Is Law an Autopoietic System?

ANTHONY BECK*

1 Introduction
Gunther Teubner, recently appointed Professor of Law at the London School
of Economics, over the last ten years has developed the idea of law as a kind of
self-regulating (or 'autopoietic') system. He has now produced a book which re-
states his position and addresses a number of the criticisms to which it has been
subjected and extends his thought in response to the criticism.1 Unhappily for
the reader, he explains crucial points inadequately and the reader is expected to
be or to become familiar with contributions to the debate in other works, which
are not always easily available. In this review article of his new book the main
terms of Teubner's so-called autopoietic theory will be analysed and its value
assessed.
We will begin by locating Teubner's theory, in two senses. First, it will be
placed in the context of legal theories which use a metaphor, drawn from some
non-legal field, as a key term. Secondly, his theory will be related to the scientific
field from which his central metaphor, the autopoietic system, is taken. Thereafter
the limitations of using the metaphor as the basis for a theory of law will be
considered. We will count the cost, more generally, of the kind of theory, based
on the use of language, that treats law as a discrete entity, which is more or less
autonomous. Accordingly, what will be emphasized is the significance for legal
theory of the contextual features of society which maintain and explain law.

Problems of Theorizing about Law

Legal theories sometimes offer sets of related terms with familiar established
meanings as concepts for interpreting and explaining legal phenomena. We
expect to be provided with definitions for the terms and a coherence for their
relations drawn from the context in which the use of similar concepts is familiar.
The aim of contemporary theorizing is to make plain what is obscure by
• Head of Training, Holman, Fenwick & Willan, Marlow House, Lloydi Arenue, London, EC3N 3AL. I am
indebted to Dr Christopher McCrudden for editorial assistance.
1
G. Teubner, Laa as an Aulopoieac Sysum (Blackwell, Oxford, 1993). The book contains a bibliography
detailing Teubner's published work, commencing in 1971, and includes htt subsequent critics. The debt to
Habermas, Foucault and Luhmann is acknowledged in 'How the Law Thinks: Towards a Constructivist Epi-
stemology of Law*, 23 Law and Scatty Rtvita (1989) 727-57. In the rest of this article the former work will be
referred to as LAS m d the latter as HLT.
° Oxford University Press 1994 Oxford Journal of Legal Studies \W 14, No 3
402 Oxford Journal of Legal Studies VOL.14

identifying elements in legal phenomena, bringing out what is specific to them,

and by drawing on the familiar context of the terms used in the theoretical
representation, to show how the obscurities in law come about. This sort of
legal theory depends for its success upon securing a fit between the theoretical
terms and the phenomena under examination. Thus its theoretical concepts are
those which are generally used in an everyday context, or in a specific technical
context, in which they clearlyfitthe phenomena observed in the context according
to the way in which they are habitually used. However, such concepts become
'phoney' when a theorist deploys them as a way of theorizing legal phenomena.
Used in a legal theory they lack fit. This transfer of application has the effect of
obscuring and distorting the phenomena it is now applied to, of misrepresenting
them. In other words, the concept becomes an unacknowledged metaphor
presented within propositions which claim literal truth. The concept carries the
associations of close fit from its original context and use, and the reductive
effects mentioned are themselves obscured by the superficial appropriateness of
the term to the new context. The reason for adopting phoney concepts may be
some political or other rhetorical appeal of the transfer.
An example of a phoney concept in legal theorizing is 'command' in Austin's
theory of law. Hart showed that command theory smuggled in connotations of
authority from situations where commands were familiar, but in legal theory the
effect was reductive and obscuring.2 Not all legal rules are commands and the
basis of legal authority is obscured by bringing in the idea of a command. Hart's
own concept of a 'rule' was, however, also a phoney concept. Rules as he defined
them fit satisfactorily for the purposes for which the term is generally used in
the context of games, which are clearly limited in space and time, and qua games
are isolated from other forms of social life. Law, however, is not limited or
isolated in the way games are. Even though Hart gave a definition of rules in
the celebrated contrast with habits, the three conditions, it may be argued,
—criticism of deviation and pressure for conformity, general acceptance that
deviation is a good reason for criticism, and the so-called internal aspect that
some at least regard the behaviour in question as a general standard—only closely
fit the game context, but not law.
To some extent to call a concept 'phoney' is no more than a portmanteau
way of saying that the theory which deploys it is defective in that it obscures,
reduces and omits salient features of, what it is purporting to analyse. It is to
that extent a bad theory. The further aim of the label 'phoney', however, is to
identify an ulterior purpose of such concepts which is to 'sell' the theory by
giving a political slant, or some other unexpected and startling feature to law,
and to do so by offering some special attraction in the use of the metaphor. That
attraction may be the allusion to a currently fashionable topic, as was the case
with rules in the fifties, or of bringing legal theory within the methodology
of an acceptable empirical or scientific outlook as was perhaps the case with
Austin's theory and American realism. Law is by this means unmasked or
2
H. L. A. Hart, Tht Conctpt of Laa (Oxford, 1961), 19-20 and 54-5 for the definition of a social rule.
AUTUMN 1994 Is Law an Autopoietic System? 403
superficially shown to possess some hidden quality. In fact what is happening is
that by labelling the obscure aspects of legal phenomena by reference to what
is or has become familiar in another field, law is superficially rendered com-
prehensible in an apparently new and acceptable way, when the true cost is a
new obscurity or incoherence.
Before describing Teubner's autopoietic theory and bringing the principal
concepts into question, it is helpful to know a little of its biological and systems
theory background. This is not to say that the theory logically depends (as
opposed to rhetorically depends) upon biology or general systems theory, but
rather that the provenance of the concepts is imported for the sake of exegesis
and to make good the charge that it is phoney.

