Systemic Shifts in Sociology
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1 ANDREA PITASI-GIULIA MANCINI (EDS.) SYSTEMIC SHIFTS IN SOCIOLOGY
Transcript of Systemic Shifts in Sociology
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ANDREA PITASI-GIULIA MANCINI (EDS.)
SYSTEMIC SHIFTS IN SOCIOLOGY
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Prologue
By Andrea Pitasi .....................................................................................................5
Introduction
By Giulia Mancini ...................................................................................................7
Chapter I
Systemic Shifts in Sociology
By Andrea Pitasi .....................................................................................................15
1.1. Systems as Immaterial Constellations ...................................................15
1.2. Luhmann’s Theory and the Paradigm Shift in Sociology .....................20
1.3. The Systemic Paradigm Shift ................................................................24
1.4. The Hypercitizenship Challenge to Methodological Nationalism ........27
1.5. The problem of methodological nationalism .........................................31
1.6. Bifurcation and Beyond .........................................................................39
1.7. The Emergent Hypercitizenship ............................................................43
1.8. The Power of Complexity......................................................................48
1.9. Conclusions: The Hypercitizenship Age ...............................................52
Chapter II
Theory of Law in the 21st Century: From Semiotica to Autopoiesis
By Leonel Severo Rocha ........................................................................................60
2.1. Meaning and Semiotics in Law .............................................................61
2.2. Meaning and Autopoiesis ......................................................................68
2.3. Conclusions ............................................................................................80
Chapter III
The Complexity of Identity Building
By Massimiliano Ruzzeddu ....................................................................................88
3.1. The Notion of Identity ...........................................................................88
3.2. Identity in turbulent times ......................................................................103
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3.3. Social actors and social scientists ......................................................... 107
3.4. Discussion ............................................................................................. 109
Chapter IV
From Luhman to Fernando Meirelles and the Constant Gardener: the
specific autopoiesis of the right to health in Brazil
By Germano Schwartz, Renata Almeidada Costa ................................................. 117
4.1. Why the Theory of Autopoietics’ Social Systems? .............................. 118
4.2. Is there a Right to Health Planning? ..................................................... 120
4.3. The Autopoiesis of the Health System ................................................. 122
4.4. The Specific Autopoiesis of the Right to Health in Brazil ................... 126
4.5. Conclusion ............................................................................................ 132
Chapter V
The Possibility of Democracy and its Limits in Today’s Society
By Sandra Regina Martini Vial .............................................................................. 139
5.1. Results and Discussion ......................................................................... 143
5.2. Final Considerations ............................................................................. 171
Annex Section
Systemic Shifts and Trends in Social Sciences ...................................................... 179
Annex I
The Radical Constructivism, Constructivism, Zen Buddhism and the Individual
Patterns of Communication Use in the Age of the Plural Self
Leon Rappoport and Andrea Pitasi ........................................................................ 179
Annex II
The Triple Helix of University–Government–Industry Relations
Loet Leydesdorff and Andrea Pitasi ...................................................................... 187
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Prologue
By Andrea Pitasi
The most recent and relevant paradigm shifts in systemic sociology surround
pivotal topics for the social sciences because these shifts played three crucial
functions: a) these shifts anticipated a new alliance between hard and soft sciences in
the framework of complexity, b) these shifts allowed the autopoietic conception of a
system to emerge beyond the rigidities of the oversimplified, old fashioned
whole/parts paradigm, c) these shifts, through an increasing abstraction and
dematerialization levels clearly explained that “reality”, “future”, and “trends”, are
more inventions than descriptions. At the crossroads of these three crucial functions,
Niklas Luhmann’s (1927-1998) writings are fundamental.
Nevertheless this is not a book about Luhmann. Pre-Luhmannian systemic
theory is obsolete, but the challenge now is not to shape a monument of the “real”
Luhmann, disputing about what “real” means. Luhmann died before the September
11 attacks, the economical crisis, the North African rebellion of the masses, before
China entered the WTO and before “Vix” entered everyday semantics. Nevertheless,
Die Geselschaft der Gesellschaft (1997) anticipated the increasing width of the global
systemic horizons and the resonant noise from the environment against them.
Luhmann’s works changed the systemic vision forever, and now it is time to allow
systemic sociology to invent our next scenarios before the disorganized, meaningless
environmental noise overwhelms the systemic trends which will evolve
autopoietically anyway. However, their speed would decrease or increase depending
on the noise level. Luhmann’s autoreferential heritage is cross-fertilizing several
streams and think tanks. This book is an exemplary case of this cross– fertilization,
and hopefully, several more will follow on the global scale to design the future in the
present.
Bologna, September 2012
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Introduction
By Giulia Mancini
“The modern individual will plead guilty to many things, but not to being naïve.
Anything but that. He knows perfectly well what is hidden behind the gods, the myths,
the great and wonderful tales that have come down to us from all lands and all ages.
The modern individual is a realist”.
(Godbout and Caillé, 1998: 2)
Systemic Shift in Sociology – as evidenced by the title – draws, builds, and
establishes theoretical, epistemological frameworks and sociological explanations.
Today more than ever, it is necessary to have the “lenses” that illuminate the
economic challenges and legal language policies that are constantly engendered.
The authors of Systemic Shift in Sociology trace and investigate the social
theories and their possible interpretations and applications to contemporary
society. While analyzing the possible developments and paradigm shifts, they
offer a description of the socio-systemic global society as they attempt to unravel the
future trajectories through which the society will move. Through meticulous analysis,
the authors give the reader a useful tool – new “glasses” to interpret the evolving
circumstances.
The successes in science and technology are the great innovations that
characterize the 21st century. They have obvious and important transformations in all
spheres of society – transforming concepts and interpretations. They changed the
concept of geographical space and destroyed geographical barriers, inevitably leading
many people to communicate quickly and immediately. Just think of the great 1978
invention of Shiva Ayyadurai, when he developed the first e-mail system for the
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faculty of Medicine and Dentistry of New Jersey1, an invention that reconfigured the
flow of communication.
The concept of “human body” changes in the 21st century.
The human body is not just a box made up of flesh and blood, but it is the result of
human and artificial interactions. The first artificial implant made in 1960 by Wilson
Greatbatch was the pacemaker, which changes the ratio of “individual” and his body,
thus changing the way the individual treats himself.
Major economic changes create imbalance between the developed and
underdeveloped countries that do not have the same access to technology. The
invention, the introduction and the management of a component can be artificial as it
begins to be considered a product. It leads the organization to adopt organizational
strategies to achieve a more efficient use of available resources – human and
technological – with the intention to generate greater value for all stakeholders.
These changes are to bring light to the relationship between individual rights,
as well as between law and health, or between law and information. To investigate
and analyze the role of health, Renata Almeida da Costa and Germano Schwartz use
the film The Constant Gardener as a metaphor to explain the functions of society and
the way one should investigate the relationship between law and health. They said,
“The Constant Gardener is a metaphor to explain how society works. Law should,
therefore, in its autopoietic function, (re)establish normative expectations towards
health. However, the management of the essential paradox of the sanitary system
(health advances because of the disease), should be filtered by specific selective
mechanisms of each Law system”. The authors point out how the law should,
therefore, establish normative expectations toward health. However, the management
of the paradox of the healthcare system must be filtered individually by each
1 Federico Rampini “In mostra la prima e-mail della storia un indiano inventò la posta elettronica ”La Repubblica 19 febbraio 2012
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country’s legal system. A growing differentiation in health follows as well as health
analysis.
Almeida da Costa and Germano Schwartz analyze the Specific Autopoiesis of
the Right to Health in Brazil. They state “The specific autopoieses of the right to
health in Brazil, (re)processes the external influences from Brazilian positivity,
creating thereby a new perception of reality – transformer of the sanitary facticity. In
case of nonexistence of this dedifferentiation, autopoiesis of Africa and Brazil would
be identical, implementing a new and unwanted Gondwana to the right to health,
because in this case, the distinctive unit would be harmed by a hegemony that makes
impossible advances in the health sector”.
The information becomes a tool that hides and conceals power and circulates
quickly to its nature “asymmetric”. In fact, Touraine writes, “is no longer the struggle
of capital and labor in the factory to be at the center, but rather the one against the
machines by the users, consumers or inhabitants, not so much defined by their
specific characteristics because of their resistance to the domination of such devices”
(Touraine, 1978: 169).
If one were to consider the basic idea of an autopoietic social system, he or she
would assume a system is capable of self-reproducing through its own elements in a
recursive logic; thus, the fact that the systems are simultaneous, free and independent,
depends upon the component elements of the system. As a matter of fact, Almeida da
Costa and Germano Schwartz begin from an assumption: the establishment of health
as an autopoietic system has a clear engagement with the progress of medicine.
The law must be the guarantor of “good health” and provide security and a
right for a healthy future. Ensuring patient access to care, and at the same time
ensuring the economic sustainability with available resources, demands and imposes
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a coordinated and comprehensive strategy based on political and institutional ideas,
regulatory activities, information programs, training and research.
In such a scenario, the critical success factor becomes, therefore, the coverage
of organizational process and method throughout the production of chain health
through proper planning, management and a genuine system of indicators. The law
becomes the glue among development, technology, economy and social differences
between countries.
The idea of a societal risk (Beck, 2006), Luhmann’s sociological
constructivism, theories of Humberto Maturana, the Delattre epistemological
reflections, and the systemic science appear to be the main tools for encoding and
decoding of the evolution of society. As Delattre stated: “The system theory aims to
impact on the fading of knowledge, as well as to develop a methodology able to face
the challenges of complexity [...]. After the deconstruction of the old disciplines [...]
it has now become indispensable to focus on a new synthesis of pieces of knowledge,
following a unity principle, necessarily different from those used before because it
must be adequate to other levels of learning” (1984: 3-5).
Individuals, businesses, professionals and entrepreneurs increasingly need to
create conceptual models to develop interdisciplinary analysis of global scenarios.
They must find a strategy that can adapt to the circumstances within which these
individuals work.
We live in a multicultural world. Today, more than ever, organizations are
forced to face the challenges of technological innovation at the dawn of a new era
that could be called a bio-economy in which exists incubated convergence between
genetics, robotics, computer science and nanotechnology, as Pitasi says in his book
“The Hyperhuman World, Legal Systems and Social Complexity”. This convergence
is increasingly obvious to theorists and scholars. For some, this convergence is only a
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trend (Nowotny, 2008), but for others a technological prophecy, (Kurzwail, 2005)
which assumed that all these disciplines are merging in a single definite reality
singularities and when humanity reaches this high standard that we will make a
technological leap of evolution.
The consequences of these advances have undoubtedly brought with them an
improved quality of life, as well as a greater interaction between different cultures. At
the same time, however, they have created a need to transform ourselves into a new
type of citizen with a new “identity card” – the hypercitizenship identity card that
Pitasi describes as the convergence between different types of citizenship (2011).
This implies a redefinition of the concept of identity that changes over the
years. As discussed in the essay “The Notion of Identity” through the Latin definition
of the word, is traced to the foundations of a linear trend in the construction of
passing by the individual as different from another person. As an individual who
supports the idea of “social condition”, sociology begins to provide the tools to assess
the theories in which this process “is that a double orientation: societies – i.e., social
systems – are environments for human beings – i.e., psychic systems – are
environments for humans and societies” (Luhmann, 1995: 179).
Massimiliano Ruzzedu analyzes how the inputs from the environments seem to
change. This change happens much more frequently than in the past, so that the
structure of individual psychic systems needs to adapt to a continuously changing
environment.
The transformation and development bring with them linguistic and economic
progress, but this progress is directly proportional to the increase in risk. In fact,
Ulrich Beck analyzed that in advanced modernity, the social production of wealth
systematically goes hand-in-hand with the social production of risks (2000).
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The individual becomes a “managing complexity” operation, and artificial
intelligence introduces new techniques that increase procedural rationality of
economic agents and help the individual make better decisions. Markets in large-scale
and hierarchical organizations are social schemas to facilitate coordinated conduct
while maintaining the human resource capacity minimal but essential to deal with
complexity and large masses of information (Simon, 1985). This inevitably leads to a
reinterpretation of language on theory of law. It is highlighted in Leonel Severo
Rocha’s essay, in which he states, “This chapter attempts to show initially the
language paradigm adopted on theory of Law, evident, clearly, in Semiotics, in order
to introduce the different perspectives on the Theory of Autopoietic Social Systems
and their relationship with the production of meaning and the paradox, the search for
a concept that can be operationalized by Law”. Through a process that has its roots in
Sussurre and Pierce, for this author, “a sign, or representamen, is something that, on
certain aspect, or in some way, represents something to someone. It is addressed to
someone, that is, it creates in this person's mind an equivalent sign, or maybe sign
better developed. About the sign just created, I name interpreter of the first sign. The
sign represents something, its object”. With the contribution comes Clam, and
Teubner essay – Leonel Severo Rocha analyzes the autopoietic concept and its
meaning from different points of view.
The theory of Law needs to approach new features assimilated by legal
dogmatics to become a space of observation and constructive thinking. Humberto
Maturana (2009) and Niklas Luhmann (2001; 2002; 2007) realized epistemological
projections in law to build social networks focused on society as autopoiesis. Leonel
Severo Rocha analyzed only with the autopoiesis concept how one can observe the
production of meaning.
The goal is that the System Theory is a tool to build a social theory for society,
a theory which has meaning socially produced, reproduced, and produced again. Only
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by defining a language of law and therefore a Semiotic analysis is it possible to find a
concept that can be made operational by the law.
In the 90s, modern law was not a hierarchical right, which shows the difference
between public and private sectors. The law is fragmented and creates many
subsystems that one needs transformed in its semantics, making the new law protect
the many social spheres.
A right to law and order, on global scale would eliminate the need for a
national law and order. In this complexity, a world system is needed with a strategic
and global sociology system. In this sense, systemic sociology is the constellation
(Normann, 2002) in which knowledge evolves. In this book, you will find new
strategies to understand how it is evolving and reshaping the global society.
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References
Beck U., La Società del Rischio. Verso Una Seconda Modernità, Carocci Editore,
Roma, 2000.
Simon H.A., Causalità, Razionaità, Organizzazione, Il Mulino, Bologna, 1985.
Delattre P., Teoria dei sistemi ed epistemologia, Enaudi, Turin, 1984.
Godbout J., Caillé A, The World of the Gift, McGill-Quee’s University Press, 2000.
Normann R., Ridisegnare l’impresa, Etas, Milan 2002.
Nowotny H., Insatiable Curiosity, MIT Press, Cambridge, 2008.
Pitasi A., The Hyperhuman World: Legal Systems and Social Complexity, LAP
Lambert Academic Publishing, Saarbüken, 2011.
Rampini F., In Mostra la Prima e-mail Della Storia un Indiano Inventò la Posta
Elettronica, La Repubblica, 19 febbraio 2012.
Touraine A., The voice and the eye: An analysis of social movements, Cambridge
University Press, Cambridge, 1981.
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Chapter I
Systemic Shifts in Sociology
By Andrea Pitasi
“What paralyses Europe, however, is the fact that its intellectual elite is living a
national lie”.
(Beck, 2006: 174)
“In any event, we have changed our own evolution but not ended it”.
(Barash 2008: 25)
“Some increase in plasticity is to be expected […]. It represents the extrapolation of
a trend toward variability already apparent in the baboos, chimpanzes and other
cercopithecoids what is really surprising however is the extreme to which it has
been carried. Why are human societies this flexible?”
(Wilson, 2000: 548)
1.1. Systems as Immaterial Constellations
Organizations in the 21st century have to increase their ability to manage their
viability; the complexity of the social and business environment calls for continuous
advances in the field of knowledge and the management of complexity in order to
keep the viability of firms and of the social system. To manage complex
organizations, the systemic approach has been pivotal in opening up new lenses and
the understandings of the inner dynamics of living systems. In recent times, we have
witnessed the growth of the strategic role of communication for the governance of
complex organizations of any kind and the emergence of fluctuating communication
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flows as a governance with very little control. Starting from the 1980s, a paradigm
shift has taken shape in the managerial approach from the whole/part model to the
systemic-environmental approach and then the autopoietic turning point as a spin off
of the system/environment paradigm. This shift has generated the epistemological
frame of the systemic approach to social sciences in the fields of sociology,
management and economics.
The social and economic turmoil of our time calls for new paradigms to
manage complexity. The systemic approach is open to interdisciplinary contributions
that may also provide chances for “Kuhnian” revolutions that can undertake the
current evolutionary challenges of complexity. The present global scene offers a
wealth of thresholds and bifurcations; when faced with such opportunities, the most
tragic and dangerous decision would be to not make any decision.
As outlined by Luhmann “The term complexity is meant to indicate that there
are always more possibilities of further experience and action than can be actualized”
(1990: 26).
Systems theory (ST) can provide a consensual domain for, among others, the
following reasons:
a. It is currently the only field of knowledge which can offer an analytic, deductive
system that is unified syntactically and semantically over all the sciences from
biology to economics and from mathematics to sociology.
b. It is able to create an interface between science and humanities within the neo-
Renaissance perspective of a Third Culture (as theorized by the Edge
Foundation, www.edge.com)
c. It is able to decline this analytical, deductive and multidisciplinary system as an
evolutionary theory of global society and is able to grasp the flow of
communication.
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d. The Systems Theory of global society therefore becomes the systems theory of
communication flows in global society itself. Global society could be
represented as the relationship between an operating system (Globus) and its
related software (Mundus).
e. It has an interdisciplinary methodological and technical toolkit that can model
and simulate alternative and other possible scenarios (Terna, 2006) to invent
viable futures.
f. It is able to develop an embodied mathematics (Lakof & Nunez, 2005) that
enhances the application range of science-based and knowledge-intensive
policymaking.
Broadly speaking, the systemic approach embodies many different conceptions
of “system” deriving from different disciplines and scenarios since the end of the
19th century or even earlier. In the field of systemic sociology, starting from the
1980s, a paradigm shift has emerged from the whole/part2 paradigm to the
systemic/environmental one. This shift has generated the epistemological frame of
the systemic approach to social sciences in the fields of sociology, management and
economics.
From a sociological perspective the paradigm shift is significantly represented
by the evolution of systemic thinking from Parsons to Luhmann; this implies the
change from the vision of systemic organizations such as “structures” to that of
systemic organizations as communication flows, hence a change of focus from
tangible to intangible assets. We define the whole/parts paradigm as “Paradigm 1”
(P1), the system/environment paradigm as “Paradigm 2” including its autopoietic
variant (P2), and the systemic perspective of “Globus/Mundus” as “Paradigm 3” (P3).
2 Conceptualized by Talcott Parsons (1951) and even better by Ervin Laszlo (1998) and the Hungarian school that introduced a higher level of complexity when compared to the rigid variant of Parsons.
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This chapter has been developed at a theoretical level, focusing on reframing
the systemic approach for the analysis of complex organizations as intangible
portfolios. The shift reframes the concept of system itself by describing two pivotal
Turning Points:
1. P1 was based on the idea that a system is basically a structure provided with
some key/vital functions3. Despite their differences, Parsons’ and Stafford
Beer’s systems in some way consider functions (F) as functional (f) to the
system intended as a more or less rigid and homeostatic structure (S); so that
F= (f) S. Does the Kuhnian revolution of P2 focused on a key upside down of
this perspective so that S=(f) F. A system has, in some way, a structure, but it
becomes softer and softer, more and more dematerialized. The power of
functional equivalents easily and dramatically reshapes these soft and very
flexible structures. An artificial heart works because it is a functional
equivalent of the human heart and not because it is shaped and made of the
same material of a human heart.
2. The P1 idea of system is not complex. Even if the term “complexity” is
sometimes used by the P1 thinkers, their conception of system is not complex
at all given that they think complexity may be “controlled”, in spite of the fact
that by definition complexity cannot be controlled. P1 theories attempt to cope
with the chaotic, fuzzy and complex “order from noise” logic of complexity.
Parsons’ (1951) undoubtedly attempts to shape the borders of social order,
rules and values though a normal/deviant pattern where normality was the only way
to exist for the system. Stafford Beer’s “control system” asserted that a system might
organize and structure its relationships with the environment keeping everything
under control by controlling the parts and their relations.
3 Parsons’ LIGA pattern and Stafford Beer’s Viable Systems are typical examples of this perspective.
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Paradigm 3 is the “Globus/Mundus”, that will be discussed below. P3
represents a step forward from P2 and is based on a platform/catalog logic.
Moving from the Viable System Model (VSM) of Stafford Beer (1966; 1969;
1973; 1979) to the Viable Systemic Approach (VSA) of Golinelli (2000; 2010) and to
value constellations of Norman (2001), the paradigm shift in systemic science in
business has been smoother that in sociology, since the systemic approach in business
sciences is more rooted in the concept of structure (given the definition of firm as
structure). To give an answer to our research question, we have to discuss the
ontology of value and of the firm in order to understand how the firm can be
conceived of in the complex, dematerialized and networked context of the 21st
century.
Today, the immaterial assets have overcome the material ones. When we buy a
product, we choose it according to its perceived differentiation; perceived
differentiation is based, in the large majority of cases, on the judgments of the
consumer about the intangible, immaterial characteristics (i.e. brand, image, etc.) of
the good. Firms’ networks plan and produce products in more than one plant; it is the
network of communication and exchange of knowledge that produce them, since the
physical plant is a secondary and contingent aspect.
We shall focus on how and why complex organizations need to be considered
as value constellations of intangible assets. This implies that 21st century enterprises
depend much more than in the past on their portfolio of intangible assets; the value of
intangible assets is strongly dependent on communication, that consequently becomes
crucial for the existence and viability of the organization.
We shall illustrate the taking over of intangibles in complex organizations
considering a structural-cultural conception of organization reconfigured as a
constellation created by a continuous flow of memetic re-combinations.
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Through a theoretical comparison, we combine Viable System’s and
Luhmann’s paradigms to supply a framework to better understand complex
organizations.
We sketch the shift from P1 to P2 and P3 in social sciences, reframing the
evolutionary, chaotic system of the 21st century organizations, in order to propose a
new idea of the firm’s structure that can be consistent with the theories of
system/environment and platform/catalog paradigms.
1.2. Luhmann’s Theory and the Paradigm Shift in Sociology
The increase of connectivity and abstraction has become more and more
powerful through the paradigm shift from the whole/part logic (Parsons, 1965;
Laszlo, 1998; Mintzberg, 1992) to the system/environment one (Luhmann, 1995;
1997; Normann, 2001). In spite of the Kuhnian revolution, this paradigm shift
represented, it took its time and gradually removed obsolete knowledge along a
smooth continuum which can be represented as follows: Parsons – Alexander –
Laszlo – Stafford Beer – Mintzberg – Normann – Luhmann.
In P1, Ervin Laszlo’s conceptual model of whole/parts is based on substantive
integration and synthetic holism, inspired by a logic of interdependence and
interconnectivity through which the evolutionary system adapts to the external
environment by recombining ideas and thought patterns in a very informative
manner, even if sometimes it verges on “less scientific”, “new age” statements.
A great evolutionary leap was achieved with P2, thanks to the monumental
work of Niklas Luhmann. In recent years, the economy has understood and applied
the lessons of the constructivist systemic approach albeit sometimes in an indirect
way as in the case of Schelling, 2005 Nobel for Economics, who stresses that a social
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context created collectively by individuals will be much more satisfying than the
adaptation of the individual to a given social context (Schelling, 2006). Even the
micro-economics theory therefore arrives at the conclusion that reality is a symbolic
evanescence, it is modeled and constructed, and it is not an entity in itself that can be
identified, defined and “objective”.
In the system/environment logic of P2 integration is a purely methodological
model in terms of functional equivalents. In this sense, P2 is not strictly “holistic”,
but rather it aims at a viable and functional unitas multiplex between differences that
make a real difference. The evolutionary power of P2 is based more on auto-poiesis
rather than interdependence, more on recursive and self-referential adaptation, rather
than adaptation to a presumed external environment. Its organizational logic is
software/hardware, therefore devoid of syncretism with a strong contingency of
selective encoding and decoding. In P2 the software program is “blind”, therefore the
future is “elusive” – it is a horizon that moves away the closer you try to get to it. The
paradigm P2 shares with P1 the conceptual, organizational and heterarchical model
even if this heterarchy is so nuanced and fragmented as to create mere space-time
contingencies, where social change almost always proves an illusion of perspective.
The knowledge capability is considered at the technical level of communication and
information for self-organization.
The Paradigm 3 is a step forward from P2; it is based on a platform/catalog
logic, an evolution of the system/environment paradigm. Nevertheless, it shares with
P2 the modal integration for functional equivalents and the idea of unitas multiplex as
well as the hardware/software organization. However, it hypothesizes selective self-
referential codes (as in P2) that are able to understand the differences that make a
difference (as in P2), but it does this by tracing the trajectories of great evolutionary
bifurcations (as in P1). In terms of policymaking, P3 presents a reconfiguring
evolutionary strategy that reveals how the future is to be neither predicted (as in P1)
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nor considered elusive (as in P2), but it is to be seen as an invention for
creating models. P3 shares with P1 and P2 the heterarchical organizational model,
while the space/time proves to be a platform/catalog paradigm that is active in “zero
time of desire”, where if V=R/W, then V is the maximum viability because W is
reduced to a minimum. Social change is, therefore, understood primarily as the
maximization of V, and the epistemological model is the third culture.
P3 shares with P2 the concept of the horizon of “otherwise possible”, but
unlike P2, P3 treats it as a catalog from which different strategic problem-solving
solutions can be selected.
V= evolutionary Velocity of the process; R= distribution of innovation
according to Rogers’s model (1956) as adapted by Pitasi (2003); W= Williamson’s
Costs.
It is also important to underline the main frame of the theoretical evolution of
the shift up to the “Globus/Mundus variant” that characterizes the platform/catalog
paradigm, which is evolving from P2 through functional differentiation, in the light of
the theory of global society conceptualized by Luhmann (1997).
This conception of systemic science applied to social issues reveals its full-
heuristic epistemic power in scenarios where it is clear that “the more radical the
renewals are from a scientific-technological viewpoint, the higher the proportion of
social knowledge must be if society is – to be put in a position to appropriate them
culturally and thus transform them in a way that gives them sense and meaning”
(Nowotny, 2008: 134).
In this sense, systemic sociology is the constellation (Normann, 2002) in which
social knowledge is generated and evolves. It is also the constellation that prompts
Rogers’s complex cycles and accelerates the V in the formula V=R/W. It recombines
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and reconfigures the boundaries of sense of the social system by activating codes,
procedures and programs that select sense (Luhmann, 1990; 1993), considered as a
memetic recombinant (Jouxtel, 2010), and enable the system to distinguish between
systemic communication (the memetic reconfiguration cycles of V=R/W) and
ambient noise.
In essence, a third culture is revealed as the institution qualified to issue
“Scientific Citizenship” (Nowotny, 2008) of the Knowledge Based Economy Society
in which science and technology cross the border between the present and future by
bringing them closer, and the present no longer dominates over a future that has
become repetitive, monotonous, dictatorial and eternally present, but rather it is the
future that will bring immobility crashing down and thus expand the horizons, which
are otherwise possible so that “reality will eventually imitate theory” (cfr Ivi: 114;
132).
After so many futile debates about the limits to growth (associated with a naïve
idea of the predictability of the future), systemic sociology argues that there is no
limit to systemic evolution (biological, psychological, social, etc.) as “in finding and
producing the new, the process between the not-yet and the no longer (which cannot
be given precise temporal limits) always points beyond itself” (Nowotny, 2008: 68)
and opens to the idea that the future is uncertain and not without risks, yet at the same
time full of amazing opportunities that could facilitate ever more complex logics of
evolution. This idea of the future is the very best game (Atlan, 1986) from an
indefinite recombination of all the memes circulating on the Globus as presented by
the Mundus catalog, which demonstrates how memetics functions well as an
algorithm of deconditioning (Jouxtel, 2010). In this sense, sociology as a systemic
science proves to be a memetic recombinant and reconfigurator of algorithms that
have evolved through differentiation of the autopoietic cycles V=R/W and, therefore,
24
a chaotic “laboratory” for the invention of an ever growing and open range of futures
in which memes interact.
1.3. The Systemic Paradigm Shift
As we have outlined in the previous paragraphs, the paradigm shift from P1 to
P2 is pivotal to understand the redesign of the concept of the firm. The most
prominent theorist of the system/environment paradigm is Niklas Luhmann, while
Richard Normann can be considered as the one who used a Luhmann-like paradigm
for the analysis of the organization. Normann’s idea of the firm fits perfectly with
Luhmann’s approach in spite of the fact that Normann never quoted Luhmann in his
works and probably didn’t know his theories. The P1 theories view the systems as
(rigid or flexible) structures with a hierarchical configuration (macrosystems,
microsystems, subsystems, etc.), and they state that a system interacts with its
external environment. The paradigm shift toward the system/environment vision
denies both these pillars of the P1.
Theories belonging to P2 affirm there is no hierarchy among systems. Each
system (educational, economic, juridical, political, scientific, religious, etc.) has its
own binary code and its own program to evolve within its semantic-conceptual-
logical boundaries (with no physical ones). Thus according to these theories it would
be very naïve to consider the state a macrosystem and a firm a subsystem.
Multinationals are evidence of the new paradigm and nevertheless, are we sure that,
for example, Belgium is a more powerful system than Nestlè? As each system has its
own code and program to communicate, and the environment does not, the
environment is not a system, and thus cannot communicate. According to this view,
the environment is simply a meaningless and noisy outside world from which each
system can select noise to be turned into communication. The competence of a
25
system to: observe the variety of noise; select the noise which can be self referentially
turned into meaningful communication according to the system’s self referential
coding and programming; and stabilize long lasting operative-organizational
situations framed within the conceptual status of “contingency” represent the
system’s effective power to evolve self referentially and by self reproduction. The
system always evolves either by expanding or by imploding. The “boundaries” of this
expansion/implosion are not physical.
