Legal Autonomy and Reflexive Rationality in Complex Societies

Abstract

Proponents of the idea that law has assumed an endemically closed character consider that there are severe limits to the possibility of successful legal regulation in highly complex and socially differentiated societies. This idea reaches its most radical form in the theory of law as an autopoietic system which suggests that the autonomous individual at the core of most traditional legal theory should be replaced by the self-creating and self-maintaining legal system. Advocates of this theory suggest that legal scientists and practitioners should reject traditional rationales of legal regulation and adopt a new, and more modest, mode of legal rationality called reflexive law. In this article, we argue, first, that the idea that specialized autopoietic subsystems have epistemic primacy is flawed and, second, that this initial argument coupled to a conception of the function of law which is held in both autopoietic theory and more traditional conceptions of law reveals an insight into the possibility of effective legal regulation in complex societies. Specifically, effective legal regulation in complex societies requires a reformulation of reflexive law so that basic principles of political morality are incorporated within its autonomous domain.