2 The Autopoiesis of the Cell

The human body is made up of millions of cells. Within each cell thousands of
chemical reactions are taking place all the time, the responsibility of microscopic
enzymes which, with infinite subtlety build and re-build the functional chemical
elements of the cell, which literally builds itself over and over and reproduces
itself by splitting. The 'picture of the cell as a self-regulating mechanism,
continually changing, yet continually stable, is one of the most important and
significant results of modern bio-chemistry'.3 All body components are in a
constant state of flux. Protein, lipid, and nucleic acid molecules are constantly
being renewed, old molecules being broken down and new ones synthesized to
take their place. In the last fifty years 'It became clear that one, perhaps the
major, function of the living cell was the constant re-creation of itself from
within'.4 'Under normal conditions, the average cell is probably synthesizing
several thousand new protein molecules every minute,' and 'the control and
regulation of the cell, not only in its day-to-day running, but in its entire cycle
from birth to death, and indeed the entire cycle from life to death of the body
itself, can be interpreted biochemically, provided always we are prepared to . . .
embrace the structural properties of the cell as a whole, as a system'.' This
systematic aspect of the working of metabolic pathways within the cell depends
upon a remarkable range of chemical feedback actions and reactions and realizing
this ' . . . biochemists seized on . . . new information concepts in order to probe
the ways in which the cell controlled and regulated its own metabolism'.6
'Autopoiesis' as an idea derives historically from 'homeostasis', the term which
describes natural states which are kept stable by complex systems of information
and control (ie inbuilt cybernetic systems). Familiarly our blood, for example,
is kept at a roughly stable level regarding temperature, pH (acid/alkaline) factor,
sugar etc. Autopoiesis goes a step further. It refers to the stability of constituent
parts, of structure, maintained by self-re-creation. Teubner adopts a definition
3
S. Rose, The Chemisay of Lift, 3rd cd (1991), 13.
* Ibid, 110.
' Ibid, 251.
6
Ibid, 13.
404 Oxford Journal of Legal Studies VOL.14

from the seminal work of Humberto Maturana, in the realm of a generalized

(or 'all-purpose') systems theory, as the 'official' definition within the autopoietdc
school. 'Autopoietic organization is defined as a unit through a network of
constituents which (1) have a recursive effect on the network of the production
of constituents which also produces these constituents and (2) which realize the
network of production as a unit in the same space in which the constituents are
located'.7 Whatever else it may be applied to, the definition despite its opacity
seems to 'fit' the cell as a thing, spatially fixed, occupied with recursive chemical
reactions.
Within the cell, control derives in part from DNA 'recipes' in the formation
of chromosomes, which are chains of genes, in part from cybernetic chemical
reactions of considerable complexity affecting the initiation and rates of pro-
duction of specific molecules. The recursive creation of elements is subject to
iron physical and chemical laws operating at microscopic level.
However, this reliable recursion is interrupted in, say, one or two cases in a
million by something 'going wrong" by internal dysfunction or external causes,
eg X-rays or other radiation, and a mutation takes place. The mutation is then
faithfully reproduced by the genetic process. This chance and infrequent process
is called by biologists 'perturbation'.8
The description of a process which combines reliable recursion with infrequent
perturbations is obviously suggestive for legal theory. It is even more attractive
when combined with general systems theory. A system is essentially some defined
unit, bounded from its environment, which is internally patterned by input,
process and output, combined with elements which collect and interpret in-
formation and exercise control on the basis of that information. This picture is
found not only in cells and organs, but allegedly in social organizations, hi the
1950s Talcott Parsons developed a general theory of the social system' and more
recently Luhmann has developed a systems dieory of society.10 Since the 1970s
in Germany Gunther Teubner has led a systems theory of law movement.

3 The Autopoietic Theory of Law

Teubner's legal theory is not compact. It is rather a collection of associated ideas
of which autopoiesis is only one. Insofar as there is an overall architecture it is a
matter of suggestive diagrams rather than rigorously defined and related terms and
relations. Furthermore, the position adopted by Teubner has moved significantly
and explicitly from the biological model, hi particular, instead of physical entities
and their interactions, the material which constitutes Teubner's system is meaning
and understanding. The autopoietic legal system is a system of communications.
7
Teubner, LAS, 22, quoting H. R. Maturana, Erkemten: Die Organisation und Verkorptntng von WtrUiddua,
Vieweg, Braunschweig, 1982, 158. He produced a different 'official* definition drawn from Luhminn in his essay
in Juridificaoon of Social Spheres, G. Teubner (ed), de Gruyter, Berlin, 1987, 20. There is a degree of self-validation
in Tcubner's own oeuvre.
* See J. Monod, Chwta and Ntcasuy (1971).
' T. Parsons, The Social System (1952).
10
N. Luhmann, Soaal Systems (1992).
AUTUMN 1994 Is Law an Autopoietic System? 405
The central notion, taken from the work of Luhmann, is encapsulated in
the assertion that, like some other social institutions, 'law thinks'.11
This means that when people communicate within an association, like a
commercial company, a political institution or a university, their communications
are not simply the expressions of the individuals concerned but of the institution.
This unusual way of putting things is justified because institutions create their
own kind of reality and meanings which cannot be matched to a 'somehow
corresponding reality "out there"'.12 Virtually the whole of society is fragmented
into institutions of one kind or another, seeing things from their own point of
view and using language in their own way. In the language of 'post-modern'
thought, social sub-systems constitute their own realities. Far from com-
munications being made by people, people are constructed by discourses as
'semantic artefacts'. The legal system is not unique in this respect. Where Hart
saw law as a member of no familiar category13 Teubner sees it as a member of
the category of systems of communication. The remarkable consequence of
taking this point of view a good deal further, and which is insisted on by Teubner,
is that law is nothing more (or less) than a system of communications. Courts,
judges, lawyers, laws, parties and penalties, appear in the system only as linguistic
entities, only within the communications which are the stuff of the system.
The second strange and distinctive feature of Teubner's approach is that he
holds that legal systems, and he appears to have contemporary continental
systems in mind perhaps more obviously than the common law, are in some
sense closed. His notion of what he terms autopoietic systems generally, is of
systems which are in diis special sense closed. This closure is the most con-
troversial and striking aspect of this theory but its exact definition is elusive. In
addition the closed system is not one which formally churns out predictable
outcomes but is in its normal working, indeterminate. This combination of
closure and indeterminacy perhaps more than anything makes an autopoietic
system a very strange phenomenon for ordinary thought to take on board, indeed
an essential critical question is whether this notion has any coherence at all or
if, like the notion of one hand clapping, a closed indeterminate system involves
a category error, ie what is systematic and closed is by the implications of
definition not indeterminate.