If for instance we consider the brand value of a firm, we can observe how the
increasing value of intangibles leads to dematerialization. In the same way, we can
observe the liquefaction of the concept of organized system and structure that turns
into a dematerialized intangible. Normann pointed out how high density, conceptual
and abstract ideas need to be communicated beyond any kind of border.
Fig. 1. Drivers promoting density – overview (Normann, 2001: 30)
26
A firm is essentially the intangible networked system which goes through the
cycle, reproducing its self reference through communication which is the shape of
meaning and its value constellation is metaphorically better described by the “stock
exchange” organizational logic than by the “industrial” and boundary, based on the
whole/part paradigm.
Probably the key challenge for business science and systemic sociology is to
create a consensual epistemological domain in the Globus/Mundus paradigm
(Paradigm 3) and the VSA; this coauthored paper is a step toward this for different
reasons.
The first reason is that by saying that the physical borders are obsolete doesn’t
mean that firms are obsolete. Today a firm can be built using knowledge as it was
used in the old economy – it was created using machines, bricks and mortar. Saying
that the firm is made of “intangible” assets doesn’t mean that it doesn’t exist. Making
a parallel with hard sciences, and physics in particular, we can see the origin of this
paradigm shift: quantum physics found that the atom is empty; there is no matter
inside the matter but just energy, vibrations, etc, depending on the different theories.
So if even the material world is made of “intangibles”, there is no reason why a firm
cannot be made of intangibles.
Beer’s systemic vision is the perfect ground to develop the paradigm shift
toward system/environment and catalog/platform (P2 and P3) paradigms of systemic
sociology. According to Beer, the structure is dynamic, and the firm is an open
system that is in a homeostatic and bidirectional (thus not necessarily hierarchical)
relationship with its environment; in this there is a first opening to the concept of the
dematerialization of firm’s borders even if the structural logic of control is still too
stressed. Moreover, the firm can be viable if it is able to find consonance and create
value inside a self referential and autopoietic value constellation.
27
1.4. The Hypercitizenship Challenge to Methodological Nationalism
This essay was inspired by two aims:
1) The description of the key paradigm shifts within the conceptual frame of
the systemic approach as a piece of evidence and as a metaphor of the growing limits
of sociological theory, even in its systemic variant, observes and describes the
globalized scenarios and its emergent shapes. As a matter of fact the “control
syndrome”, which affected the original whole/part systemic paradigm, generated a
kind of accountability of social common sense and cultural tradition by which
drawing a normal/deviant distinction which reduced systemic sociology to a very
conservative, paralyzed defense of homeostasis at any price. Parsons’ LIGA schemata
is the most exemplary case of this vision in sociology. Inside this paradigm, since the
1980s, a new variant emerged. The most relevant thinker from this point-of-view was
Ervin whose “Science and the Akashic Field” (Laszlo, 2007) is clearly subtitled “An
Integral Theory of Everything”, the whole/part paradigm is no longer meant as a
sociological theory of the social system as a whole and a sociological description of
the parts which compose the system itself; the whole is the universe itself from its
macro level to the micro, subatomic level. The challenge becomes more and more
interdisciplinary and is aimed to describe all the levels of “life” in the universe and
their interconnections. The whole/part paradigm in both its variants epistemologically
failed because of Goedel’s V Theorem and Heisenberg’s Principle. Niklas
Luhmann’s (1927-998) systemic theory played a key role in the paradigm shifts of
the systemic sociological theory both because of his innovative vision and because of
his gift to import into sociological system theory the most relevant interdisciplinary
systemic contributions such as from Biology or 2nd Order Cybernetics.
Luhmann was the leading thinker of the system/environment paradigm shift
already shaped by its six volumes work Soziologische Aufklaerung (2005), then he
28
evolved his paradigm into the autopoietic turn in his key book Social Systems (1996),
and he finally provided his systemic vision of society as a global system in Die
Gesellschaft der Gesellschaft (1997). Sketched below are the four key paradigm shifts
within the systemic approach:
THE SYSTEMIC APPROCH PARADIGM SHIFTS PARADIGM (P)
PARADIGM(P) KEY AUTHORS KEY CONCEPTS
P1) Whole/Part Ross Ashby
Nobert Wiener
Talcott Parsons
Ludwig von Bertalanffy
Anthony Stafford Beer
Ervin Laszlo
Culture, control, personality,
integration, homeostasis
stability, wholeness, structures,
parts
P2) System/Environment Heinz von Forester
Niklas Luhmann
Functional differentiation
system, communication, order
from noise
P3) Autopoiesis Humberto Maturana
Francisco Varela
Niklas Luhmann
Self Production of inner
components, rhizome,
complexity, functional
equivalent fluctuation, horizon
P4) Enormous Constellation
System
Richard Normann
Daniel Dennett (2004)
Niklas Luhmann
Flucting constellation,
autopoietic reconfiguration,
memetic complexity, catalog,
global platform, enormity
Tab.1 THE SYSTEMIC APPROCH PARADIGM SHIFTS PARADIGM (P)
2) The second aim of this work is much more theoretical and revolutionary in
Kuhn’s terms as this essay provides a theoretical refoundation of the concept of
system itself, system meant as a high speed, reconfiguration, enormous constellation-
29
HSREC (Pitasi, 2010: 247-279). As a matter of fact, the autopoietic variant of self-
organization was on one side of the most fruitful conceptualizations of the 20th
century science but on the other side, it generated a paradox I will call the Imada’s
Paradox. Takatoshi Imada recently published – very interesting book titled Self
Organization and Society (Imada, 2008). Its initial part (Imada, 2008: 5-23) provided
an excellent description of the evolution of systemic paradigms though the decades
and its horizon is rather wide, nevertheless such a huge theoretical framework
becomes, page by page, more and more narrow-minded and focused on the cultural
changes in Japanese society (Imada, 2008: 157-190).
This presents a two level paradox:
a) An epistemological one because an autopoietic description was suddenly bumped
into an old fashioned whole/part.
b) A theoretical one because a very wide horizon systemic approach was turned into a
nationalistic methodology which represents a key problem which is discussed in
the next pages also inspired by Beck’s key writings.
Imada’s Paradox can be solved by re‐entering a bifurcation, which I call
Normann’s Bifurcation, between the abstract HSREC – whose societarian shape is
Hypercitizenship as conceptualized below – and the specific “Neo-feudal” trap of
methodological nationalism:
NORMANN’S BIFURCATION;
DUMBAR’s Number SEABRIGHT’s Company of Strangers
30
Fig. 2 Normann’s Bifurcation4
Neofeudal, reptilian, territorial and family identity based operative closure with
its 150 meaningful human relationships;
Gegnet, wide horizon opening, complexity as a resource, reconfigured
constellation, and high degree of abstraction, focus on few differences that shape the
HSREC system and is Hypercitizenship societarian form.
Normann’s Bifurcation is the way out from Imada’s Paradox, and from the
methodological nationalism trap, but this bifurcation implies rethinking the systemic
paradigm as an enormous constellation of cosmopolitan memetic recombinations and
reconfigurations on a global scale.
4 High speed, reconfiguration, enormous constellation (Pitasi, 2010: 247-279)
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1.5. The problem of methodological nationalism
This chapter is then focused on the allocative function of the legal systems
(Luhmann, 1990) in the global digitalization age which shapes a stronger and
stronger Global Platform all over the planet to attract/reject different capitals
according to their procedures to shape norms and laws. From this perspective, the
Global Platform is the organized social system par excellence by meaning as
organized social system what Niklas Luhmann describes as “Social systems in
general, and without exception, constitute themselves as self referential autopoietic
systems, an assumption equally valid in the case of organized social systems.
Autopoietic systems produce the elementary units they consist of through the very
network of these elementary units […] organized social systems can be understood as
system made up of decisions and capable of completing the decisions that make them
up though the decisions that make them up” (Luhmann, 2003: 32).
My key theoretical assumption in this essay is that the multidimensional
conceptualization of Hypercitizenship is the autopoietic and self-referential way
through which the organized and globalized social system is redesigning and
reconfiguring itself beyond the NS old shape of social actions mirrored by the
methodological nationalism of old fashioned social sciences.
This chapter has no predictive or “forecasting” aim, rather it is focused on the
emerging shapes of a complex, global, organized social system in the present days as
a matter of fact “we cannot observe and describe the future society but we may be
able to see what kind of structural change is going on” (Luhmann, 1990: 101).
Emergent shapes are the raw stuff though which we can answer Luhmann’s following
question: “How can an order be created that transforms the impossible into the
possible and the improbable into the probable?” (Luhmann, 1990: 87)
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Hypercitizenship is the key emergent shape through which the global organized
social system is redesigning itself.
The legal function is pivotal for this redesign process as humankind is before a
systemic and evolutionary bifurcation (Laszlo, 2008) between the heideggerian
Gegnet (Schuermann, 1995) of a strategic, high speed convergence (i.e. Singularity)
among robotics, informatics [which is a synonym of digitalization in this work,
nanotechonologies and genetics (RINGs)] (Kurzweil, 2005; see also Harris, 2010)
which is going to reshape the human life concerning its life quality styles and
standards, especially regarding health and environment matters. The so called
Neofeudal Scenario (NS) supported by those whom the Industrial Model failed and
the only way to save humankind and its environment would be a kind of trip back to a
Medioeval life style inspired by slowness, poverty and austerity (Giner, 2010). From
this point-of-view, what U. Beck defines methodological nationalism is a very
exemplary aspect of the NS and a key tool to set the RINGs/NS bifurcation problem.
This bifurcation implies a potential paradigm shift inside the systemic approach
to reframe the conceptual map of global change through a systemic epistemology of
the sociology of law and its impact on creating laws which might facilitate and
accelerate the technological convergence reshaping a new idea of citizenship,
properly Hypercitizenship.
This work reframes the key global changes of our times under the conceptual
emergence of Hypercitizenship. I sketched out by designing a multidimensional
convergence among different kinds of citizenship:
1. cosmopolitan (Beck), scientific (Nowotny), societarian (Donati) and
enterpreneurial (I evolved by reinterpreting Audretsch who, properly, copes with
the “entrepreneurial society”, not the entrepreneurial citizenship).
33
2. The concept of cosmopolitan vision is a key contribution by U. Beck (2006) who
states, “cosmopolitism […] is a vital theme of European civilization and
European consciousness and beyond that of global experience” (Beck, 2006: 2).
The Author brilliantly adds, “What do we mean then by the cosmopolitan
outlook? Global sense, a sense of boundary lessness. An everyday, historically,
alert, reflexive awareness of ambivalence in a milieu of burying differentiation
and cultural contradictions” (Beck, 2006: 3).
As a matter of fact the cosmopolitan outlook can be featured as follows: “As a
counter-image to the territorial prison theory of identity, society and politics we can
provisionally distinguish five interconnected constitutive principles of the
cosmopolitan outlook:
First, the principle of experience of crisis in the world society. The awareness of
interdependence and the resulting civilizational community of fare induce by
global risks and crises which overcomes the boundaries between internal and
external, us and them, the national and the international;
Second, the principle of recognition of cosmopolitan differences and the resulting
cosmopolitan conflict character and the (limited) curiosity concerning differences
of culture and identity;
Third, the principle of cosmopolitan empathy and of perspective taking and the
virtual interchangeability of situations (as both an opportunity and a threat);
Fourth, the principle of the impossibility of living in a world society without borders
and their consulting compulsion to redraw old boundaries and rebuild old walls.
Fifth, the mélange principle: the principle that local, national, ethnic, religious and
cosmopolitan cultures and traditions interpenetrate, interconnect and intermingle –
cosmopolitanism without provincialism is empty, provincialism without
cosmopolitism is blind” (Beck, 2006: 7).
34
The Hypercitizenship concept is focused on the fact that systemic
communication about key challenges of our times is increasingly meaning
communication and public understanding of science and technology for governance
and policymaking. From this point-of-view, law becomes one of the à la carte
products which can be bought by browsing a global “catalogue” (I call Mundus)
surfing on a technological global platform (I call Globus) of which the internet is the
best metaphor and which can be seen as the most important platform for convergence
developments and as a driver of numerous key changes. This new media platform is
intrinsically cosmopolitan and while the mass media often still fall into the
methodological nationalism trap. Beck says, “The cosmopolitan outlook calls into
question one of the most powerful convictions concerning society and politics which
find expression in the claim that modern society and modern politics can only be
organized in the form of national states. Society is equated with society organized in
nationally and territorially delimited states. When social actors subscribe to this
belief, I speak of a national outlook. When it determines the perspective of the
scientific observer; I speak of methodological nationalism” (Beck, 2006: 24).
In my paper, the national outlook is considered a very primitive and cognitive
saving, paleolitic reptilian form of the darkest, most ancient side of our species
evolution and the most elementary tool for trivial common sense to redraw old
boundaries and rebuild old walls, boundaries and walls totally meaningless and
useless in the global and cosmopolitan age I practice but still demanded as fetish
symbols and dead myths shaped as Linus’s blanket for the least civilized and tribal
configurations of our species on our present-day planet.
Hypercitizenship and its four reconfiguration dimensions generate a re-entry of
nationalism and provincialism as memes (Dawkins 1976; 2002, Blackmore 2002,
Pitasi-Ferone 2008), among many, many others, of the Mundus Catalogue
recombining memetic sets to be browsed through the Globus by the Hypercitizen
35
(which is not necessarily a physical person but a set of decisions, procedures,
knowledge and knowhow systemically shaped and artificially self-evolving).
An exemplary case of artificial memetic recombination derives from the most
“artificial and positive type of law - thus which has no natural roots” (Ubertazzi,
2011). It is intellectual property law (IPL). This chapter deals with the new
organizational shapes of the market of laws and rights, emerging from digitalization
and globalization at the crossroads between the IPL policies and the key challenges of
scientific-technological convergent revolutions in the fields of genetics, robotics,
informatics and nanotechnologies.
The emergent convergence/singularity of endotechnologies (Nowotny, 2008)
thus of the most radically evolutionary outputs of the singularity generated by the
convergence of robotics, informatics, nanotechnologies and genetics (RINGs
convergence/singularity) is reshaping the social, economical, etc., patterns and
variables of the public understanding of how science and technology are evolving
everything around us, especially focusing on those key aspects of social life which
directly cope with the ultimate frontiers of human evolution, wealth and health.
From this point-of-view, this theoretical chapter deals with the differentiation
of the legal systems which are interconnected on a global scale (Globus) (to which
every user can access, for example, online, but these legal systems do not represent a
unique, homogeneous one inspired by a “universal” vision of law as imposed by the
attempts of the past to found law on theology or on a universal concept of rationality
as evoked by the Enlightenment spirit). Nowadays, legal systems provide a huge
variety of norms and procedures on a global scale, shaping a planetary catalogue
(Mundus) of norms, concepts, procedures, and rules among which a skilled user can
easily choose for example in terms of business delocalization/relocalization. Thus the
platforms (Globus) and the catalogue (Mundus) of rights viable for shopping
(Galgano, 2005) on a global scale represent the chance of the legal systems to reveal
36
their most profound identity: they are not (and probably they never were based) on
theological or rational universality but on the glocal power of will (Irti, 2004).
From this perspective, the Mundus of rights shapes the
competition/cooperation among legal systems on the Globus about attracting the key
and most strategic capitals (intellectual, financial, human, etc.) to empower and
evolve at the highest speed the RING Singularity; thus, the state of the current
scientific-technological is extremely differentiated among the various geopolitical
and legal areas of our planet. It might seem simplistic, but the viability of the Ring
Singularity increases according to the specific attractiveness of a legal system. Brazil,
Russia, India and China (the so called BRIC) are not growing at a higher speed than
USA or the UE because they are reproducing our economical model to reach our
same wealth level; they are reconfigurating the rules of the business-enterprise-
science-technology game by drawing new theoretical-juridical distinctions and new
radical operations. That is why the link between RING Singularity (RS) and Legal
System Attractivity (LSA) can, and someway must, be reframed though the paradigm
shifts form the “human condition” (HC) to the “post-human”, one (PHC) and then to
the “hyperuman” one (HHC as the convergent technologies dramatically and
powerfully reshape the ideas of humanity and mankind).
What does it mean to be human? When did mankind begin to be human? And
when did mankind quit to be human? In evolutionary Darwinian terms we might
consider we became human when we began to manipulate symbols by using our
neocortex, and then we began to model and adapt the world our way more than
adapting to it. But when did it happen? When we were Cro-Magnon, Neanderthal or
at the Homo sapiens stage? Or maybe we were naturally human before we learned to
“create our own world” thus before we began to use fire (Goudsblom, 1994) and
since we started to use fire, we began an “artificialization” process (clothes to protect
ourselves from the cold weather, glasses to correct sight problems up to the most
37
advanced cardiosurgery technologies) which represents a post-humanization of the
human toward the “cyborg” so that human life can last longer and under better quality
conditions by replacing “broken parts” with new, efficient, artificial ones? Is a man
with a pacemaker human or is he an evolutionary stage of the cyborg?
If we take a look at the Bible, the perspective might sound different at a first
glance but in practice is not. While the Neanderthal was probably “less human” than
the Homo Sapiens but Adam and Eve were some way “extrahuman” or
“superhuman” as they had not the key weakness which feature what commonsense
nowadays would call HC for Adam and Eve becoming human was a kind of
downsizing; according to the Bible, they became human because of the original sin.
Both in an evolutionary Darwinian perspective and in a Christian one, at a certain
point we became human, and this implied to learn, to create, and to increase
knowledge to model the world according to our needs/hopes/fears and so on. Either
emerging from the cavern or falling from the Lost Eden, mankind begins becoming
more artificial, featured by a process toward the Cyborg, the PHC, if we consider
human history (Goudsblom, 1982) but then, all in a sudden, something changed and
the HHC began to take shape exactly when the RING Singularity started to evolve
faster and faster, tendentially since the end of WWI But what is HHC featured by?
Probably, the two most brilliant analysis of the HHC are provided by Helga
Nowotny in her superb Insatiable Curiosity 2006 which is an excellent work in the
sociology of science and by John Harris excellent book Enhancing Evolution (2007)
author who is a thought leader of the British sociology of Law at the Law School of
the University of Manchester.
Both books cope with two aspects. The technological convergence named
RING Singularity and the way it will reshape social organization and its rules.
Nowotny (2008) provides the key concept of scientific citizenship which I consider
pivotal to link Globus and Mundus, as the scientific citizen is the user both of the G
38
platform and of the M catalogue by selecting those rights which fit more with his/her
wealth, health and well-being needs.
Due to the convergence between the RING Singularity and the most attractive
legal systems on the planet our species seems to have already had an internal
differentiation among:
i) Humans
ii) Post-humans or Cyborgs
iii) Hyperhumans.
This is the key challenge about diversity management nowadays. Gender
diversity or racial diversity seem and are rather irrelevant in comparison.
It is not hard to say that “humans” no longer exist since – at least we might
correct our sight problems by using spectacles.
We all are already cyborgs or post-humans either because we are partially
artificial and maybe in our body we have cyborg installations such as pacemakers or
because we share the same memetic scenario in which we are perfectly aware we
might host these installations inside us. Our brain frame is always post-human and
much more post-human than what our body might be in practice in the present time.
We all are conceptually post-human.
But if “humans” died at average age of 30, post-humans can live about 75/85
years as an average with some exception up to 100/105. The HHC is radically
different, as clearly described by Harris (2007), an HH person can live about 120/130
years as an average if he or she belong to the first HHC generation (born around
2006) or about 740 years as an average (yes, it is not a typo, seven hundred and forty
years) if he or she belongs to the second HH generation born around 2015-2020).
39
What is all the fuss about this paradigm shift by reshaping the “person”
through the link between RS and LSA?
Essentially, the first HH generation represents the stem cell re-entry in the
health risk prevention and reduction but some way reinstalling “baby cells” in a sick
body its own stem cells (deriving from its own umbilical cord perfectly saved by a
genetic bank). Thus the installation is “natural” and “clean”, not artificial, but the
installation process itself remains a typical post-human working style.
A sort of triple helix of complexity empowerment – high speedy evolution –
match-finding ease between RS and LSA is the key of the way the two species (PH
and HH) are distributing themselves through the planet and is also the key of the
human re-entry clearly theorized and wonderfully augmented by Archer (2006; 1997;
2009; 2010) and Donati (2004).
Complexity, Speed and Ease are the “stars” of the radical reconfiguration
(Normann, 2002) process reshaping social life in its broadest and deepest meaning.
From this point-of-view, nine turbo-conditions seem pivotal to assess the LSA
for the RS.
1.6. Bifurcation and Beyond
The gap between the two HH generations brilliantly describes how radical
technological innovation powerfully reconfigurates individual, personal Lebenslauf
and systemic organization. The HH shift also involves HH agriculture (the GMOs, for
example) and the HH energy agenda. This HH shift dramatically provokes strong
public opinion debates, and their “consequences” easily witness that emotional,
incompetent reactions and attitudes simply generate a growing public
misunderstanding of science, technology and their socio-economical impacts. That is
40
why scientific citizenship is emerging faster and faster to solve the “incompetence”
problem – the scientific citizenship is reconfigurating itself and is emerging as a
shape of the societarian one (Donati, 1993) inspired by an autonomous, self
organizing “spirit” and mood of the most competent and skilled knowledge-based
elites educated according to the most self-reflexive relational responsible freedom.
These elites will be the wide horizon leaders serving as “drivers” of the new cycles
and trends: whose trajectories follow the V=R/W formula where the supply/demand
match-finding between RS and LSA is in real time in the Time Zero of Desire (TZD)
scenarios.
To understand these new trajectories clearly described by Harris (2007) and
Nowotny (2008), it is adequate to go through Nowotny’s work which perfectly shows
the paradigm shift from the posthuman to the hyperhuman scenarios of the RING
Singularity in the TZD Age. In Nowotny’s semantics, the RING Singularity is labeled
as “convergent technologies” which are endotechnologies. The Ring
Singularity/Convergent Endotechnologies shape the Hyperhuman World while
Exotechnologies are the most evident output of the post-human, “Cyborg” scenarios.
Nowotny clearly states:
“The convergent technologies based on successful connections
among the biological, informational, nano, and cognitive sciences
open up a broad field in which brain and matter, body and
environment can interact in a controlled fashion. These and other
transformations that spring from science and technology touch on
humanity’s self-understanding as much as they change our social
life together” (Nowotny, 2008: 12-13).
Nowotny’s key contribution evolves into the concept of scientific citizenship
that features the knowledge-based society. As a matter of fact, she states:
41
“A knowledge based society also increases its production of
epistemic things, various kinds of abstract objects, and technical
artifacts that are subject to the same rules. The democratization of
scientific expertise is also merely the expansion of principles of
governance that have served the Western liberal democracies well.
Today, science and technology are no longer viewed with awe but
are part of everyday life. Mediated by the educational system and
qualifications and certificates people acquire, they determine
people’s chances of upward social mobility, their working world,
and the course of their biographies. It is thus logical to extend the
concept of citizenship to science and technology. «Scientific
citizenship» comprises right and duties and asks about both the
functions that expanded concept of citizenship could fulfill in social
integration and also the duties that arise from it for citizens as well
as for political institutions and administrations” (Nowotny, 2008:
23-24).
Nowotny suggests that:
“There is broad agreement that more money should be invested in
research (that is, that science and technology must continue to
expand). This is to be achieved by putting the unexpected and new
that comes out of the laboratory into the widest possible variety of
contexts of applications to produce in them new knowledge that in
turn brings forth new abilities and continues to spread in society”
(Nowotny, 2008: 83-84).
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Moreover:
“Today, the entire knowledge of humankind and its impressive
technological capacities is oriented toward a future that does not so
much promise a new beginning as further intensification and
dynamic continuation of what has already been achieved. Science
and technology cross the threshold between the present unhindered,
for what appears possible in the laboratory today can already be in
the market tomorrow or the day after” (Nowotny, 2008: 107).
What’s next, then?
“The future we now face relies on innovation under conditions of
uncertainty. This cannot be equated with lack of knowledge – quite
the contrary. Uncertainty arises from the surfeit of knowledge,
leading to too many alternatives, too many possible ramifications
and consequences, to be easily judged” (Nowotny, 2008: 116).
In practice
“Exotechnologies aim at the expansion of possibilities of controlling
the environment. They have enabled people to travel greater
differences in less time and to settle the space they found more
densely and efficiently. The processing of found and extracted
materials finally enable the mass production of artifacts, the
preservation of foodstuffs, and the erection of infrastructures that in
turn made it possible to live comfortably in otherwise inclement
climate zones. In contrast, the regime of endotechnologies-bio-,
nano-, info-, and other converging technologies – changes the
dimensions and scope of action of the scientific objects. They form
mostly invisible yet visualizable infrastructures that can penetrate
43
into the smallest dimensions of matter or living organisms”
(Nowotny, 2008: 132-133).
Thus:
“Science and technology cross the boundary between the present and
the future with a certain ease and thereby move the future closer the
present. Nonetheless the future seems fragile. The loss of temporal
distance blurs the difference between what is technologically
possible and what is already present in the laboratory, between
imagination and reality, which is often a virtual reality. Having lost
all utopias, the future presents itself as a sketch of technological
visions that block out the social knowledge that is needed to live in a
scientific‐technological world – and to feel well in it” (Nowotny,
2008: 155-156).
1.7. The Emergent Hypercitizenship
We are currently heading toward wider and faster scenarios. This kind of
evolution we are getting through is also due to decrease of “dead woods” (made up of
useless infrastructures, lazy employees and parasites) due to “bipartisan” public
reforms already implemented since the early 90s.
These scenarios will make cultural and trade exchanges easier and quicker.
Furthermore, they will be safer and more stable, thus to eliminate any “interferences”
to global flows of human, intellectual and economic capitals on a worldwide scale,
since socio-economic challenges of our times cannot be managed on a national or
even local level.
44
Higher levels of speed and safety will then characterize the new scenarios as a
new jumbo jet in comparison to older plane models that are more unstable and slow.
This stable “speed” mostly depends on the development and broadcasting of
new and standardized platforms, procedures and technologies (currency, languages,
operative systems) that can create transparency (i.e. through video recordings, metal
detectors, etc.).
I personally define this stable and fast scenario the “Time Zero of Desire”
(TZD) because it represents the kind of scenario in which supply and demand (of
material, relational and economic goods) can easily cross at the same high speed of
emails or SMS exchange. TZD is then perceived as a high speed scenario which is
stable in crossing supply and demand at the lowest economic, organizational and
contractual costs.
The setting showed above is developing according to an increasing number of
turbo-economies (from India to Botswana) more and more global and transparent in
nature. Those economies put in evidence some areas of the world scene that are
generally not strategic and in which we can often see provincial and narrow-minded
attitudes. The latter are similar to the behavior of some ancient feudal lords who used
to threaten and scare their own subjects by means of fear and ignorance. Thus, they
would prevent their people from experiencing the real society by keeping them inside
the feud, afraid of facing some alleged external dangers from which the local power
could not protect its subject anyways.
TZD is the ultimate scenario to implement turbo-condition, described as
follows:
45
Turbocondition 1: To Reset the Reptilian Brain
We assume as true the theory of the evolution through interconnected balances
which is based on the cooperation of three brains: reptilian, limbic and neocortex.
Therefore, the actual issue is whether the way out of the Palaeolithic (i.e., a condition
of radical bound to roots and homeland which is typical of nowadays “cavemen”)
would also mean to reset the obsolete and harmful reptilian brain. This process leads
to show the religions and philosophies adopted according to their functional role,
which is made up of adaptive methods and behavioral pragmatics.
Turbocondition 2: Evolving the 7 Platforms of the Global Development
We have to develop the 7 platforms of the global development:
1) Currency and rating standards;
2) Digital satellite telecommunications;
3) Biotechnologies;
4) Extra-planetary technologies;
5) Technical-linguistic platforms;
6) Contents catalog;
7) Evolutionary capitalism.
This strive for development represents a strategic function in the policymaking
agenda.
Turbocondition 3: To Increase the Moral and Ethical Significance of the
Economic Development, Avoiding Financial Bubbles
This can be obtained by exclusively regaining the ethic value of development,
trying to implement new markets and pushing the progress through Kuhnian
evolutions without any interruption of the productive cycle with the creation of new
46
professional profiles, procedures and structures that can support the process of
implementation.
Turbocondition 4: To Place the Political Sphere Among Economic Businesses of
the Service Sector
Politicians do marketing – they exploit the “hic et nunc” philosophy and go
along with structures and entities that can provide consent in the short term.
The political system sets up a sort of market that is actually highly inflated and
with a scarce added value and which produces plenty of financial and propagandist
bubbles.
Turbocondition 5: To Give Policymaking Opportunities to Scientists, Neo
Humanists and Top Brainworkers.
Giving political opportunities to eclectic and scientifically qualified intellectual
elites would lead the socio-economic development of the knowledge society. Thus to
trigger a virtuous circle among power, knowledge and capital and ensuring a real
sustainable development with a “top brainworkers”, that is to say people who
concretely work for the development, people able to think about the opportunities
offered by modern scientific paradigms by following different patterns.
Turbocondition 6: To Stimulate the Subsequent Evolution of Life on Earth
Focusing on the Analysis of the Neocortical Morphogenesis
Men always interact with their technological tools and the latter can even
manipulate our ability to manage them and our lives. This kind of circular dynamic
influence should lead to reassess our paradigms about the concept of person and of
relational system tout court. According to this new paradigm, technical-human like,
we can make an attempt to understand how the paleocortality and the neocortality are
affected by the technical supports and their evolutions.
