3.4.1 Normative closure

Normative closure refers here to the generalised legal code of legal/non-legal that the ILS employs for determining which communications are recognised as relevant for law. Though the code is utilised for determining the limits of legal regulation – and, in doing so, forces justice to take on its form – it is also paradoxically burdened with the task of presenting itself as containing all concepts of justice, this being to maintain the basic requirement that the law should be fair and be seen to be fair, even though deploying specific and universal decision-making criteria can only mean something akin to regularity or consistency – that is, without consideration for a particular states or actors concrete interests.

Nonetheless, in employing the generalised legal/non-legal binary code, conflict realities are also inevitably falsified. This is because, though legal communications are directed at conflicts, this does not mean the ILS actually resolves conflicts. Rather, when the law observes conflicts, it simply transforms them into technical legal problems about right and wrong, because this is all the law can understand, and this is all that it can consider. Identifying causation of harm (i.e. the facts of who committed a certain act) after all is not the law's priority. It is instead the maintenance of a self-referential legal specific model for reducing complexities that is the law's primary concern: which attributable legal subjects (e.g. states or entities) should be rewarded and which attributable legal subjects should be punished for this act.

Assigning rights to legal subjects is therefore one of the most important tools of the ILS for enabling transformation of conflicts into legal problems. An internationally unlawful action or omission breaching a treaty cannot, after all, be taken to court if there can be no attribution of responsibility. And, even if a claim is taken to court, everything is likely be excluded but the relevant facts for the determination of right and wrong in considering what counts as legal, namely which facts are legal facts. The ILS thus simplifies conflicts and specifies precisely what is included in the conflict and disregards the rest, if the rest cannot be formulated in legal terms. For, in the end, it is law's conditional programmes that are employed here whereby legal argumentative redundancies remain the reference point for judicial decisions: only if fact X is given, can the decision be made Y is legal or illegal. As exemplified by the fact that jurisdictions of most international courts are limited to the rules of the treaty instruments that set them up, whereby fundamental changes to the law can only be applied only in exceptional cases.

One can see, therefore, why the ILS operations are heavily biased towards redundancy. Indeed, though this is not desirable, it is fatally necessary because only by translating conflicts into a question of law and non-law can the ILS generate a ‘historical machine’ for ensuring the constancy of equality of treatment. And only by doing this can the ILS maintain the symbolism of normativity. The alternative would see the ILS unable to presuppose and accept itself, never ending its ‘quest for finding the final reason of law’ (Luhmann, Reference Luhmann2004, p. 426), with the consequences that the law would no longer be presumed to be able to solve any social conflict put before it, whether in legal terms or within a legal rationality. It would therefore cease to exist as a legal system.

Nevertheless, in the event that the application of legal coding fails to stabilise expectations and ends up endangering a conflict system's whole, how then might the ILS deal with this? Moreover, as will be explored next, if the ILS is to maintain its autopoiesis, then how might it simultaneously make invisible the paradoxical question of whether the ‘original sin’ of legal right and wrong exists rightly or wrongly?

3.4.2 Cognitive openness

Cognitive openness refers here to how the ILS adapts to disappointments. It is the means by which the ILS employs various purposive programmes that set legal objectives irrespective of constitutive or regulatory conditions (e.g. the agreed treaty texts). This allows the ILS to derive measures to be taken in the present for future goals: to decide Y for the purpose of X – in other words, to legitimise the inclusion of non-legal communications for the purposes of balancing interests. In the context of trans-boundary waters, for instance, this could be formulated as follows: to include state obligations towards individuals or non-state actors previously excluded from a treaty system, for the purposes of attaining equitable utilisation.Footnote ¹⁴

In practice, these purposive programmes are employed to limit the degrees of freedom of a conflict system. They do so by breaking through rules of the type qui suoiure utitur neminem laedit Footnote ¹⁵ or, more specifically, the concepts of absolute territorial sovereignty/absolute territorial integrity.Footnote ¹⁶ Consequently, they make it possible for the ILS to treat in special circumstances a state (or entity) that acted lawfully (or perceives itself as doing so) as if it had acted unlawfully. In other words, the law's ‘proceduralisation’ (McIntyre, Reference Mcintyre2010) reintroduces uncertainty via the medium of substantive emptiness (i.e. purposive programmes) in order to attain the advantages of co-ordination and overcome paradoxes ‘arising from the need to know the unknowable’ (Luhmann, Reference Luhmann1995b, p. 294). Their deployment, however, also comes at the price of developing both simultaneously progressive and regressive tendencies in the regulation of conflict systems, as will be shown.

