Exogenous Self-Binding: How Social Subsystems Externalise Their Foundational Paradoxes in the Process of Constitutionalisation

Abstract

How a constitution deals with its foundational paradox – this issue is not restricted to the state constitution alone, but is also and pertinently applicable to the constitutions of other social systems. The starting point is Niklas Luhmann’s argument, that the law, with the aid of the state constitution, externalises its original paradox towards politics, while politics externalises its own towards the law. Over and above this, the question will be raised about whether – and if so, how – the law also purses a comparable deparadoxisation vis-à-vis other social subsystems. Meanwhile, the same question is asked, but now in the opposite direction, about whether other social systems also behave like politics, externalising their paradoxes towards the law with the aid of a constitution, or whether they employ alternative deparadoxisations. Both of these lead to the concluding question, regarding which subsequent problems are generated by those externalisations. The differences between various approaches to deparadoxisation may possibly clarify four questions, so: why is judge-made law developing new prominence transnationally? Under what conditions will a particular kind of natural law make headway again against positivism even today? How is it that protest movements are shifting the sights of their protests? And for what reasons do social subsystems constitutionalise not in accordance with a standard pattern, but with clear differences of intensity?

Keywords: Societal constitutionalism, transnational constitutionalism, paradox, foundational paradox, natural law, protest movements, Luhmann.

JEL Classification: K00, K10