47
Turbocondition 7: To Encourage Continuous Kuhninan Evolutions and
Inventions with a High Value Added
It is time to encourage continuous Kuhninan evolutions and inventions with a
high value added, thus to set grounds for a social system in which, if V=R/W,
economic cycles follow one after the other with delayed positive timing and shorter
depression times in each cycle.
Turbocondition 8: To Consider the Surplus of Variety and the
Hypercomplexity, a Sign of Wealth and a Big Opportunity also in the Case of
the Increasing Variety of Artificial Biodiversities
An eventual collision among natural biodiversity evolutionary systems and
those characterized by artificial biodiversity could lead to an hybridization. This is
actually already happening (one can think about the fertility control through the birth
control pill or to the cure of some decease by means of some genetic alterations).
In fact, the biological turning point offers plenty of opportunities for the life
quality on earth, as well as many social issues and new communication needs.
Turbocondition 9: To Enhance Competition Capitalism on the Short and
Middle Term Dimension through Tactic Models such as Lean Thinking and the
Kaizen Practice
The lean thinking is addressed to the optimization and to increasing the results
performance and has always been opposing against the bureaucratic thought that is
based on the control and validation of the procedure.
Rather than an instrument, the lean thinking is a way of thinking which is
necessary to activate the V=R/W function.
The 9 turboconditions explained above are necessary, even though not always
sufficient to carry out a global scenario. The latter being stable, fast and aware that in
48
a free, open fast and tolerant world, a rapid economic development is a guarantee for
a human, personal and social dignity.
The trick according to which a “poor but happy” world can still exist is typical
of nowadays cavemen that we can easily leave behind trying to light a fire with some
wooden sticks while we are sipping our drink, reading a good book and listening to
some nice music on a jet carrying us where we wish to go.
These turboconditions facilitate the incresing of the evolutionary speed related
to an increase of variety. It might sound paradoxical that increase of variety and
increase of speed might walk one beside the other, but it is not so as I am going to
show below.
1.8. The Power of Complexity
The power of complexity and variety meant, as a key, wealth evolution system
is described by the systemic approach by comparing Laszlo’s whole/part paradigm
and Luhmann’s system/environment one to observe the energy-ecology link from an
evolutionary perspective. Nevertheless, exceeding variety and complexity might
activate Buradization loops and thus is pivotal to avoid. The challenge to avoid these
loops largely depends on the speed of the innovation cycles as I am going to explain
below.
The paradigm shift from whole/part to system/environment is pivotal within
system theory because it turns the concept of future upside down. As a matter of fact,
the former paradigm still copes with the problem to describe/foresee the future, and
with the matter of predictability and its variables while the latter‐which is the core of
this chapter considers the future as a conceptual, abstract model which can be
invented and then self-reproduced but not foreseen/predicted.
49
In the age of simulation and modeling patterns, the future becomes an
autopoietic concept, which evolves self referentially though all the viable networks in
which it can reproduce itself. That is why in Luhmann’s words, “For a theory of
autopoietic systems, only communication is a serious candidate for the position of the
elementary units of the basic self referential process of social systems” (Luhmann,
1990: 6).
The evolutionary autopoiesis, depending on the “reproducing by
differentiating” process, is a key idea to focus on how the paradigm shift from the
whole/part variant to the system/environment one changed the kind of mathematics to
be adopted from predicting to modeling, some way from abstract to embodied
(Lakoff G., Nunez R, 2005) mathematics with the aim to frame the most intangible
but nevertheless high impact factors of the social systems in the conceptualization of
time in general and future in particular. An exemplary item of intangible but high
impact factors of the autopoietic process are the transactional costs, especially the
organizational ones, according to Williamson’s theory related to Roger’s cycle for the
diffusion of innovations in a social system (Pitasi, 2010). The Rogersian Cycle (R)
Velocity (V) is proportionally inverted to the Williamson’s costs (W), thus V= R/W.
The purpose of this essay is to deal with the energy management matter within
a systemic approach trying to empower an embodied mathematics viable to fuel the
autopoiesis process to increase the R’s viability by decreasing W.
50
Figure 1: Rogers Model Updated (Pitasi, 2007)
The key point is to distinguish the differences that can really make the
difference to empower the energy system and to go beyond the limits of the pro-
oil/contra oil, pro-nuclear/contra nuclear mass media debate. As I widely argumented
in some previous works (Pitasi, 2007, 2008), there are three key features that can
increase R’s viability complexity, speed, ease. This three features allow R to generate
51
as a spin off a knowledge wealth flow (KWF) of the energy sector which would be
dramatically reconfigurated by the KWF itself:
Figure 2: Knowledge and Wealth Flow (Pitasi, 2007)
Let’s describe the three key features in brief:
Complex
Linear, causal models do not work anymore to analyze global changes. The
challenges of complexity originally described by Nicolis and Prigogine begin to
focus on what kind of mathematics is viable to deal with exceeding varieties and on
52
how much knowledge intensive and information rich a strategic benchmark for
energy management might and should be.
High Speed
By evolving the V=R/W formula thus by describing the different energy
Roger’s cycles through the downsizing of Williamson’s costs, this paragraph will
describe how a strategic and effective strategy for energy management would
increase socio-economic development, business speed and radical innovation
diffusion. Thus it is not difficult to state and demonstrate the losing mood of those
ideologies which link sustainability to growth decreasing and/or a “back to the pre-
industrial world economy”.
Ease
Effective energy management problem solving requires easy and user friendly,
almost idiot proof, solutions.
The impact of design (for example about packaging) on recycling policies is a
very clear case.
One further example is represented by high concept + eduinfotainment novels
such as Crichton’s State of Fear through with education, information and
entertainment mixed and balanced to facilitate – thus the public understanding of
science about the key challenges of our times concerning the energy – ecology link.
1.9. Conclusions: The Hypercitizenship Age
The evolution of the variety/velocity relationship in terms of V=R/W is a key
challenge of our time and an adequate epistemological, theoretical, methodological
and technical toolkit to empower V is fundamental. Diversity Management might
53
become a privileged tool to generate win/win variety/selection/stabilization processes
by widening the observation horizons, increasing freedom of choice and
implementing effective high speed decision making.
Form my theoretical perspective (Pitasi, 2010), it is pivotal that some key
morphogenetic traits of capitalism emerge, downsizing other traits which might
generate not only risky but also dangerous effects:
In brief:
a) The emergence of the Hyperhuman shift will probably create new organizational
stages of capitalism radically reshaping health policies, food production and so on,
and this shift represents a potentially wonderful strength towards a more democratic
diffusion of high added value knowledge though the most effective practices of the
scientific citizenship lobbying;
b) A key weakness of this shift might be its implosion into the so-called techno-
nihilist capitalism (Magatti, 2009);
c) The back to the cavern/neofeudal solution is not viable at all. As a matter of fact,
for example, the pre-industrial agriculture fed less than 50% of the world population
composed of 700/800 million people, and the average life length was about 35 years.
If we got “back to the past”, many old problems of the past would return, and a
pre-industrial agriculture would feed again about 400 million people – less than 1/16
of the world population. No viable future might look like our past.
Against all odds and against the rhetoric of the ecological threat, “progress”
has evident side effects, but it definitely works.
d) The scientific citizenship is more and more pivotal to provide democratization in
the knowledge-sharing process worldwide, and it depends on the V=R/W of the
relational networking emerging by societarian citizenship (Donati, 1993) patterns to
54
let the huge variety of scientific information and legal procedures to use them
adequately and fairly.
e) The “fair use” of scientific citizenship in a relational, global network depends on
the challenge of letting the scientific citizens become free and responsible persons
(Cesareo and Vaccarini, 2006) to provide an adequate re-entry of the human (Donati,
2009).
From this perspective, sociology of law is pivotal to cope with challenge of
linking scientific citizenship and societatian citizenship so that the Hyperhuman spin
offs of the so-called immortals (Harris, 2007) might be framed within a relational and
responsible legal theory focused on the reentry of the human in that new shape of
global policymaking I call Hypercitizenship.
55
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Chapter II
Theory of Law in the 21st Century: From Semiotica to Autopoiesis
By Leonel Severo Rocha
After the first decade of this century, the theory of law needs to approach the
new features assimilated by legal dogmatics whether to remain a space of observation
and constructive thinking. The dogmatic is still linked to the language paradigm that
forces the lawyers to review their semantics. For both, there is the realization of
Humberto Maturana and Niklas Luhmann’s epistemological projections in law to
build social networks focused on society as autopoiesis. This paper attempts to show
the different perspectives on the theory of autopoietic social systems and their
relationship with the production of meaning and paradox – the search for a concept
that can be operationalized by law.
The dogmatics are still organized from the analytic emphasis of the answer,
instead of highlighting the question. In order to achieve this transition it is proposed
to observe Humberto Maturana’s and Niklas Luhmann’s epistemological projections
in Law – before the advent of a society impregnated with autopoietic social networks.
Thus, this paper attempts to show initially the language paradigm adopted on
theory of Law, evident, clearly, in Semiotics, in order to introduce the different
perspectives on the Theory of Autopoietic Social Systems and their relationship with
the production of meaning and the paradox – the search for a concept that can be
operationalized by Law.
For that purpose, we will approach initially the Law’s meaning and Semiotics.
Firstly (2.1), we will relate the linguist’s first steps in order to create a science of
signs (Semiotics or Semiology), especially Saussure’s and Peirce’s contributions.
Consequently, still on the same point, we will comment briefly their main
61
manifestations and their thinking about the legal theory. Finally, at the end (2.2), we
will situate the main contemporary theories and our work proposal since Semiotics.
We will analyze the idea of autopoiesis and the conception of the meaning in
different perspectives (3), that is, Humberto Maturana’s (3.1) and Niklas Luhmann’s
(3.2) point of observation. Following that, we will approach Gunter Teubner’s (3.3)
and Jean Clam’s (3.4) law’s rereadings. From these perspectives, we may point out to
a retaking of the traditional questions in Theory of Law, opening them to a
polycontextural observation not yet achieved by legal dogmatics.
2.1. Meaning and Semiotics in Law
In the last century, with the institutionalization of language as dominant
paradigm, Semiotics was adopted as one of the privileged theoretical matrices to the
legal investigation and, consequently, to the analysis of the production of legal
meaning.
This project, in order to provide positive results, took charge of preparing a
new theoretical space called Legal Semiotics. Obviously, the attempts to build a
Legal Semiotics depended, evidently, on the foundation of the Semiotics themselves.
Semiotics and Semiology: Saussure and Peirce
Firstly, Semiotics is different from Semiology. Semiology is the empiric study
of signs and of verbal and nonverbal signs systems in human communication.
Semiology had, historically, two main moments: the first, exceed the pre-scientific
instance of reflections about language; the second is characterized by the effort in
adopting the structural pattern of the science of signs as an ideal pattern to produce
epistemological unity to human sciences: structuralist semiology should become the
methodology that would allow a unity of knowledge.
62
However, the initial movement that intended to build a science of signs in a
strict sense, had its origin in linguist’ studies about natural language, and also in
logical-mathematicians’ studies about formalized artificial languages. At the same
time, but independently, in Europe and United States, the linguist Ferdinand Saussure
and the logicist Charles Sanders Peirce suggested the creation of a general theory of
signs. The first named it Semiology, and, the second, Semiotics. This science,
according to Warat, should be devoted to the study of laws and general
methodological concepts that might be considered valid to every sign system.
For Saussure, “le signe linguistique unit non use chose et un nom, mais un
concept et une image acoustique” (1985: 52). Thus, that would be a work managed to
define categories and methodological rules required in order to create such system,
being the sign is its minimal unit to be analyzed. It is important to emphasize, from
this point, that Saussure starts from a didactic logic, contrapositioning
language/speech, synchronicity/diachrony, signifier/signified. In Saussure, the
linguistic sign is constituted by combination of signifier and signified. Signifier has
perceptible material content as, for example, visual or sonorous information. The
signified, for its turn, is the conceptual and abstract content. Symbolically, we can
demonstrate the Saussure's didactic model based on the following image:
Signified
Signifier
In Peirce, instead, “a sign, or representamen, is something that, on certain
aspect, or in some way, represents something to someone. It is addressed to someone,
that is, it creates in this person's mind an equivalent sign, or maybe sign better
developed. About the sign just created, I name interpreter of the first sign. The sign
represents something, its object” (1979:12). Therefore, for Peirce, the representamen
is connected to three things: the ground, the object and the interpreter. According to
63
Peirce, the relationship of signs is triadic. That is, it is composed by sign, on
restrictive sense of the word, the assigned object and the interpreter. The triadic
model, reported above, may be symbolically schematized based on the following
picture:
Semiosis
Interpreter
Sign
Representamen
Object
We have already mentioned that with Peirce, it has started a delineation of a
project in which the main concern is logic correction and consecutive rectifications of
the systematization of different science speeches, not only the science of signs itself.
Nevertheless, currently, we use indistinctly on Law studies, the signs Semiology and
Semiotics almost as synonyms. We have chosen to use, currently, the sign Semiotics.
Semiotics is divided, traditionally, according to Carnap, in three parts: syntax,
semantics and pragmatics.
The second moment, called structuralism, would also be inspired in Saussure.
However, structuralism, influenced by the idea that knowledge is formed by
independent structures, would emphasize much more the speech than the signs as its
methodological basis for a social sciences analysis. On the same way, Semiology
would be almost as a science of the sciences – an epistemology of different speeches
about the world.
The analysis of signs would allow, to Saussure, multidisciplinary studies,
inciting its main concern to determine criteria that would allow autonomy and purity
of a science of signs. Following this path, Saussure tries to rebuild, on the knowledge
level, a theoretical system able to explain how different kinds of signs work. This
64
semiologic project, oriented to different natural languages, evidenced the social
purpose of sign.
Thus, Semiology would provide us the laws that rule signs and their nature.
The minimal condition for an analysis is founded on the possibility of composing
differentiating signifier units. In another opportunity, we mentioned that “the biggest
Saussure’s merit can be found, unquestionably, in his revolutionary epistemological
posture, which defined the possibility of thinking, from a new theoretical place, about
different systems of signs” (Rocha, 2009: 26).
Building different systems of signs of the natural languages, Saussure chose, as
an analytic model, the linguistics – theory of verbal signs. Linguistics has, to
Saussure, two functions: on one hand, it is seen as part of Semiology, connected to a
wider and more defined dominion of the group of human communication signs; on
the other hand, it is the center from which are translinguistic categories formed that
compose the arranger principle that makes possible the comprehension of other
systems of signs.
Linguistics in Saussure then has a primordial function because their analytic
categories are the reason why the constitution of Semiology becomes possible:
Semiology as a study of signs in human communication. For that purpose, Saussure
starts from the verbal languages in order to describe different systems of signs. The
privilege given to linguistics comes from the fact that the whole group of non-
linguistic signs must search for their possibilities of systematization, from the natural
language logically arranged.
In our opinion, going a little further, and also with Warat (1995), it could be
said that, really, there is only one linguistics of verbal signs and another of nonverbal
signs, and Semiology is a general linguistics. Semiology, as we have already said, has
its “thematic field defined from the not theorized places by linguistics, that is, it is
65
worried about production processes and connotative signification mutation
(ideological) of social communication” (1977: 41).
It might be said that, as Barthes marks, Saussure’s Semiology is presented as a
language of the languages, as a metalanguage that takes different languages as its
own language-object. Thus, Saussure sees Semiology as a linguistic level different
from the analyzed languages and, on this path, it keeps away from social materiality
that forms signification. That is, from a perspective that claims also an analysis of the
social-political conditions that influence signification, Saussure left his project
incomplete about the relationship of the signs with ideology and history.
Peirce, on his turn, underlines the logical function of the sign for the
constitution of Semiotics. For him, logics, in a wide sense, would be almost a
synonym for Semiotics. Semiotics would be, because of that, a general theory of
signs, recognized as a subject, as long as the abstraction process would produce
judgments required for the logical characterization of signs applied on scientific
practicing. Semiotics should keep the group of signifiers’ systems in a logical
calculation. For this reason, contrary to Saussure, worried with scientific treatment of
natural languages, Peirce would look to science linguistic praxis.
Anyway, even if Peirce has not produced a systematized work, Nagel’s opinion
seems to be reasonable, which finds coincidences between his ideas and the Vienna
Circle’s ideas, contrary to any transcendentalism. In this perspective, there is Circle’s
fundamental idea to which Peirce would clearly agree: the semantic conditions of
verification (which range Carnap would reduce latter). For Peirce, an idea is always
the representation of certain sensitive effects. With him, it has started a Semiotic
project more worried with the logical correction and with successive rectification of
systematization of different science speeches, than properly with the science of signs.
Then, we have another coincidence between Peirce and logical positivism about
dependency function attributed to Semiotics related to science languages. One
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remarkable difference between Peirce and neopositivism is the fact that, for the
American the sign occupies a distinction spot, while for the Austrians the speeches
are more important.
For the Vienna Circle members, science and linguistics are both related terms:
the scientific problematics of a rigorous language are able to explain the world’s
information. In this perspective, logical positivism assumes discursive rigor as the
scientific research paradigm. He claims yet that no isolated proposition provides an
effective knowledge about the world. Every proposition is significant as long as it can
be integrated in a system. Consequently, the working rules of the scientific language
cannot be ignored, otherwise we would have our knowledge darkened by certain
perplexities of strictly linguistic nature. That is why Vienna Circle created language
as an object of investigation and as fundamental instance of scientific problems. For
this reason, Semiotics is the axiomatization level of signification systems, seen as
mathematical models of different science languages.
Languages do not get exhausted with the transmitted information because they
engender a succession of significant resonances which has origin placed also in
contradictions of social materiality. From this point-of-view, these epistemological
conceptions, as the logical positivism, as long as they identify, as we have already
mentioned above, science as language, from a reductionist attitude which thinks
language as an self-sufficient textual structure (autopoietic, on current language),
discovering the signification inside the own system created by the language itself,
they forget other production scenes of signification. That is, the influence of society
of meaning production is ignored. This axiomatizing conception of Semiotics is
connected to a scientific philosophy which follows an ontological conception of the
truth. Following this logical view, every enunciation unable to be approved by
semantic criterion of verification would have no sense. On this ontology, the
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language persuasive functions would have no space. The symbolic, the speech
mediation levels, and the political specificity of speeches would not be approached.
Wittgenstein and the New Rhetoric
These conceptions based on the construction of axiomatizing propositions of
languages were contested by several contemporary theories. Two of the critics,
intending to emphasize how important is the contextual analysis in order to explain
the meaning of signs, were Philosophy of Ordinary Language (inspired by the second
Wittgenstein – Philosophical Investigations) and the New Rhetoric.
The Philosophy of Ordinary Language tried to demonstrate, contrary to Vienna
Circle, that the object of Semiotics should be the analysis of significant imprecisions
originated from different significances expressed by the intentions of issuers and
receivers in communication. That posture then should investigate the speeches’
ambiguities and vagueness since its pragmatic functions (directive, emotive and
informative). Nevertheless, it might be said, in summary, that it did not overcome,
while studying significant uncertainties, some kind of psychologism, for reducing
excessively to a issuer-receiver relationship.
The New Rhetorics, on their turn, as Perelman and Viehweg, also criticize
Semiotics reduction to syntax and semantic levels, since a return do Aristotle in order
to recover the idea of “Topics” on “Topics”. Aristotle explains that there are
demonstrative reasoning, based on the idea of truth, and persuasive reasoning, based
on verisimilitude. The persuasive reasoning would become linked since a topical
argumentation chain, constituted by points of view usually accepted, the “Topoi”.
Topoi would be some kind of calibrator elements of argumentative processes.
However, as Philosophy of Ordinary Language, the New Rhetorics would also not
overcome a certain psychologist sense in the analysis of speeches.
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Another contemporary theory that is also criticizing Semiotics’ contributions is
the deontic logic, which has tried to elaborate, not so easily, logical analysis about the
speeches in Law and morals.
Also very important is the analysis of “Speech Act”, theory proposed by
Austin and Searle, which values “Revolutionary Acts” of communication. Austin, as
it is already known, distinguished Locutionary Act, Illocutionary Act and
Perlocutionary. On the other hand, a relevant trend (among many others), followed
nowadays in United States, is Richard Posner’s, that replaced the speech of
interpretation of meaning in Law as a “judicial cosmopolitanism”, which, clearly,
will not be developed here. It is not part of our interest, either, in this moment, an
analysis about the Habermas’s theory of communicative action. If we wished to
discuss these political issues related to current democracy, we would take Marta
Nussbaum’s work about social exclusion and dignity, “The Frontiers of Justice”.
For the next step, we intend to observe how autopoiesis can be shown as a
differentiated and current perspective in order to observe the production of meaning
in Law.
2.2. Meaning and Autopoiesis
It is an autopoiesis’s characteristic – a redefinition of the perspective of
originary production of language-sign’s meaning, in order to emphasize
communication and self-reproduction autonomically before environment and since
the idea of a system. We will approach, as follows, the theoretical models proposed
by Maturana, Luhmann, Teubner and Clam.
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Autopoiesis in Maturana
Humberto Maturana, together with Francisco Varela, was the first to use,
contemporaneously, successfully, the idea of autopoiesis. That is why every
discussion has to consider this ground zero.
Maturana surprises most of traditional observers, claiming and confirming the
necessary obstacles for the knowledge of knowledge. The relationship between
biology and cognition will never be the same after autopoiesis.
Maturana starts his work about autopoiesis from the ideas of organization and
structure, taking organization as relationships that occur between components of
something so they can be recognized as members of a specific class and as structure
of something the components and relationships that effectively form a particular unit
performing its organization. Recognizing characterizes living beings and it is,
therefore, its organization that allows a relationship between a high range of
empirical information about cellular functioning and its biochemistry.
So, the idea of autopoiesis shows no contradiction with this kind of
information, contrary to that: it is supported by them, and its purpose, clearly, is an
interpretation of such information from a specific point-of-view able to emphasize the
fact that living beings are autonomous entities. We use the word autonomy in its
current sense, that is, a system is autonomous if it is able to specify its own legality,
which is its own property. Thus, Maturana still believes that, “para comprender la
autonomia del ser vivo, debemos comprender la organización que lo define como
unidad” (2003: 40).
In Maturana, the meaning is produced by distinction. The act of marking any
beings, thing or unit, is connected to an accomplishment of a distinguishing act that
sets the marked apart from a background. Each time we refer to something, explicitly
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or implicitly, we are specifying a distinguishing criterion that marks what we are
talking about and specifies its properties as beings, unit or object.
According to Maturana, “el modo particular como se realiza la organización de
un sistema particular (clase de componentes y las relaciones concretas que se dan
entre ellos) es su estructura” (2003: 33). So, organization of a system is necessarily
invariable – its structure may change. From this point-of-view, organization that
defines a system as a living being is an autopoietic organization.
About autopoietic organization in Maturana, Darío Rodriguez says, “los seres
vivos comparten la misma organización autopoiética, aunque cada uno es distinto a
los demás porque su estructura es única. La organización autopoiética se caracteriza
porque su único producto es ella misma” (2009).
The intimate relationship between organization and structure becomes clearer
when Maturana says that a living being remains alive while its structure,
“cualesquiera sean sus cambios, realiza su organización autopoiética, y muere si en
sus cambios estructurales no se conserva esta organización” (1996: 35).
Another idea equally important in Maturana's theory – that is intimately
connected to the idea of organization and structure – is cognition. As we have already
seen, living systems are systems determined by their structures. These systems, when
interacting with each other, do not allow, therefore, instructive interactions, which
means that everything that happens inside it does it as structure changes. That is why,
for Maturana, it is so important that we observers understand cognitively what
reveals “lo que hacemos o cómo operamos en esas coordinaciones de acciones y
relaciones cuando generamos nuestras declaraciones cognitivas” (1997b: 153).
In order to achieve a definition for the biologic concept of autopoiesis,
Maturana needs to build, as three main pillars, the concepts of observer, organization
and structure. About organization and structure we have already explained. The
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observer, otherwise, in Maturana’s work, might be considered “un ser humano, una
persona; alguien que puede hacer distinciones y especificar lo que distingue como
una entidad (un algo) diferente de sí mismo, y puede hacerlo con sus propias acciones
y pensamientos recursivamente, siendo capaz siempre de operar como alguien
externo (distinto) de las circunstancias en las que se encuentra él mismo” (1996:
169).
Observers are, in fact, living systems. Living systems are autopoietic systems
as long as “la organización de un sistema autopoiético es la organización
autopoiética. Un sistema autopoiético que existe en el espacio físico es un sistema
vivo” (2003: 12).
Anyway, Maturana establishes clearly the importance of constructivism to
metalanguage of modern society’s cognition. It allows, as we already know, to
purpose a radical pragmatic analysis of communication and language, taking
cognition as a suitable structural coupling of living systems to their ecological aspect.
For Maturana, “to live is to know”. That is why we human beings “nos descubrimos
como observadores de la observación cuando come”nzamos a observar nuestra
observación en nuestro intento de describir y explicar lo que hacemos” (1997b: 71).
Maturana points out also to a paradox, which Luhmann would retake latter, in a
critical way, named “ontology of the observer”.
Autopoiesis in Luhmann
Niklas Luhmann’s methodology starts from the idea that it is possible to
compare, in a theory of society, different systems related to a specific function. This
strategy was initiated with Talcott Parsons. For Luhmann, in The Society of Society’s
preface, the importance of the idea of comparison increases as long as “it is admitted
that it is not possible to deduce society from a principle or from a transcendent rule –
be it in ancient way of justice, solidarity or rational consensus” (2007: 2). That is why
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Luhmann claims that it an analysis of heterogenic fields as Science, Law, Economics
and Politics specifying structures which may be compared is possible while invoking
the concept of action and its analytical decomposition, as did Parsons, but exactly the
observation of diversity of these fields where can be applied the same conceptual
apparatus.
Niklas Luhmann assumes, therefore, the proposal of a constructivism toward
the production of meaning from self-reference and self-organization criteria
introduced by autopoiesis. Nevertheless, Luhmann’s formation is inspired by
systemic methodology. Autopoiesis arises, thus, as an important difference between
Luhmann and Parsons. For Luhmann, the big question relating Law and Society is
characterized by opposition between self-reference and hetero-reference, or between
closed and open systems. Luhmann points out to Tarski’s question, who refers that
identity is always the unrolling of a tautology. In case of Law, Law faces the problem
of the rupture of its Law’s identity against Law itself, that is, the unit of its own
distinction.
Luhmann, in his Law of Society, claims that “the legal system must so observe
what has to be handled in the system as communication specifically legal” (2002:
403). Niklas Luhmann indicates, at this point, the topic that is object of this whole
thinking, saying that, based on the theory of systems operationally closed, it is
possible to surpass the debate between “Semiotics and linguistic analysis that is
certainly applied in Law. Referring to signs or language, the French tradition
emerged with Saussure has emphasized, specially, the structural aspects; the
American tradition is based on Peirce, who has, in contrast, emphasized pragmatic
aspects” (184).
In Luhmann, anyway, in both cases, it is accentuated the speaking intention on
“speech acts”, in Austin’s and Searle’s sense. Luhmann emphasizes, in this path, that
neither structuralist analysis, nor speaking acts, applied to Law, had interesting
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results. That explains this author’s initiative to go further than Saussure and Peirce,
heading to a theory of communication that allows to the Theory of Law access to new
problems.
For Luhmann, in communication, it is not permitted to descend from
communicative operations or from structures. It is not possible to reduce even
communication itself to communicative action because it comprises also information
and the act of communicating.
“Entre estructura y operación existe una relación circular, de tal suerte que las
estructuras sólo se pueden crear y cambiar por medio de aquellas operaciones que, a
su vez, se especifican mediante las estructuras. En estos dos aspectos la teoría de la
sociedad considerada como un sistema operativamente clausurado, es la teoría más
omnicomprensiva.Y si entiende el sistema del derecho como un sistema parcial del
sistema sociedad, entonces quedan excluidas tanto las pretensions pragmáticas de
dominio como también las estructuralistas” (Luhmann, 2002: 623).
After these explanations, it is possible to bring the concept of autopoiesis in
Luhmann. According to this author: “el concepto de producción (o más bien de
poiesis) siempre designa sólo una parte de las causas que un observador puede
identificar como necesarias; a saber, aquella parte que puede obtenerse mediante el
entrelazamiento interno de operaciones del sistema, aquella parte con la cual el
sistema determina su proprio estado. Luego, reproducción significa – en el antiguo
sentido de este concepto – producción a partir de productos, determinación de estados
del sistema como punto de partida de toda determinación posterior de estados del
sistema. Y dado que esta producción/reproducción exige distinguir entre condiciones
internas y externas, con ello el sistema también efectúa la permanente reproducción
de sus límites, es decir, la reproducción de su unidad. En este sentido, autopoiesis
significa: producción del sistema por sí mismo” (2007: 69-70).
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Thus, when Luhmann mentions production of the system by itself, it means
that the system operates recursively through an operative closure. Nafarrate and
Rodriguez claim that “la clausura operative de la autopoiesis hace relación directa al
nivel de estabilidad que alcanza una operación, bajo condiciones determinadas, y en
la que necesariamente esta operación tiende a formar un cálculo recursivo que
siempre debe volver sobre sí mismo (autorreferente)” (2006: 13).
