmodern era.

This happens as far as the theory of autopoietic systems aims "to improve the

instruments of self-observation, i.e. of communicating within society about

society" (Luhmann, 1982: 137).

The conception of legal order as an autopoietic system doesn't fit to the

reality of (semi-)peripheral modern or (peripheral) traditional sectors of

societies and/or social groups, (so, e.g., Adeodato, 1991: 112) and that

mostly because of their low level of social integration (Neves, 1992: 155 ss.,

210; Ribeiro, 1992: 79). Luhmann is aware of this circumstance, as he

shows when he states that since (post)modern (world) society "depends more

on self-regulative processes than any other previous society (...) it cannot

afford a high degree of social integration" (1982: 133). But as long as a legal

order is not only a reality, a Sein, but it also builds an ideality, a Sollen, the

theory of autopoietic legal systems furnishes an important knowledge about

the possibilities of law in peripheral parts of the (postmodern) world society,

that is to say, about how it could - and should not - be. This may lead to a

critical (= normative) use of this kind of (descriptive and constructivist) socio-

legal study. An example might be seen in the work of Marcelo Neves (1992:

182 ss., passim), when he identifies the lack of legitimization in Brazilian

Constitutional Law to problems in its "self-reflection" and self-reproduction as

an autopoietic legal system.

If, according to C. Geertz (1983: 173), "as any other trade,

science, cult, or art, law, which is a bit of all these, propounds the world in

which its descriptions make sense", so that it is "a distinctive manner of

imaging the real", then the theory of autopoietic legal systems is a way of

imaging this "manner of imaging the real". Its universalistic viz. "holistic" (in

the sense of "non-redutionistic") nature can easily induce us to consider it as

a sort of "Grand Theory" or, using R.M. Unger's terms (1987: 37 et seq.), a

"deep-structure theory", when my point is that we would do better using it as

a "proto-theory", i.e., "a body of ideas that can serve as point of departure to

different views of social reality and possibility" ( id. ib.: 528). Such a

sociological theory of law represents an attempt to escape the present

"exhaustion of paradigm" (Abel, 1980: 826) in this field - and, at least, it does

open it to an interdisciplinary dialogue without precedent and as we see, in

the world society in which we live in nowadays, with its hyper complexity and

multicentrality, as it is described by autopoietical systems social theory, there

is a need to investigate the present differentiation of systems in such a

society, that might be fulfilled by the systemic approach addressed here.

If we now focus on one of those systems, namely the legal one, it is

possible to observe through the lenses of luhmannian system´s theory that it

is at the same time separated and articulated with others social (sub)systems,

so that mutual irritations are absorbed through the so called “structural

coupling” between the center and periphery of one another, in order to

maintain their stability and simultaneously growth in their environment,

autonomously. Legal systems and political systems are connected through a

particular media of operative closeness called the legal constitution of the

State. Constitutional Supreme Courts emerge from the very core of legal

systems and thus belong to the center of this system, but we may very well

postulate that they are passing through a sort of migration to its periphery

with a strong tendency to occupy the center of political systems. These courts

become co-responsible with the operation of the binary code of both systems,

that is to say, the lawful or non-lawful code in the case of legal system and

the government or opposition in the case of political system. This is due to the

centrality of the definitions about constitutionality of legal norms both to legal

and political systems. So we are now to face the question of the risks that

such a development might bring about, as Luhmann (1997) make us aware

referring to Dieter Grimm (1991)´s book on the future of Constitutions. (Now

see also Grimm, 2013) At stake is the maintenance of the autopoiesis in the

global system, if we consider the legal system as Luhmann (1993) once

proposed, that is to say, as a kind of immunity system in society, with the task

to vaccinate it against the diseases of conflicts through the legal depiction of

such conflicts as prescriptions to be followed by courts conceived as immune

against politics. And the main risk here appears to be that of auto-immunity, in

the sense brought to light by Derrida - first at an interview on drugs and then

extensively in works like “Traces” - and after him by scholars like Martin

Hägglund (2008), Nass (2006, 2012), Andrew Johnson (2010) and Protevi

(2001).

V

From Autopoiesis to Autoimmunity in Legal Systems

Such an approach forces the shift from a logic of opposition, inside

versus outside, to a differential logic of potencies that posits overlapping and

opposed “systems.” Protevi explains the importance of such a shift:

The immunological system’s task is one of reading, of espionage and counter-espionage. The endgame of auto-immune disease - especially when it targets the immune system itself - is that of the impossible task of undoing the mistakes committed by the internal police who confuse internal police for foreign agents masquerading as internal police dedicated to tracking down foreign agents masquerading as internal police (….) For immunology, the question is never one of inside and outside, but of the economic distribution between intakes, assimilation or rejection and excretion. The unitary, self-present body is exploded into a systemic interchange, a point of exchange of forces; in other words, immunology studies forceful bodies politic. The outside is already inside, in relation to the inside; the regulation of this interchange is the job of the immune system (2001, p. 102).