A System of Communications
In the first place the system of communication is a generated system. This means
that some physical entities have to utter or write the words which carry the
" Teubner adopts, from Foucault, in account of discourse as 'on anonymous, impersonal, intention-free choice
of linguistic events' which constructs reality for the age; and, from Luhmann, the fragmentation of society into
different self-referring discourses, HLT, 735. He concludes that T h e law autonomously processes information,
creates worlds of meaning, sea goals and purposes, produces reality constructions and defines normative ex-
pectations—and all this quite apart from rhe world constructions in lawyers' minds'. HLT, 739.
12
Teubner, HLT, Til.
" Hart, op cit, 15. It is never clear whether Teubner follows I nhitignn to include all communications relatmg
to the distinction between legal and illegal (undefined) as 'law1 or only those within an institutional system of
judges. As he posits autopoiesis as coming about historically after secondary rules, we assume he means only the
latter.
406 Oxford Journal of Legal Studies VOL. 14
freight of meaning. However, the system which is the object of study and
explanation consists only of the understood meanings, the discourse of the legal
system. Nevertheless Teubner is committed to granting autonomy to this world
of meanings he is attempting to isolate and identify. In a bewildering moment14
Teubner gives examples of two other generated systems, the economy and
politics. The former has the language of prices and the latter what he calls the
language of power. Communications, ie what is uttered in the real world, may
or perhaps must belong to one or other of the available sub-systems but, as we
shall see, a single communication may partake of membership of more than one
such system at the same time. The crucial point is that communications them-
selves are elements of systems which are conceived as having independence from
the living base which gave them birth. Communication is denned as the synthesis
of utterance, information and understanding—always presumably within one, or
several overlapping discourses.
To put this highly abstract way of looking at things in a more familiar and
concrete form, we can say that the facts found in a case and the relevant rules
of law expressed in statutes and precedents, interact in a systematic way to
produce the judgment. They do so, however, indeterminately so that one state
of affairs does not necessarily and predictably give rise to another. Nonetheless,
in some sense, what takes place does so autonomously and systematically, and
it is a system of communications which can be observed at work. At this point
it should be noted that the observation of the system does not give Teubner any
worries. This is because the interpretation of the discourse so far as this takes
place in a way which it is significant for the system, is done by the system
itself—words interpreting words. How an anthropologist makes sense of what is
going on at any point in time is not Teubner's concern. He is merely presenting
a general account of what is taking place, not the interpretation of particular
communications.
Quite distinctly, individuals have their own world of communications outside
the current public social sub-systems. This is the realm of private inner life,
individual, uncommunicated and uncommunicatable, and in its own terms self-
referring, which is called 'psychic autopoiesis'.
So far, the reader's principal difficulty is in conceiving an indeterminate system.
For all that it is obscure the idea does seem to have something in common with
what goes on in courts of law. We shall subsequently attempt to show why there
is some truth in this. Far less easy to come to grips widi is the notion that this
peculiar system is closed.
Closure of the system comes about in three main respects: self-constituting,
self-referring and self-describing.
(a) Self-constituting
The system produces its own elements, structures, processes, boundaries, identity
and unity. The extent and content of the verbal dimension of the system are
14
Teubner, LAS, 102-3.
AUTUMN 1994 Is Law an Autopoietic System? 407
dictated by the system itself. A simple example of this in the English system is
found in the rules of precedent: they are uttered by the discourse of the courts
themselves. Furthermore rules of procedure are often created by the courts.
What materials may be taken into account to interpret statutes are also decided
by the judges, who also may decide the limits of their own jurisdiction: in each
case it is the legal discourse constituting its own fabric and extent. The function
of the legislature in this theory we shall see, is exercised outside the system. The
legal system is made up of communications of the judges. As in Hart's Concept
of Law, in order to discover the specific nature of any legal system you have to
examine its behaviour, but only that. There is nothing done or created outside
the system which makes itself or can make itself part of the system. We are not
for the moment concerned with what decides the validity of anything but with
the separate question of what actually creates directly or by adoption what
becomes part of the fabric of the system. If law is a wooden boat which changes
its planks over the years but stays the same boat, it is the ongoing judicial
discourse which in effect makes the planks. The idea of being self-constituting
does not involve the notion of validity of anything as law but physical creation
or creation by indication of what enjoys membership of the class of legal discourse.
It is the discourse of the law which creates what is part of the discourse of
the law. Creation is obviously dependent upon validation but is analytically
distinguishable.

