The Negative Dialectics of Law: Luhmann and the Sociology of Juridical Concepts

Abstract

This article proposes to read Niklas Luhmann’s sociological theory of law from the perspective of what may be called the negative dialectics of law: namely, the irreconcilable tension between law as a mechanism that reproduces institutional orders and stabilizes normative expectations, and law as a medium that empowers transformative action and motivates social innovations. Drawing on this tension, the article advances an interpretation of the critical potential of Luhmann’s conceptualization of law by pointing out that the normative form of society emerges out of conflicts about the form of the normative within society. This formulation supposes that the unfolding of law is not the rational completion of higher principles into unified social structures, but a contradictory outcome semantically produced through endless iterations of the difference between what is legal and what is illegal. In doing so, it argues for a sociological reconsideration of the work of juridical concepts in the everyday operation of legal communications, as well as in the normatively guided search for what is non-actualized within the existing scope of positive legal forms. By reading Luhmann along the lines of a critical engagement with the law, the article further calls for exploring constituent moments as instances of reflexive instability that signal the unmarked space of normativity and bring the politicality of concepts to the fore.

Is critique part of the practice of international law?

“…203 Yet, are these not really just two sides of the same coin? Put differently, if we can accept that 'the normative form of society emerges out of conflicts about the form of the normative in society,' 204 then social practices and their telos are ultimately indissoluble.…”

The efficacy of law

“…In contrast, others favor poststructuralist innovations in critical theory, which state that legal discourse is epistemologically autonomous (Tomlins, 2007). The incompleteness of law lies in the fact that what is presented as positive law is inevitably tied to what is not a law concept or could be beyond its reach (Cordero, 2021).…”