As this paper’s proposal is to observe the production of meaning and the
autopoiesis of Law, it is important to situate that, in Luhmann, “el sentido se produce
exclusivamente como sentido de las operaciones que lo utilizan; se produce por tanto
sólo en el momento en que las operaciones lo determinan, ni antes, ni después”
(2002: 221). Differently from what could be thought, the meaning problematics do
not lead to an ontology, as long as “el sentido es entonces un producto de las
operaciones que lo usan y no una cualidad del mundo debida a una creación,
fundación u origen” (2002: 222), what makes us believe that, with the thesis of
meaning, everything possible to be solved through society is restricted because
society is a system that establishes meaning. That is why we insist in a theory of
society from this point-of-view, because “autopoiesis has the proposal of thinking
about these questions in a completely different way, from a point-of-view that,
related to legal dogmatics criteria of truth, are paradoxical. Every production of
meaning depends on the observation” (Rocha, 2009: 14).
Finally, it is important to mention, with Stamford steps, that “even that theory
of systems has been the object of strong criticism and rejection, in order to serve as a
reading of society’s life, Luhmann insists that this theory is a strong candidate to
build a social theory of society, a theory which has meaning socially produced,
reproduced, produced again” (Rocha, 1985: 31).
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Autopoiesis in Guther Teubner
Although his early works may be considered a following of Luhmann’s
thought, Gunther Teubner has recently elaborated original research, which has
pointed out the importance of an autopoietic thinking in globalization. On this path,
he retakes a subject pointed out by Luhmann in the end of The Law of Society, which
is polycontexturality. It becomes, in a world where Law is fragmented in a pluralism
in which the State is only another organization, a crucial referential for the meaning
configuration. For Neves, polycontexturality implies, at this point, “that the
difference between system and environment is developed in several communication
fields, in a way that it is claimed different and confronting pretensions of systemic
autonomy. In addition, as long as every difference becomes ‘center of the world’
polycontexturality implies a plurality of society’s self-descriptions, leading to a
formation of different conflicting partial rationalities” (2009: 117).
Because of this systemic (re)visit to Theory of Law, Teubner may be
considered the author of the “Hybrid Law”. A Law of world’s periphery that
sometimes could even have, according to our author, some kind of civil constitution,
as, for example, Sport’s regulation and “Digital Constitution”.
Teubner, in what is of interest to our research, explores a concept of meaning
connected to plurality. It can be observed in the relationship between the idea of
paradox and production of meaning, in his work “Alienating Justice”, where he
claims: “In the dazzling light of the desert – at the same site, where Derrida observes
the violence of law’s self-foundation, where Kelsen had seen the Grundnorm, and
Hart the basic rule of recognition - they see the khadi’s twelfth camel grazing at a
green place” (1993: 24). The question about the ultimate justification in Law is based
on the fact that, in Luhmann, it means to discover the internal paradoxes of Law – the
problematic relation of a Law that faces itself. Thus, it is important to emphasize that
Watzlawick, Beavin and Jackson, from Palo Alto School, California, understand that
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there are three kind of paradoxes: 1) logical-mathematical paradox (antinomy), 2)
paradoxical definitions (semantic antinomy) and 3) pragmatical paradox (paradoxical
injunction and paradoxical prediction). We can claim that, to systemic theory of Law,
as much in Teubner as in Luhmann, the last category of paradox is the only interest,
that is, pragmatical paradoxes.
The twelfth camel parable in Luhmann is very known. Three brothers received,
as their father’s inheritance, eleven camels, but they were not able to mathematically
divide it, because the first brother deserves half of it, the second one quarter, and the
third on sixth. A third observer proposes a solution to the paradox, introducing a loan
of a twelfth camel. For Luhmann, the twelfth camel is a result of the production of
meaning and an opening to autopoiesis of Law’s paradoxes. Teubner enlarges the
perspective by introducing his own idea of autopoiesis.
For Teubner, already in his early works, Law “determines itself by self-
reference, based on its own positivity” (1993: 134). That implies the acceptance of
the idea of circularity: “social reality of Law is created from a large number of
circular relationships. The elements that compose the legal system – actions, rules,
processes, identity, legal reality – constitute themselves in a circular way” (1993:
141). All of this leads Teubner to purpose an idea of autopoiesis in permanent
evolution, in which Law has several levels that produce a hypercycle: “if we try to
apply the idea of hypercycle to Law, we will see that legal autonomy is developed in
three phases. In a initial phase – ‘called Law socially diffuse’ – elements, structures,
processes and limits of legal speech are identical to the general social communication
or, at least, determined in a heteronomous way by the last one. A second phase of a
‘partially autonomous Law’ takes place when a legal speech begins to define its own
components and use them operationally. Law only appears in a third and last phase,
becoming ‘autopoietic’, when the components of the system are articulated between
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each other in a hypercycle” (1993: 211). The concept of autopoiesis from the idea of
hypercycle is represented by Teubner in the following graphic:
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In this perspective, for Teubner, the social subsystems “are units that live in
operational closure, but also in informative-cognitive opening in relation to respective
involving environment” (2004: 110).
The meaning, in Teubner, is configured as an evolutionary construction of
social communication that gradually is transformed in legal communication. Thus, “if
we rebuild the operations of legal system based on constructivist model, so we will
have the following image. Legal communications build a ‘legal reality’ in legal type
or hypothesis of a legal rule” (2004: 112). In summary, for Teubner, the meaning is
possible because of the polycontexturality of Law.
Autopoiesis in Jean Clam
Jean Clam, for his turn, considers Niklas Luhmann’s autopoiesis as
preponderantly epistemological, with a huge contribution to the elaboration of new
theoretical meanings to System of Law. Thus, Jean Clam points out to Luhmann’s
thinking as much more than a simple refined analysis of legal dogmatics and
indicates a deeply innovative theoretical perspective. Jean Clam emphasizes, and it is
true, that Niklas Luhmann is one of the most important thinkers of twentieth century.
To demonstrate it, Clam, in his early works, as in the book Droit et Sociètè chez
Niklas Luhmann mentions that “the idea of autopoiesis of social systems renews the
figure, elaborated so far, of a systemic autonomy established on the differentiation
between action systems and simultaneous growth of dependence and independence of
systems contrary to their societies. He (Luhmann) will explain, firstly, how he
analyzed the theory changes, in order to prepare an access to the 'second' Luhmann's
legal sociology as it is showed in legal sociology articles since half eighties and in
Law of Society (Das Recht der Gesellschaft)” (1997: 237).
We understand that Jean Clam’s perspective may be compared to Bachelard’s
epistemological cut attempt. Autopoiesis allows a redefinition of the idea of
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differentiation as a way to face paradoxes, that in this path becomes a condition for a
construction, as would say Gaston Bachelard (2006), of a dialectique de la durée.
That is, going further than Paulo Valéry, who claimed that “Oh! qui me dira comment
au travers de l'existence ma personnne tout entière s'est conservée, et quelle chose
m'a porté, inerte, plein de vie et chargé d'esprit, d'un bord à l'autre du néant?” (Rocha,
2007: 53).
Bachelard claims that it does exist a way between la détente et néant, which
will be the intuition of the moment. Otherwise, Jean Clam prefers to relate the subject
of paradox to other authors. He retakes it, together with other subjects, as our
twentieth camel parable. In this parable, Clam reminds Husserl’s phenomenology of
arithmetics. For Clam, the paradox is a process of medial expansion.
Clam redefines the idea of meaning as a paradox, but it is “contrary to Hegel’s
dialectics of a formal circular assimilation of contradiction, creating a conceptual
mechanism” and also “contrary to Russel’s logic, which tried to eliminate the
paradoxes of the theory by the introduction of a hierarchy of announcements and their
references” (1997: 245). For him, both “are inscribed in false the theories that accept
the inconsistency non-overtakable of logics and put precisely in evidence the
'paradoxical' circularities and the strategies of invisibility used by scientific
theorization in order to be cautious. They show the necessity, but also the fertility of
this circular closure, of the reinjection of paradox, or the arbitrary distinction of the
beginning (to what it opened logic space), in the theory itself. They make, in
summary, appear the structure essentially self-referencist and fundamentally not
possible to eliminate the paradoxes (of logics) of every theorization” (2006: 172).
Thus, for Jean Clam, paradoxicality becomes the origin of the system. This
would be retaken by the author in the book “Sciences du sens. Perspectives
Théoriques”, in 2006, when he explained that normally, there is a contrast between
objects or structures that determinate a opposition between explanation and causality,
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on one hand, and comprehension on the other. It could be observed under another
perspective, a rereading of Simmel and Saussure, what would allow the insertion of a
third mediatic figure which would be Freud’s. That would allow an analysis of the
pluralization of observation and a review of the Saussure’s semiological perspective
and its articulation's schematisms, what would make possible a comprehension of the
production of meaning as a two-sided process. “On one hand, as referential relations
that make impossible an univocal identification of meaning, and describe them as
being already disseminated; on the other hand, as an accomplishment of a current
world that is articulated in its own complementations” (2006: 71). That is the opening
of the comprehension of meaning. From this perspective, we are able to retake the
traditional questions of the Theory of Law as open to a point-of-view never reached
before by legal dogmatics.
2.3. Conclusions
Polycontexturality, as we have emphasized in our chapter “Observations about
Luhmann's Observation,” is the contemporary form to deal with the problem of
meaning in Law. That is, why the concept of autopoiesis and its main element,
communication, are so important as a way to deepen a study of the historical meaning
elaborated by Saussure and Peirce.
Anyway, we saw that Semiology had, historically, two main moments: the first
transcends the pre-scientific instance of reflections on language; the second is
characterized by the attempt to adopt the structural pattern of the science of signs as
an ideal pattern to produce the epistemological unit for the human sciences.
Ferdinand Saussure and Charles Sanders Peirce were responsible for the act of
structuring the general theory of signs. Saussure named it Semiology, and Peirce,
Semiotics. Nevertheless, these conceptions were refuted by several contemporary
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theories, as Philosophy of Ordinary Language (Wittgenstein) and the New Rhetorics
(Perelman and Viehweg).
Maturana, as we have explained, crystallized the foothold to every observation
since autopoiesis of living beings, centered in organization and structure. Well, for
Maturana, the meaning is produced by distinctions. The act of marking any beings,
thing or unit, is connected to the accomplishment of an act of distinction that sets the
marked apart from the background. Every time we refer to something, explicit or
implicitly, we are specifying a distinctive criterion that marks what we are talking
about, and it specifies its properties as beings, unit or object. This is the necessary
step in order to reach the definition of the concept of autopoiesis. For that reason,
Maturana built three basic pillars – the concepts of observer, organization and
structure.
Maturana’s reflections contribute significantly to observation of Law because
they make us think about the way operations produce the difference between system
and environment (Luhmann), and demonstrate how difference necessarily requires
recursivity, so the operations recognize the kind of operations that belong to
themselves, excluding those which do not belong. Besides, recursivity in Maturana is
a concept equally important that inspired not only Luhmann, but equally Gregory
Bateson, in his epistemology. This author has claimed that there are two classes of
recursivity that guided his reflections, the first from Norbert Wiener, and the second
from Maturana and Varela. For Bateson, “estos teóricos consideraran el caso en que
alguna propiedad de un todo es retroalimentada al sistema, con lo cual se produce un
tipo de recursividad algún tanto diferente, cuyos formalismos ha elaborado Varela.
Vivimos en un universo en el que las cadenas causales perduran, sobreviven a través
del tiempo, sólo si son recursivas. ‘Sobreviven’ – literalmente, viven sobre sí mismas
– y algunas sobreviven más tiempo que otras” (1993: 189).
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According to Nafarrate, we got to a “orden de civilización de mucho más
complejidad que el que conceptualmente tenían nuestros antecesores. Para poder
aprehender este orden complejo se necesitan herramientas teóricas de constitución
radicalmente distinta a las que solemos utilizar” (2006: 17). This is what Niklas
Luhmann tried to build with his theory. Luhmann brought to his theory the concept of
autopoiesis created by Maturana to biology, in the analysis of society, starting with
the concept of systemic equivalence. In order to accomplish such movement, he
replaced the main self-referential unit of Maturana's system, which is life, with the
idea of communication. That allows Luhmann to apply autopoiesis to the problem of
the production of meaning in Law and in society. So, related to what is the subject of
our reflexion, Luhmann believes that, through the theory of the systems operationally
closed, it might be possible to overcome the debate between “Semiotics and the
linguistic analysis that is certainly in Law applied. Referring to signs or language, the
French tradition emerged with Saussure has emphasized, specially, the structural
aspects; the American tradition is based on Peirce, who has, in contrast, emphasized
pragmatic aspects” (2001: 64). Anyway, Luhmann, with autopoiesis, intended,
beyond Saussure and Peirce, to lead to a theory of communication, that would allow
the Theory of Law access to new questions of meaning. Certainly Luhmann’s
perspective, that would rather autopoiesis than philosophy does not get close to the
Michel Onfray’s trends called “Contre-historie de la philosophie”.
Finally, it might be said that, in Luhmann (2007), the meaning is produced by
autopoiesis, and communication becomes the main component of the Law of society,
while it is a synthesis of three moments: information, act of communication and
comprehension. Michael King’s words, trying to explain meaning and autopoiesis,
must be noted: “social systems, as communication networks, produce their own
meaning” (2007: 421). That is why “different social systems distinguish from each
other by the meaning they give to relations and events in social world (2007: 128).
83
Thus, Teubner adds to Luhmann’s thinking the concepts of polycontexturality
and Hypercyclic Law as a possibility to examine the evolution of autonomy of the
system of Law. It may be noticed that, in fact, there is a crisis with the powers, as
emphasizes Mireille Delmas-Marty. Jean Clam, for his turn, takes autopoiesis to its
limits, and insists that the production of meaning has boundaries, as points out
Derrida, which will be always relate to the idea of contingent and paradoxical time
and space.
The meaning of Law, currently, has as a possible foothold the presupposition
exposed, even that would be possible, to make clearer the deeper metaphoric meaning
of Law in complex societies, the elaboration of a “Magic According”, as did
Giordano Bruno. Anyway, we have insisted in existence of three main theoretical
matrices in the Theory of Law. We named systemic-pragmatical the matrix that,
currently, in our opinion, is better prepared to face the epistemological obstacles of
social and legal thinking in the 21st century.
Biography
Professor Leonel has an undergraduate degree from Law and Social Sciences
at the Federal University of Santa Maria (1979). He has a Master degree on Law from
the Federal University of Santa Catarina (1982), a Doctor degree from École des
Hautes Etudes en Sciences Sociales de Paris (1989) and a Post-doc from the
Universita degli Studi di Lecce. Currently he is a full Professor and Executive
Coordinator of Postgraduate Programme in Law at the UNISINOS (Master and
Doctor degree, Capes 6). He is also a CNPq researcher.
84
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Chapter III
The Complexity of Identity Building
By Massimiliano Ruzzeddu
3.1. The Notion of Identity
Like for many other notions in the social and human sciences, the debate on
the notion of identity is very complex because it implies a number of different –
though equally valid – theoretical frameworks.
Brewer (2001: 116) assesses that the debate on the identity issues is so
widespread that a real “conceptual anarchy” has been affecting it; in fact, many
scientific communities have carried out studies about identity issues, each one from a
peculiar point-of-view: the complexity of the notion fits to a number of different
methodological and epistemological approaches. This is why, in this first part of the
paper, I will endeavor to define an idea of identity, that will fit to the following
reflections.
The word identity stems from the Latin term “identitas”, which roots from the
pronoun idem, “the same”. From a strictly linguistic point-of-view, identity stands for
“sameness” and the sameness of an individual through the time represents the earliest
idea of social actors descriptions. Of course, this idea of sameness was strictly
connected to the idea of human.
Thus, the early philosophical notion of identity was a theoretical tool to
investigate the part of human nature, common to all men and women, which kept
steady in spite of all the changes that could affect the individuals bodies (aging,
illness etc.), the societies (revolutions, wars etc.) and the nature (seasons, natural
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disasters etc). Needless to say, in all those philosophical systems, identity consisted
of the “divine” part of the human being according to a vision of the world that
considered immobility as a sign of perfection.
Within this framework, an important cognitive change is worth mentioning. In
the classical era, from Plato on (but even in the earliest phases of Greek philosophy),
the intellectual debates devoted principally to define what human nature was and if
(and how) human beings were different from the rest of empirical reality. On the
contrary, in the early middle age, the core of the philosophical debate shifted from the
differences among humankind to the differences among single human beings. In a
context where the existence of the humankind itself was already taken for granted as
the highest part of the God’s creation – and the basic character of its members had
come to be free will, the differences among individuals turned more and more
important (see Sparti, 1996: 15; Touraine, 1992: 46).
Philosophical passages like this by Augustin, in the book Ten, chapter VI- 9, of
his Confessions became the cognitive basis for highest interest in individuality:
And I turned my thoughts into myself and said, “Who are you?”
And I answered, “A man”. For see, there is in me both a body and a
soul; the one without, the other within. In which of these should I
have sought my God, whom I had already sought with my body
from earth to heaven, as far as I was able to send those messengers-
-the beams of my eyes? But the inner part is the better part; for to it,
as both ruler and judge, all these messengers of the senses report the
answers of heaven and earth and all the things therein, who said,
“We are not God, but he made us.” My inner man knew these
things through the ministry of the outer man, and I, the inner man,
knew all this--I, the soul, through the senses of my body. I asked
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the whole frame of earth about my God, and it answered, “I am not
he, but he made me” (Augustin, 4).
The fact that the philosophical debate of the last thousand years focused much
more on the individual differences among human beings, rather than the similarities
scope, highlights the main criterion of identity description: classification vs
individualization (Sparti, 1996: 21): identity can base whether on the individual
similarities to a broader group – category, or the individual differences from the other
members of the group (see also Brewer, 2001: 118; Rorty A., 1976: 1-2; Sparti; 30-
31).
Nevertheless, these distinctions still consist of substantial statements whose
metahplysical nature makes them not subjectible to empirical or rational proof.
Typical examples are Decartes’s reflections that consider subjective identities as
empirical manifestations of a sort of spiritual substance called “res cogitans”. A
number of other Western thinkers defined identity as a “real” substance by basing
upon metaphysical assessments.
This framework would collapse in the 40s, when Wittgenestein and Analytical
Philosophy announced the rejection of metaphysical discourses, that are the
axiomatic premises of philosophical systems; those systems become nothing else than
“linguistic games”, whose validity rules only work within the game itself.
The only way, that Wittgenstein thought possible to overcome this mental limit
was to create a scientific language that is able to match any single word to one single
empirical object and to describe the relationships between those objects through strict
logic and syntactic rules. (Wittgenstein, 1921: 2-1).
Following this methodology, the easiest way to define identity is the situation
in which any individual could refer to him/herself as “I”.
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Though the pronoun “I” does not meet the condition above showed, for it
refers to no given object.5
In fact from one side, this pronoun can indicate myriads of different people,
each one referring to himself or herself as I; furthermore, on the other, the pronoun
“I” indicates no clear and commonly accepted part of the individual. Directly
speaking, when a person says “I” is this person talking about his or her body?; his or
her mind?; his or her past memories? Of course, no answer is logically “true”, for
each option can be correct in the appropriate context. This fits to what emerges in the
second part of Wittgenstein’s work (especially in Wittgenstein: 1951, ch. 2 and 23)
that a scientific language is impossible as human mind only works with linguistic
games. Thus, the only cognitive strategy left for identity comprehension is to define
under what contextual conditions I can legitimately say “I” (Ryle 1949: 195; and
Sparti, 1996: 28), for example, to assess what social conditions are necessary to
exactly define identity.
In other words, Analytical tradition only relies on the individual, that produces
autonomously the self-representations that meet those categories. Though, those
representations need some kind of public acknowledgment (Sparti, 1996: 69).
For example, I can consider myself a paramount artist, but only if any
community treats me as such – buying my records, asking for my autograph etc. This
representation of myself will acquire continuity through the time and will provide
identity; on the other side, I could change arbitrarily my personal criteria of self-
representation: tomorrow I might represent myself as an astronaut, but for an
observer, this would never be an objective element to assess what my actual identity
is.
5 Giddens (1991) defines “I” as a “social shifter, which gets its meaning from the network of terms whereby a discursive system of subjectivity is acquired” (p. 52,3). Although this notion is strongly connected with the idea of reflexivity, it also depends on how the single individual’s environment represents personhood.
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In other words, while philosophical tradition has provided the instruments to
assess what identity is, as we have seen above, sociology has provided the
instruments to assess how identity works. The fact that identity is not “initially there,
at birth, but arises in the process of social experience and activity” (Mead, 1955:
135), implies the need to seize and describe the social mechanisms for social actors to
start and somehow govern this process (see also Cerulo, 1997).
Actually, Mead’s theoretical system seems the best instrument to master the
social part of identity building process.
The basic assessment is that “the individual experiences himself as such, not
directly, but only indirectly, from the particular standpoints of other individual
members of the same group, or from the generalized standpoints of the social group
as a whole to which he belongs” (Mead, 1955: 138).
In other words “The self, as that which can be an object to itself, is essentially
a social structure, and it arises in the social experience” (Mead, 1955: 140). Thus,
Mead’s notion of identity relies on the reflexive idea of human mind, that North-
American sociology produced in the past century. This model assesses that the
mind’s contents are not innate, but the result of social processes and interactions; as a
consequence, even identity is the result of the main social interaction of the
individual, that is able to build a self-representation. In fact, the mind itself is so
complex that it holds the character of reflexivity: it can “split in two parts”, one of
which is the object to the other part observation. This is the core of the nature of
social identities: the capability that human beings, and only human beings, hold to be
the object of their own thoughts.6
6 On reflexivity see also, Giddens, (1991; 34-35)
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On the operational point-of-view, this means that the identity building process,
like all the other mind contents, do not always show the same outcomes because they
depend on space and time differences.
In fact, since their birth, every individual receives a treatment that fits to the
representations of the world and the social space that are part of the local culture. So
that, in his/her process of socialization, the individual will build a self-representation
corresponding to the social position in which this he or she lives.
For example, in the Roman society, children would represent themselves
differently, according to their positions in the family (free, slave) or their gender.
Once an adult, belonging to any gens and any social class would be the key for
assessing his identity, if male, or the man she wedded, if female.
Of course, this would be much different in any American family in the 50s.
The identity factors at that time would be the ethnicity and the job, or husband’s
father’s job.
Generally speaking, the criteria for building individual identities are strictly
connected to the society values, i.e., the culture (Weber, 1969: 54-55).
In summary, two are the main theoretical frameworks to define identities: the
substantial and the relational. The substantial (that also includes psychological
discourses) needs to rely on ontological statements on which there is scientific
evidence for their unavoidable metaphysical connotation.
On the contrary, the relational framework makes identity understandable just
by empirical description of the cultural and social structures that surround the subject.
The identity is the outcome of a process of adaptation and reciprocal
acknowledgement among actors and social environment, a process with an outcome
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is impossible to foresee7 in advance. The environment can hold the most different
levels of wideness: from a whole nation-state, to a local ethnicity to a family group.
The role of subjectivity is essential in this process: the subject (the I) is the one
that decides how to react to each structural influence (acceptation, critics, reject) and
what cultural input to choose as basic identity. “I”, the outcome of individual identity
and the process of identity building, will occur according to the fulfillment and the
possibility of fulfillment of those values by that individual.
This means that identity is not a steady character but the outcome of a
continuous process with no given point of conclusion. It is the result of a process that
involves the structure (no matter at what level: local, national) in which the individual
lives and implies both the choice on one role as a key role that will also work as an
organization criterion for the other individual roles (Mead, 1955: 142). Thus, the
process of identity building could last very effectively for centuries because it implies
an organizational principle that often sociological literature and divulgation have
neglected.
Traditionally, literature refers of key role as the role with which a social actor
identifies by neglecting all the others. If the other roles do not fade away enough, this
will create role conflicts.
Actually, those models do acknowledge the coexistence of multiple identities
by assessing that individual identities are a set of all the individual identities that the
social contexts have generated.
As an example, when social identity is defined as part of an individual self-
system, managing multiple identities is something like an internal juggling act. On an
ongoing basis, the individual (either consciously or subconsciously) weighs and
assesses available aspects of the self to determine which are activated or engaged as 7 About prediciton problems see Suteanu (2005: 127).
95
guides to behavior in the current situation. The individual may be aware that different
identities have conflicting implications for behavior in which case self-expression
reflects some choice or compromise among different aspects of the self-concept.
Actualization or enactment of different identities is influenced by the demands of the
situation or social context, but the process is one of selecting from a repertory of
identities or self-representations that reside within the individual (Brewer 2001:121).
According to this model, individual identities are based upon a given number
of cultural issues. In some social contexts, especially in the ancient times social class,
gender etc., can have been the only elements for an individual to build self-
representations. But in the modern societies, the pace and the importance of changes
– historical, social and cultural – that took place implied that the social-cultural inputs
for social actors increased in number and intensity. The consequence is that building
social identities turned much more difficult for the selves to be organized in one
single representations were much more. This difficulty is the object of the classical
theories on identity.
The problem is that, nowadays, those theories seem not to be any longer
adequate.
Complexity
The main goal of this chapter is to define the contemporary process of identity
building through theoretical instruments that are based upon Complexity theories.
Thus, it is necessary to define what Complexity is and describe how this notion
affects the paradigm of social science.
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Generally speaking, Complexity theories emerged quite recently in the
intellectual scenario (1970s) as the synthesis of the experience of scientific
disciplines that had taken place in the past decades.8
Systemic, Chaos Theory and Cybernetics, although independent disciplines,
have immediately showed to be interrelated, as they could provide a common set of
theoretical instruments to cope with the fact that, for example, the atoms of any
substance that are within a little bottle (ordered condition), after a while, are spread
all across the room (chaos) is a phenomenon that the classical, mechanical laws
cannot explain.
The main difference between those phenomena of dissipation and the
mechanical phenomena is irreversibility: it consists of the impossibility, like in the
above example, to divide the substance molecules from the air molecules and bring
back the single molecules into the bottle. This kind of event implied heavy, cognitive
changes in comparison to the mechanical laws that so well could describe a wide
range of objects.
Meteorological phenomena, as many other complex objects, show one more
feature: a very small change can cause very large effects. This is the famous
“butterfly effect” and is a deep obstacle to any scientific foreseeing: when the cause
of any phenomenon is so small that it needs a different scale of observation, the
observer will be likely to consider that phenomenon simply chaotic, or disordered, as
long as he or she will have chosen a point-of-view different from the primary object
(Gleick, 1988).
8 Actually, the first example of complex phenomena, that literature refers, are the studies of Maxwell and Bolztmann about entropy, in the 1860’s. Entropy is the character - directly related to the second principle of thermodynamics - of the objects consisting of big amounts of basic elements; those objects have the property to dissipate their internal energy, and to end up with a condition of steadiness of those basic elements, that lose, during this process, any structured reciprocal boundary (Porter 2003: 493 on).
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Now, according to Maxwell, the cognitive obstacles above mentioned just
depend on the observers’ limits: the human mind can only deal with a limited number
of variables, much lower that irreversible phenomena imply; furthermore, sense
organs –even with the help of scientific instruments – only can provide limited
information about the observed objects.
Well, the issue “entropy” contains the core of complexity theory. In fact, it is
impossible to assess future conditions of complex phenomena with the same certitude
and determinacy that are possible for linear phenomena. This framework of
incertitude has characterized the disciplines that, after the entropy discover, arose to
solve those problems. In Complexity theories, there are two schools: those who guess
that incertitude is unavoidable (Bateson, 1972 and 1979; Maturana and Varela, 1980
and 1987, Prigogine, 1984 and 1989; Laszlo 1991, 2003, 2006a and 2006b; Luhmann
1995) and those who think that the incertitude can be overcome (Morin, 1990; Urry,
2005) in spite of the uncertainty, that since the beginning of the 20th century had
showed to be strictly connected with all scientific and knowledge activities.
Namely, Complexity theory – as well as those other disciplines above
mentioned – focused on the problems related to the order and its description; it refers
namely to a wide range of phenomena whose incertitude has challenged the modern
idea of ordered, knowable and foreseeable universe.
This theory implied research in this topic from two very different points of
view: on one side, the “objective” approach bases upon the assumption that the
incertitude which complexity entails is just temporary, for it depends on the lack of
adequate theoretical instruments to observe complex phenomena. On the other side,
the “subjective” approach implies recognizing the limits of the observer in
distinguishing order from chaos; according to this approach, complexity depends on
the limits of human mind, which is simply not able to assess if reality is actually
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either ordered or chaotic. As a consequence, Complexity essentially consists of
elaborating epistemic and communication strategies, to manage ignorance.9
Those problems in the earliest phases of the debate on Complexity were
principally related to physical, biological and technological issues but they quickly
involved also sociological ones. In this domain, the difference between the
“objective” and the “subjective” ideas of complexity matched a theoretical dichotomy
that already existed between the interpretative and the structuralist paradigms; so this
is the framework to describe the reception of complexity issues in the social science.
Actually, the subjective approach has not had a deep impact on the social
theory as many scholars like Weber, Schutz, Symbolic Interactionism etc. had
autonomously reached the same conclusions decades before. Thus, complexity theory
appeared as a confirmation of the idea that representations of social reality cannot
avoid subjective distortions, and the active role of the observer is to be kept into
consideration in terms of interpretation and/or construction of the object itself. 9 The observer limit entail the following kinds of incertitude: - The observer might use longer algorithms than needed: as Gell-Mann showed, the complexity of an object is strictly related to the length of the object shortest description (Gell-Mann, 1994: 56); though, the appropriate description is context based, i.e. it depends on backgrounds of both the observer and the recipients: the same object can imply different descriptions, according to the linguistic skills, the education level and the logic capabilities of the social actors involved in the knowledge process. Thus, many representations of complex objects might contain misevaluations on apparent regularities or chaos phenomena.