On the one hand, purposive programmes are progressive. This is because they are a more effective way of having an aim ascribed to a rule. If the goal is for development, then the concept of equitable utilisation for instance can serve to validate the lawfulness of new (or increased) utilisations of an international watercourse. This helps to legitimise all of the side effects of development – a necessary prerequisite for stabilising motivations (Kang, Reference Kang2017). But purposive programmes also function as a kind of indisputable medium for the ‘reception of all possible preferences, value shifts and ideologies, which are not controlled by the legal system’ (Luhmann, Reference Luhmann1995b, p. 297). This is because their legitimacy does not derive from the official truth of validity claims, but rather it is from the co-ordination of learning processes. For example, if one state understands equity as a distributive conceptFootnote ¹⁷ whereas the other focuses on its corrective aspects,Footnote ¹⁸ the ILS overcomes the paradox, by simply keeping it at bay, by replacing the freezing effect of a truth-seeking consensus with the pliability of whether the relevant subjects have cognitively grasped the normative expectations involved in the law's autopoiesis. That is, whether these expectations such as the introduction of various risk assessments permit conditions of reversibility needed for enabling a ‘general readiness to accept, within certain limits of tolerance, decisions which are still without content’ (Luhmann, Reference Luhmann1969, p. 28). In this sense, purposive programmes serve as essential carriers of the law's differentiation, for they enable exceptions to be manoeuvred in order to overcome paradoxes in cases where it is too hard to follow the law's coding.

On the other hand, purposive programmes are regressive. This is because they legitimise the choice of means and thus generate injustice (Luhmann, Reference Luhmann2004, p. 223). In other words, they nurture a legal culture of argumentation that produces a high degree of variety emphasising the individual nature of each case and its content with vague general formulae like ‘equitable utilisation’ or ‘balancing of interests’. But the more conflict systems observe these purposive programmes – and, thus, are more receptive to changing preferences – the more conflict systems will rely for their actual functioning on organisations. This will lead to the outsourcing of the law's normative authority to the adoption of global expert regimes – indeed, the new natural law (Koskenniemi, Reference Koskenniemi2009, p. 410), which gives functional priority to the forms set by technology and capital investment. As a consequence, due to the modus operandi of organisations whose preferences are to communicate with other organisations, whose tendency is to treat private persons as if they were another organisation (Luhmann, Reference Luhmann1997, p. 834) and whose functioning depends upon excluding almost every person except for the organisation one is included in – this is nothing more than the acknowledgement that society will increasingly equip itself with the capacity for discrimination through its organisations (Luhmann, Reference Luhmann2000a, p. 393).

The question arising then is this: how might the ILS compensate conflict systems for its falsification of realities and its outsourcing of normative authority to organisational systems? This I shall turn to next, by re-filtering the equality filter through the principle of reciprocity.

3.5.1 Normative closure

Normative closure refers here to the generalised legal code of lawful unlawful that the ILS employs for determining the legal acceptance of social behaviour. Of relevance is how the principle of reciprocity, or more specifically a ‘tit-for-a-different-tat’ violation rule,Footnote ¹⁹ is deployed by treaty systems in the form of a conditional programme: if State B violates an international legal entitlement of State A, then the losses of State A should (in principle) be transmitted back to State B. Here, transmission occurs because the conditional programme grants State A the right to deploy legal countermeasures, such as the release from its own obligations of adhering to other primary provisions in the agreed treaty with State B. In doing so, this serves as a symbolic apparatus to allow State B to identify whether its expectations are in line with the law, and thus whether these are cost-effective expectations.Footnote ²⁰