(b) Self-referring
In order to create and validate the elements which constitute the system, the
system draws on its own communications. Thus not only does 'what the judges
say* decide what shall count as law, what it selects for this purpose is material
generated by them. Examples will explain this: the statements of rules of precedent
appoint decisions of the courts as the basis of law. For continental systems
lacking formal rules of precedent, perhaps autopoietic theory provides a formal
basis, at the level of theory, otherwise lacking. In the English system, judicial
communications refer to the rationes and obiter dicta contained in other judicial
communications. Statutory material, Teubner claims, as did some in the Am-
erican realist tradition and others, means only what the judges say it does.
Furthermore, judges use presumptions and canons of construction devised by
other judges. Now this notion of discourse, it must be remembered, involves
consistency of meaning and world-view, or reality-construction. So in selecting
within the same tradition the same set of meanings and the same kind of reality
is upheld. This maintained discourse, however, is subject to the first aspect of
autopoiesis, namely self-construction, so that legal communication is free to
discard and pick and choose which bits of discourse to maintain, while upholding
a generally consistent way of expressing meaning and constructing reality.
Teubner's approach is thus different from that of Hart and Kelsen. Kelsen's
hypothetical basic norm, like Hart's more concrete Rule of Recognition, can
408 Oxford Journal of Legal Studies VOL. u
point to texts produced by a specific extra-judicial institution as normative.1'
For Teubner no text is normative which is outside legal discourse as it continually
re-defines itself from its own material."

(c) Self-describing
The law, legal discourse, says what law is. As distinct from creating new laws,
judges and legal academics purport to state the law as it is. However, there is a
fundamental and subtle difference between the description of law in the legal
discourse of the courts and that of academics. Plainly the nature of academic
writing is (in part at least) a description of the law. But academics only count
as part of legal discourse if the legal discourse of the courts says so. This
distinction is achieved by allotting the power and authority to utter proper or
official descriptions to some discourse but not to any other. Although the nature
of the theory prevents identifying power and authority anywhere except within
the discourse itself, this is not felt as a practical problem. The fact is that at the
present historical juncture in the real world there is a practice in the production of
discourse which describes law and describes itself as the only true description—-not
because of any accuracy of description, that is irrelevant—but because of the
actual phenomenon itself asserting its own authenticity.
Teubner claims to have gone beyond Hart in this respect. Where Hart identified
the Rule of Recognition as the evolutionary divide between the pre-legal and
the legal, but based that rule on the conduct of officials, Teubner insists that by
historical evolution the law, legal discourse, creates its own Rule of Recognition
(formulated as self-description). In other words, rules as to the creation of law,
changes in the law and in jurisdiction, are found in legal communications which
themselves dictate and validate changes in those rules. As a consequence of this
improvement we no longer have to sit around to see if the officials will follow
the new rule formulations, we merely have to interpret the communications of
the system as a whole to be able to state at any time what it recognizes.
However, what seems to disappear at this point by deliberate exclusion is the
notion of law and what is legal, as constants definable with any stability, based
for example upon consistent repeated behaviour. All that the theory recognizes
is the unfolding of discourse. This progress is indeterminate and untrammelled.
Teubner does not regard a mature system as necessarily having predictability.
The system is not only closed in itself but closed from subjection to any external
notion of legality. This is the radical bite of autopoiesis. It would be otiose to
parade many examples from the common law which this theory fits: the 1966

" Kelsen, General Theory of Law and Suite (1945), 115-16. Han, op cit, 245. Teubner's definition of law in
term* of self-creating communications excludes norms and rules in any substantial sense of binding formulations,
but recognizes 'the recursive application of communicative operations to die results of former communications'.
HLT, 740.
' . . . by definition, a self-referential syuem is a closed system*. G. Teubner, After Legal InstntmentaHsm? Strategic
Models of Post-Regulatory Law. EUI Working Paper No 100, European University Institute, Florence, Law Dept,
Florence, Italy, April 1984, 23. At this point in Teubner's thought he accepted the existence of 'boundary
trespassing processes' and 'externalizing environment ^rrhangf mechanisms', ibid.
AUTUMN 1994 Is Law an Autopoietic System? 409
Practice Statement and the recent decision in Han v Pepper*1 will spring to mind.
The books on statutory interpretation are replete with examples of statutes which
do not mean what they appear to say but what the judges have decided they
say, for the purpose of application. There is nothing new in drawing attention
to this. What is novel is seeking to overcome the mixture of stable and unstable
elements in law, which have continued to defy theoretical analysis, by an original
concept of system.
A further element of 'closedness' which follows from the -notion of a system
of discourse, is the exclusion of direct instrumentality. Teubner accepts of course
that what the courts say has effects on the outside world. However, that world
is outside the legal system and how it reacts to the discourse of law is not the
direct and unmediated consequence of the legal discourse itself. People may or
may not pay fines and damages, go to prison, be encouraged or deterred in
various respects, but all this is external to legal discourse itself.

4 Criticisms
Two questions which must be asked are, first, do the elements in Teubner's
account fit the phenomena which are under enquiry, and does his account
possess internal coherence? The principal concepts in autopoietic theory are
'communications', 'system' and 'autopoiesis'. These principal concepts are all
phoney. Communications, system, and autopoiesis are all notions which fit
adequately and serve well in some contexts but do not do so here. We will
examine them individually in relation to fit and coherence.