Auto-immunity is an aporia: the very thing that aims to protect us is the

thing that destroys us. The paradox of legal autopoiesis ending up in auto-

immunity reveals the unavoidable circularity of Law and its political roots at

the constitutions. A constitution is a legal statute of definitions. A constitution

as a set of laws creates a structural vocabulary and thereby constitutes its

own logical language game. What is against the constitutions is, by definition,

illegal. The use of logic, as a mobilization of divergent immune-strategies, is a

power-mechanism intending to protect itself a priori. Politics is but one

specific structure of language. Politics furnishes the structure of the legal

system’s binary logic of lawful/unlawful. Derrida believes that the concept of

auto-immunity upsets this traditional and prevalent misuse of definitions, and

can open up the possibility of a new type of political thought. It is only by

opening itself up to the other, threatening to destroy itself, that the organism

has the chance to receive the other and become another one, in order to

remain the same, i.e., alive. This explains the solution he proposes under the

name of hospitality, the quality of the host, which is “gramatologically” at the

same time similar and antithetical to hostage and hostility, a circumstance

referred also by Lyotard in his “political writings”, when he figures a secret

host as that “to which each singularity is hostage”. This is due to the troubling

analogy in their common origin: hostis. Hospitality carries within it the danger

of hostility, but likewise all hostility it retains a chance of hospitality. If

hospitality carries within it its own contradiction, hostility, it is unable to protect

itself from itself and is stricken with an auto-immune propensity for self-

destruction.

In a text from 1996, Derrida (2002) describes the way in which both

religion and science (faith and knowledge according to the title of the text) in

their traditional forms rely on the notion of an absolute instance that would

remain “immune” in the sense of “unscathed”, untouched by otherness, and

invulnerable to ingression: in other words, an instance of the purest

sovereignty, as it is convincingly shown by M. Lewis in a forthcoming essay,

which I summarize here.

Derrida’s text is concerned to demonstrate the impossibility of such an

immune instance due to the very logic of immunity itself, according to which it

is always possible for immunity to turn back on itself to become autoimmunity.

In this way, the supposedly complete totality attacks and breaches its own

totality. From the very start, deconstruction was concerned to show that

anything which presents itself as a totality cannot do so without referring to

some other thing from which it distinguishes itself. The necessity of such a

recourse inevitably contaminates the pure autochthony and autarchy of any

totality. The reference of the same — finite totality — to the other is a

necessary relation. And this other in turn must refer to another other in order

to constitute its own identity. And this process of referring will go on to infinity.

Thus the identity of the same can never entirely be stabilized, determined

once and for all. This means that the reference to the other lays one open to

a loss of identity, an identity that one will never in truth have had. The novelty

here is to be found in its describing this self-undermining or self-

deconstruction of an only putatively absolute instance in terms of immunity

and its autoimmune recoil.

Lewis cites three passages from this text in order to demonstrate that

Derrida begins by speaking of the notion of immunity in the context of faith

and knowledge, before showing how the same notion functions in the

contexts of politics, law, Christianity, and biology. He then goes on to suggest

that, if one takes one’s mark from the biological context, the notion can be

generalized without limit to all identities.

Here are Derrida’s words, which introduce the idea of the impossibility

of absolute immunity in the case of religion:

The same movement that renders indissociable religion and tele-

technoscientific reason in its most critical aspect reacts inevitably to

itself. It secretes its own antidote but also its own power of auto-

immunity. We are here in a space where all self-protection of the

unscathed, of the safe and sound, of the sacred (heilig, holy) must

protect itself against its own protection, its own police, its own power of

rejection, in short against its own, which is to say, against its own

immunity. It is this terrifying but fatal logic of the auto-immunity of the

unscathed that will always have associated science and religion.

(Derrida 2002 [1996], 79-80)

These lines may be taken to describe the starting point of Roberto

Esposito’s project, and indeed the latter cites this passage in (2011, pp. 52-

53). In this connection, one should also among with Lewis note that Derrida

here inserts a footnote on the political relevance of the notion of immunity,

and he associates immunity with community on exactly the same

(etymological) grounds as Esposito: “The ‘immune’ (immunis) is freed or

exempted from the charges, the service, the taxes, the obligations (munus,

root of the common of community)” (Derrida 2002 [1996], 80n27). Derrida

gives a succinct account of this part of “Faith and Knowledge” in Rogues:

“The formalization of this autoimmune law was there carried out around the

community as auto-co-immunity (the common of community having in

common the same duty or charge [munus] as the immune), as well as the

auto-co-immunity of humanity” (2005 [2003], 35).