Nonetheless, such conditional programmes only make sense in situations whereby the existence of rights and duties are reversible. That is, if the complementarity of rights and duties derived from a treaty system's substantial reciprocity result from the actual equivalence of mutual advantages. In practice, however, if this is attained (often based on concessions granted outside treaty systems), then such stability is always a hard-won achievement because what this actually enables is the justification of a considerable measure of inequality in points of time and attainments. For example, in terms of time, the typical conditional programme may employ the formula: if State B suffers from water scarcity during time period Y, then State A, according to the agreed treaty escape clauses, shall permit State B to deliver less water than it would have to under normal circumstances, and vice versa, while, in terms of attainments, the typical conditional programme may be: if State B can more efficiently utilise the watercourse, then State A shall forego actual use of the wet water in return for monetary compensation from State B. In this sense, the above conditional programmes enable greater differentiation not only because they employ schematic if/then decisional-making models, but also because they enable the increase of bearable insecurity, and thus allow conflict systems to acquire an amount of complexity, form and certainty that they might not otherwise have had.

Yet, beneath this veil of unquestioned reciprocal mutual advantages, the ILS conceals a paradox: that the order by which the reciprocity filter validates itself depends upon an equality that does not exist. Of course, the ILS could not conduct itself otherwise if it were to expose this paradox of presupposing norms about spheres of jurisdiction, for the ILS cannot be allowed to disintegrate just because State A's expectations for realising reciprocal mutual advantages are profound, State B's better and State C's more capable of attaining consensus. Instead, the ILS must have at its disposal a mode of disappointment relief that provides clear outcomes so that at the least the assumption of consensus can follow. This is what the principle of formal equality achieves – the demand for equal treatment, as derived from the principle of voluntary state consent. But the price that the ILS must pay for such a mode of disappointment relief is that it falsifies conflicts precisely by not taking into consideration the unequal distribution of communicative opportunities structuring conflict systems. For example, a water-sharing agreement delineated by fixed allocations cannot be challenged even if this produces more problems for one state than another (or another system),Footnote ²¹ but rather only if it has been brought about by illegal means. Indeed, such a paradoxical legal order may even permit states to avoid the ‘strict application of the law in their mutual relations’ (Paulus, Reference Paulus, Fastenrath, Geiger, Khan, Paulus, von Schorlemer and Vedder2011, p. 124) and thus gives rise to what Teubner describes as ‘hitting the bottom’Footnote ²²: that only when catastrophe is imminent will it become essential for systems to limit their compulsive expansion, and to ecologise by becoming receptive for environmental interests. This could be read as a restatement of the principles of reciprocity and mutual recognition (Guski, Reference Guski2013, p. 529).

Viewed in this way, the question arising from such a paradox is therefore this: if it is true that the self-correction of society appears to occur only at the last minute, then how might the ILS mitigate these self-destructive tendencies? I submit, as will be explored next, that it is via cognitive sensitivity that the ILS finds its answer.

3.5.2 Cognitive openness

Cognitive openness refers in this special circumstance to how the ILS understands subjective rights that draw new distinctions without provision for equilibrium and reciprocity in law. It is the means by which the ILS disrespects treaty agreements by imposing rights and duties upon one state, but not necessarily a counter-right with corresponding counter-duties. Indeed, this ability to hold ready the capacity to make asymmetrical relations (i.e. justifying procedural inequalities) and maintain independence from a conflict systems structural biasesFootnote ²³ is a necessary mechanism for making the law compatible with societal complexity. We may call this the programme of purposive reciprocity that is employed by the ILS to devise more sophisticated ways of reading the law's landscape.

Here, the deployment of logical reason is of particular relevance, its purposive programme: to transform the law of treaty norms into the law of reasonable arguments for the purposes of attaining the balancing of interests. In other words, reason is employed here to argue with equal voice both for reparations (equality) and for exceptions to reparations (inequality). The unmitigated demand to refute reparations is clearly wrong, violating the natural (and the created!) legal norms of treaty texts. And the unmitigated demand for reparations is clearly wrong, violating the law of exceptions as ascertained by customary norms.Footnote ²⁴ The paradox (of justice existing only if injustice is attributed meaning) in other words reappears as tautology – justice is what is just, as reasonable reason (and hence ‘unreasonable’ is defined ambiguously). But of course tautologies too need to be de-tautologised for, otherwise, only conservative self-descriptions might be attained, even counter-intuitive ones. How then to drive the paradox back into its invisible retreat?