(a) Communications
Communication in its familiar use implies the presence of a sender and a receiver
as well as a message. All three elements are generally assumed to subsist
contemporaneously. Legal texts are better thought of as part of an archive,
extended in time. This archive is a resource, preserving the past and available
for consultation. As such it is influential upon the present. An enduring problem
for theory lies with defining the extent in time for which the archive is part of
the current system. The logical option of regarding law as existing for the scintilla
of time in which a judgment is effectively pronounced is a dead end. But the
answer cannot be to regard the accumulation of legal texts which judges refer
to as communications. Teubner's picture of a historical period in which the
autopoietic system comes about and thereafter maintains itself indeterminately
ignores the expectations which those within and outside legal institutions have
that past texts will be treated in a certain way, as well as legislative materials.
At one point Teubner himself refers to legal culture18 but his theory is incapable
of recognizing this: the past has no weight upon the present unless the present
17
[1992] 3 WLR 1033 HL.
" Teubner, LAS, 61.
410 Oxford Journal of Legal Studies VOL. I 4
so chooses. At best this is a simplification which contemporary legal theory has
gone beyond.
Communication is implausible for the following reasons. Semiotically a legal
text carries many messages." In the first place, like every text it is open to
numerous interpretations. In the second, it can be regarded as having separate
significance for judges, other officials, lay citizens and lawyers. Like some other
users of 'discourse analysis' Teubner is weak on the hermeneutics of texts
which undermines the apparent certainty and stability of communications within
'discourse' and therefore of the notion of discourse. If Teubner relies upon the
multiplicity of messages involved in legal utterances as separate communications
all part of law, then he is in difficulty in establishing law as a closed system of
communications existing as an autonomous dimension. The aspect of in-
terpretation with the crucial relevance of context is obscured.
As well as ignoring the variety of receivers, Teubner's theory excludes the
senders. Unlike Holmes, Llewellyn and Frank, autopoiesis abstracts the judiciary
itself from law and thus those tendencies of the judiciary derived from class and
gender factors. This is convenient for a theoretical position which wishes to
claim the startling 'closedness' of law but renders it useless and unrealistic for
the purposes of other radical agendas. What is left within law is strangely flimsy.
In addition the use of phoney concepts typically adds to the mystification of
legal phenomena.

(b) System as Subject

The theory, indeed, breeds mystification. The absence of subjects from die
'generated' communication system of law leads to commentators under au-
topoietic theory's influence to say the 'law thinks' and that it 'has a life of its
own'.20 The law becomes its own subject. There is, I agree, a true claim that
can be made that texts have or acquire their own agency. However, it is an
apparent agency. The apparent power of a text is given to it substantially by the
distribution of power and the state of received ideas and values in a community.
Legal textual sources have power over human thought and conduct so long as
die structure of recognition and enforcement is in place. The texts of Roman
substantive law no longer gready sway judges or persuade lawyers.
It is a tenable position to say diat die archive of legal texts becomes systematic
by and according to the dictates of judges and that diese dictates change and
are to a considerable degree autonomous. That is to recognize the power of the
forces which keep the judges and their judgments in place as such. To personify
and reify some metaphysical dimension as if it is self-supporting is to join in die
obfuscations practised by those same judges. It may be to strip away or undermine

" Cf B. Jackion, Smxmcs and Legal Thmy (1985), Routledge & Kegal Paul, London, 284-7.
20
M. King and C. Piper, Hou tht Law Thinks about ChUdm (1990), Gower, AldenhoL Sensibly attacked by
A. L. James, 'An Open or Shut Case, Law as an Autopoietic System' (1992), 19 Journal of Law and Sodcy, 271.
According to Teubner, 'Social discourses are the new eputemic tubjects that compete with the consciousness of
the individual', HLT, 741.
AUTUMN 1994 Is Law an Autopoietic System? 411
that rhetoric which seeks to disguise or justify judicial autonomy but in order to
do so it substitutes a non-existent subject and obscures the voluntaristic and
social elements which motivate the production of the texts and which establish
them as law. This way of putting things certainly helps support startling for-
mulations, which are part and parcel of the deconstruction of conventional
language by post-modernism, and take credibility from the genuine insights of
post-modernism, but ultimately this practice substitutes a new mystification, by
creating an explicitly stipulated organism, with its own economy of energy and
potential for action and reaction, eg 'Law is not identical with the sum of lawyers'
consciousness. Rather, it is the product of an emergent reality, the inner dynamics
of legal communications'.21

(c) Antopoiesis and Perturbations

If the dynamics of change were defined by Teubner or shown as capable of
definition we should be able to welcome progress. They are not. Unpredictability
is precisely what is claimed to be special about them and indeed essentially
autopoietic. Teubner contemptuously dismisses the common-sense criticism
(made by James22) that far from being closed, law is open to external influences,
especially statutes. 'Events in the outside world do not really have much effect
on what goes on inside the system.'23 Nevertheless perturbations are caused in
the system, or at least triggered off, by outside events including statute creation.
To save the theory, 'law' must have its own autonomous agency at all times. To
an extent this is a denial of causation. The objection, however, is not only to
the assertion of the autonomy of 'law', but to the marginalization of legislation.
Statutes are a normal, frequent part of social regulation. As such they profoundly
and ubiquitously influence what goes on in courts. It is only through the phoney
adoption of the term 'perturbation' to this context that any plausibility can be
given to the view that 'the statute is what the judges say it is'. This is at least as
much an over-simplification as the rhetoric of judicial subservience to the will
of Parliament. It is, however, presented as the truthful consequence of the
application of systems theory to legal texts. An equally valid metaphor is the
assertion that the law is constantly peppered with streams of statutory meteorites
which change its appearance and constitution. Neither account enriches our
understanding of the complex interplay between legislature and courts because
both ignore the complexity of the social and historical context within which
judges work. To provide an example, cases come to court by virtue of the activity
of litigants. The 'system' (to use the word in a loose non-technical sense)
11
Teubner, LAS, 45.
22
James, op cit n 2 1 , 2 7 5 .
23
Teubner, LAS, 58. Earlier, Teubner WBS prepared to recognize the importance of the demands on law from
'its social environment*, JunSficaaon of Social Spheres, above n 8, 20. King claims a paradigm shift took place in
the mid-1980s for both Luhmann and Teubner, M . King, T h e "Truth* About Autopoiesis', 20 Journal of Law
and Society, 221 (1993). A J late as 1989 law was allegedly 'permanendy oscillating between positions of e p u t e m k
autonomy and the heteronomy of odier social d i s c o u n a ' , Teubner, HLT, 7 3 0 . However, 'It is the authentic
consensus of the communicative community and not the consciousness of the autonomous individual that
determines trum', ibid, 7 3 3 , adopting Habermas.
412 Oxford Journal of Legal Studies VOL.14

generally is not self-motivating. For autopoietic theory the litigant must be a

mere perturbation.