Derrida goes on to speak of the way in which this idea of immunity is

then transplanted into the domains of law (“diplomatic immunity”, for instance)

and Christianity (the legal inviolability of the space of the temple), before

moving on to the example which is most crucial to us, a chronologically later

use of the term “immunity” in the context of biological life. Here Derrida

ventures an extremely helpful and clear definition of auto-immunity. In this

passage, we should heed the way in which the reference to biological

immunity in particular seems to authorize Derrida in asserting the generality

of autoimmunity:

It is especially in the domain of biology that the lexical resources of

immunity have developed their authority. The immunitary reaction

protects the “indemnity” of the body proper in producing antibodies

against foreign antigens. As for the process of auto-immunization, which

interests us particularly here, it consists for a living organism, as is well

known and in short, of protecting itself against its self-protection by

destroying its own immune system. As the phenomenon of these

antibodies is extended to a broader zone of pathology and as one

resorts increasingly to the positive virtues of immuno-depressants

destined to limit the mechanisms of rejection and to facilitate the

tolerance of certain organ transplants, we feel ourselves authorized to

speak of a sort of general logic of auto-immunization. (ibid., emphases

added)

Hägglund largely focuses his analysis around this generalization (2008,

15), which he refers to Rogues, while nevertheless excising it from its

particular context, where Derrida locates the explanation for the crisis of

scientific reason — which reason itself produces, according to Husserl’s

account — “in the very structure of the present and of life, in the

temporalization of what Husserl calls ‘the Living Present’” (2005 [2003], 127)

(Hägglund 2008, 15).

It is crucial to note the way in which Derrida shifts from a negative to a

positive version of autoimmunity: auto-immunity makes it possible for the

integrity of the organism to be destroyed, it can precipitate the end of life, but

it also opens up the possibility of prosthetic grafts, transplants, and implants,

which can prolong life. The “intruder” to which one is hospitable may turn out

to be an enemy or a friend. It is this duplicity in value that Derrida uses to

authorize his generalization of the logic of autoimmunity. It is this absolute

neutrality between positive and negative outcomes that Hägglund has

attempted to prove. The ultimate adequacy of such an account and in

particular whether there is not a preference in Derrida, or indeed an ethical

imperative that impels us towards this openness, cannot be assessed here.

Hägglund staunchly maintains that there is not, and this is one of Naas’

reservations about his work, along with a number of other commentators (cf.

Naas 2012, 365n14).

In “Autoimmunity”, six years later, in 2001, called upon to discuss the

attacks of September the eleventh, Derrida recalls and redeploys this logic in

the context of democracy and the anti-democratic threat to democracy which

appears to come from outside but which is in fact an intrinsic consequence of

democracy itself (in this context, American democracy).

Democracy will perhaps end up becoming the example of autoimmunity

that Derrida privileges, even more than the biological, and indeed we might

surmise that while it was the double (positive and negative) connotations of

the biological sense of immunity that allowed him to generalize the notion,

one of the most important results of this will have been that it allows him to

understand the concept of democracy. Before himself quoting the passage

we have cited on “the autoimmunity of the unscathed” (2002 [1996], 79-80),

Derrida comments on his earlier text as follows: “I there proposed to extend

to life in general the figure of an autoimmunity whose meaning or origin first

seemed to be limited to so-called natural life or to life pure and simple, to

what is believed to be the purely ‘zoological,’ ‘biological,’ or ‘genetic’” (2003

[2001], 187n7).

Reflecting the context into which this passage has been transplanted, in

his later quotation Derrida underscores the word “terrifying” and goes on to

suggest that, according to the logic of auto-immunity, the greatest threat of

terror comes from within, in that destruction of the immune system which

allows the relatively strict border between one’s self and the outside and

hence one’s very identity to collapse, not because of an enemy attack from

the outside, but due to an internal corruption. “My vulnerability is thus, by

definition and by structure, by situation, without limit. Whence the terror.

Terror is always, or always becomes, at least in part, ‘interior’. And terrorism

always has something ‘domestic’, if not national, about it. [...] [T]he enemy is

also always lodged on the inside of the system it violates and terrorizes”

(2003 [2001], 188n7).

