Between Facts and Norms - Contributions to a ... - Blogs Unpad

48Chapter 2Investigations into the sociology of law have likewise profitedfrom the new paradigm. The legal system, or the structures underlyingit, regain some of the autonomy they lost in the critique ofideological superstructures. Law is no longer considered merely anepiphenomenon but is given back its own inner logic. To be sure,in a wholly decentered society it occupies a merely peripheralposition, forming one system or discourse in a disordered manifoldof systems and discourses. The relevant phenomena, legally structuredor steered communications, are described in a language thatobjectivistically disregards actors' self-understanding. This languageneither seeks nor gains an entry into the intuitive knowledgeof participants. Under the artificially defamiliarizing gaze of thesystem observer who conceives himself as a system in an environment,or that of the ethnologist who approaches even his ownnative practices and language games as an uninitiated stranger,every context of social life crystallizes into a hermeneuticallyinaccessible second nature, about which counterintuitive knowledgeis gathered as it is in the natural sciences.If one follows the path from the eighteenth-century controversiesbetween natural-law rationalism and empiricist social theories upto present-day structuralism and systems theory, it seems that. sociological reflection has irreversibly undermined more than justthe prescriptivist and rationalist presuppositions of social-contracttheory. It seems to devalue law in general as a central category ofsocial theory. Luhmann's sociology of law has currently gone thefarthest along this axis.8 Here his view interests me merely as themost rigorous version of a theory that assigns law a marginalposition (as compared with its place in classical social theories) andneutralizes the phenomenon of legal validity by describing thingsobjectivistically.Luhmann conceives law only from the functionalist viewpoint ofstabilizing behavioral expectations. In functionally differentiatedsocieties, law has the special task of generalizing behavioral expectationsin the temporal, social, and substantive dimensions in acongruent manner, such that contingently arising conflicts can bedecided in a binding manner according to the binary code oflegal/illegal. The legal system as a whole encompasses every communicationthat is oriented by law. In a narrower sense, it embraces in