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

51The Sociology of Law vs. the Philosophy of Justicetheory, legal argumentation-which we will see plays a central rolein a discourse theory of law-boils down to those special communicationsin which conflicting opinions are settled by apportioningthe code values legal/illegal through the exchange of reasons.Naturally, what counts from a functionalist point of view are onlythe perlocutionary effects that can be achieved with reasons: theyare the means by which the legal system convinces itself of its owndecisions. If, however, reasons no longer command a force intrinsicto rational motivation-if, as Luhmann formulates it, reasonscannot be justified-then the high-priced culture of argumentationdeveloped in the legal system becomes a mystery. One wouldhave to explain why "one needs reasons that are not reasons at all. "12At the end of a long process of sociological disillusionment,systems theory has cleared away the last remains of the normativismfound in modern natural law. Having withdrawn into an autopoieticsystem, law stands before the defamiliarizing sociological gaze andis stripped of all normative connotations, which in the final analysisrefer to the self-organization of a legal community. Described as anautopoietic system, a narcissistically marginalized law can reactonly to its own problems, problems that are at most externallyoccasioned or induced. Hence law can neither perceive nor dealwith problems that burden society as a whole. At the same time, inaccordance with its autopoietic constitution, it must finance all itsachievements from resources it produces itself. Law can derive itsvalidity only in a positivistic sense, from the actual existence oflaw.As Luhmann illustrates with court procedures, it has dropped anyfurther-reaching claim to legitimation. There is no output the legalsystem could deliver in the form of regulations: interventions in theenvironment are denied it. Nor is there any input the legal systemcould receive in the form oflegitimation: even the political process,the public sphere, and political culture present environmentswhose language the legal system cannot understand. Law suppliesits environments with the "noise" that can at most induce variationsin the internal orders of those systems for which the law in turnrepresents an environment.However, this assumed mutual indifference between law and othersocial subsystems does not correspond with empirically observedinterdependencies. This is the case even if the impressive results of