- Another incertitude factor, very related to the former one, is the one commonly known as black-box strategy (Watzlawick. 1967:44). This is a metaphor to propose an ignorance management strategy and consists in only considering the interactions of the object with the environment in terms of inputs and outputs with no information on the internal, invisible features of this object. Because the input administrations and the output observations are strictly connected to the observer’s position, this metaphor also underlines the role of subjective bias in the knowledge process.
- One more factor of incertitude is the system borders. In fact, one of the main features of the system is the division from the rest of the environment and the kind of relationship that the system sets up with the external world in terms of energy, information and matter swap. A crucial issue of systemic science is the ontological status of those borders: the earliest scholars do believe that the external observers state those limits; in other words, the distinction system/environment is merely artificial, i.e. a construction of the observer.
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Stronger effects have the objective approach caused on the structural paradigm
in sociology. Namely, the idea of system has been an excellent metaphor of the
society; in fact, the system is a set of interrelated elements (Von Bertalanffy, 1968:
38; see also Holland, 1992, 1999 and Waldrop, 1994: 82, 288) whose features are
independent from the elements themselves – no better model for those who saw the
society as an independent reality from their members.
Nevertheless, in the last decades, the systemic metaphor in sociology has
passed though a deep change – parallel to the evolution of the systemic theory itself –
that has much affected the expectation of the subjective approach.
The first scholar who used systemic in a structuralist framework was Parsons.
The expression “social system” clearly shows Parson’s thought. In order to
assess what functions a society is supposed to perform, he relies on the main ideas of
systemic science – environment, hierarchy, differentiation, relationships and,
especially, function. Not only each individual, but even each institution is defined
according to a whole/part model, i.e. to a functional analysis. Not only for Parsons is
this model scientifically valid and objective, but it is also supposed to provide
observers with a valid criterion for empirical investigations on social reality (Parsons,
1937; 1951). In this framework, reality is existing per se, is ordered, and the observer
can objectively describe it through the theoretical instruments that Parsons provided.
The French scholar Morin is worth mentioning too, for his entire intellectual
work is based upon Complexity theories. His main difference from Parsons lies in the
attempt to match social science, natural science and philosophy. I had the occasion to
highlight both the goal and the theoretical limit of such attempt;10 though, here it is
interesting to show how he represents society through systemic categories. Morin
10 Ruzzeddu, 1997.
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considers individuals11 to be the basic elements of society and the relationships
among individuals are the actual structure of society;12 though, social systems’
environments are much more the than source of natural resources for the economical
functions like in Parsons. In Morin’s framework, the environment is the natural part
of any anthropological fact so that genetic conditionings and natural surroundings are
the foundations of any social fact. In other words, the environment – that correctly
Morin also calls “eco-système”, – in an actual boundary – molds the social systems
characters and states limits to social infinite growth (Morin, 1985: 144-5).
This idea did fit with the 1980s cultural debate, when green issues were
becoming very popular so that he also created the word “eco-sociologie” – i.e.
environmental science taking also into consideration the social aspect of ecology. But
Morin is still tied, like Parsons, to an objective view of the systems. Although he tries
in different moments of his works to point out the role of the observer, his
conclusions always underline the objectivity and the existence per se of social
structures of which Complexity theories are considered often a perfect instrument of
investigation.
The scholar who accomplished the real potential of systemic theory is
Luhmann. His work is immense so that giving an exhaustive summary of his thought
is not a possible here. In this occasion, I will only outline the epistemic shift that he
provoked within the debate over complexity. Based upon the Second Cybernetic, his
idea of system is quite different from the ones so far shown. A crucial notion of
Luhmann’s theory is autopoiesis (Maturana and Varela: 1987): this means that
systems create themselves by setting a barrier from the environment; within the
barrier, a process takes place of functional structuration of the system elements or, in
11 Although with little regards to institutions. 12 We can relate this issue to Morin’s background: in fact, since Comte, French social thought has always attributed a strong ontological status to social reality
101
other words, a reduction process of the complexity of the environment (Luhmann,
1995: 182-3).13
The very original theoretical core of Luhmann’s theory is that this process has
a double orientation: societies – i.e., social systems – are environments for human
beings – i.e. psychic systems – and humans are environments for societies (Luhmann,
1995: 179); “social systems come into being on the basis of the noise that psychic
systems create in their attempts to communicate” (Luhmann, 1995: 214). The basic
element of psychic systems is consciousness (Luhmann, 1995: 219), and the basic
elements of societies are communications (Luhmann, 1995: 182); this means that
psychic systems set barriers from society by defining their identities through a
process of conscious self-reflection. In the meantime, societies set barriers from
individuals by defining the social boundaries to individual autonomy, through in fact
norms, culture, sense making etc. – all activities that depends on communication.
This implies a double set of consequences. First, societies do not include human
beings and social structure as just the outcome of a process of autopoiesis among
communication acts; second, there is a continuous swap and information between the
two categories of systems – individuals receive inputs from societies in terms of
social expectations as well as representations of societies; nevertheless, those inputs
are always mediated by the thought structures of psychic systems that while trying to
reduce their complexity, end up by constituting subjective interpretations of those
inputs. As a consequence, the images that individuals have of social reality are social
constructions – that psychic systems build by adapting the external inputs to internal
structure. This adaptation always implies a bias whose affects are impossible to be
measured. The incertitude even increases when two or more psychic systems use the
social environment (communication) to interact with each other: the social system is
likely to misinterpret the first psychic system‘s (ego) output, and the second psychic 13 Luhmann also assesses, that that the structuration of a system, implies a complexity reduction, because the system can only set a limited amount of links of elements, among the many that are virtually possible.
102
system (alter) is likely to misinterpret the misinterpreted communication. Luhmann
defines this condition as “double contingency” (Luhmann, 1995: 103). So this model
stresses the fact that the knowledge process is subjected to bias and incertitude.
Nevertheless, not without some epistemic shortcoming,14 but there is no doubt, that
reality exists per se, and it is plenty with real structures, even if autopoietic.15
Luhmann’s model of social complexity is not only much more elegant and
refined than the others but also consists of a strong epistemic change: this model is
not supposed any longer to show the function of the object within the system; this
model’s main objects are complex systems – superior animals, humans, social
institutions, etc.- that interact with their environments and build representations of the
inputs that they receive. In other words, this model stresses the constructivist
character of the external reality and consequently its incertitude and unpredictability
(Pitasi 2010: 52).
As a conclusion, there is no doubt that Luhmann belongs to the objective
approach to complexity; in his thought, reality exists independently from the observer
and Complex categories can reliably describe it. However, considering reality
through these categories has highlighted the deep indeterminacy and incertitude that
characterize empirical phenomena and the consequent epistemic options that the
observer is supposed to adopt.
In other words, Luhmann’s theory is doubtless objectivist, providing empirical
reality with a strong ontological status; the observer’s status also is related to this
approach, as the author has seldom considered the bias on the observed object as a
14 While the interpretative paradigm of sociology has stated the observer’s narrowness only on a rational basis, Second Cybernetic drew the same conclusion basins upon biological findings, especially in the field of physiology of perception. However, the observer’s narrowness should also affect the scientists who accomplished the finding. Not in the research reports, nor in the epistemic reflections that followed, have considerations of these issues appeared. 15 Luhmann clearly states that “there are systems” (Luhmann, 1995: 12).
103
heavy problem. Nevertheless, it is all the same doubtless that Luhmann’s
epistemology and methodology is very similar to the subjectivist attitude in terms of
expectations on science objectivity and reliability.
The reason of this “mediation” is that while in the subjectivist approach, the
reasons of the incertitude lie principally on the observer’s narrowness so that that any
ontological consideration on reality can only be biased. As we have already seen,
Luhmann neglects this issue and bases upon the assumption that incertitude is related
to the ontological complexity of reality.
It is worth mentioning that Luhmann’s theoretical position recalls the
assessment that complexity is not total chaos or ignorance, but a mix of ignorance
and knowledge and order and chaos (Gell‐Mann, 1994:30).
As a consequence, Complexity can orientate empirical research or simple
interpretation of reality by seizing the phenomena where the distinction between clear
and obscure sides is difficult to be carried out. As we are going to see here below,
contemporary processes of identity construction show exactly this character so that
the following pages will be devoted to define strategies for managing this incertitude.
3.2. Identity in turbulent times
Basing upon the definition of identity proposed in the first chapter, the cultural
conditions of modern era implied at least the possibility of effective description of the
process (Kellerhals, Ferreira and Perrenoud, 2002), if not actual predictions. For
example, while in the pre-modern era, the social layer was the main identity factor, in
the 1950s a more complex social structure made harder to find such a single
reference. Industrialization had made clear class distinctions: factory workers,
employees and entrepreneurs. The point is that although it was quite easy to assess
any individual’s position by his/her possession of production goods, the classes of
104
industrial time have always been open; thus, a high degree of social mobility
occurred, and in the political cultures, especially in the Anglo-Saxon countries,
becoming richer was a pride and a basic part of the self-made-men’s identity. One
more basic factor of identity was the gender, especially among the middle class – the
role of men and women were clearly designed so that belonging to a given gender
implied having well-defined and differentiated roles.
Still in the 1950s, the National States were very powerful, and especially after
the big crisis of 1929, they were supposed to rule over economic and social
structures. The power of central public authorities was so powerful at modeling
citizens’ lives that being American, French or Swedish implied very different life
conditions and reciprocal expectations between citizens and institutions.16 Thus,
although this operation required a quite large amount of information and data
processing, it still was possible to assess any individual identity. The point is that
from the 1970s on, this task has turned harder and harder because of the further
structural and cultural changes that have affected the world since and seem to have
compromised the certitudes that modernity offered.
Some scholars have defined this time as post-modernity (Jencks, 1977,
Lyotard, 1979e; Lash, 1990 Bauman, 1992), high modernity (Giddens, 1990, 1991),
or have stressed the crisis of one single issue like the crisis of Nation States (Beck,
1999; Kinnvall, 2004), or rationality (Touraine, 1992). The point is that these changes
that have affected the whole world for decades are cultural and the building process
has turned very hard. The author that principally matches the two dimensions -
postmodernity and identity crisis - is Bauman. He assesses that, in the contemporary
societies, social and cultural structures are highly sensitive to any external input, so
that they cannot keep their shape for a long time (Bauman, 2003: 60).
16 About the complexity of national identity building, see Kunovich, 2009
105
This feature of liquidness implies the lack of reference for identity construction
process. In the same work, Bauman creates the “jigsaw” metaphor: any social actor is
supposed to construct his/own identity by putting together all the roles that
correspond to his/her social identities. Though, in the past, social actors had available
the jigsaw box, with the final picture on: as a consequence, it was quite easy for them,
to organize the set of their self-representations. The contemporary condition, for
Bauman, is the one of a jigsaw player, that must compose the picture with no
reference. Thus, this model depicts a cultural situation, in which it is impossible, for
social actors, to rely on stable references for their self-representations. In other words,
the change rate in contemporary societies, had so much increased, that the identity
criteria that are valid at a given moment, risk turning invalid at the following
moment. As a consequence, individuals are compelled to redefine at every moment
the general organization of their specific roles, by defining the organizational
principle that most fits to the -temporary- external structure of cultural, social and
economic environment. In other words, as Bauman assesses, they have available a
number of social representations of themselves; their main problem will be to
construct a general identity that fits to all those partial representations (Bauman,
2003: 55-56).
In other words, the partial, individual, role-based representations have turned
so feeble and short-lasting that it is almost impossible for social actors to construct
stable identities.
Now, most of the above considerations date from the 90s and the early 2000s.
Bauman’s and other authors’ assessments are, on one side, so sharp that it is almost
impossible not to agree with the core of their theoretical systems; on the other, those
assessments are so radical about the strength and the irreversibility of the trend, that a
few years later, one could legitimately expect to seize cultural and structural
106
conditions within self-definition criteria are more and more ineffective, and collective
identities come out to be weaker and weaker.
The core idea of this paper is that, although defining individual and collective
identities is not yet easier, for sure it is not even harder and, principally, we have no
rational reason to assess that it would be harder in the -next and remote- future.
Religion, sexuality, ethnicity etc. still affect the social actors’ self-perception:
in many areas of the world, religious belonging has increased its power in defining
social actors’ identities at a level, that a few years ago was totally unexpected. Also
gender and sexual features can be crucial: like feminism in the 60-70s, nowadays
gay-activism is deeply affecting many individuals’ self-representations. Yet, it would
be incorrect to assess that the most recent theories about identity are incorrect and
should be the object of critics.
Of course, nobody could ever deny that the traditional, contemporary identity
references have weakened; though it is also true that in the latest decades, others have
been emerging.
In other words, birth nation, social class and gender are still strong bases for
identity building processes; though, new references like ethnicity, religion, etc. are
performing the same function, and they are not taking the place of the former, but just
lie beside them.
Of course, this implies a more complex model of identity building for a larger
amount of factors is to be taken into consideration.
However, this is not the main issue: what has really changed is the intensity,
the duration through the time and the places where those references perform their
functions.
107
In other words, it is not a matter to simply add new variables to the same
model; it is necessary to build a model that implies incertitude in terms of feeble
appealing of the identity models proposed to social actors during their socialization
processes, or incapability of those models to provide social actors with adequate
responses to external inputs.
3.3. Social actors and social scientists
Generally speaking, the use of complex categories in the sociological inquiries
can imply two levels of analysis: it is necessary to take into account both the limits of
the observers and the social actors’ strategies of complexity reduction.
In spite of the changes in the cultural structure, social actors’ needs are not
basically changed, for they still need to have reliable references about their
environment and their place within the environment.
However, this operation has turned very difficult in the last years, although
social actors seem not to be aware of that, and they do not necessarily perceive
possible crises of identity as the consequence of turbulent times. Social actors will be
likely to consider those crises as temporary or contingent cases with no link to
contemporary cultural changes. They could interpret lack of steady identities as
biographical problems (i.e. the individual incapability to meet the requisites) that
given models imply or wrong values that parents and other educators transmitted.
Thus, social actors will feel frustration and inadequateness and will spend big energy
looking for better references.
Within this framework, the task of social scientists is to assess characteristics,
reasons and consequences of this structural lack of sense and identity references. Of
course, this task implies the need of different theoretical tools.
108
Complex concepts turn out to be quite helpful. However, in this case, the
notion of chaos is not the most fitting.
In fact, we have seen before that order and foreseeing are among the main
issues of complexity theories; we have also seen that a complex object is not mere
chaos, but a mix of order and disorder.
In other words, when we utter that “identity is a chaotic issue”, technically it
does not mean that there is no cultural/structural reference at all. In this case the
algorithm that describes identity, would be very short: “any identity reference is
lacking”, incidentally, this situation would imply a quick and strong process of
identity reconstruction, for social actors might describe themselves, for example, as
the generation deprived of any identity, and as a consequence, of any certitude and
action. This would imply strong conflicts with older generations, state-of-the art
groups would organize to define claims lists and to spread them around and so on.
It is obvious that this model does not represent contemporary reality. Thus, a
realistically complex model may fit more: according to that model, we can assess we
cannot find any general, abstract law about identity construction processes (see
Huddy, 2001).
Because of this, in the contemporary societies, we have at the same time
weaker identities (national identities or class identities) but also stronger (ethnicity or
religion)17 or uncertain (multi-ethnicity or gender issues).
In such a context, the unexpected issue is for social scientists: there is no way
to assess which of those categories prevails at a given moment.
This implies strong difficulties in describing contemporary trends: it is
impossible, in any given context, to assess if a weakening identity better describes 17 Lichterman offers an interesting example on how a weakening role of the State implies a stronger role of religion (Lithermann, 2008)
109
that context or if weakening or uncertain identities would be a better choice (see
Nowotny, 2005).
This permits to draw a first conclusion about the identity definition. Within a
framework of a merely theoretical discourse, a reflection about cultural structures of
contemporary societies and the link with the macro-trends of identity building
processes implies the impossibility of assessing one trend; sentences like “identities
are weaker” risk not adequately reflecting the complexity of our epoch. Probably, a
way to face such a complex situation is to base upon protocols of investigation and/or
communication that accept contradictions so that such a discourse should mention the
three trends and acknowledge that it is necessary to assess that nowadays identities
are becoming weaker and stronger at the same time.
However, this implies that a gap might arise between social actors and social
science: while the latter is compelled to take into account uncertainty and try to deal
with it, social actors are still in need of strong references and will seek sense
strategies in order to master reality and their own roles within reality.
In fact, in the past decades, maybe an individual would have agreed with a
social scientist’s assessment that about his/her identity based upon gender; job-
lawyer, teacher, housewife; nationality – American, French, Russian. Nowadays, the
social scientist only should assess whether “your identity is uncertain”; though, the
individual could never accept assessments like those and would keep on looking for
simple statements to define themselves.
3.4. Discussion
This gap entails long discussions about the role of social scientists: besides the
general reflections on societies, they are also supposed to do empirical research on
specific, limited cases. Well, in this framework, are they supposed to simply report
110
the uncertainty that affects contemporary era, or are they supposed to overcome this
incertitude by elaborating adequate theoretical tools?
At the moment, those tools are completely missing, and what social scientists
can do is just recognize and describe uncertainty in defining social identities.
However, this does not only imply for the observers, reporting their own incertitude –
like in the Weberian epistemology. This also implies defining a new kind of object:
as we have seen above, social actors do need strong identities so that the current
difficulties in the identity building processes might be a reason of disease. What
social scientists should do, then, is recognizing this disease and describing possible
strategies of adaptation to it.
With this aim, a good instrument might be the notion of structural coupling
(Maturana-Varela, 1998) – this notion refers to the interaction of a system with its
environment and states that they both trigger each other’s changes. The crucial
feature of this process is that the direction and the intensity of triggered changes are
quite impossible to foresee, as the structures of the involved systems make very
complex the response to any stimulus.
This condition perfectly mirrors contemporary identity issues, in which for
individuals defining what external reality is and what their place is in this reality has
become very hard. In fact, the inputs from the environments seem to change much
more frequently than the past so that the structure of individual psychic systems
needs to adapt to a continuously changing environment. At the same time, the inputs
that individuals address to the environment do not correspond to a set of regular and
foreseeable reactions in terms of positive-negative feedbacks that either strengthen or
change the social identity structures.18
18 Stets and Cast (2007) propose a model of identity building process based upon a circular interaction between individual and social environment; though, they do not link this model to a specific, contemporary cultural crisis.
111
Now, structural coupling permits describing at the same time how social actors
define their identities (i.e., how psychic systems define themselves within the
environment) how environment defines individuals, and how it changes in terms of
acceptation/rejection of new identity models.
However, it is important to outline that structural coupling also includes the
difficulties shown above, as it can take into account even those parts of a phenomena
that do not fit in to any deterministic law in terms of stimulus/response (i.e., the cases
where individual identity models do not fit to the social and cultural structures).
While a more traditional approach would discard those cases as “singularities” (i.e.,
exceptions to mechanical laws), structural coupling implies considering also these
moments of crisis and describing the possible new balances in terms of adaptation
system/environment that might arise through the time.
Biography
Massimiliano Ruzzeddu is researcher and lecturer in Sociology and University
Niccolò Cusano in Rome.
He has published many works about epistemology of social science, namely,
the use of Complexity Theories in Sociology, both in the theoretical and empirical
sides.
He is also interested in mass media and cultural studies.
112
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Chapter IV
From Luhman to Fernando Meirelles and the Constant Gardener: the
specific autopoiesis of the right to health in Brazil
By Germano Schwartz, Renata Almeida da Costa
The Constant Gardener is a Hollywood movie like many others. From a
standard point-of-view, its level of quality and presentation will satisfy a regular
audience with a product according to their expectations. It is, indeed, an example of a
world that can be conceived as a global social system (Luhmann, 1997: 67) as it
assumes that the established act of communication (Luhmann, 1998) will be
identically understood, as the cinematographic patterns from Hollywood in all the
corners of the planet.
John Le Carré’s original is sometimes “cliché”. A diplomatic officer from
Britain (Justin) starts a romance with a militant for humanitarian causes (Tessa).
Typically British, Justin loves to take care of his garden, building a peaceful and
alienated life until Tessa comes into his life, giving him children and a move to
Africa, also motivated by his job.
In Africa, Tessa, the European hero, starts her work with a doctor – work done
in poor communities at sites where diseases proliferate. Her labor, though, faces
opposition. Multinational pharmaceutical companies are testing a new kind of drug
on Africans. With no authorization nor previous studies, the corporations turn the
African subjects into living lab rats. She finds out the dark side-effects of the drug.
From them on, the film strongly suggests that the economic interests of the
companies will always prevail over the fundamental rights of the citizens of that
country. These people´s health will always play a secondary role when it comes to the
118
goal – subliminal messages contained in the Constant Gardener, the profit. Tessa´s
death and Justin´s depart to Africa to investigate her death, are part of the plot. The
objective of the movie, however, is explicit in the discussion: can economic interests
from central countries prevail over the African citizens’ health?
Directed by Brazilian filmmaker Fernando Meirelles, the African from “end of
the world”, where there are no rules or respect for classic human rights, as, for
example, life and its related health, is so different from Brazil? The global rank of the
World Health Organization demonstrates that it is not. Brazil holds the position
number 125 of 190 countries. The movie could have been otherwise shot in Brazil
without any trouble because South America and Africa are easily classified as
peripheral, far away from the decision-making global society.
The present article, however, does not intend to remain tied to procedures of
pharmaceutical labs and their possibility of profiting from their research (Schwartz,
2004: 130). It´s not, on the other hand, an essay about intellectual rights and its
developmental role.
The subject in debate, the main objective of the article, is based on theory of
autopoietics´ social systems from Niklas Luhmann. Is it possible to assert the
existence of an specífic autopoieses of the right to health in Brazil? Moreover, is
there a possibility to defend, using the theory, different operations to achieve the right
to health in peripheral countries (Brazil)?
4.1. Why the Theory of Autopoietics’ Social Systems?
The Luhmannian attempt to elaborate a social supertheory provides a fresh
look at the (in autopoietic language) interpenetration between different social
subsystems. It is the attempt of humanization, the pursuit of life (bio), which rescues
the notion of poiesis from biology (Maturana; Varela, 1997 and 2001) to social
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systems – something clearly valuable for the purpose of a better description of the
right to health.
Thus, as recalls Clam (2005: 103), autopoiesis is not something that comes out
of nowhere and ends in itself. It is, rather, a co-link established between structures
and events, changing into a temporary continuation of the programs and specific
characteristics of each subsystem – a true self-factual foundation aimed at reducing
the social system’s time and that of the social system itself.
The basic idea of an autopoietic social system assumes that a system is capable
of self-reproducing through its own elements in a recursive logic. Thus, the fact that
the systems are at the same time free and independent basically depends on the
component elements of the system. Nicola (1997: 208) recalls that an autopoietic
system is autonomous because the production of new elements depends on previous
operations and assumptions for the subsequent operations.
It is the self-reference. The reference is given by the observation over the
distinction, while the “self” is focused on the fact that the operation is finally
included in that which denominates it (Nicola, 1997: 225). From this assumption
follows that the operative closure of an autopoietic social system is what allows,
precisely, its cognitive opening (Luhmann, 1995: 38-54).
When one thinks of an autopoietic system of Law it is necessary therefore to
refer to which types of operations will be characteristic of its unit. This differentiation
enables each subsystem to become an environment for other subsystems. Thus, the
complexity is inherent to social systems, making possible a combined analysis with
the reality of paradoxes.
From this context, the importance of observation comes to light. Following this
logic, the great contribution of Luhmann lies in the proposition that the only reality is
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in observations, or in other words, the question of what is real is only possible
because there is an observer to make it, and the "real" will only exist as observation.
Therefore, it is through the system theory that the numbers of extent of
observed objects is increased, since the making analysis of the functions equivalent to
the problems of the system must be established by a differentiation (confrontation)
between system and environment to be made by the observer himself. Still,
Luhmann’s theory of social systems allows to understand the totality of society, but it
does not indicate how such elements should be as pointed out in Kelsen’s Works
(Kelsen, 2010). The theory does not exhaust the social and does not intend to make
the last observation.
4.2. Is there a Right to Health Planning?
The designed planning of a given society is an impossibility if one starts from a
relatively common idea and one which is quite spread (Arnaud, 2007); the world of
today presents itself as transgressor in relation to (modern) notions of borders. This is
the obvious case described in The Constant Gardener. In fact, they exist only in
symbolic terms (Luhmann, 1990: 178) as a reminder of a past that wants to
perpetuate itself in the future. About that, Ost (1999: 27-28) describes this nostalgia
as a yearning for eternity, that is, the unaware nostalgia to keep perennially active in
the future.
No society can be planned (Luhmann, 1990: 179). The first obstacle to the
planning of a society lies in the plan of observation. Luhmann states that most of the
analysis regarding the planning of a society reports the existence of hierarchy.
Therefore, it is not possible to say that the notion of health in a country is superior to
that same notion in another.
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Nevertheless, the hierarchy in autopoietic terms is only a stage of self-
referentiality of the subsystems. It is transient. It is not the final step, much less
unchallengeable, because otherwise it would be denying the differentiation of
subsystems that comprise, for example, the World Health Organization. Therefore, it
is extremely unrealistic to imagine the existence of hierarchy in a society with a
functional differentiation as sharp as Europe. The same reasoning applies to Africa,
pictured in the movie, and to South America as well.
On the other hand, in the level of description, the planning of a society is an act
fraught with uncertainty. It is said that because any description of a given society
must be made having in mind that it fits as part of a global society. Therefore, it co-
exists with other societies, being at the same time, one and differentiated. It
influences and is influenced by others. No society and no law can be described
without this complexity. It is an herculean task to plan a society in the descriptive
level. A regulation to this end, in which, for example, fundamental rights
(Constitution) are inserted is likely to act in the mythical plane and not in the real
plane.
In this case, if the right to health of peoples of all kinds is made into
conceptions that do not reveal its original paradox, how does one make it effective in
a society that moves and communicates in a transborder pattern of excellence? This is
the impossibility of “dirigismo constitucional” (Canotilho, 2001) and its assumption
of social planning.
One hypothesisis is that the complex regulatory framework of the right to
health must be considered from the concept of evolution. Complexity must be also
analyzed with assumptions. Thus, for Luhmann, the evolution supposes self-
referential reproduction. It modifies the structural conditions of reproduction through
mechanisms of differentiation by variation, selection and stabilization.
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This means that, contrary to planning, evolution has no goal. It is possible to
achieve a goal, but it will not be its ultimate goal. The selective mechanisms specific
to each system (codes) seek to stabilize, under their own conditions, external
influences, sending them a variation that may or may not be induced. Planning
therefore influences the evolution of the sanitary system.
4.3. The Autopoiesis of the Sanitary System
From here on, our argument comes from an assumption: the establishment of
health as an autopoietic system has a clear engagement with the progress of medicine.
It is verified with Luhmann´s statement by saying that sanitary and medical systems
are synonyms for the understanding of the intended sanitary closure. In fact, an
autopoietic sanitary system can only be understood from its own limits and self-
operations. According to a “truth” exposed by the film, for progress in medicine to be
achieved there is a need of continuous testing – on men – Africans.
The search for the reconstructive decrease of health´s hypercomplexity is
linked to the definition of the sanitary code. One must know how doctors guide their
actions. From what perspective can they can give some degree of security their
diagnoses since it is recognized that medical diagnostics are fraught with high
uncertainty and insecurity. In The Constant Gardener, it appears that these tests made
in peripheral countries would generate more confidence in diagnoses performed in
central countries.
Thus, all other influences of the environment are unable to help the patient.
And so, such interventions (legal or financial, for example) are perceived as outside
interventions and only with some protest might be accepted. Then it can be said that
the sanitary system achieved such a degree of functionality that it became
autonomous. It become a system by:
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(a) Its function – no one be healed outside of the sanitary system – (unless unnoticed
and by itself) (Luhmann, 1993: 191);
(b) Its code – which gives its operative closure and allows its contact with the
environment.
Just like that, the functional differences (Herrera, 1990: 90) of each system
follows its own binary scheme through an exclusive information process that also
provides it with its own reality. The option for a binary code of a functionally
differentiated system excludes other values, giving it a logic, which highly technical
manipulation allows a (re)processing between both poles that in the end, will, by
difference, form a unit.
In this binary structure there is always a positive – or designative – (Luhmann,
1993: 192) value, which reflects the communicative capacity of the system and a
negative value (value without designation), which reflects the contingency of
insertion of the positive value in the systemic context. From this interaction comes a
unit. So, for example, when one deals with a Law code/Non-Law, one is always
dealing with an operation of the Law system. Or, when one faces operation
Government/Opposition, it is the functioning of the political system as well as the
code Payment/Non-payment is in the functionality of the economic system.
The code is what facilitates the recursive operations of the system, the function
itself or the fulfillment of its function. The function differentiates functionally and
closes the subsystem. Still, it is the code that differentiates the system's environment.
The binary code concerning the function of a subsystem is exclusive and operates
from its own elements. The code gives contrast – the negative equivalence necessary
to minimize the contingency. The code also assumes the uniqueness (Mansilla 2001:
48) of the subsystem so that no other subsystem can treat its operativity, preserving
its identity when opposed to its social system and other subsystems (Ost, 1986: 189).
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So for one to peer into the code of the sanitary system, one can not think only in the
system’s function (health). One must think of its functional equivalent – the disease.
With these assumptions, one should verify if health has its own code which
corresponds to the conditions specified and facilitates the transformation of a value
into another in such a way that there will be a value which fosters communication and
another that serves as a point of contingent reflection. If so, one faces an autonomous
functional health system.