In Rogues, from the following year, 2002, the value of this generalized

sense of autoimmunity for thinking about democracy becomes clearer. Here,

Derrida shows in detail how the threat to democracy does not simply attack it

from outside, nor is it merely a contingent defect of certain (totalitarian or

imperialistic) democracies; rather, it is inherent to the very idea of democracy

itself. Accordingly, he speaks of two (autoimmune) possibilities for a

democratic process, two ways in which a democracy by its very nature is

susceptible to becoming non-democratic:

1) The first possibility is that the democratic process may elect a non-

democratic party who have vowed, if elected, to abolish the very democratic

process itself. Here the threat issues from the outside, but is nevertheless a

possibility that democracy lays itself open to according to its very essence.

2) The second possibility is that democracy, in order to ward off this

threat, suspends its own democratic character and cancels an election in

which the first eventuality is likely to happen (as happened in Algeria in 1992).

Thus democracy renders itself temporarily non-democratic in order to protect

its identity as democratic. It infects itself with a measured dose of the poison

which it is trying to immunize itself against.

One might think of these two autoimmune possibilities of democracy as

the negative and positive values inherent to the very concept of democracy,

since one would allow it to be abolished, while the other would only

temporarily hold it in abeyance in order ultimately to reinstate it. The two

possibilities are not dissociable: that democracy can be suspended means

that it can disfigure its own identity in order to preserve that identity, but

always at the risk of losing its identity altogether (2005 [2003], 30-3, cf. 35).

Derrida himself speaks explicitly of “immunization” and then “auto-

immunization” in this context:

[in Algeria, in 1992,] they decided in a sovereign fashion to suspend, at

least provisionally, democracy for its own good, so as to take care of it,

so as to immunize it against a much worse and very likely assault. [...]

[T]he hypothesis here is that of a taking of power, or rather, of a

transferring of power (kratos) to a people (dēmos) who, in its electoral

majority and following democratic procedures, would not have been

able to avoid the destruction of democracy itself. Hence a certain

suicide of democracy. Democracy has always been suicidal, and if there

is a to-come for it, it is only on the condition of thinking life otherwise,

life and the force of life. [...] [/] There is something paradigmatic in this

autoimmune suicide. (2005 [2003], 33)

We are confronted here with the truth exposed in Walter Benjamin’s

1922 essay “Kritik der Gewalt”, where Kritik means both critique and

foundation as well as Gewalt means both violence and state Power. There he

argues, as Nietzsche did before him in his polemical tract “On the genealogy

of morals” (Second Essay, Section 17), that law cannot establish itself without

an original act of violence and cannot maintain itself and preserve social

order without continual violence. Law is intended to protect citizens from

violence, but its inherent structure implies that it must both founds and

maintain its authority with violence. Violence is much like a cancer or an auto-

immune disease of AIDS type, secretly implicit within the concept of Law

(Roberto Esposito, 2011). In Luhmann´s terms, the original distinction of

law from violence results in negation, but the negated is not cancelled:

negation, maintaining what is not indicated as actualizable for the next

selection, is the operator of potentialization in every selection of social

systems. As a result it becomes clearer that the relationship of violence to law

is auto-immune. Law cannot define itself in opposition to violence, because it

is entirely reliant upon it. The foundations of Law and State are exhibit in this

auto-immune reversal. Luhmann´s most peculiar understanding of negation

is what opens to the co-origin of actuality and possibility as well as that of

Law and violence: actual Law is potential violent.

Carl Schmitt would then in a Hobbesian mood advocate, in a book

that Benjamin highly praised, that to protect and to preserve the law requires

a sovereign, which preserves the privilege to break it (supposedly) if it is

needed. If we recall that the etymology of immunity comes from the Latin

immunis, which literally means exempt, then to properly immunize the law

there must be no border, no limit, no exemption, that with the law cannot, by

definition, be surpass. So violence is law’s parasite, that is to say, if

communication can be seen as the mutual effort of excluding the unwanted

third, there is a noise or paradox that has to be overcome in order to produce

meaning, as Luhmann puts it in his opus magnum from 1997 quoting

Deleuze´s “Logique du sens”, and if this is the parasite, then it is right to see

it as the operator that re-opens communication by interrupting the flow of

information ‘upstream’ and discharges it ‘downstream’ in a distorted and less

well defined form (in the proposal of Michel Serres). To become immune

against this parasite turns out to be lethal for societal systems, since they are

