Autopoiesis and the 'Relative Autonomy' of Law

Abstract

Recent accounts of the relation between law and other social spheres have emphasized law's "relative autonomy." The intuition behind the "relative autonomy" formula is that law is neither wholly independent of, nor entirely reducible to, political, economic and other social processes. Sensible as this intuition is, however, the idea of "relative autonomy" by itself remains purely negative. It excludes two unpalatable extremes – pure formalism and pure instrumentalism – but it does not by itself characterize, in positive theoretical terms, the relation between law and other social discourses or practices.

This Article examines an attempt in recent German social thought to specify theoretically the relation between law and other social spheres. The theory examined – Niklas Luhmann's theory of "autopoiesis" – is, though familiar to Continental readers, not yet well-known to American legal academics. This Article presents autopoietic theory to the American legal audience, with particular attention to the way in which Luhmann reformulates the "relative autonomy" problematic. Throughout, the Article focuses on the connections between autopoietic theory and issues in American law and contemporary American legal theory.

The Article's strategy is to criticize those aspects of autopoietic theory that deserve criticism, but at the same time, to show how the theory might operate as a productive stimulus for American legal theorists.