The encoding of the health system has a specificity as to other encodings.
Usually, in other subsystems, the code has a positive and a negative value (which, as
already mentioned, excludes a third possibility). The positive point is usually the
point of connection of the internal operation of the system. The disease instead
constitutes a decisive element in the sanitary system. The disease (negative value) has
capacity of connection while health fits only as a reflexive value.
In this line of reasoning, in the functional scope of the sanitary system, the
target of doctors and patients do not lie on the positive side, the point of reflection.
The practice goes from the positive to the negative. The goal is the liberation of
diseases. The target is given by the negative value – the disease (Luhmann, 1988:
124-188).
From another perspective, when thinking about the disease in a timeline, it
becomes fairly simple to make a reduction of complexity out of it. The disease is
present. It is nor future nor past. It is independent of chronological order. It shows in
the body (Luhmann, 1995a: 105) so that inside the body’s prison, all turns into pain.
Medicine deals with pain – buying some time for the use of medicines and devices.
In a certain way we can say that everyone is sick (Luhmann, 1995a: 187) since
we all will die. This can be misleading. It might be objected that the health system
operates only and exclusively when someone is sick. This is incorrect. From a notion
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that will be further developed and acquires importance in present times, the idea is
that health risks should be met carefully with prevention actions nevertheless
complicates the problem further. The development of medical science multiplies
knowledge of dangers and risks and tries to avoid the inevitable future harm. In other
situations, one can only hope for the damage because this is the way medical
assistance will be more effective. This allows to affirm that medical interventions are
not specific, but they trigger structural changes (Tarride, 1998: 86) within the core of
the sanitary system when decided based on the distinction Health/Illness. Structural
changes from its own code provide the sanitary system an evolutionary trace that it
can not help but hold on to.
So, the very structure of the sanitary code may reaffirm the idea that health
should be thought from health (Morales 1989: 37-38). This is a fact if one wishes a
health care projected to the future since the magical healing processes are directed
mainly to the past. In this sense, health is the point of reflection of the health system,
its image-horizon (Scliar, 1987: 17) and its desired and intended goal. Moreover, the
disease is the factual aspect, the propulsion of the feasible elements converging to the
system’s restabilization. But both poles are integrated into the quest for health, never
in the quest for disease and never thinking disease as synonymous of health. But as
its functional equivalent – as it is the design of life or death – in most cases, life is
programmed from the perception, or not, of death.
Thus comes the possibility to state that only through the code Health/Illness the
sanitary system will move to its function: health. To the sanitary system belong,
therefore, all data relating to the set of differences of the two aspects of the code.
Thus, it would abandon the pathogenic vision of health to favor a new vision: the
healthogenic (Guillod, Sprumont, 1996: 352).
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Therefore, the code Health/Illness does not mean that health is merely the
absence of disease. It's just, as already stated, its functional equivalent, whereby it is
possible to observe what is health.
The insufficient thought of symmetry between health and disease obscures
observation. When viewed from the point of functional equivalence and the systemic-
autopoietic theory, one can with greater clarity realize that health is connected with
health. It is verified, therefore, health in the context of a difference between health
and disease. Disease is the reality. Health is reflection and function (Luhmann, 1983:
170). Thinking the opposite way, the system would stagnate and would not fit the
influences and irritations from the environment.
4.4. The Specific Autopoiesis of the Right to Health in Brazil
From all this reasoning, it can be stated that the planning of the right to health
in a global society instead of benefiting it, would interrupt the necessary progress of
medicine and thus would cause what Marcelo Neves calls Alopoiesis (Neves, 2007).
It could be said in another way: the absence of autopoiesis in both systems, allowing
it to be influenced by typical criteria of the economic system (reserves of the
possible), would be one of the causes of Brazil's position in the world health rank.
Thus, it is known Luhmann´s aversion to any hypothesis of an autopoiesis that
would lead to a reflexive right which could enable the conclusion of a basal or
derived autopoiesis. For the German sociologist, everything would be part of a
process of dedifferentiation, whose subcodes of the peripheral countries would be the
normal development of a global society that develops in terms of center and
periphery. Therefore, it is important to point out two assumptions:
(a) The first one presents a notion of autopoiesis of social systems not as a
radical process (Luhmann) but as a gradual phenomenon (Teubner) or specific to the
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Law (Clam). This is not an attempt to rewrite Luhmann but, defiantly, to propose a
new look to his ideas that remain, notwithstanding, still linked to the original body.
(b) The second one aims to demonstrate how fundamental rights (health) are
perceived by the social system of Law. Thus, it demonstrates the possibility of
creative uses of the paradoxes that the Law system has for its continuation.
In this line of reasoning, society is composed of systems. This statement is a
gnosiologic assumption of the Luhmannian thought (Luhmann, 1990: 41) in the same
way that an approach based on the theory of autopoietic systems means there is an
essential co-relation between systems and environment.
Following this path, in Teubner’s perception (2005a: 82-83), the autopoiesis of
the Law system can be understood from the metaphor of order from noise or, the
other one, order from music. It happens that the conditions for feasibility of the
juridical autopoiesis comes from a wealth of inputs and outputs that get close to the
impossibility of understanding. After all, how can you achieve order from noise or
from a musical environment?
The idea of applied autopoiesis to the Law is a fact that the Law system
receives influences from the environment that surrounds it. Even Luhmann states the
inexistence of another social subsystem that is in such a co-dependent relationship
with the other subsystems (Luhmann, 1981: 234).
Therefore, the matter lies in the need to filter the myriad of communication at a
point that reflects the differentiation of the Law system before another social system.
One of the foundations of autopoiesis of the Law is the need of the Law system
to play a specific role in the social system. Only then, through their functional
differentiation (Schwartz, 2005: 49-86), is it that the Law system plays a relevant role
in reducing complexity. In the event of any loss of functional identity, the Law ceases
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to be the Law and becomes something else but the Law. By consequence, this will
generate more complexity to the social system (Clam, 1997: 132).
The function of the Law system in a theory of autopoietic social systems is,
broadly speaking, to produce judgments able to stabilize expectations over the rule
released by the Law system and by other social subsystems. These expectations are
called normatives just because they are observed from the internal point-of-view of
juridical operability.
However, unlike that what propagates in Brazilian soil (Streck, 2002: 133), this
idea can not lead to the conclusion that the Law system is a system closed in itself
(Luhmann, 2004: 64). If not, the opposite. Paradoxically, the Law system is closed
because it is opened and is opened because it is closed. But how will it be possible to
be done and how does this assumption not generate an even greater level of
complexity in different social subsystems?
It is necessary to bring back one of the foundations of the theory of autopoietic
social systems: the distinction of system versus environment. This is the first
condition of the autopoiesis of the Law system. While at the same time it remains
inserted in the environment, and therefore predisposed to its conditioning treatment,
the Law system is a social subsystem with its own characteristics and is acquired
through evolutionary acquisition evaluated within the social system.
The Law system is a unit of distinction between itself and the surrounding
environment. It is not the first and much less the other. At the same time, it is both.
This is the famous blind spot that the theory of autopoietic systems tries to unveil. By
the way, following Teubner´s affirmative (2005b: 70-71), the claim that justice is a
concept that does not matter to the Law system does not subsist. Justice is
specifically, according to Luhmann (1995b: 214), the complexity of the Law system
– what is inside comes back as an answer before the external progress.
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In this sense, the autopoiesis of the Law system depends on a normative
closure as much as on a cognitive opening (Teubner, 1989). This apparent
contradiction is, in fact, a condition of the system’s evolution since the reciprocal
exchanges operated by the initial distinction system versus environment are only
possible if that required interaction occurs. This is the ambiguous status (Clam, 2006:
38-39) of the Law system.
For Clam (2006: 68-70), from this premise, comes a hypothesis of evolution of
co-originality of Law and Society which does not lie solely in the occcurrence of
unique features of each subsystem.
Autopoiesis is the factor that encourages and enables the (re)creation of
juridical specificity because it is a paradigm more comprehensive than the
functionalism.
This way, it should be registered following Paterson’s (2006: 16-20) line that
the normative closure means that the Law system defines its elements through its
own logic. The closure is a self-reproduction of itself due to the unit of difference that
it forms with the environment. At the same time, to the rest of the subsystems, the
normative closure allows an understanding of the Recht and the Unrecht. This
communication stabilizes the social system, reducing noise and allowing order.
On the other hand, cognitive openness is the way the Law system exports or
imports juridical communications. In another words, the cognitive openness of the
system aims to coordinate the process of self-production with the environment
around.
So, the Law system is autonomous and self-referential. Again, it resembles an
impossibility that turns into a possibility. It has self-reference, not to be confused
with autopoiesis (Teubner, 1989: 38-52), because within its normative closure, Law
needs to be circular and reflexive. In its cognitive openness, it is necessary that the
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Law system be distinguished from others. If not, it would lose its own characteristics,
increasing social complexity.
The mentioned before is autonomy, by its turn allowed by the Code
(Recht/Unrecth). In any subsystem, its binarity is what enables the evolution
(Luhmann, 1986: 407). It would differentiate the system from the environment and,
simultaneously, gather external noise, decoding it in order for it to be – or not –
brought into the internal logic of the Law system. This selective function is
absolutely indispensable for the autopoiesis.
So, the code includes the Non-Law, and therefore all social expectations
directed at Law. The unity of Law also happens in a value brought from other
systems (Luhmann, 1990: 40), like in the legislative process, wich is a result of the
political system. Therefore, the code transforms communication in juridical
communication, because even if one denies its nature of Law, it returns to the
environment with a reductive selection: Non-Law. From there, the social system
itself becomes more consistent (Clam, 2005: 119).
Here we face a paradox. Law is Non-Law and vice-versa. The program is what
enables a deparadoxification of the fact of Law not being tied to Law. The program is
the functional equivalent of the code, the other side of the coin. The Code is
invariable. The program is not. On the contrary. So, programmes define what is
“Correctly” legal and “Correctly” illegal (Paterson, 2006: 18). Luhmann (1995: 226-
227), says that Law:
(1) Doubles itself, emphatically reasserting itself and becoming the tautology “Law is
Law”:
(2) With the introduction of the negative, there is a paradox: "The Law of a one is the
Non-Law of another”:
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(3) For the social system of Law both the Law of a part and the Non-Law of another
are operating components of its logic. If we include another denial, there would
be an antagonism: “The Law of a part is not the Non-Law of another”:
(4) Thus, both the one which is there and the one which is not, rely on juridical status
(temporary or socially).
(5) This antagonism is solved by the program when the conditions are fulfilled and
assumptions are established by the Law system. Thus, it becomes possible to
observe the constitutional paradox of the Law: “Law is Law” at the same time
that “Law is not the non-Law”.
The program of the Law system, therefore, is the difference that provides unity
to the code. Its counterfactual (Rocha, 1999: 130-131) character specifies under
which conditions it would be correct or incorrect to determine the Unrecht or Recht.
Indeed, Law is an unfinished encoded reality whose meaning is produced by a unitary
distinction between what it is and what it is not.
Thus, a particular autopoiesis applied to the Law system is observed, which
Clam (2006: 159) calls specific autopoiesis of Law (or derived autopoiesis) and was
observed by Teubner from the understanding of a hypercycle. For this (Teubner,
1996: 235-239), autopoiesis is (a) self-production of the system’s components (b)
self-productive self-maintenance (hypercycles) and (c) self-description as regulation
of self-production.
Therefore, there is an autopoiesis of the second degree in the Law system,
based on the perturbation borought in by the dichotomy System versus environment.
Self-observation and self-constitution occur, being elements that enable the renewal
and continuous production of new elements to the Law system.
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Within this perspective, the positivity of Law has a reciprocal relationship with
juridical acts and regulations, forming a reflective chain whose elements include the
doctrine, juridical procedures (Teubner, 1996: 254) and any act that may be
designated as Law from its binary code.
Therefore, we can assert that the autopoiesis of legal system includes a very
broad notion of positivity, enabling co-evolution and co-originality (related to the
social system and other partial subsystems). In this perspective of evolutionary
circularity remains inserted fundamental rights (health).
The environment requires that the fundamental right to health holds
differentiated circularity in peripheral countries. The Constant Gardener is a
metaphor to explain how society works. Law should, therefore, in its autopoietic
function, (re)establish normative expectations toward health. However, the
management of the essential paradox of the sanitary system (health advances because
of the disease) should be filtered by specific selective mechanisms of each Law
system.
Then, the specific autopoieses of the right to health in Brazil (re)processes the
external influences from Brazilian positivity, creating thereby a new perception of
reality – transformer of the sanitary facticity. In case of nonexistence of this
dedifferentiation, autopoiesis of Africa and Brazil would be identical, implementing a
new and unwanted Gondwana to the right to health because in this case, the
distinctive unit would be harmed by a hegemony that makes impossible advances in
the health sector.
4.5. Conclusion
As evident as it might looks, it is sometimes necessary to reinforce the
obvious: the diseases of Europe are not those of Africa which, by turn, also differ
133
from the diseases in South America. So it must be said that health in these continents
is analyzed differently. When there is communication with the Law, such noise
should be accounted into the typical decision-making process of the Law system.
This can be done under the assumption of processes and/or legislation
(constitutional/unconstitutional).
It is also a fact that The Constant Gardener targets a uniformity of response to
a problem, which is by itself complex. It requires, therefore, answers capable of
demonstrating the ebbs and flows of medicine at a global level are part of the same
company that autopoietically reproduces itself from its own elements. It follows a
growing differentiation in the sanitary area. Law must recognize that operability is
evolution rather than planning.
As stated, there will be only advances in the sanitary area in the occurrence of
disease. If there were no diseases, there would not be health, simply because one
would not know the meaning of illness. Therefore, the normal state would be a
continuous and prolonged static reality. There would be no progress, for there would
be no risk.
Contemporary society, fraught with uncertainty and indeterminacy, is a place
of hypercomplexity not previously seen in history. The improvement of techniques
and the discovery of new technologies extend the life of man and give an expectation
of quality of life better than ever before. Paradoxically, life extension at first
beneficial to man, brings a series of consequences, for example, the alleged
imbalance of social security (common sense says that the Social Security worked
previously because life expectancy was lower).
Similarly, the discovering of a new drug stirs both the political and economic
system. The first observes a new source of profit, while the latter seeks to establish
rules to prevent the risks of launching of a new drug on the market. When this rule is
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broken, the system of Law is called to act (by decision). Here is the role of Law in the
issue about The Constant Gardener: restore by decision the normative expectations
of the right to health, preserving its necessary evolution.
This coupling, according to Luhmann, between Law and health is the big
question to be addressed.
It is up to the Law to limit and be guided by juridical security (loyalty) in these
new cases – which the doctrine of Common Law calls Hard Cases. These hypothesis
would reproduce the past, or should they serve as a tool for (re)construction of a new
future (risk) society? It is necessary, therefore, as a “good gardener”, to promote the
differences so that newness can occur (cure).
Biography
Germano Schwartz - Professor at Unilasalle, FADERGS and Faculdade da
Serra Gaúcha. Brazil. President of the Brazilian National Association of Researchers
in Sociology of Law (ABRASD). Secretary of the Research Committee on Sociology
of Law of the International Sociological Association (RCSL/ISA). Doctor in Law.
Renata Almeida da Costa - Professor at Unilasalle and UniRitter (Brazil).
Doctor in Law.
135
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Chapter V
The Possibility of Democracy and its Limits in Today’s Society
By Sandra Regina Martini Vial
Characterizing democracy is not an easy process, because on the one hand, we
have the recent processes of democratic opening in Latin America – which already
present serious problems and risks of becoming even less democratic – and, on the
other hand, we have European examples, in which the level of democracy can be
questioned, as is the case in Italy, where part of our research has been performed. The
relationship between democracy and judiciary is even more complex because
democracy implies that all social systems operate with democratic fundamentals. The
judiciary was not built in Brazil with these assumptions. Historically, it is known that
the judiciary has represented the interests of a minority and only from 1980 could be
seen a slow — albeit significant — change. Speaking of democracy means daring to
the possibility of transformation of all institutions and of all social systems because
we must not forget the main characteristic of the present society, presented by Niklas
Luhmann, in which he enforces that, independent of the concept of society that we
adopt, there is only one society: the global society [...] it is difficult to deny the
entanglements at the global level of all functional systems (Luhmann, 2002: 648-
649).
In this global society, the processes of inclusion and exclusion are accentuated,
and the need for a global democracy is even more evident, since democracy means
reduction of inequalities (which marked the previous century and continue to mark
this new century). In this same line, Ferrajoli has studied the need of a world
Government, or world administrative bodies. Even with Avelãs Neto, it can be
noticed that the civilization of inequalities can only be transformed through a world
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society that respects the basic principles of democracy. Despite the criticisms
presented by the author, he completes the text writing:
“[...] But, despite the profound contradictions of our time (time of
high hopes and despair), we guess we have reasons to believe that
we can live in a world of cooperation and solidarity in a world
capable of responding adequately to the fundamental needs of all
inhabitants of the planet” (Neto, 2003: 53–55).
The proposal of this article is to present the partial results of the research on
democracy in which we make a comparative study between the Brazilian, Mexican
and Italian realities. We’ll bring out the data of the empirical research conducted in
Brazil between 2009-2010, with which we’ll present how diverse social operators
interviewed understand democracy, its advances and comebacks.
It is known that the possibility of democracy is through democracy itself, that
is, we can only ask for more democracy because we live in a democratic process.
This does not mean that in countries where democracy does not exist yet, it is not
possible to ask for it even though, these are some more complicated processes
because the level of complexity in all sectors is low where the possibilities for
decision are reduced to traditional representatives. In the Brazilian and Mexican
cases, we can speak of a young democracy, but we know it exists, though it is known
that a more effective democracy will be achieved when income distribution presents
other indicators and when the population has access to basic goods and services for
survival. Until that happens, we will continue with a fragile democracy.
The available data is really alarming: while Brazil, for example, is the seventh
world economy, we have an income distribution that comes close to the poorest
countries. The Mexican situation exposes other indicators19; in the Italian case the
19 Brazil’s GINI index is 0,531 and Mexico’s is 0,461, according to UN’s ranking.
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income distribution indicators are more balanced, but that does not mean that there is
not, in Italy, a periphery. So, we confirm the assumptions underlying this research
theory – systemic theory – which comes to world society and for which each country
has its center and its periphery. We found many Italians and Mexicans in Brazil, as
well as in Italy we come across various Brazilians and Mexicans. This once again
reveals the paradox of today’s society, especially when it comes to processes of
social inclusion and exclusion.
In the situation where the existing social complexity levels are low, with few
democratic indicators, it becomes difficult to think/claim democracy. In these cases,
democracy is a desire, a dream, something always far away. These two perspectives
lead us to other questions: is democracy the only remedy for the security and stability
of Nations? Will it be a weapon against the wars? Who are the modern democrats?
To which direction is Latin America moving? We note that, from the 1980s, we have
a new political moment in our continent. We have no doubt that a strong opening of
the political system has contributed to new possibilities of political organization; but,
we ask ourselves about the risk of having democracy without democrats.
Our research has departed from the assumption that democracy is possible in
functionally differentiated societies, in which each social system has its specific role,
but when stressing which other system produces more difference and consequently
greater independence. This system autonomy does not mean isolation, but larger
possibilities of evolution because only a stand-alone social system can help to raise
the level of democracy. At the same time, this autonomy must be reached by the other
social systems. Sociology, from this point-of-view, treats of three revolutions that
characterize modernity (Parsons, 1997): educative with its mass education; the
economic revolution with industrialization; and the political revolution with the
processes of democratization.
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In other words, only when these subsystems are fully differentiated and reach
autonomy is when they can develop their own complexity and evolve. Democracy,
under this perspective, does not mean social justice, equality, or freedom. Democracy
is only a policy when the organizational and decision-making vertex (State and
Parliament) is able to operate with government/opposition code so as to constantly
create uncertainty about who will win the next elections. In other words, democracy
means, above all, that “even the best ideas always have other alternatives” , as
affirmed Niklas Luhmann.
In the research project we have questioned ourselves: “How do we analyze the
characteristics of democracy in contemporary society as a structure of a political
system that has been differentiating itself along the evolutionary process? And how
can this process be described?” That was the guiding concern of the search: how do
we describe what we’ve been living and/or what we would like to experience.
Another approach that we have not left aside in our investigation is what we define as
the final questioning: “Which is the space in which democracy is (re)produced in this
either central and peripheral society at the same time?”20
With this methodological-theoretical framework, we will present this study in
two parts: the first one concerns methodology that was used, the results and
discussion of empirical research; in the second part, we will highlight other relevant
aspects that appeared and induced us to deepen theoretically this research study, such
as issues of access to the judiciary and to democracy, the role of the systems of law
and policy and of the institutions into fulfillment of democracy.
20 These questions come from the research project to which this article is linked: "Democracy and forms of political inclusion-exclusion in Brazilian, Mexican and Italian political systems", developed at the University of Vale do Rio dos Sinos, Unisinos, with the support of CNPq and FAPERGS.
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5.1. Results and Discussion
The interview occurred in two stages. In general, the respondents requested
that the questionnaire was sent previously and then set the date of the interview. We
did not have contacting and informing respondents about the goals of the research
and acquiring the signed deed of consent to the use of the information.
We will try to answer the guiding questions of the research through our
respondents’ replies. For the analysis, the Collective Subject Discourse (CSD) search
technique was used.21 This search technique enables us to make a synthesis and
unification of speeches; it also allows an organization of qualitative data22 without
losing originality.23 However, using this search technique makes us assume the stance
of non-neutrality. That does not mean the absence of scientific technique, but a
greater commitment to it. Choosing this technique implies taking risks; in the
formulation of the collective subject discourse, another researcher could make
speeches other than those formulated in this survey. In other words, we will present
our gaze, as Michel Radon:
21 The method used in this research was the Collective Subject Discourse. As presents Lefevre: the Collective Subject Discourse or CSD is a speech synthesis prepared with chunks of discourses of similar meaning reunited in a single speech. Taking as a basis the Social Representation theory and its sociological assumptions, the CSD is a technique of tabulation and organization of qualitative data that resolves one of the great dilemmas of qualitative research as it allows, through systematic and standardized procedures, to add testimonials without reducing them to quantities. LEFEVRE, F; LEFEVRE A. M. C. Depoimentos e Discursos – uma proposta de análise em pesquisa social. Brasília: Líber Livro Editora, 2005. p. 25.
22 We highlight Lefevre’s approach on the "Direct Link" : reality-theory – the qualitative methodology (in its technical variants) basically it is what touches the text/context, meaning text – the primary data direct and almost pure and by context called "theoretical framework" of data analysis. LEFEVRE, Fernando; LEFEVRE, Ana Maria. A “ligação direta” e as representações sociais. Available at: http://www.ipdsc.com.br/scp/download.php?downid=44. Accessed at 09/11/2010.
23 This technique has already been used in preparing the article published in the Yearbook of the Post-Graduate Program in Law of UNISINOS, as partial results of the research. See: VIAL, Sandra. Do direito ao direito à saúde. In: Constituição, Sistemas Sociais e Hermenêutica. Porto Alegre: Livraria do Advogado, 2010. p. 187-216.
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Our look at the reality determines the reality itself, but we are free
to perceive the universe [...] Our knowledge, by more extensive that
apparently is, is still a fragile raft in an ocean of ignorance. What
brings us the knowledge? What do we use it for? Simply to
understand the incomprehensible, or to make use of what we learn
relating it with our intersubjectivity, because the observer's look
modifies whatever is observed. (2000: 27).
The collective subject discourse method, allied to the contributions of Systemic
Theory, allows us to look at the reality through the construction of the speeches
made, however we are always attentive to the paradox that anyone who analyzes at
the same time is analyzed; whoever researches is, at the same time, researched. We
also know that it is impossible to separate subject-object; and we are aware that the
qualitative research has brought important contributions to deepening the topics
researched and ensure scientificity, but it does not have the same concern of
quantitative survey, which shows data. The author of CSD method proposes:
And how to do so that in a collective scale, the thought may, in
compliance with the minimum standards for scientificity
(transparency of procedures, reproducibility, "fakeability,” etc.),
express itself with autonomy and having at the same time its
essentially discursive nature preserved? Obviously it will be
needed, first and foremost, categorize the individual thoughts, i.e.
bringing them together in sets of similar thoughts, since without the
establishment of classes and standards, data about collectivities (in
the case of thoughts of collectivities) would remain mere
accumulation of individual data.24
24 LEFEVRE; Fernando; LEFEVRE; Ana Maria. O resgate do pensamento coletivo exige método próprio, mas este método tem que ser um método. Available at: http://www.ipdsc.com.br/scp/download.php?downid=44. Accessed on 09/11/2010.
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The empirical research25 in the Right area is necessary, because it has
contributed significantly to that one thinks the Right beyond the formalistic-dogmatic
aspects, as well as it highlights the need for a transdisciplinary vision. The way we
have carried out the interviews was laborious, insofar as there is not, generally
speaking, availability of people to answer questionnaires, or devote time for
interviews. To all operators, we have made at least two visits before arranging the
time of the interview; and some have requested to see the questionnaire prior to the
interview. We have allowed it, but we asked them that, after they had read the
questionnaire, the interview should be carried out in a maximum of three days, which
in fact occurred in those cases where we made this request.
Our survey was organized into three categories:
a) Legislative operators. To guarantee the plurality of perceptions, we have always
interviewed the oldest and the youngest parliamentary of each political party. During
the interview with this thread, in a few moments, the parliamentarians have requested
information from aides, but nothing that could interfere in the quality of the speech
because the replies were inquiries regarding numbers of projects presented or cabinet
officials data that, in our point-of-view, do not alter the responses of qualitative
issues.
Several indicators were designed to select members, but we have adopted the
criterion which assured the regional plurality, the issue of regional sex and age. We
know that other criteria could be used, but we use the criterion of interviewing, the 25 Empirical research is of great importance for the legal world when it is integrated with other social sciences. However, the traditional training is almost nil in terms of qualifying the bachelor for the dialogue with other areas, such as economics and sociology. The possible agents for the reversal of this situation are the teachers who can diffuse the methods and techniques. The empirical research requires constant practice, as well as high investment. More than knowing a few techniques, it requires integration into the cognitive process of academic activity, i.e., one needs to conjugate it with the theoretical debate. VERONESE, Alexandre. O problema da pesquisa empírica e sua baixa integração na área de direito: uma perspectiva brasileira da avaliação dos cursos de pós-graduação do Rio deJaneiro. Available at: http://www.conpedi.org.br/manaus/arquivos/anais/bh/alexandre_veronese2.pdf. Acessed on 09/04/2010.
146
oldest and the youngest in each party, because through this criterion, we contemplate
other indicators. It should be noted that, just as we have members (deputies) with
more than 30 years in the same party, we also find members (deputies) with less than
one year in the party.
b) Operators of the Judiciary. In this segment, we have interviewed prosecutors,
state and federal judges, state attorneys, public defenders and police representatives
(marshals). With this category, the interview was very easy because most operators in
this group already knew the research team. Even so, we have forwarded the
questionnaires, and then we have returned to do the application of the interviews. The
selection of respondents was carried out, obeying the criterion of choosing operators
who had had some involvement in actions to assist in the implementation of social
rights and or in defending human rights. Again, it should be noted that these criteria
could be questioned however, to meet our goals, it was fundamental to keep this
methodological posture.
c) Operators of Non-Governmental Organizations. In this category, we performed,
as an average, three visits prior to the interview. We had a certain level of difficulty
because some addresses, telephones and emails did not match; in some cases, we
personally went to present the research project, only then we left the questionnaire,
which went through a board meeting to evaluate the relevance of the interviews. We
emphasize that, in the NGO’s, the operationalization of the research was diverse
because several institutions have requested the questionnaire in advance to pass it on
to the board of managers for interview approval. Nevertheless, the rule was identical
to that applied to other operators: we sent the questionnaire and we conducted an
interview three days after the submission of the questionnaire. Selected NGO’s for
the interviews followed the principle of plurality and diversity of actions, but all
should have acted toward the fulfillment of social rights. We have interviewed
institutions related to the health, to the elderly, to women’s rights and to social rights.
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We will analyze the issues by category, bringing the collective subject
discourse at all times, because each group had different questions, with only two
common questions to all operators, who will appear at the end of the analysis of each
category. Our discussion will start with quantitative issues in each category.
A. Legislative Operators
Respondents in this group reflect the Brazilian parliamentary framework in
which public lifetime is often similar to the party lifetime as well.
Fig. 1 Source: Research project “Democracy-inclusion/exclusion policy in Brazilian, Mexican and
Italian political systems”, coordinated by Professor Dr. Sandra Vial, developed at UNISINOS, with
support of CNPq and FAPERGS. The graph represents part of the results of the empirical phase of
the research, which was composed of interviews with the actors of the system of law, political
system and third sector.
As it can be observed, there are parliamentarians at both ends, either with little
experience or with 40 years of tenure, for example. On average, our interviewees
followed the national rule. But the age factor, that at the beginning of the research we
thought might be relevant, was not, for the answers were very similar. It was also
148
difficult to identify positions of extreme left or extreme right. The relevant questions
for them always revolve around health, education, safety and work.
Fig. 2 Source: Research project “Democracy-inclusion/exclusion policy in Brazilian, Mexican and
Italian political systems”, coordinated by Professor Dr. Sandra Vial, developed at UNISINOS, with
support of CNPq and FAPERGS. The graph represents part of the results of the empirical phase of
the research, which was composed of interviews with the actors of the system of law, political
system and third sector.