defined in Luhmann´s terms precisely as communicational systems. The

killing of the parasite is likely to become a sort of God’s and man’s second

death after resurrection, since in his polemical talk delivered at a conference

in Frankfurt to discuss the local School’s critical heritage (“I See Something

You Don’t See”) Luhmann nominates Serres´ parasite to substitute the

subject of the observer’s observations. As we can conclude with Badiou

(and Kojève, as Pluth convincingly demonstrates), man with his access to

ideas as those of justice and truth is the parasite of eternity that was

inoculated in the mortal animals humans live in, and this in the anthropogenic

act of man self-creation upon the material support of the animal homo

sapiens, as it is suggested by Kojève in his book on phenomenology of right

(see § 34). It must have been in this sense that Kojève wrote that “man is a

fatal disease of the animal” (see Agamben, 2003), for in his reading of Hegel

he plainly suggests that self-consciousness is some kind of malady.

And as matter of fact, the legal system and its closer counterpart, the

political one, are very far from getting stronger in the “society of society”, as

Luhmann ends up treating present world society. We face here both the

limits and the critical potency of the idea of law as an autopoietic social

system in contemporary world society: the ambiguous partition that separates

the political threat from the political promise, when every executive power

uses the exception to define their authority exceeding and surpassing a Law

that becomes weaker as a mean that increasingly fails to attain its end and

actualize its potency, to an extent that it literally turns out to be meaningless -

and meaning to Luhmann is the unity of the distinction actuality/potentiality,

as he once so nicely defined in symposium held at Montpellier, France, May

9-11, 1984 (or, expressis verbis, “Meaning is the link between the actual and

the possible: it is not one or the other”).

No wonder that the events on 9/11 in the beginning of the decade that

now comes to an end illustrates so neatly the precedent contributions of

Giorgio Agamben to political philosophy by following the steps of Foucault,

Hannah Arendt and above all the just mentioned intertwine of ideas in the

works of Carl Schmitt and Benjamin on the priority of exception over

normality. Let us hope that the former’s prediction on his 11th Theses on the

Philosophy of History will be fulfilled, and then we will see how “the 'state of

emergency' in which we live is not the exception but the rule (is) to bring

about a real state of emergency, and this will improve our position in the

struggle against Fascism“. Unfortunately, what is most visible now is the

generalization of the latter’s idea of the partisan, which blurs the line of

enemy/friend, legal/illegal, so that the enemy can be anyone. Derrida’s

(2002) deconstruction of the state in the light of Benjamin’s critique provides

a necessary critique to the crutches of the state as security against violence.

Roberto Esposito (2008, 2011) brings it further in his immunological

reconfiguration of biopolitics, pointing out that among with its correlate

concept of immunity we are to look for both sides of such concept, and the

find those positive and opposite to the current negative notions the acquire in

such an approach as Agamben’s. Biopolitics can be seeing as a politic to

promote a better life instead of making it the privileged field for the

demonstration of sovereign or disciplinary power. Such a possibility is

directed connected to a positive valuation of immunity as a condition not only

of hostile closure to avoid mortal diseases or menaces but also as a drive to

become open in order to hospitably include the amount of the other outside

that is needed not only to resist against it, while it is an agent of

differentiation, complexification and growth of life powers.

Otherwise we will end up reaching the point where everyone is, de

facto, an enemy of the state, at least in the light of such rules as the U.S.

National Security Presidential Directive (NSPD - it is remarkable the

coincidence with the Nazi-Partei`s acronym) 51 from May, 2007? Are we not

all policed? Since we can be attacked by internal enemies, everyone is a

potential and imminently actual Enemy.

Schmitt (1996, 2007) asserts that this is properly a depoliticalization,

since for him the essence of politics lies in the distinction of the friends from

the enemies. On the contrary, for Derrida partisan politics, the enemy within,

is, in reality, our current saturation in overpoliticalization. The partisan conflict

is the true essence of the auto-immune symptom of an ongoing world civil

war. Derrida, indeed, wants, acknowledges and demands a depoliticalization.

Is it another name for the deconstruction as it is for Lyotard´s (1979, 1988)

post modernity or a sign of democratic withdrawal as suggested by S. Žižek

(2003), especially in this age of overpoliticalization? More so, he advertises a

new concept of politics, a non-political concept of politics, altogether; he

demands a new concept of democracy. This is of course, a “democracy to

come,” within a “politics to come,” through a “friendship to come.” Is it

possible? Derrida’s answer: perhaps. In his well-known formula, it is only

possible as im-possible. Its impossibility is the condition of its possibility.

Luhmann would not deny such a com-possibility in the human world that he

conceives under the conditions of double contingency. From my point of view

we could say with Leibniz and Kant that, if it is necessary, it must be (made)

possible.