(d) The Social Context

In fact of course litigants, the parties, are a crucial link between the judges and
the social context. Their action invokes the involvement and functioning of the
courts, the evidence they provide creates the material for judicial interpretation
of social events to work on. The parties (a complex subject in itself) are therefore
intimately involved in the working of the courts and the production of judicial
texts: they cannot be outside any account of a legal 'system'. There are at least
three fundamental ways in which the social context is involved in the production
of legal texts, all of which autopoiesis obscures and distorts by the expression
'autopoietic system'.
1. Habermas has pointed out that the 'life world' of general social ideas and
values infiltrates all social sub-systems.24 Judges must be assumed in many cases
at least to watch TV and read newspapers, go to the theatre and cinema, talk
to people who do these things and talk about what they become aware of from
the media, and react to what is contained in the media. Judges use the same
language for the most part as lay people do. They generally use the same
perceptions as do lay people, and share essentially the same language with the
same referents. In doing so they are, as to the core activity of their role and in
the linguistic substance (which autopoietic theory treats as the material of the
alleged closed system), part of a greater social whole. Even in modern organic
society, as Durkheim insisted,25 there is a residual shared social consciousness.
It cannot be detached from legal phenomena.
One solution might be to compare language and culture with the working
temperature which a healthy biological cell needs and shares with its surrounding
organ or the sunlight a plant receives, or some basic atomic building block
common to all organic life.26 Then it could be said that the legal system like a
biological entity nevertheless retains its own structure and can be identified as
such. However, what the biological theory possesses but the autopoietic does
not, is an account of how the specific system is distinct from and relates to the
shared medium. Without appropriate temperature there is observable dysfunction
of the defined cell or organ or complete death, following iron laws. Temperature
itself can be studied. The structure of atoms can be studied. In the biological
case what surrounds and is part of the system can be understood both as part
of and distinct from the structure in question.
To call legal phenomena a closed system is to obstruct study of how courts
are influenced by social values and to posit a primal separateness of law and
society which has no factual basis or contemporary relevance. Nor can the
concept of a closed system be justified as if it were devised for the heuristic
24
J. HBbennas, The Theory of Comrnwncaao* Action, \ b l 2 ( 1 9 8 7 ) .
25
E. Durkheim, ( 1 9 3 3 ) , Th* Division of Labour in Socitty, G. Simpson (tr), Free P r e » , N e w York.
24
What L u h m a n n calli a 'materiality continuum', Teubner, LAS, 8 5 .
AUTUMN 1994 Is Law an Autopoietic System? 413
purpose of contrasting what would be the case of a closed system with what is.
On the one hand the judge is inherently faced with evidence, oral and written,
which forms the basis of judgement. Teubner accepts that the law is 'cognitdvely
open' but closure implies that the facts are what judges independently 'make'
of what is put before them. That is an over-simplification. On the other hand,
the activity of judges depends upon the social provision of money and power.
They are not God-given and will be withdrawn unless the texts judges produce
conform to social expectations.
2. Judicial utterances are deliberate artefacts. Few can read the law reports
without becoming aware that judges decide cases with an eye to the consequences.
Commercial courts are concerned to preserve the attractiveness of English
jurisdiction, criminal courts are aware of deterrent effects and of public opinion
and act accordingly. Appellate courts are concerned to preserve the coherence
of the system for social reasons. It would be otiose to set forth examples. Not
only do courts say that is what they are aiming at, their decisions confirm it and
common sense offers no reason to doubt it. For autopoiesis such examples must
be treated with hermeneutic suspicion because of the need to preserve the
concept of the closed system. So the question must be asked whether these are
genuine examples of legal teleology or self-serving. It is not enough to say that
the ends are not in fact served in a particular case. That is relevant only if it can
generally be found to be true, and then that can count as evidence for a rhetoric
of judicial utterance rather than a genuine purposiveness. Even if we accept that
judicial claims to serve some social interest are not genuinely felt by them, or
alternatively miss as much as hit the ends identified, yet that implies acceptance
of the fact that judicial texts are produced to appear to serve some external end.
This is not compatible with Teubner's claim that 'systems of communication,
including the legal system, interact only with realities of their own creation'.27
The aim is what is important: if judges aim at realities which are shared then
the system is not closed. At the lowest, judgments are intended to be enforced,
at the highest they are intended to become law reports and indications of future
court responses for the guidance of people generally.
What might be thought of as Teubner's answer to this objection (that legal
utterances have a social purpose) is another phoney concept, drawn this time
apparently from the realm of electronic communication, 'interference'.28 In his
definition, however, the idea becomes misty. The same text can be both a lay
communication and legal one. They coincide. This coincidence constitutes
interference. As a purely legal communication words are distinct in two alleged
respects.
First they are said to relate to the legal/illegal distinction which Teubner holds
essential to the legal system. In fact this is an approach which claims too much
and too little. It claims too much because it explains insufficiently. For example,
27
Teubner, LAS, 8 4 . For the uncloaking of the practical ends which judicial language pursues, see Felix C o h e n ,
Transcendental N o n s e n s e and the Functional Approach* reprinted in L. K. C o h e n (ed), Tht Legal Cowritnct:
StUcud Papers ofFtUx S. Cohtn, Yale U P : N e w Haven ( 1 9 6 0 ) .
28
Teubner, LAS, 8 6 .
414 Oxford Journal of Legal Studies VOL. 14
rape and murder are both illegal. To say that is to identify only one aspect of
the concepts of rape and murder without justifying why that aspect should be
given priority. In truth, judicial discourse is not clarified by singling out this one
factor. On the other hand, this approach does too little because it does not
distinguish between systems of communication which claim to decide what is
legal and illegal. Religious as well as legal systems do this, not to mention the
rules of games. Teubner fails to clarify the notions of legal and illegal or to
distinguish what there is in the discourse of the courts which distinguishes it
from other discourses which make the same claim.
Secondly, legal utterances derive from legal criteria. Thus (in one of Teubner's
examples) the utterance 'The defendant is fined x' can be at the same time a
legal and a social utterance.2' This he calls 'the linking of independent pieces of
information through one and the same communicative event'. But this is no
answer to the complaint that autopoiesis mis-states the social aim of the courts.
Precisely because the legal utterance is derived from legal criteria it is treated
outside the law as performative. Nor does it cope with the objection that legal
discourse is not closed but shares perceptions of the general world within a
contemporary horizon. The language of, say, English law cannot be wholly
separated from the language of people who speak English—the masse parlante.30
This is not simply to draw attention to the material from which legal judgments
are fashioned, it is to reject the absolute notion that legal realities are independent
of social ones.
3. There is a deeper and more subtle sense in which the legal quality of legal
texts is immanently dependent upon the social context. Like the value of money,
the acceptability of a legal rule as normative is constituted by a complex of social
values and practices. Just as a ten pound note is accepted because of the
negotiability of sterling bank-notes which exists in the contemporary world, and
not because of the fact that the note announces itself as having a particular
value, so the normative power of a text depends upon the way living people
regard that text. The texts of Roman law as we have seen do not create
expectations today of official behaviour according to their tenet. The texts of
statutes and precedents of a living system do. Indeed, the legal text can be
compared to a railway time-table—it raises expectations as part of its essential
function, by virtue of a complex of factors outside itself.
Half a court-room is usually provided with seats for the public, and there are
spaces for reporters. Granted that judges have power to interpret and that their
interpretations frequently travesty literal meaning, nevertheless the power they
exercise derives from socially constituted expectations towards the actions of
those in the judicial office, as well as the officials' own expectations of themselves
and each other. Hart attributed the power of judges to social rules. At no point
did he exclude people but his theory essentially depended, as Teubner's does
not, upon the inclusion of human officials within the theory. Teubner does not
K
Ibid, 88.
30
F. de Sairaure, Count in Gtneral Ungidstia (1974), Fontana/Collinj, 77.
AUTUMN 1994 Is Law an Autopoietic System? 415
seem to be aware of this crucial difference.31 The constitution of an empowered
official as such, the expectations which exist of official conduct, are vital to the
existence of legal norms and they exist only because of a complex of social
institutions, ideologies, practices and experiences. They are not part of the shared
'fabric' of texts as language may be said to be. Such expectations are an essential
condition for the existence of law and cannot, without serious loss, be excluded
from legal theory by restricting texts to a closed system.

