Reflexivity in Law

Reflexivity and its attendant dilemmas, as Douglas Hofstadter has pointed out,

“crop up with astonishing regularity in the down-to-earth discipline of the

 See Julijana Nadj,“Formen und Funktionen gattungsspezifischer Selbstreflexivität in der fik-tionalen Metabiographie am Beispiel von Carol Shields‘Swann,”inMetaisierung in Literatur und anderen Medien. Theoretische Grundlagen, historische Perspektiven, Metagattungen, Funktionen, ed. Janine Hauthal et al. (Berlin: De Gruyter,):–,.

 Hans-Georg Gadamer,Truth and Method[/], trans. Joel Weinsheimer, Donald G.

Marshall, second ed. (London, New York: Continuum,):,.Cp. Nelson Goodman, Ways of Worldmaking(Indianapolis: Hackett,).

law.”²⁹Recent legal theory has identified a number of the most fundamental di-lemmas in“the law’s being put out of force by the right of resistance and by rai-son d’état; the paradoxical creation of law by the violence of revolution […; the]

paradox of the tangled hierarchy of norms; the Münchhausen trilemma of rule-justification: infinite regress, circularity or arbitrary cessation;”as well as“more concrete phenomena of legal self-reference leading to paradox”such as

‘Who watches the watchmen’as a problem of constitutional law, the change of constitu-tional norms via constituconstitu-tional norms and the paradox of self‐amendment;‘tu quoque’

or‘equity must come with clean hands’; renvoi in law of conflicts;‘ignorance is no excuse’;

the prohibition on bigamy; alterations of legal rulings that have future effects:‘prospective overruling’; or the fiction theory of the legal person, according to which the State as legal person has like Münchhausen to pull itself out of the swamp by its own topknot by fiction-ally fabricating itself.³⁰

These phenomena of reflexivity are prominently discussed by Niklas Luhmann in his theory of the law as a social system. As Thomas Weitin notes, Luhmann would probably have subscribed to the classical dictum that “nothing is just per se, justice being a creation of custom and law.”³¹ The system of the law is closed, and its code of ‘legal/illegal’ cannot be applied to itself: it makes no sense to ask whether it is legal or illegal to make that distinction.“Whenever there is a reference to law or injustice, such a communication attributes itself to the legal system.”³² Within the system of the law, it is enough to give reasons from within that system: finding relevant passages for the case at hand takes pragmatic precedence over the question of what legitimates these passages. In this way, the system becomes self-producing and self-perpetuating or, in Luh-mann’s terminology, autopoietic.³³ Luhmann insists that“[l]aw-related commu-nications have, as operations of the legal system, always a double function as factors for production and as preservers of structure.”³⁴The law defines and

gen- Douglas R. Hofstadter,Metamagical Themas. Questing for the Essence of Mind and Pattern (New York: Basic Books,):.

 Gunther Teubner,“ ‘And God Laughed …:’Indeterminacy, Self-Reference and Paradox in Law,”German Law Journal(),–,.

 Thomas Weitin,Recht und Literatur(Münster: Aschendorff,):. See Michel de Mon-taigne,“On Experience,”inThe Complete Essays[], trans. M. A. Screech (London: Penguin,

):.

 Luhmann,Law as a Social System,.

 Luhmann,Law as a Social System,.

 Luhmann,Law as a Social System,–.

erates the law, constituting and perpetuating itself. In this respect, it is remark-ably similar to the ways in which literary genres are constituted, and to the way in which literature itself is‘doubly embedded’in historical and institutional con-texts: legal communication is rooted in its immediate material context and in the abstract institutional framework that enables it in the first place. This system re-lies for its identity and integrity on the fact that it is conventionally recognized as such by all agents–a closed system operating on the code of legal vs. illegal. As one consequence, if the system is to be internally coherent,“[r]eflexivity –law ruling those who rule with law and in its name– is the rule of law’ssine qua non.”³⁵

Owing to this predicament, there is no Archimedean point outside the law that would provide a mooring for its identity: “Only the law itself can say what law is,”Luhmann states, and he explains:“This process of the production of structures is designed in a circular fashion because the operations require structures in order to define themselves by referring recursively to other operations.”³⁶ This recursive mode of existence contributes to the law’s resil-ience, as Marie Theres Fögen points out in her discussion of Cicero’s‘legal fic-tion’ of the carmen necessarium: “the canon’s self-referential nature does not only render it eternal, but also fully autonomous.”³⁷ As a social system, the law is necessarily self-referential and self-descriptive, but it has historically sought system-external legitimation–for instance, in the will of God or the max-imization of welfare.³⁸Indeed, Luhmann explains this mechanism by reference to Gödel’s proof, emphasizing that“a system of logic is unable to explain its sta-tus of being without contradictions (as a symbol of its unity) by reference to itself and must find the conditions for that outside and apart from itself.”³⁹If the law as a system is commensurable to systems of logic such as those of thePrincipia Mathematica, it cannot provide its own ontological foundation or justification.