For now we can only assert that Politics is no longer able to maintain

through enforcement of a legal order the irreducible opposition between what

is internal and external to it as a system, which under such condition tends to

“de-differentiate“, disintegrating in the environment. The increase of human

rights´ disrespect in traditional states of law is very symptomatically. And they

are negate without any tangible compensation, not even an illusion of

(security from) the contact with the environment. Would the world society

resist to such a collapse of both its legal and the political systems into one

another? And if it does, would it one day becomes a better place to live in or

even worse as it already is now? Are we facing the dissolution of national

states by their melting down into a global empire? Is it “Schmitt’s

katechon“(J. Hell), the most powerful enemy, the adversary par excellence,

that is the Antichrist, holding back the perpetual peace of the impossible

universal State to come (at least, for Schmitt, in “The concept of the

political”)? Will the increase of violence surpass the State, the Law and the

moral humans it has shaped (in Nietzsche’s terms)? And again, would such

a development bring about the overcoming of mankind or the return of the

inhuman? We definitely need to learn how to think in terms of flip/flop

distinction. And people like Drucilla Cornell (1992b: 68 ff.), Peter Sloterdijk

(2009), William Rasch (2000), Urs Stäheli (2010) and Andreas

Philippopoulos-Mihalopoulos (2009) were definitely right, when they

established connections between Luhmann and Derrida, against the will of a

(Post-luhmannian) Teubner (2001, 2006), for Luhmann (2002) himself

made deconstruction equivalent to (his) second order observing, finally

considering it “the most pertinent description of the self-description of modern

society” - as postmodern or, to respect his option, “postcatastrophical”

(catastrophe here understood in the sense meant by René Thom, 1975).

So we have to face a shift not only inside the paradigm but of the very

form that stabilizes state-of-affairs and imposes meaning to events, after its

fragmentary explosion, that results in the loss of the one-and-the-same world

to which we dedicate what Husserl called in section 104 of his “Ideas” the

“primary belief” (Urglaube) or “Protodoxa” (Urdoxa) in his attempt to express

“the intentional back-reference of all modalities of belief”. This makes us

recall what Luhmann in his earlier book on legal sociology refers as the

‘material dimension’ of social expectations, which Andreas Philippopoulos-

Mihalopoulos explains as the acknowledgement of the necessary

community of the world in order for expectations to exist, that appears in the

form of the need for a fictional consensus on which the reciprocal

confirmation and limitation of expectations is exercised. It is comprehensible

then the alert Luhmann (2002’) give to all those who think universal like

Frankfurtians still do, by telling them something they don’t see, namely that

they miss the point, as long as they assume “that they live in one and the

same world and that it is a matter of reporting in accord about this world”.

Lately, Evan Thompson (2007) discusses under a Husserlian point of view

such a necessity that to different consciousnesses corresponds different

worlds.

We turn out thinking that the instantaneous and catastrophic destruction

of the World Trade Center’s not only one but two towers, that is to say, of both

the real and its simulational clone might have caused such an enduring

impact due to the materialization it made of our lost confidence in a unreliable

reality, since it as mutable as a virus. Then we must mourn the consensual

parasite and welcome the virotic “diremption” (Entzweiung) of rhizomatic

mutualism (Deleuze & Guattari) producing the “differend” (Lyotard), an unity

that is multiple in itself, since it is (autopoieticaly) created in between

antagonic poles. Here it is useful to recall, with M. Zahani (2000), when in an

interview with Didier Eribon, Deleuze, referring to “A Thousand Plateaus”,

pointed out that what he and Guattari (2004) “call a rhizome is also one

example of an open system”). And as we learn from a recent breeding of

Luhmann´s and Baudrillard´s contributions to social thinking, “[T]he

persistence of a two-side-form can be assured only by producing doses of

some simulated ‘other’, no longer available in its ‘natural’ form” (René

Capovin). If it is so, let us hope for the coming in the societal world system of

an AIDS-like virus, a virus that really aids finishing the social anti-human and

nature´s love/hate double-bind (Bateson, 1972, pp. 271 ss.),, by doing the

auto-immune apocatastasis. Apocatastasis is a term created by Origenes of

Alexandria (185-253 B.C.), also known as Origenes Cristian, in order to

name the final restoration of all things in its absolute unity with God. It

represents the redemption and final salvation of all beings including those

which are in hell. It is an event after the apocalypse itself. The apocatastasis

would synthesis the power of the embodied Logos or Verb, that is to say, of

Christ himself as a redeeming and salvation power, which recognizes no

limits. This proposal lead to the supposition that there is not only one created

world, the one that initiates in the Genesis and ends in the Apocalypse, as it

is suggested by the Christian Bible. On the contrary, in His creative activity

God generates an infinity succession of worlds, which will stop only in the

apocatastasis, when all beings will rest in God. This idea of an infinity

succession of worlds resembles what is predicated by a now very much

accepted hypothesis in quantum physics to be found in Hugh Everett III´s at

the time it appears extremely controvert 1956 PhD thesis on the wave

function.