(e) Other Problems

These are the gravest deficiencies of autopoietic theory. But there are other
problems with it. It provides an inadequate account of legal structure. Those
who use legal texts dunk about sets of general rules, definitions and exceptions.
Those together constitute a complex of norms. They are also familiar with values,
maxims and principles. These exist as mental patterns. It is at best unclear how
die autopoietic approach reconciles die generation of texts with this pre-existing
matrix. It is an aspect of the problem diis theory has with the archive approach
as opposed to the individual 'communication' approach. We are only referred
to the 'memory' of the law and its 'culture' interacting with die individual trial,
widiout any attempt at integrating memory and culture within the dieory.32 The
crucial point is mat our working concept of law incorporates a sense of die
established culture, unreal no doubt, artificial, varying gready among individuals
who diink of diemselves as knowing a good deal of law, but as a system of
related ideas an essential part of what dieory must account for. The autopoietic
concept of a system which explicidy includes 'action, norm, process, identity'33
but which consists purely of discourse does not adequately articulate diis
dimension. Teubner could do much more to identify die constituent parts of
the system and to describe clearly dieir interaction.
There is, furthermore, a suggestion of die arbitrary and convenient about two
fundamental elements. These are die concepts of boundaries and perturbations.
No system can be conceived widiout boundaries. Autopoiesis insists diat law
creates its own boundaries. Such a diing accordingly, as Teubner claims, must
develop from some non-autopoietic entity. As a system nevertheless it must
retain boundaries. The dimension of diought in which such a 'diing' exists is
diat of abstract categories, of metaphysical entities, the very dimension from
which dieory is expected to rescue us. The boundaries are phoney. As for
perturbation, it too is a phoney concept which sweeps up everything diat
autopoiesis has to leave outside die legal system, drawing on die biological origin
for plausibility.
Finally, a dieory which reduces law to language requires a dieory of language,
an account of reference as well as a typology of usage to escape die charge of
having swapped one set of problems—diose of dieorizing law—for anodier—diose
31
Teubner, LAS, 41. Hart, op cit, 92.
" Teubner, ibid, 61.
" Ibid, 27.
416 Oxford Journal of Legal Studies VOL. 14
of understanding language. Even were we to accept the notion of law as a closed
system of communication we are brought no nearer to making sense of what
that means. Teubner offers an account of law historically developing from the
diffusion of norms throughout the community, through partial autonomy of legal
institutions, to full autopoiesis,34 and he considers Hart's evolution from primary
rules to secondary rules as reflecting only the first two stages. We have pointed
out the significant difference between the theories as regards the human element,
namely that Hart considers the existence and attitude of officials and other
persons as an essential part of law and not, as does Teubner, merely their
communications. From another point of view, where Hart offered some ele-
mentary theory of language, Teubner offers none. For example, he asserts that
'the interplay of legal culture and the individual trial—must be conceived of as
an interlocking of two communicative cycles', but we are given no account of
how language, which is at the centre of any 'interlocking', operates in this
situation. This is not merely a shortcoming, it is a central failure for an account
of an activity which consists so much of the interpretation and application of
language. Perhaps the truth is that so much of legal argument depends upon
criteria drawn from a consideration of the world beyond the court-room—and
this does not fit in well with the autopoietic approach.