We can observe that this frame is different from the previous period. We have
had two parliamentarians who are in the actual party – one for just three months and
the other one for 40 years; the other ones for 32, 25 and 24 years, which is a partisan
loyalty on the one hand and, on the other hand, mobility. It is interesting to note this
fact because it reveals how politicians move from one party to another on the basis of
private interests rather than collective ones, since voters have no involvement in this
decision. Anyway, all operators in this point out the issue of social participation as
something important to carry out democracy, but when as a matter of fact the voters
should be consulted, they are not invoked exactly by whom defends such
participation. For those longer periods of stay, one can observe that political activity
became profession; furthermore, it is significant the number of politicians who are
sons of other politicians or prepare their children to replace them.
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Fig. 3 Source: Research project “Democracy-inclusion/exclusion policy in Brazilian, Mexican and
Italian political systems”, coordinated by Professor Dr. Sandra Vial, developed at UNISINOS, with
support of CNPq and FAPERGS. The graph represents part of the results of the empirical phase of
the research, which was composed of interviews with the actors of the system of law, political
system and third sector.
As it can be observed, the output of parliamentarians in terms of bills and
projects is high. In thesurvey, we have not investigated the quality of the projects
presented by them, only the quantity; however, researching the projects presented, we
have found that they follow axes of health, education and security, i.e., there are few
innovative projects. These quantitative figures are important; but research is
interested by the qualitative issues in which the parliamentarians – as well as other
categories – make suggestions and criticize. In some cases, contradictions come out
with their own answers and, in other cases, new possibilities; therefore, the technique
of DSC is timely. Next we will present this data.
Identification of long-term projects of the political party:
[...] We have focused on education and development of sectors such as
agriculture. [...] The struggle for the transformation of society [...] the equality of all
men and women [...] the construction of a fairer society, fraternal and solidary.
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We identify in this speech general issues and not identify differences between
the oldest and the youngest parliamentarians. Perhaps this question shall be answered
in the same way in other realities. Everyone wants a fairer society, fraternal, but
hardly identify how or through which projects that is possible. We note that this
speech brings little new or surprising issues, it displays only the trivial form of
function of a political party, without realizing its important role, because it is exactly
from the political system that a variety of social rights can be implemented. Politics
has clearly the function of binding decisions. It is through thinking about the systemic
definition of politics and its relation to power, that we have identified, in some cases,
the transfer of the original function to an ideological discourse and:
La politica è strettamente associata al possesso e all’utilizzo del
potere, che permette di realizzarne la funzione. Ciò non significa
che tutte le comunicazioni politiche siano uso o minaccia di uso del
potere, bensì che un sistema politico si forma, differenzia e
autonomizza soltanto a partire della identificabilità di un potere
capace di motivare ad accettare decisione vincolanti. Il medium
potere ed il sistema politico si differenziano simultaneamente: così
come la funzione politica richiede potere, il potere si stabilizza solo
nell’ambito di un sistema politico.26
In other words: the power needs the political system to its stabilization, which
is only possible because politics is a functionally differentiated social system which
operates from its own code and which is open to the future inflows that come from
outside. These should be processed, when appropriate, by the internal code of
politics.
26 CORSI, Giancarlo; ESPOSITO, Elena; BARALDI, Claudio. Glosario sobre la teoría social de Niklas Luhmann. Transl. Miguel Pérez y Carlos Villalobos. México: Anthropos Editorial del Hombre, 1996. p.175.
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What is the key demand of your voters?
[...] projects in the areas of education/health and agriculture. [...] claims of
categories. [...] Personal issues. [...] transport and employment. Social consultations,
employment [...] demands for public affairs, teaching, security, functionalism. [...]
The pursuit of social justice. [...] Security [...] Demands to the State and to the
Federal Government.
It should be noted that voters are looking for in the parliamentarians all they
cannot resolve, from general issues, particularly issues of personal order. In other
words, they demand of politicians what they have promised in electoral periods and
that in daily life they can't accomplish. All the promises made are demanded in the
same manner as promised, and the expectation of who demands is frustrated; when a
request is served, it becomes a bargaining chip for the upcoming elections.
What are the difficulties and needs faced to achieve your goals?
[...] bureaucracy [...] Financial crisis of the State. [...] The difficulties are the
regimental procedures. Slowlyness of public service [...] little commitment of
executive powers [...] Parliament has no decision-making power, which belongs to
the Executive.
We have observed, through these replies, that the difficulties are always in the
others, and the parliamentarians have highlighted the role of the bureaucracy as a
major difficulty to the fulfillment of their goals. Well, but it is exactly the
bureaucracy politicians complain about that they do reinforce. More than that, it is
necessary to use the bureaucracy to end bureaucracy itself. We have also observed in
this speech the idea that there is not enough decision-making power. This is
contradictory, because the political system has the function of making decisions
which are collectively binding. In addition, when they propose, they pose as
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defenders of social transformation, a possible transformation that has been being
proposed over every single election. It is exactly at this point that is the fragility of
our democracy, which advocates social participation, but it does not create, at the
same time, effective spaces for this participation.
Have you ever worked or work in partnership with some other group?
[...] Community Agent program, that rescues the citizenship of people [...]
prerequisite for the consolidation of democracy [...] along with the society, in
committees, communities [...] Circle of friends [...] With organized social
movements. Several groups, parties, forums, associations and entities in general [...]
participatory budget [...] Political movement for unity, Gaucho movement for traffic
security, tutelage councils [...] Server entities, workers’ unions.
When we see the cast of activities developed with other groups, we see only
one cast, without identifying significant network work. All parliamentarians said that
they work with some partnership. It is interesting that one of the parliamentarians
highlighted that he worked in conjunction with the community health agents, which
are not network or partnership, according to the question answered by them. What we
observe is the willingness to rely on support and possibly turn them into votes. We
can also note that there is, in the speech, a lot of availability of social transformation,
much desire for a qualified citizenship and parliamentary involvement with social
movements. When we see the cast of activities with other groups, we see only one
cast without identifying significant network work.
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Within your scope of practice, is there any sector of society in which the State
decisions did not arrive?
[...] Yes, people of lower classes of education and salary. [...] Those who don't
mobilize don’t have good projects and so the State does not prioritize [...] the popular
villages [...] minorities (blacks, indigenous peoples, etc.) [...] poor population.
In the perception of parliamentarians, the State is far from the poor, from the
minorities. We expected in this issue that these operators would also refer to the role
that they have been developing to close the citizens up to the State, but, as in other
issues, it is always somebody else’s fault. It should be noted that the parliamentarians
did not consider themselves State; the difficult thing is to identify what they are, or
even what they think they are. It seems to us that it is exactly in these segments that
the decisions of the State appear clearly, even if not explicitly, but this is the face of
public policy that we have; this is the face of the seventh world economy. When these
segments appear, they are always presented as beneficiaries of social programs and
never as actors of the construction process of the Brazilian society. Blacks and
Indians are still far from being valued for the important contributions they gave and
continue giving to the formation of Brazilian culture.
Tell us about the level of democracy of Brazil:
A country in intellectual evolution [...] It lacks political culture, access to
political information and instruments for society [...] It is a new democracy [...] Lack
of participation of the population [...] in decisions [...] The current stage reflects the
need for its expansion and deepening, with the inclusion of more popular quotas [...]
The level of democracy in Brazil has improved over the years, but it is far from ideal
[...]
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In this subject, the operators of the legislative system were very wordy, but
kept directing to other spheres the responsibility for the absence of democracy. In
general, they agreed to say that our democracy is still very young, still missing
participation of the population, and that the democratic deficit is present. They also
outline a discourse of ideal democracy. Respondents have consistently focused on the
question of participation. This term will take strengthen after the age of 60, with the
emergence of various social and trade unions movements, as Arnaud:
“[...] The substantive view of the exercise of democracy, which
should not be restricted to the moment of the vote, and the claim for
the democratization of the institutions, in which opinions were
formed, are contributions to the theory of participatory democracy.
This conception tries to guide the formation of a stronger
democracy, in which there is direct and effective involvement of
citizens in decision-making processes, in local government and in
the distribution of public resources, continually referring to the
educational character of this operation” (Arnaud, 2006: 123).
It is interesting to note that they complain of lack of political culture without
realizing that the most responsible for this fact are politicians themselves because, in
addition to not contribute to the maturing of democracy, they pass on the culture of
an electoral democracy. All of it still centered on the possibility of voting and being
voted for. That’s exactly why we, in the Brazilian scenario, have various stereotyped
politicians and others who continue presenting inappropriate proposals; that is why
some dictatorial models gain strength in Latin America.
It is not acceptable that still in the 21st century some simply charismatic
stereotyped figures continue getting space. Not only getting it, but using this space,
i.e. the public thing as a private one, exactly what took place during the period of the
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discovery of Brazil, when the King used the Brazilian lands as if they were his
garden.
Factors that hamper the achievement of democracy:
The centralization of power by some political authorities. Little
instrumentalization and information of the general public [...] Disrespect of the law,
lack of ethics, morals and mainly the zeal for public affairs [...] corruption hinders
[...] The lack of awareness of the society on the importance of the vote [...] lack of
participation of the population to exercise citizenship.
The elements that are obstacles to democracy again are somewhere else. It is as
if the legislative had no part in this matter; they have regularly spoken of the
centralization of decision-making, of the population with little information, of
corruption and the lack of awareness of society. This draws attention because they
reproduce lines of common sense, saying that society doesn’t guess, doesn't know;
however, they do not include themselves in this very same society, even enforcing
that the population does not participate. Here we can resume the thoughts of Friedrich
Müller: Who are the People?
[...] is not on the agenda in the first place, work the concept of people as such.
It is on the agenda to take people seriously as a reality. Precisely this prevents to
continue treating democracy only in terms of technique of representation and
legislation, as well as continue understanding kratein which then must refer to the
actual people, only from the point-of-view of the right of domination. Because of the
“one man one vote”, an assertion which is no superior rule without alternative, to the
active people and the people while assignment instance must be approximated as it is
possible in terms of constitutional policy [...] (2003: 113).
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People’s perception about the fact that those who occupy politics CARGOS
contributes to democracy?
For that question, we have three levels of responses:
Yes, since the occupants of posts are a reflection of the representation of this
population.
Not always! What exists in politics is a reflection of society. When the voter chooses
wrong, it is very costly. [...] vote more conscious and qualified [...] Does nothing,
because it alienates the population of the process. It does not contribute, because it
moves away the population from the process.
It should be noted that, once again, the parliamentarians refer to society issues
as abstract. In the first response group, we have the idea of contribution, but they
highlight that it is a reflection of the population; in the second group, they leave some
doubts, but in the same way as in the first block of responses, we will note such
society as responsible; the third is more critical, saying that there is no contribution.
When a parliamentarian says that the population perception is negative, we have
serious problems for the practice of democracy.
Are Brazilian institutions fragile to the practice of democracy? Why?
[...] the institutions are improving, the Supreme Court arrested a Governor [...]
we have evolved a lot in this direction, but it is gradual. The institutions are fragile.
The system is fragile [...] the Brazilian democracy is young. Despite this little time
[...] has been forming a large institutional framework aimed at defending the rights
and individual and collective social guarantees, although it needs extensive and
radical reforms it has been growing stronger over the years.
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Parliamentarians here show that the institutions are still learning democracy,
citing as an example the fact that finally a politician went to jail, but they highlight
the fragility of the institutions in various aspects. This question is related to the level
of democracy that we have and the one we want. It should be noted that the weakness
is exactly at the fortress of democracy; once again, what they fight is what they need
to carry out.
B. Legal Operators
Legal operators who were interviewed are in their positions from 8 to 30 years,
that is, all have a significant period in the function. To our research, this fact is
important to the extent that, in the previous group of politicians, we have always
interviewed the youngest and the oldest parliamentarian per party.
Fig. 4 Source: Research project “Democracy-inclusion/exclusion policy in Brazilian, Mexican and
Italian political systems”, coordinated by Professor Dr. Sandra Vial, developed at UNISINOS, with
support of CNPq and FAPERGS. The graph represents part of the results of the empirical phase of
the research, which was composed of interviews with the actors of the system of law, political
system and third sector.
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Decisions of the Judiciary and its contributions to the practice of democracy:
I believe that the more legal proceedings become participatory and [...] there
are other spaces of conflict solutions, made possible by the Judiciary itself, it will be
exercised the democracy with the strengthening of citizenship. Ensuring the
fundamental rights of the citizen. Decisions [...] assist in the fulfillment process of
democracy when they contribute to the effectiveness of constitutional laws and laws
that favor citizenship [...] Decisions are instruments of public authority control. It is a
space for participation. By decisions that ensure people’s participation in political
activities, the fulfillment of the rights [...] and actions that combat the abuse practiced
by State power, economic power or by the media [...] There is a process [...] new [...]
of participation of the Judiciary [...]
Surely all decisions made in society help or hinder the advancement of
democracy. The operators of the System of Law do have an important role, especially
in the light of the growing judicialization of several social demands. This issue has
been much exploited because we’ve been living in a time of inflation with this
judiciary. The issues that come up to the doors of the judiciary are not always
complex issues that require the intervention of the System of Law, but with the
growing demand, some expressions were created that try to explain this phenomenon:
judicialization of politics and the politicization of the judiciary. Some authors27
present concerns with this direction of judicialization and politicization because it can
lead to the increased production of unpredictable and irreversible damage that the
range of possibilities of political structure could have avoided.
It is claimed about the importance of participation and citizenship and shown
that through a qualified participation, it is possible the fulfillment of rights, i.e. the
operators of the Right recognize their role, but, just as the operators of the
27 Amongst these: CAMPILONGO, Celso Fernandes. Política, sistema político e decisão judicial. São Paulo: Max Limonad, 2002. p. 45.
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Legislative, they also refer to the participation, sometimes so trivially, in a way that
we can’t always think that it is possible to participate in some instances, that this
space of participation does not appear well defined and delimited by the respondents.
In speeches that we are analyzing, participation has been related to citizenship, to
social control, to greater inclusion, to the fulfillment of rights, etc.
Factors that hamper the development of democracy:
[...] Social inequality [...] The very issue of paternalism and the lack of quality
in education [...] which I see as the most significant, are of two natures: a) Economic
– there can be no democracy wherever there is income inequality; b) Cultural – Brazil
is a country which in its historical process has spent more time in non-democratic
regimes than democratic, this leaves a cultural heritage in institutions and in the
memory of the population [...] At first, there is a socio- economic dependency
generated by the extreme inequality that exists in the country. Second, there is the
existence of antirepublican vices, as proselytism, nepotism, the existence of so-called
“electoral pens”, populist and existentialist practices [...] financial globalization,
political heritage and the lack of understanding of a democratic Constitutionalism by
the operator of the System of Law [...] The main actor is the lack of education. From
then on, the person creates the citizen consciousness of preservation of the public
space as something that comes in benefit of the society and not as a means of
removing its freedom [...] The lack of compliance with public policies of social
protection [...] Patronage, paternalism, populism, demagogy, corruption, impunity,
tolerance, “knack”, red tape [...].
In this one and in other questions, we’ve noticed that the respondents of this
group have gone deeper, giving longer and more complex answers than the operators
of the legislative system, going beyond issues such as poverty and social inequality,
bringing out for discussion the non-compliance with public policies, the phenomenon
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of globalization. Although we have a plurality of responses, all see the importance of
civic engagement as a limiting factor for the practice of democracy.
Does Democracy only present good points?
[...] democracy is the best of all regimes, it is not perfect because there is no
perfect regime, but democracy is the one that most protects and guarantees the
fundamental rights [...] it presents both positive and negative. The positive points are
more connected to the ideology that builds the process of popular participation and
collective decision-making. From the ideal point-of-view, it is impossible to live in a
society that does not respect basic democratic principles. One of the negative points
to be pointed out is that democracy can legitimize decisions that do not match an
appropriate justice because not necessarily always the will of the majority is a fair
response for a particular situation, for example, the interests of minority groups
which are socially, economically and culturally vulnerable [...] The worst democracy
is better than dictatorship, because there is always the possibility of reverting
unfavorable situations [...].
Democracy is, for this group, the best scheme, even though its full
implementation is still far away, because it is only through the democracy that we can
obtain more democracy. The operators of the System of Law also present the
necessary cares to avoid this regime making decisions that legitimize an inappropriate
justice. In all the answers, we observe the defense of democracy, which we can also
observe in many contemporary theories. Thinking on the issues pointed out by
respondents implies thinking about what sort of democracy we are talking, as Sola:
[...] How to lie before the question of reform of the State – and
before the democratic issue – from theories and recipes with
universalist pretensions, and therefore abstract, valid without
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distinction to such diverse countries and regions? Which democracy
are we speaking of, of the possible democracy, of the politically and
economically viable, or of that which aspires the societies involved;
or even of that desired by the subject of the prayer? (How
accredited and by whom?) (2001: 23).
Of course the respondents bring out general issues, like the worst democracy is
better than dictatorship, without presenting a greater concern with the type of the
possible democracy, or with what is done in the name of democracy and the
Westernization of the world. The same author – Lourdes Sola — concludes the cited
article with timely reflections about the (re)signification of democracy, addressing the
need to evaluate the existing democracies and their effective democratic
characteristics, as well as how the relationship between State and society happens,
amongst other aspects. And she still emphasizes the importance of learning along
with the democratic processes in Latin America. For her:
[...] the ressignification of the term democracy derives from the
need to explain the reasons for the gap between the observed
characteristics of the really existing democracies on one side; and
performance criteria that integrate, in a particular mix, the
prescriptive dimension that is inherent to the term democracy (Sola,
2001: 49).
Ways to increase participation of the population in legal decisions:
[...] the population cannot participate of all legal decisions because they are
legal and technical decisions. But what is addressed to the population would be more
information to it [...] Making social protection policies to reach it, making it more
autonomous. [...] Through better qualification of legal operators that are closer to the
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population [...] Through a system of procedural law more flexible and open to
participation and the inclusion of collective actions [...] The people gave to the State
the rule of judging. This was an advance of civilization. What before was solved by
personal clashes moved to appoint a third party to resolve conflicts [...].
This is a very complex issue, because we know that it is not the population that
makes legal decisions; however, there are decisions in which citizen participation
through public hearings, it may be timely. As the populist wave is gone, we see that
the operators of the System of Law question the social participation in decisions, but
keep claiming that it is through it that we will have the implementation of public
policies. They even identify shapes and places where the population could have some
kind of participation. Also, in many cases, the collective actions can reduce the
democratic deficit or even increase the access to the Judiciary.
C. Non-Governmental Organizations
Non-governmental organizations, along with other institutions such as unions,
clubs and organized social movements, constitute an important channel for the
implementation of public policies. It was for this reason that we have included that
segment in the empirical research. The answers were interesting and they appear
systematized through the speech of the collective subject.
How do the NGOs actions assist in the process of realization of the concept of
democracy?
[…] When we seek public policies that democratize the access to justice [...]
we inform people about their rights [...] contribute to enlarge social participation [...].
Within the last years, much has been said about the role of the third sector, its
importance for the realization of democracy. In the face of changes in today’s society
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and due to the State inertia in some fronts (deregulation), it is necessary that society
itself auto organize, and it is in this scenario that the third sector gets space in the
condition of having a social and political commitment with the community, (Cabral,
2007) often being the achiever of rights. However, the role of the State cannot be
weakened or transferred to other sectors. The reflections of Adam Przeworski are
very important:
The difficulties of making law to be universally respected might not
be due to the organizational structure of the State, but to social and
economic conditions under which the State faces. Perhaps in a
society with high inequality, no State institution can make its laws
being universally respected even in the presence of institutional
vertical and/or horizontal well designed and structured mechanisms.
Thus, the reform of State institutions, even if broadly conceived, as
in the case of Brazil, not only in administrative terms, but also in
political terms, it may not be enough to overcome the inequalities in
the presence of large economic and social inequalities. (2001: 305).
What can potentiate the actions undertaken by NGOs for carrying out activities
or future needs?
[...] Develop a sustainability plan [...] Good partners [...] Engagement of the
population [...] Good partners [...] Engagement of the population [...].
The interviewed sector that more reflected on the possibility and effectiveness
of networks was this. The NGOs operate a long way toward cooperation and
collaboration; the activities carried out in the network are important for the
development of the actions of NGOs. They also speak of social participation as a
determinant for the development of democracy. We note that the NGOs often develop
activities with the support of multiple threads, but we must remember that the forms
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of organization that characterize the modern ethos are the spaces for decision-
making. It seems obvious that any impetus toward greater participation of society in
the decisions that have to do with actual models of political power, if there is not the
support of an organizational structure, become rhetorician and even demagogic, even
enhancing in the facts the decisions in particular groups with respect to the type of
democracy that is appropriate in places, especially when concepts as democracy self
endorse mechanically with the idea of participation or governance.
Do you know any network works, or is already affiliated with another network
organ? Which?
Yes [...] network of Popular Legal Education, Feminist Network of Health,
CLADEM, Journeys for the right to abortion, Men Network for Gender Equity,
Observatory Maria da Penha Law, Observatory Mercosul for Human Rights [...]
network of health and municipal assistance [...] Feminist Health network, RSMLAC
[...] Participate in the forums and Councils, developing actions in articulated
networks [...] National Foundation of APAE [...] PPV, Brazil without bars, CLIP [...]
The respondents show and report how they solve the issues that are demanded
by the most different networks, which go beyond the boundaries of the Nation-State.
What we can observe is that the globalization movement is really quite important for
the strengthening of the institutions and for the consolidation of networks. The
possibilities of communication expand and, in this way, the role of these institutions
takes new shape, i.e., globalization may also have as an assumption peace and global
solidarity, and that can become real from the actions of these institutions, as Arnaud
said:
Non-governmental organizations constitute a reflection of the
growing process of democratization under internal and international
environment. It is invoked the reinvention of civil society, in the
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plural voice of various social movements, which present their own
claims and demands. In the context of globalization, on the one
hand, there is the strengthening of the mechanisms of global
communication between non-governmental organizations, from an
increasingly dense network of interlacing. On the other hand, in the
scenario of globalization there is the assertion of transnational
democratic struggles from a solidary internationalism and a
cosmopolitan democracy, which proposes a counter-hegemonic
globalization (2006: 328).
These assumptions are exactly what drives the NGOS interviewed, i.e. the
possibility to build networks of social inclusion, and that is why they focus on
participation, even though the concept of participation is not absolutely clear.
Is Brazil a democratic country? Explain.
Yes [...] it is politically democratic, but not socially, in the light of the
profound social and economic inequalities [...] but needs to expand the participation
of the population [...].
It is interesting that respondents threat of an incomplete democracy. It is
present in electoral terms, but not from the perspective of social public policies.
Ferrajoli speaks of formal and substantial democracy, or rather the constitutional
democracy in the modern State, which configures itself as a complex paradigm that
includes two dimensions:
– The formal dimension (politics) meets the principles of popular sovereignty (the
will of the people) as a method of procedural rules that ensure the popular
representativeness on universal suffrage and the principle of majority.
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– The substantial dimension is linked to the achievement of the fundamental rights by
the State, which are part of the essence of democracy whose decisions must obey the
limits (what is forbidden) and links (what is required).
It is required that political decisions are linked to those needs, to those
immunities and to those powers of all, based on fundamental rights which form the
essence of democracy. These links are substantial rules that relate to the content of
political decisions (which confronts the idea of democracy as a mere method of
procedural rules that ensure the popular representativeness concerning universal
suffrage and the principle of majority).
Respondents also reinforce the profound social inequalities with elements that
make it impossible for a full democracy, but continue presenting the issue of the
participation of the population. That is what we have been dealt previously, but we
reinforce it because the idea that one has of democracy is related to the organizations
that we have – or we don’t have – and, therefore, when we have structurally fragile
organizations, they orient themselves by a patrimonial logic (e.g. mafia,
“colonelism,” “caudillism”) which favors a growing dissatisfaction and distrust on
the expectations towards the political system and the System of Law, especially in the
light of the so-called electoral democracies in which the participation seems to start
and end with the vote.
In this sense, the idea of democracy is used to cover different concepts and
modes of operation that lead to the permanent claims of participation, claims of
exclusion from the bureaucracy, and of course, generations of organizations to fight
against these forms of exclusion. Organizations, however, are ruled by these logical
fragile structures whose operation is defined by personalism and patrimonialism.
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What are the main objectives of an NGO?
[...] decrease the social vulnerabilities[...] Contribute to the strengthening of
democratic management[...] Strengthen community-based organizations [...]
Socialization of alternative information [...] Reduce crime through anti-violence
public policies and family planning [...] Promote, develop, and coordinate actions in
the areas of health, education and social care for people with intellectual disabilities
[...].
This speech speaks for itself, that is, although in the question below
respondents say that NGOS are not a substitute for the State, what we observe
through their own speeches is that they fulfill a function of the State. In addition to
acting in specific areas, they also propose an articulation through network, involving
the various governmental sectors.
Through all the interviews, we see positive responses, but with caveats, i.e.: it
is clear that democracy implies participatory processes, reduction of social
inequalities, the possibility to vote and freedom. Furthermore, our interviewees in this
segment reinforce the importance of Judiciary, Executive and Legislative branches
for the guarantee of democracy. They recognize, in the work they do, an important
way to effectively contribute to a democratic society. In this regard, NGOS were
accurate: their contributions range from access to information to the strengthening of
State institutions. They reveal the importance of citizenship shaping and city
management: the NGO works to make sure the Government fulfills its role. This is
clear in the CSD of the NGOS when questioned if they replace the role of the State?
Why? See what they say: [...] No, just help [...] NGOS should act in complementary
actions to those of the State [...].
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Part II – Analysis of the Collective Subject Discourse of Questions that
are Common to all Three Actors Interviewed
What is the role of the political system for the development of democracy
For the legislative actor, this question is seen from the following point-of-view:
Promoting popular participation in politics and social [...] Purify the parties, as well
as modify the rules of elections [...] inspection of public administration [...] The
current stage of Brazilian democracy is close to exhaustion [...] major reforms are
needed [...] It is noticed that the highlight of the answer is to popular participation, as
well as for a profound reform in democratic model, exacerbating the need for
profound changes in the electoral legislation with the aim of “cleaning/purifying” the
political parties. Popular participation is a condition of a possibility for the
accomplishment of democracy; it is a construction process […].
Yet, for the operators of the System of Law, the idea is distinct:
[...] the strengthening of political parties, trade unions and organizations in
general of the civil life [...] to establish in the country a clear policy of education and
formation of citizenship [...].
It is clear that investment in education is a prerequisite for the realization of
democracy and it is also the legislative prioritize it. In the discourse of the legal actor,
it is noticed a strong inclination toward the strengthening of civil society in political
life, whether through political parties or by the institutions of civil life, but, in both
cases, the aim is the same: to strengthen democracy. However, for such
strengthening, there is a need to promote education, because without it, there is not a
conscious social participation. It remains the question: how will a citizen who can't
even read or write truly get to participate in an active way in the realization of his
own citizenship? It remains clear that investment in education is an essential
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condition for the development of democracy, and it is also legislative’s responsibility
to prioritize this legislation.
For the third sector, we have the following perspective:
[...] Conserve the democratic institutions [...].
We have noticed that the answer given was very simple on one hand and, on
the other hand, they have emphasized the need for democratic institutions in order to
ensure democracy itself. As well as NGOS, the political operators have a duty to
dialogue in a clear and transparent way with the population. Politics should
implement the projects that were chosen by means of suffrage, saving in this way the
institutions perceived as democratic because there will only be a real democracy
when that thing which has motivated the choice of political agents by the population
is achieved.28
What is the role of the System of Law for the Achievement of Democracy?
For the legislative actor we have the following CSD:
Enforcing the law. Create mechanisms for the participation of people, either on
the political decisions or in the surveillance of the actions of the Powers [...] The
enforcement of laws and transparency and impersonality [...] for whoever occupies
political positions [...].
It is noticed that there is a certain amount of ingenuity and a return to
formalism because in the response “enforce the law”, it is clear that there is a still
existing expectation that the law solves everything. The idea to produce laws to solve
society’s problems is a fallacy, even formalistic or regulatory; it is therefore a step
28 BARBOSA, Maria Nazaré Lins. Instituições democráticas e o terceiro setor no Brasil. Available at: http://www2.oabsp.org.br/asp/comissoes/terceiro_setor/artigos/pop06.htm. Acessed on: 09/07/2010.
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backwards. It is obvious that the Right by itself is not aware of the concreteness of
these laws, as well as the legislative does not achieve this success alone: there is a
need for dialogue and intersectoral actions. Popular participation in the perspective of
this segment assumes a special role, i.e., the supervisory role of the actions of the
public authorities. There is also an ethical concern with the activity of the political
agent, insofar as they appear clearly, in this discourse, transparency and
impersonality in the actions. Thus, in politics, the public interest should prevail over
the personal interest of a certain group because the template itself in which our
democracy is seated is the representative. This representative should belong to the
people and not to personal “interests”.
For the operators of the System of Law, we have the following framework:
[...] If by system of law, we understand the set of fundamental rights [...] the
institutions encharged of the realization of these rights [...] Work as a guaranteeing
agent of democracy itself [...].
The understanding of law as a system that includes fundamental rights is,
perhaps, a different perspective than that intended in the question, but it is necessary
to express the idea of the discourse of the right operators: guaranteeing agent of
democracy. So achieving democracy is also achieving fundamental rights. It is not
possible to speak of democracy if we do not even have minimum rights enforced. In
this sense, it is timely to consider Ferrajoli about fundamental rights:
Se un diritto fondamentale è rivendicato da taluni, allora esso è
rivendicato per tutti. È sulla base di questa solidarietà, conseguente
all’universalità e all’indivisibilità dei diritti fondamentali, che si
sviluppano l’amor proprio, cioè il senso della propria identità di
persona e di cittadino, insieme, il riconoscimento degli altri come
uguali (2007: 64).