Otherwise the legal systems worldwide will increasingly react against

diversity and by doing so it undermines the very foundations of humanity's

both natural and cultural ambiance. This is the worst that the present

enduring crisis can lead to.

On the basis of this model, these metaphors that I produced here, and

from which, for example, I would say Europe is suffering from an allergy. Is

undergoing an allergic reaction, the crisis is allergic, which does not mean

that it cannot be serious! There are very serious allergies; I suffer from an

allergy, for example. How did I contract my allergy? Excessive protection in

childhood, excessive closure to the environment and then, as a result of

being exposed to the environment, may cause such disturbs as hay fever and

some other much worse of the kind. So we might think that Europe has an

obsession with Europe, which needs to be overcome as well. In other words,

above all, Europe needs to open up again. All this concentration of an

integration that is coming at the expense of the open stance that countries

like Portugal and Spain has previously had, even putting themself, why not,

somewhat outside of Europe, as they were until relatively recently, at the

times I myself had the chance to hear on those countries people saying they

were to “go to Europe”. In other words, there's no longer any doubt that if you

are in Portugal or Spain, you are in Europe. But why is it that the Iberic Lands

cannot recover its transatlantic vocation, its overseas calling, its ability to

integrate more deeply into the world system, which their history widely

demonstrates. What is happening is a problem of integration of the Euro

zone, of Europe, to global society, this global society whose origins lie in

Europe itself. With this sense of closure in on itself, this preoccupation with

itself, it is missing opportunities that it can no longer see, as a kind of blind

spot. The same is happening with other countries with such grand cultural

backgrounds like Greece, which is the very source of western civilisations

and nowadays are going through what we got to see. With the cultural capital

that it has, we in Brazil needing it so much, we are a great power now; it's a

joke from my point of view, with all due respect to my countrymen and others

that believe so. It is true that we are having some success there, but our

cultural deficit is very large while the culture surplus of Greece is much larger,

i.e., there is no strictly European solution for the European problem. Because

this is the problem, Europe's obsession with itself, when there is no European

immune system, but instead there is a global immune system causing a kind

of allergy in the European sector of this world, which will be overcome above

all if it is recognised as such, this problem of aversion to what is external and

obsession with what is internal.

The immunological turn in the autopoietic paradigm, aware of such

circumstances, intends to emphasize rather the po(i)etical aspect than the

auto, the “selfness”, which is the possessive individualism that stills possess

us. Let us now extend some more such a proposal. This new interpretation

situates immunity in a nonexcluding relation with its common (or communal)

opposite. “The essential point of departure [...] is a conception of individual

identity that is distinctly different from the closed monolithic one” (Esposito

2011, p. 17).

Esposito links this advance in interpretation to the history of technology

and suggests that this new understanding of immunity and identity “has been

made possible, even inevitable, by advances in genetic and bionic

technologies: rather than an immutable and definitive given, the body is

understood as a functioning construct that is open to continuous exchange

with its surrounding environment” (id. ib.). And crucially, he states that, “the

immune system may very well be the driving force behind this exchange” (id.

ib.).. The immune system is thus not something opposed to the common, but

the very possibility of a genuine intertwining of self and other. As Luhmann

once stated, a frontier is at the same time a place of separation and of

encounter.

VI

Autoimmunity generalized

A paradigm shift is referred by the editors of a recent published book,

Anders la Cour and Andreas Philippopoulos-Mihalopoulos (2013, p. 13)

to what I have accomplished in the chapter I wrote to this book, where we

introduce the ideas here presented. It turned out worth exploring this

possibility as it is becoming current in all sorts of fields.

