Changing Maps: Empirical Legal Autopoiesis

Abstract

I.The idea of self-organisation was invented simultaneously in different fields of knowledge, in the natural as well as in the social sciences. Theories such as self-referential processes, 1 autopoiesis 2 and second-order-cybernetics, 3 among many others, spontaneously emerged and began to influence each other in a trans-disciplinary discussion and to form a common web of theoretical constructs. And in due course these theories stimulated empirical research. But while such projects have flourished in areas as diverse as economy, psychotherapy and flamenco, in "law and society" there has so far been a paucity of empirical research on self-organisation. This anomaly can perhaps be traced back to certain peculiarities of legal sociology as a field of knowledge. It seems that the long-lasting and deep hiatus between theory construction and empirical research is actually deepened by the emergence of theories of self-organisation and autopoiesis. This is our first thesis. Secondly, if we look more closely at concrete, detailed, historical research carried out in the name of autopoiesis, we can discern clear discontinuities with "normal" practices of empirical research. Autopoiesis calls for a redefinition of empirical work and requires different empirical tools-tools that are capable of analysing the transformational dynamics of recursive meaning processes. As a consequence, everything changes: research questions, the phenomena to be identified, the concepts to be made operational and the analytical instruments. But, as if that weren't enough, there are even stronger anomalies in the sociolegal relationship between the empirical and the theoretical. The constructivist orientation of legal autopoiesis, we submit in our third thesis, works against the fantasies of omnipotence inherent in the process of empirical falsification. Legal autopoiesis is not anti-empirical, but it does suggest a role for empirical research that is different from straightforward Popperian theory-killing. It suggests, instead, a quasi-therapeutic relationship between the speculators and the data collectors. But who, then, is the therapist and who is the patient? II.Why is there a structural hiatus between theory and empirical research in law and society? In the classics of legal sociology, Marx's historical methods, Durkheim's choses sociales and the ideal-typical method in Weber's

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