 Gerald J. Postema,“Law’s Rule: Reflexivity, Mutual Accountability, and the Rule of Law,”in Bentham’s Theory of Law and Public Opinion, ed. Xiaobo Zhai, Michael Quinn (Cambridge: Cam-bridge UP,):‒,.

 Luhmann,Law as a Social System,.

 Marie Theres Fögen,Das Lied vom Gesetz. Themen(Munich: Carl Friedrich von Siemens Stiftung,):[my transl.].

 See Michael Stolleis,“The Legitimation of Law through God, Tradition,Will, Nature and Con-stitution,”inNatural Law and Laws of Nature in Early Modern Europe. Jurisprudence, Theology, Moral and Natural Philosophy, ed. Lorraine Daston, Michael Stolleis (Farnham: Ashgate,):

–.

 Luhmann,Law as a Social System,.

Gunther Teubner has mapped the types of responses that this reflexive pre-dicament of the law has elicited: They range from confidence that self-reference will“lead ultimately to stable solutions, by the emergence, from the continual recursive application of an operation, of ‘eigenvalues,’stable in themselves”;⁴⁰ via the gambit, “inspired by poets who‘overcome the anxiety of influence by misreading (or distorting) poetic reality’, [of] interpret[ing] law as a continuous

‘misreading of reality’ ”; to“seeking social solutions to self-reference by conceal-ing paradox, belittlconceal-ing it, reinterpretconceal-ing it as mere contradiction and by other his-torically identifiable techniques of ‘deparadoxification’.” Concerning the last response, Teubner concludes: “The construction of the legal system on the basis of the legal code (right/wrong), which minimizes the paradox of self-refer-ence into a (prohibited) contradiction, and at the same time, keeps it latent would then be a major cultural achievement.”⁴¹ In a similar assessment, Chris-toph Menke has recently praised the self-reflexive integration of law’s opposition to the extra-legal (Nichtrecht) into the law. This integration, he argues, can serve to legitimize the law insofar as it explicitly acknowledges the law’s foundational violence, rather than obfuscating it.⁴²

As the ‘law and literature’movement has emphasized, and as Menke also implies, literature can serve as a site where this remarkable effort of ‘deparadox-ification’and the justification of law is negotiated, since it allows for the contem-plation or observation of legal processes and issues ‘from outside.’ Andreas Fischer-Lescano has posited that the aesthetic reflexion of the self-referentiality that constitutes law’s‘blind spot’can serve to expose its contingencies and sug-gest alternatives.⁴³ From that perspective, literature is unconstrained in its eval-uation of the law by the legal system’s reflexivity. It is not, however, free from reflexivity at large–in fact, we have encountered a reflexive disposition in liter-ature that parallels the law’s in that literliter-ature is autopoietic in terms of its insti-tutional character but also requires an originary element in its historical em-beddedness. Art is a system, but works of art have an ontological status that rests on a ground outside that system. Indeed, as Reinold Schmücker speculates, works of literature and legal norms may share an ontological foundation in

sim- Teubner explains:“A classical example of an eigenvalue from auto‐logic is:‘This sentence has ?? letters’. The number thirty‐one is one eigenvalue of this sentence”(Teubner,“And God Laughed,”).

 Teubner,“And God Laughed,”.

 Christoph Menke,Recht und Gewalt, second ed. (Berlin: August,).

 Andreas Fischer-Lescano,Rechtskraft(Berlin: August,):.

ilar kinds of legitimising inter-subjective recognition that are specific to both.⁴⁴ Just as literature is actualized by individuals who are familiar with conventions on how to‘do’literature, legal communication occurs within the framework of the legal system. In order to be recognised and actualized, however, both sys-tems need to exist, and their existence autopoietically ensures their persistence.

The law’s autonomy as a system matches the basal relation of the literary text to itself. As Nigel Simmonds argues,“[l]egal thought and practice exhibit re-flexivity in so far as they explicitly or implicitly appeal to the idea of law. For the idea of law is not one that simply describes existing practices; rather, the idea of law plays a vital partwithinthe practices that make up the existence of a legal order.”⁴⁵Further, just as the law is in need of historicization and adaptation, it also parallels the literary text’s reference to the contingent circumstances that produced it. Each act of legislature will thus be situated between“a body of in-herited categories and principles”on the one hand, and, in terms of an institu-tional dimension on the other hand,“an ideal to be debated and constructed from that inheritance, in the light of current problems and values.”⁴⁶For the fourth characteristic of literary reflexivity identified above, of the literary text’s meta-hermeneutic reference to the ways in which humans articulate their self-conceptions and negotiate their relation to the world, the law offers no immedi-ately evident equivalent.