In the Artificial Intelligence research launched back in the 1940´s by

Warren Sturgis McCulloch (& Pitts, 1943) it is already common to lead with

the so-called “semiotic machines”, as for example we read in Winnfried Nöth

(2007, pp. 159 ss.). There is also an immunological turn to be observed in

this paradigm, since the immunological system despite its lack of

consciousness is an intelligent one or so to speak a system of Natural

Intelligence, such as we find it in living beings. In vertebrates besides the

innate immunological system there is another and much more complex one,

which is the adaptive. It is specialized in the solution of sophisticated

problems using the equally sophisticate strategy of attaining it through the

inclusion of elements extracted from the very problems that are confronted

with the support of some features as the memory already developed in the

system. For further development on this topic see J. H. Holland (1998). As

we know from ancient philosophical studies the memory and the imagination

are blended together, so that we face the emergence of a much powerful

conscience-like computational feature of machines with the growing

advancement of neural network with learning and memorization abilities such

as the Perceptron (Minsky & Papert, 1969), recursive (Hopfield & Tank,

1985), self-organizing (Kohonen, 1984, 1997) and adaptive resonance

(Carpenter & Grossberg, 1988, 1990) networks. In the interplay and

intertwining of all those algorithm-based approaches to form ever more

accurate models we notice the growth of the whole network cognitive

capacities vis-à-vis its isolated elements or units. The next step seems to be

what a researcher of quantum statistics that doesn´t want to be identified due

to confidential agreements calls “sound theory” while investigate the following

hypothesis: a system that is in harmony has no noise and is a better one, as

well as a society with little noise or just harmony would be autopoietical in the

original sense of Maturana and Varela, since harmony self-recognize itself,

the noise caused by lack harmony is evidently recognizable. The legal system

creates harmony by separating signal from noise, and the same that is done

in statistic through Gaussian geometry. So instead of working on pattern

recognition, which is an intrinsic aspect of an Immune system), the research

is moving to pattern generation and music is an infinitely better design for

pattern recognition in general it seems very wise to work on a music theory

of pattern recognition (for a confrontation with the theory of autopoiesis from

such a musicological background see Chagas, 2005).

The immunological systemic approach as we see do not employ the

constraints originate from the formalist barrier opposing artificial and natural

being, as it is to be found very much spread in all levels of researches and

not only of the living, where it is present from biology to psychology and we

now propose to extend it to socio-legal (critical) studies. Examples of the

former is the System-Wide Meso-Scale Cellular Automata Models of

Immunity employing computer based probabilistic methods by such

researches as Mark M. Davis from Stanford and Shai S. Shen-Orr from

Haifa (2013, pp. 481 ss., esp. pp. 491 ss.) or Kirsten Bomblies with D.

Weigel (2007, pp. 382 – 389). And inversely it appears as much promising

the Artificial Immune Systems approach (see the pioneering proposal in D.

Dasgupta, 1998, and further developments in id., 2006; Castro & Timmis,

2002) as we found in the group of research under Fernando José Von

Zuben´s leadership at the Brazilian State University of Campinas, in São

Paulo (see, v.g., Castro, 2009). In the field of psychology A. J. Cunningham

proposes a “Gestalt Immunology” (1978).

So as the correspondence of genetic algorithm to that of the immune

system has shown its feasibility we may also find such a correspondence at a

major scale in the multitudinal optimized solutions coordinated by ants while

building their homes, and then we meet a new trend of research, where

otherwise mysterious coordination of animal behavior has been seeing as the

emergence of quantum physics properties. All those case might be

considered as teleonomic drived by a Peircean final interpret, since it does

not seems to be just fortuitous that the representation of the antibodies

molecule is precisely like C. S. Peirce´s graph proposed to figure the sign wit

its object and interpret (see fig. infra).

In: Castro, 2009, p. 23.

If we now turn to the Dworkian inspired R. Alexy´s (see v.g. Alexy,

2002, p. 388) concept of the special kind of legal norms that have the nature

viz. structure of principles are “optimization requirements

(Optimierungsgeböte)” and then recall R. Dworkin´s original concept that

principles have a “dimension of weight” (Dworkin, 1978, p. 26) and are

“proposition that describe rights" (Id.,1985, p. 72) we may conclude that the

here depicted technological developments are to be applied when we dwell

with the most import legal issues, which have at least in the background

either an explicit or a latent conflict of fundamental subjective position such as

rights, duties, competences, liability or powers constitutionally generated. The

best solution that might happen to be the right one to such problems demand

an optimization through the incidence of a principle of relativity, that is the

above mentioned proportionality principle. This demands far more than the

application of Pareto´s calculus for optimization as suggested by Alexy in his

by now well-known ponderation formulae, since we are dealing of a matter

not only of rationalization, and even in this respect there have being

enormous developments since Pareto, but above all there is a need to

include in the calculus emotional aspects, in order to render it not only

rational but also reasonable and to the present the better machine do cope

with this are the semiotic ones contagiously humane self-produced

(anthropós to auton poien).

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