Conclusion
We have looked here only at the specific application of the concept of autopoiesis
to law. Teubner, following Luhmann, ambitiously extends the notion of a closed
self-regulating system to embrace a theory of society as composed of such systems.
He draws provoking conclusions for law enforcement and social regulation from
the resulting structure. This is not the place for anything like an adequate
discussion of this position.3' In many respects it is susceptible to the same
comments as have been made here about law. It does, however, suggest a further
criticism. Luhmann asserts that society is differentiated into distinct autonomous
sub-systems, each with its own autonomous self-validating discourses, and he
founds this differentiation on the different functions of social sub-systems.36
Teubner does not consider sufficiently how law is different from other sub-
systems even though it is essential to the theory which is his point of departure
to understand the connection between function and autonomy. Possibly, Teubner,
who is sufficiently aware of the problems of legal functionalism,37 knows better
than to attempt a functionalist explanation—but he fails to recognize that the
doubts regarding a definable function of law create difficulties regarding the
foundation of his position.
I have argued that the insistence on closure is a weakness and that legal theory
requires a concept of expectations, arising outside as well as within the system,
M
Ibid, 36.
" Ibid, 123 and King, op cit, n 24, nn 76, 77 and 78.
" N. T iihminn, Tht Digtmtuukm afSoday (1982), S. Holmes and C. Lannorc (at), Columbia UP, NY, xu.
17
Hart, op cit, 245.
AUTUMN 1994 Is Law an Autopoietic System? 417
as to how judges act. However, the central question in evaluating Teubner's
contribution must be whether we can accept the idea of law as an indeterminate
system. If we adopt the definition of system so that it involves a necessary
recursiveness we can nevertheless accept that some parts are not necessarily
recursive. However, Teubner appears to accept that no parts are necessarily
recursive, this is indeed the essential autonomy on which he insists. Such a
creation has no residual feature which can be identified. It is like the mythical
Proteus who can take on any form. Logically we could acknowledge some
substance which is historically connected, like the meaning of a word or its
spelling or pronunciation, which through time is nevertheless identifiable. To
see law as such helps little and does not identify what is specifically legal. A way
forward would be to recognize that the determinate element in legal practice are
the values which courts pursue. This is not to go all the way with Dworkin's
Law's Empire by any means. Yet if we identify legal systems as those which largely
aim, or say that they aim, at the objective identification of rule-texts and the
interpretation and application of the texts in a manner which fairly respects the
values and aims of those texts, we can move some way towards identifying the
determinate element in what courts do, if not very far. By adding the element
of expectation that such determinacy will be achieved we go a little further.
Those two moves take us well away from the complete autonomy of autopoietic
theory but leave room for that theory's description of legal action as a combination
of recursion and perturbation. For full autopoiesis is within the capacity of the
system, but if it were pursued without regard to the determining factors we may
expect that the system will not long endure.
For all the arguable shortcomings, this approach is stimulating and illuminating.
The central focus upon the capacity of modern courts to draw themselves up
by their own bootstraps draws attention to a feature which has received too little
sustained analysis. By placing this at the centre of theoretical concern and
reaching beyond the sociology of knowledge and the study of legitimation and
ideology, we are indebted to Teubner. He has given legal theory a demanding
critical edge which has not been a common feature of critical legal thought and
he has addressed what is arguably the most important of all the derogations
from the democratic principle institutionalized in legal systems. At the same
time, by making us identify the deficiencies in his approach he helps us to a
better understanding of the complex features of the social phenomena involved
in law.
Teubner we have noted argues in favour of a different way of thinking and an
unconventional form of expression in order to accommodate the institutional,
plural and fragmented discourses of contemporary life. He draws upon Habermas,
Foucault and Luhmann, and he can be accused of taking only what he wants
and disregarding what is embarrassing to his position. He is unequivocally post-
modern in his adoption of the theory of reality-constituting discourse but does
not stoop to any defence of that view, rather mustering the names of the writers
he takes support from as if they were arguments in themselves. In platonic terms,
418 Oxford Journal of Legal Studies VOL. I 4
we are not released from the cave into the sunlight of truth, but informed in
effect that there are only the shadows of different kinds on the wall before us,
alternative discourses, and no other available reality. If Dr Johnson had drawn
attention not to the movement of the stone his foot struck in his famous refutation
of idealism, but to the pain in his toe, we would have a ready-made answer to
autopoiesis. The mission of the courts to some considerable extent involves the
diminution of human suffering, and the satisfaction of expectation based on a
strong human sense of fairness albeit within a social status quo which is not
necessarily fair. Perhaps the most important complaint we have against Teubner
is that he adopts a theoretical position which trivializes law as discourse and
while accepting the organization of 'society5 into different interest groups is
relatively indifferent to the future well-being of individuals and indeed of the
species. The slogan 'Law is communication and nothing but communication'18
is not only mystifying, it is unduly limiting for the philosophy of law.