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The recognition and achievement of fundamental rights are a condition of
possibility to speak of democracy, they are essential rights to humans. It is also
achieving citizenship.
Yet, at the third sector, we have the following:
[...] Ensure the guarantee of rights [...].
NGOs discourse on the role of law to the practice of democracy is very simple,
but covers a very complex subject. NGOs often assume the duty to enforce the rights
of hipossuficients, though that is a role that should be of the State. The law assumes
an effective position of asserting rights of validating what the legislator determines as
law everything that is positivated, but the system of law assumes a role not always so
peaceful; that is when the rights are not respected, when it is necessary to enforce the
ways to ensure these rights to ensure a fair and democratic society.
5.2. Final Considerations
The perception that democracy is a universal value which according to
Amartya Sen, (2003) we have inherited from the previous century, says a lot, as well
as all Habermas’ comments about democracy, in particular in the text the divided
West (2005). The author alerts for the division of the West from the danger of
international terrorism and for the disrespect for International Rights for a few core
countries. Specially when it comes to the rights of citizens of the world in a
cosmopolitan society. For Habermas29, the notion of cosmopolitanism is much more
ambitious.
29 HABERMAS, Jürgen. L’ Occidente diviso. Translation: M. Carpitella. Roma: Laterza, 2005. p. 117. Read what the author writes about it: [...]perché traspone dal piano nazionale a quello internazionale la positivizzazione dei diritti civili e di quelli umani. Il nucleo innovativo di quest’idea sta nella conseguenza rappresentata della conversione del diritto degli Stati in un diritto cosmopolitico in quanto diritto di individui [...].
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The reflections that the interviewee introduces are relevant, as he addresses to
the need of building a society able to realize its high complexity in which democracy
is possible and therefore, the possibility of accomplishing a more cohesive and/or
fraternal society as proposed, for example, by Eligio Resta is real. Thinking of
another society is only possible from the society itself. Other authors such as Nadia
Urbinati make a different observation over the possibility of the cosmopolitan
democracy to be democracy. The author proposes a critical reflection, above all, on
the project of global government30.
However, what is it and how can one reflect on the concept of democracy?
Democracy is not the domain of the people over the people. It is not self-reference
embodied in the concept of domain. It is not either the overrun of the domain, nor the
annulment of power by power. In a theoretical language linked to the domain, this is
the only possibility of expressing self-reference; and that might also be the reason
why the word “democracy” has survived. The assumption that the people can govern
themselves anyway is, however, theoretically unlikely.
One of the problems that is evident in the responses of the interviewees is the
access to the right to have rights. In regions such as Brazil, Mexico and much of Italy
— as well as other founding countries of the European Union — there is a very
strong social differentiation, and so the forms of exclusion are accentuated because it
is difficult for Organizations to provide everyone equal and universal access. The
30 It should be noted what the author emphasizes on the theme: "My objection, motivated apart of democratic premises, which put in doubt the need and the desire to turn the world into a unified political space. Cosmopolitan democracy theorists are not limited to ask democracy <<inside>> and <<between>> the States; much more radically, this one understood it as necessary to constitute a planetary political body endowed with the power to legislate, to administer and intervene militarily.” La mia obiezione, mossa a partire da premesse democratiche, mette in dubbio la necessita e la desiderabilità di transformare il mondo in um spazio político unificato. I teorici della democracia cosmopolitica non si limitano a chiedere democrazia << al interno>> e <<tra>> gli Stati; molto piu radicalmente, essi La ritengono necessária per costruire un corpo politico planetário dotato Del potere di legiferare, di amminstrare e di intervenire/coatare militarmente”, (URBINATI, Nadia. La democrazia cosmopolitica può essere democrática? In: Globalizzazione e diritti futuri . FISTETTI, R. F. [et al.]. Roma: Manifestolibri, 2004. p.305.)
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institutional opportunities present themselves in the same way as the paradoxical
process of exclusion, or even more worrying are the processes of social inclusion that
occur through, not the inclusion itself, but the social exclusion. The process of access
to rights is not an automatic way. Often the system of law is called to respond, and
make decisions. Decisions – even the not decided ones – imply links with the future
insofar as they oblige other systems to implement such measures, as for the
worsening of the situation, are not always collectively binding, reinforcing the old
practice of deciding individually collective issues. Among these, the possibility of
accessing the legal channels to protect the interests of all is also paradoxical.
In the legal sphere, there is a frequent insistence on the fact that the courts and
the administrative institutions should ensure legal certainty. In fact, it is assumed that
only the decision-making activity is guaranteed; the population can expect anything
like justice or also simply legal guardianship. The assumption, of course, is wise;
however, it does not take into consideration an insidious aspect typical of areas with
strong social inequalities.
When we talk about the certainty of law, we cannot understand something as a
fair decision and not even the certainty of a correct decision. The term “sure” can
refer only to the fact that decisions are made, but not its quality. A court, in other
words, works when it decides to, but not when it is fair.
The problem is that the administrative and judicial procedures are programmed
to prevent that any factor which is not directly relevant to the case in study (cause,
conflict, crime or others) may somehow influence the decision. Procedures, in other
words, are extremely selective, because only in this way they can build uncertainty
regarding how to decide. The legal certainty presupposes uncertainty about who is
right and who is wrong in the dispute (Luhmann, 1993).
174
This is exactly why the Right always terrifies who is involved in any dispute; it
terrorizes, especially, who is convinced of being on the Right side. The reason of one
of the parties may not have any relevance for the judge, but for those living in
contexts of delinquency, perhaps there are no instruments or resources to manage a
judicial procedure, and that impartiality of judicative organs can become a strong
factor of demotivation. This explains why the lower layers of society often prefer to
rely on the local forms of jurisdiction, relying on knowledge, kinship, and personal
contacts with figures who are particularly important (bosses, chiefs). They hope that
this network can be taken into consideration, especially those factors that are
neutralized in the court (as, for example, family relations, social visibility or degree
of social inclusion in the local community).
To speak of participation in the legal framework is as understandable as
useless. That is why, through the interviews, it has been constantly pointed out the
possibility of using mediators. Then the possibility to compose the conflicts in an
extra-judiciary way, though legal, or to promote collective issues rather than
individual, they are ways to mitigate that extremely big obstacle which occurs exactly
because the Right (law) wants and must ensure the certainty of the decision.
In a general way, we could observe from the interviews a continuous reference
to participation; there is a wish that citizens participate more in public life and
political discussion, and it is understood that participation is a factor that
characterizes democracy. Actually, the correlation between participation and
democracy is not so immediate. In those countries considered more stable from the
political and democratic point-of-view, participation (as, for example, in the
elections) is very low and tends to reduce even more. One can agree that this is not a
positive thing, but on the other hand, there is no doubt over the North-American
democracy, or German or Canadian, just because the percentage of voting citizens is
low or because there is a lack of political activism.
175
Then we’ve noticed that the insistence on the issue of participation on the part
of respondents of all groups is a reflex of the problem of social exclusion. It is
probably the dramacity of this problem that points to understanding their
participation is a decisive factor for the Brazilian political life. Thus, it is thought that
one got to do everything to access public life, facilitate communication, shape and
spread collective ideas.
However, here too we can observe a contradictory aspect, even paradoxical,
that we must highlight: the instruments that can be used to encourage participation
are relatively few: associations, political parties, institutions of mediation and public
communication, mediation and other forms of the same kind. For example,
administrations may intervene in public opinion only upon their organizations and
can expect changes in certain situations only through organizational resources.
However, the organizational form is always a very selective one – not everyone can
be part and cannot decide how they wish to. There are programs (relatively accurate)
and people to whom they should justify themselves.
So, in many aspects, politics can use only those instruments, which it would
like to eliminate. It is possible to fight bureaucracy only with the bureaucracy. At the
same time, it is possible to make flexible an organizing structure, but under the
condition of accepting the risk of reduced transparency.
Perhaps it is not an accident that the most difficult areas from the social point-
of-view, where the politics shows peculiar characteristics, where often there is little
change in the vertex (as for example: PRI in Mexico, in DC, in Italy and in the
PMDB in Brazil), is where we have a strong personalization of public discussion,
little legitimacy of administrative bodies and low functional specification – and it is
exactly in these contexts that there are greater claims for participation.
176
Biography
Sandra Regina Martini Vial PhD. in Law, Evoluzione dei Sistemi Giuridici e
Nuovi Diritti, Università Degli Studi di Lecce and a post-doctor in Law, Università
degli studi di Roma Tre. She is a professor at the Universidade do Vale do Rio dos
Sinos (UNISINOS), at the Foundation of the Public Ministry, at the Scuola
Internazionale Dottorale Tullio Ascareli in Rome and visiting professor at the
Università Degli Studi di Salerno. Former Director of the School of Public Health of
Rio Grande do Sul, Member of the Superior Council of the Fundação de Amparo à
Pesquisa do Estado do Rio Grande do Sul (FAPERGS).
177
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Avelãs Nunes A.J., Neoliberalismo, Capitalismo e Democracia, Coimbra, 2003.
Barbosa M.N.L., Instituições democráticas e o terceiro setor no Brasil. Available at:
http://www2.oabsp.org.br/asp/comissoes/terceiro_setor/artigos/pop06.htm.
Acessed on: 09/07/2010.
Cabral H.H.D.S., Terceiro Setor – Gestão e controle social. São Paulo: Saraiva, 2007.
Campilongo C.F., Política, sistema político e decisão judicial, Max Limonad, São
Paulo, 2002.
Corsi G., Esposito E., Baraldi C., Glosario sobre la teoría social de Niklas Luhmann.
Transl. Miguel Pérez y Carlos Villalobos. México: Anthropos Editorial del
Hombre, 1996. p.175.
Ferrajoli L., Principia iuris. Teoria del diritto e della democracia. Teoria della
democrazia, v. 2. Editori Laterza, Roma- Bari, 2007
Habermas J., L’ Occidente diviso. Translation: M. Carpitella, Laterza, Roma, 2005.
Lefevre F., Lefevre A.M., O resgate do pensamento coletivo exige método próprio,
mas este método tem que ser um método. Available at:
http://www.ipdsc.com.br/scp/download.php?downid=44.
Accessed on 09/11/2010.
Lefevre, F; Lefevre A. M. C. Depoimentos e Discursos – uma proposta de análise em
pesquisa social, Líber Livro Editora, Brasília, 2005.
Lefevre F., Lefevre A.M., A “ligação direta” e as representações sociais. Available
at: http://www.ipdsc.com.br/scp/download.php?downid=44.
Accessed at 09/11/2010.
178
Luhmann N., Das Recht der Gesellschaft, Suhrkamp, Frankfurt, 1993.
Luhmann N., El derecho de la sociedad, Universidad Iberoamericana, México, 2002.
Müller F., Quem é o povo? A questão fundamental da democracia. Trad. Peter
Naumann. Max Limonad, São Paulo, 2003.
Parsons T., The Evolution of Societies. Prentice-Hall, Englewood Cliffs (NJ) 1977.
Pereira, L. C. B.; Wilheim, J; Sola, Lourdes (orgs), Editora Unesp, São Paulo, 2001.
Przeworski A., O Estado e o cidadão. In: Sociedade e Estado em transformação.
PEREIRA, L. C. B.; Radon M., O território do olhar. In: NILOLESCU, Basarab
[et. al] (Org). Educação e Transdisciplinaridade, UNESCO, Brasília, 2000. p. 27.
Sen A., Globalizzazione e Libertà, Arnoldo Mondadori Editore S.p.A., Milano, 2003.
Sola L., Reformas do Estado para qual democracia? In: Sociedade e Estado em
transformação.
Urbinati N., La democrazia cosmopolitica può essere democrática? In:
Globalizzazione e diritti futuri. FISTETTI, R. F. [et al.]. Manifestolibri, Roma,
2004.
Veronese A., O problema da pesquisa empírica e sua baixa integração na área de
direito: uma perspectiva brasileira da avaliação dos cursos de pós-graduação do
Rio deJaneiro. Available at:
http://www.conpedi.org.br/manaus/arquivos/anais/bh/alexandre_veronese2.pdf.
Acessed on 09/04/2010.
Vial S., Do direito ao direito à saúde. In: Constituição, Sistemas Sociais e
Hermenêutica, Livraria do Advogado, Porto Alegre, 2010.
Wilhelm, J; Sola, L., (orgs). São Paulo: Editora Unesp, 2001. p. 325.
179
Annex Section
Systemic Shifts and Trends in Social Sciences
Annex I
The Radical Constructivism, Constructivism, Zen Buddhism and the Individual
Patterns of Communication Use in the Age of the Plural Self
Andrea Pitasi interviews Leon Rappoport Kansas State University in Manhattan and
Suor Orsola Benincasa University in Naples
Originally appeared in http://www.univie.ac.at/constructivism/papers.
Copyright © Andrea Pitasi 2002
AP1) We are living in an age of complexity, uncertainty and multiple identities about
which the media seem to create an incredible amount of meaningless noise which the
individual has to select and transform into meaningful, sensed communication. How
might a constructivist approach facilitate the individuals in this kind of selection?
LR1). I think the sheer magnitude of the problem (unending complexity, uncertainty,
and meaningless noise of the media) already defines the individual’s solution. That is,
apart from retreat into a hermit’s cave – literally or figuratively – the only means
available to cope is some sort of constructivist selection process. And for better or
worse, consciously or not, I think everyone exposed to first – and perhaps second –
world media saturation already does this: they select out of the media blitz whatever
has immediate or potential meaning for them. Those films, types of music, TV
shows, bits of news and advertising, that fit their construction of themselves. Namely,
something like their Jungian archetype.
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But then, the question arises: to what extent is our archetypal consciousness of
self shaped and/or modified by our exposure to the media during childhood and
adolescence?
(It could be, however, that the more intense the media noise & variety, the
more people must be driven towards a self-oriented constructivist selection. Perhaps
following Marx and Engels, one might claim that the worse the media blitz gets, the
better, because it forces realization of the necessity for such selectivity).
It also seems to me that a Darwinian natural selection metaphor is appropriate
here: in the ever expanding media jungle, only the cognitively “fittest” can survive –
preserve an authentic consciousness of self, rather than a culturally imposed, media
driven “false consciousness” as discussed by Marcuse and other Frankfurt School
writers.
AP2) In which way would media noise and everyday life noise be selected by the
individual to create his her life and story? After all, several scholars (Georg Simmel
and Niklas Luhmann, first of all) stated that neither individual stories nor history
exist. What we daily cope with are self referential narratives emerged from self
referential interpretations. How do you see this?
LR 2). How does the individual select material from the media to create his/her life
and story, the ongoing everyday self-narrative? I would argue for something like a
trial and error process in the context of another metaphor. Rather than a jungle,
consider the media to be an ever-expanding supermarket where we go shopping
through newspapers, magazines, books TV shows, etc., searching for things that are
tasty, if not nourishing. (If we must “eat to live” so we must also feed on
information.) And just as we learn by trial-and-error what foods agree with us and
how to balance our desire for items providing pleasurable taste sensations with more
prosaic staple items, we may learn to select the media items/products that are
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pleasurable but also agree with our self narratives. But of course, not everyone does,
and of course, some have self narratives based primarily on what the Yoga Sutra calls
the “veils of ignorance”: greed, desire, conformity, etc. This is why pornography is
said to be the most popular thing on the Internet.
AP3) At least from Varela’s writings of the Mid 1980ies, constructivism and Zen
Buddhism seemed to be profoundly interwoven, for example, to describe the body-
mind link and the human-being nature relationship. How do you consider this mutual
contamination between constructivism and Zen Buddhism to understand the
paradigms, theories, strategies and practices of individual patterns of communication
use and of audience analysis?
LR3). Buddhism and constructivism both emphasize the social-emotional
construction of “reality”. But they differ because the Zen tradition of Buddhism
provides a body-mind practice – meditation – whereby one may attain critical self-
awareness of the processes involved in the construction of reality. Insofar as one
gains such awareness (“enlightenment” or wisdom) about how one’s own mind
functions, one inevitably learns how the minds of others function. A convenient
analogy is to a computer operating system: to understand Windows in your own
computer, is to understand it in everyone’s computer. In general, the effect of this is
to clarify patterns of communication and audience reactions. The meaningful core of
discourses and dialogues (assuming there is any) begins to stand out clearly against
the background noise that accompanies most communication. And often enough
communication may be all just noise. One of the old Zen master’s solutions for this
was to bring people out of their noise and illusions by hitting them with a stick! This
was not merely an expression of anger, but it served to halt the individual’s
meaningless or deluded stream of consciousness.
AP4) The main trend of media analysis is to focus more and more on the individuals
both epistemologically (see Luhmann’s concept of psychic system, for example) and
182
technically (see the one-to-one marketing, for example). These individually-centered
privileges and theoretical paradigms lead to individual hermeneutics thus
constructionism, cognitive neurosciences in general, and constructivism emerged as
more and more powerful media analysis paradigms. How do you see the link among
them? For example, what do constructivism and constructionism have in common
and how do they differ one from the other?
LR4). As I understand it, the distinction between constructivism and constructionism
is essentially a distinction between ontology and epistemology. Constructivism is an
ontological position asserting that our experiences of reality are always mediated by
cognitive operations or constructs rooted in or derived from our exposure to mass
media. Thus, our ideas/schemas about reality, i.e., the world around us, as well as
ourselves, emerge from the media “soup” we inhabit. Constructionism, on the other
hand is an epistemological position referring to efforts to understand the workings of
our cognitive operations. Maybe another way to put it is that the former concerns the
origins of the subject matter of cognitive operations, whereas the latter concerns the
nature of cognitive operations. Reduced to over simplicity: the distinction seems to
be between information and information processing.
The paradox suggested by Luhman is that the information in the media is itself
a product of information processing by those who produce the media. I think the
paradox begins to fade away, however, when we raise the ontological stakes by
considering that we are of the world, rather than in the world. If we are of the world,
as Buddhism and other spiritual philosophies maintain, then the media information
we humans create and process and then reprocess and recreate, etc., is perhaps best
understood to be just another source of human energy like the air, food and water we
consume. The quality and quantity of what we consume, assimilate and excrete varies
from one individual and/or culture to another and depends upon our level of critical
self-awareness.
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AP5) The individual in the present age is less and less a passive recipient of a mass
dogmatic message as it was, for example, according to the behavioristic approach
implied by the early 20th century campaigns. Nowadays, the individual has many
more opportunities to be active, to take chances and risks and to decide. Thus, what
do you think the contribution of constructivism is to develop effective and functional
procedures, praxis and methods for judgement and decisionmaking facilitating the
individual to manage his or her self plurality defining his or her unitas multiplex?
LR5). Insofar as one or another variety of constructivism is increasingly influencing
the world views of artists, educators, scientists, and other creators and distributors of
the culture base in modern/postmodern societies, it is expanding the horizons of how
people think about themselves, those around them and the world in general. A useful
analogy is to the way psychoanalytic theory expanded our understanding of the
human psyche. But the theory alone was not enough; it required the development of a
psychosocial technology: psychoanalytic therapy. Similarly, we may require
development of a constructivist technology in order to realize the potential for
personal creativity (self actualization; existential freedom) that is latent in
constructivism.
AP6) What is, in your opinion, the role of ideology in today’s political
communication strategies and how constructivism can help to reveal the rhetorics of
understanding behind ideology in the different fields of human experience (for
example in scientific research)?
LR6) This question about ideology raises another question for me: what is the
difference between a culture value and an ideology? I think the answer is that a
culture value, such as individualism or collectivism, becomes an ideology when it is
tied to a specific goal or promissory note. Individualism becomes an ideology when it
is linked to free enterprise capitalism; collectivism when it linked to a planned
socialist economy.
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In the U.S., the most conspicuous role of ideology in political communication
strategies has been as a means of getting people to vote against their own best
interests. And in this connection, the culture value of “individualism” (sometimes
called “self contained individualism or “individual freedom”) has been very
prominent. Thus, any effort to limit the availability of guns to the general public has
always been blocked or curtailed by political rhetoric emphasizing individual
freedom, and the Clinton administration’s plans for a national health insurance
system was blocked by similar appeals to the ideology of individualism. However,
something like a constructivist critique of this ideology has also been effective.
Successful adoption of civil rights laws were at least in part based on deconstruction
of individualism, i.e., political rhetoric arguing that individualism demands that all
citizens should have equal opportunities to advance themselves.
There have been many analyses of “science as ideology” based on implicit or
explicit constructivist grounds. The myth of scientific objectivity has by now largely
been abandoned, along with the idea that theory and research can lead to discovery of
the laws of nature and that scientific “progress” must inevitably improve the human
condition. Most philosophers of science and many practitioners as well now
acknowledge that science is simply another culture “product” or creation, and subject
to the same subjective biases, uses and misuses as other cultural creations. The social
sciences are particularly problematic, insofar as they rely heavily on probability
statistics based on the idea of randomness. Point being that randomness is a culture
construct, an idea that is by no means universally accepted. There are no “fair coins”
in nature, and aggregate statistical data cannot predict the behavior of individuals
even though we often act as if it can.
AP7) In the postmodern scenario, the individual conscience and the plurality of self
have to cope with the self referential sensemaking process from the noisy
environment of history as we already focused in question 2, but certain historical
185
constructions are usually hard to cope with for example the Nazi Lager and the
Communist Gulags. How do you think media describe these events and how
individuals interpret them?
LR7). Most historians are familiar with the famous remark of Henry Ford: “History is
bunk.” And with the line, “History is always written by the winners”. That is, history
is for the most part a socially constructed culture product based on bodies of evidence
selected, developed and interpreted by the historian/author. As such, the field is
especially vulnerable to constructivist critiques. One needs to look no further than to
the arguments among historians or to the fact that historians are always busy re-
writing history. In the U.S., we are still getting “new” histories of the American
Revolution and the Civil War. (Note also the wonderful remark by Gore Vidal: “All I
know about history, I learned at the movies.”)
None of this means that history should be ignored or is useless. Rather, that
one should appreciate history for what it is: on the one hand, as a creative culture
product, and on the other, as a force that shapes or alters culture, including the
consciousness of historians. Profoundly horrific events such as the Nazi death camps
and the Soviet Gulags are exemplary: they have entered the psyche of the modern
world as definitive of absolute evil, and, among artists and intellectuals and all those
who consume their work, have forced reconsideration of the nature of human nature.
The death camps and gulags generated new concepts such as “survivor” and sinister
phrases such as “Just following orders” that have become fixtures of modern
consciousness.
Note also how the recent destruction of the World Trade Center (WTC)
buildings is in process of entering history and giving birth to new culture categories
or concepts: global terrorism, “the war on terrorism”, and not least, the “suicide
bomber” against whom most conventional defenses are useless. The intense media
representation of the WTC event has already altered language (at least in the U.S.),
186
where “9/11” has become a household word, and the consciousness of most
Americans, where patriotism and flag waving now have a newly honored place
alongside anxiety about further terrorist attacks.
LEON RAPPOPORT (1932-2009) was Emeritus Professor of Psychology at Kansas
State University and Director of the graduate program in personality-social
psychology. Since completing his doctorate at the University of Colorado in 1963, he
has published extensively on a variety of topics such as attitude change, interpersonal
conflict, judgment and decision making, psychohistory, and more recently, food
cognition. His book about the latter, How We Eat: Appetite, Anxiety and the
Psychology of Food, will appear in Spring ‘03. Other noteworthy books include
Personality Development: The Chronology of Experience (1972), and, with historian
George Kren, The Holocaust and the Crisis of Human Behavior (1980, 2nd ed.
1984).
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Annex 2
The Triple Helix of University–Government–Industry Relations
Andrea Pitasi interviews Loet Leydesdorff about his book: A Sociological Theory of
Communication: The Self-Organization of the Knowledge-Based Society, Parkland,
FL: Universal Publishers.
Originally appeared in http://www.univie.ac.at/constructivism/papers/.
Copyright © Andrea Pitasi 2004
1) What are the foundations of your sociological theory of communication?
Unlike other communication systems, social systems of communication
provide the information with meaning, and the meaning can again be communicated
(Luhmann, 1984). Human language can be considered as the evolutionary
achievement that enables us to communicate both uncertainty and the meaning of an
uncertainty. The meaning is reflexively provided from the perspective of hindsight.
Thus, this operation reduces the uncertainty, but an interaction terms between the two
layers of communication is also generated. The interaction terms provide the
meaningful information (Leydesdorff, 2003).
The two processes of information exchanges and meaning exchanges can be
coupled to varying extents. Providing the (Shannon-type) information with meaning
generates value. This reflexive operation is recursive. For example, some meaning
can further be codified into knowledge, that is, a meaning which makes a difference.
Thus, the subsystems of communications become functionally differentiated in terms
of the codes of the communication. For example, the value on the market can be
expressed in terms of a price. Symbolically generalized media of communication
188
which define different values (e.g., in science, in the economy, in politics) enable us
to communicate more efficiently.
In summary, the communication system of society is both horizontally and
vertically differentiated. Horizontally, the different codes can operate upon one
another using translations – the information is then selectively provided with new
meaning. Vertically, the symbolically generalized media exert control on the lower-
level exchanges among agents. Thus, one cannot buy the truth of a statement on the
market. The systems tend to be closed in terms of their operations, but complex
systems can be expected to remain nearly decomposable (Simon, 1969). For example,
one sometimes can bribe a judge.
The self-organization of the (sub)systems of communication is disturbed
because these systems have to be organized in the historical instantiations. The states
which occur phenotypically are less complex than the phase space of possible
meanings (Husserl, 1929). The meanings develop in non-equilibrium dynamics while
the observables are based on seeking equilibria between actions and reactions.
2) What is the function of empirical research in your theory?
The globalized system remains structurally coupled to its historical
manifestations. For example, the knowledge-based economy can be studied in terms
of a triple helix of university-industrygovernment relations, that is, institutional
agencies. However, what these relations mean can only be specified in terms of the
fluxes of communication which are enabled and constrained by these networks. Thus,
the phenomena provide us with values for the variables (x and y), but we are
interested in the fluxes (dx/dt, dy/dt).
Shannon’s (1948) mathematical theory of communication provides us with a
calculus for the case of discrete events. Unlike most social science statistics, this
calculus enables us to combine the multivariate perspective of studying complexity at
189
each moment of time with the longitudinal perspective (Leydesdorff, 1995; Theil,
1972). Furthermore, the relational perspective (graph analysis) has to be combined
with the positional one (factor analysis). Meaning is provided positionally while the
communication systems operate in terms of relations. A network is constructed in
terms of relations, but it can be expected to contain an architecture. Reflexively, this
architecture can be reconstructed, and the events can then be positioned (Burt, 1982).
Empirical studies are selected in relation to the systems – theoretical questions.
For example, one can ask when the European monetary system emerged (Leydesdorff
& Oomes, 1999) and then also to which extent European network systems can be
considered as self-organizing (Leydesdorff, 2000). The non-equilibrium dynamics of
self-organization add globalization to the previously stabilized systems. However,
neither the stabilization nor the globalization of communication systems can be taken
for granted on a priori grounds. Empirical studies enable us to assess, for example,
the extent to which the self-organization of a knowledge-based society has taken hold
in history.
3) Could you describe the Triple Helix of university-industry-government relations?
A knowledge-based economy has to recombine three functions in the dynamics
of communication: (1) economic exchange relations, (2) novelty production upsetting
the equilibria of the market, (3) political (public) and managerial (private) control at
the interfaces between the first two mechanisms. The functions are carried by
institutions like governments, industries, and universities.
The networks of relations can be studied in terms of how the communicative
functions are fulfilled. When all the functions operate, the system can be integrated
but in a distributed mode. A system of three fluxes has no center, but an overlay of
communications can function as a hypercycle sustaining problem-solution and
innovation at lower levels.
190
Problems can be expected to emerge at interfaces both horizontally and
vertically. The problems provide challenges for further development and innovation.
For example, the functional layer may be differently organized from the institutional
layer. Industries may sometimes take the role of universities, and vice versa. Insofar
as interfaces can be optimized, transaction costs can be reduced, and niches with
competitive advantages can be maintained in an otherwise complex environment.
For example, Italian industrial districts have been considered from this
perspective (Biggiero, 1998).
4) How does your theory interpret the global changes of our time?
The systems of communication and control remain structurally coupled to
human agency, but the codification in the communications include and exclude
people in terms of their communicative competencies. Thus, one can be excluded
from the economic exchange mode because one is poor. But one can equally be
excluded from scientific exchanges because one fails to have the education required
for the participation. The communication systems develop eigen-dynamics using their
codes of communication. These non-linear dynamics are stabilized in organizations
as quasiequilibria, but the control mechanisms are at the level of the fluxes of
communication. Thus, the self-organization leads to resilience of patterns of
communication that cannot be steered without reflection. This requirement of
reflexivity makes all systems increasingly knowledge-based.
In terms of the philosophy, the advantage of this sociological theory of
communication is that it considers Husserl’s (1929) intentionality of the
intersubjective system as analytically different from the intentionality of the
subjective agents. Both systems process meaning, but one expects a very different
dynamic. The historical instantiations are in both cases organized. However, the
individual strives toward an identity while the social regime remains distributed. The
191
globalized expectations and the stabilized manifestations can no longer be mapped
without a reflexive position in the sociological discourse.
Loet Leydesdorff Amsterdam School of Communications Research (ASCoR)
University of Amsterdam, Kloveniersburgwal 48 1012 CX Amsterdam, The
Netherlands [email protected]
192
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