Restating the problem in the form of an abstract preventative consensus is one solution, its formulations in the context of trans-boundary waters: to impose the duty of no significant harm (NSH) even in the absence of treaty agreement, for the purposes of attaining equitable utilisation.Footnote ²⁵ Here, the idea is to correspond to the nature of the task, namely that the inclusion of the natural or physical environment and its biodiversity fundamentally changes the nature of the law. No longer are reciprocal tit-for-tat strategies – scratch my back and I'll scratch yours – the ‘categorical imperative’ of society. Such strategies assume that the problem has its roots in society and therefore can be solved in the social dimension (Luhmann, Reference Luhmann1989, pp. 73–74). Rather, the introduction of subjective rights precludes one from requiring reciprocity (Luhmann, Reference Luhmann1997). It becomes instead an issue of how to fulfil the complementarity of expectations: State A expects State B to have the right to develop on the precondition of NSH, and State B expects State A to have precisely this expectation. Legal problem solutions, in other words, no longer depend upon reciprocal mutual consent, but rather rely increasingly on non-negotiable norms such as NSH that seek instead to redistribute risk. That is, they develop behavioural patterns of readiness to learn, to accept the non-fulfilment of expectations and to adapt to new circumstances instead of insisting on the agreed treaty stipulations, the point in case being, for instance, the principle of good neighbourliness, which, within its framework, invokes the idea that states must tolerate a certain level of (inevitable) interference within their territorial space, especially in the event of trans-boundary pollution.Footnote ²⁶

Of course, this does not mean the ILS can guarantee these expectations. It does mean, however, that the law can guarantee they are maintained as expectations, even in instances of disappointment, and that one can know this and communicate it in advance. The fact the NSH purposive programme does not allocate values on the basis of extra-legal differences (i.e. was factual harm committed?) exemplifies this, for its concern, rather, is of how to maintain a self-simplifying device that stabilises the distinction made between lawful state practices and unlawful ones.

The NSH purposive programme thus serves two important functions. First, it necessarily reduces the ILS's complexity by dually functioning internally as a conditional programme. As a consequence, this keeps the ILS safe from the ‘big questions’, frees it from the responsibility of consequences, enables reliance upon its own social constructions of events and thus validates the law to refuse to learn from facts. In short, this protects the law from the uncertainties of experience and projections of that experience which may threaten to destabilise the law's normative certainty (or relative certainty). In other words, it grants the ILS unique rationality with which it can select decisions and eliminate other possibilities by instead spreading illogicalities into small, localised leaps, thus in turn generating the complexity of decision-making.

Indeed, it is precisely through reduction that conditions for complexity can be built.Footnote ²⁷ Hence, the NSH programme also simultaneously enhances the ILS's complexity. It transforms paradoxical legal coding and its search for specific results into a device for creative social learning within the legal system, thus enhancing its cognitive capacity, but at the expense of creating the conditions for deviance and the disturbance of order. This is exemplified, for instance, when the law ordains ‘planned measures’Footnote ²⁸ granting conflict systems the capacity for conflict communications: in the absence of trust, ‘regular exchange of data and information’Footnote ²⁹ would unlikely resolve risk-endangered conflicts, but merely succeed as a delaying strategy; in a globalised ‘3.0’ world (Friedman, Reference Friedman2006), ‘the notification of natural emergencies or those caused by human activity’ would likely only reinforce an existing disposition, because ‘quantitative analysis always becomes irrelevant where disasters are to be feared’ (Luhmann, Reference Luhmann and Barret1993, p. 149); in ‘the notification of planned measures’, if understood, this would always provide plenty of opportunities for accepting or rejecting the content offered; in the presentation of a quantitative environmental impact assessment of risky situations, this would ‘hardly likely to impress anyone’, ‘because quantitative calculations are widely known to be capable of manipulation’ (Luhmann, Reference Luhmann and Barret1993, p. 149). And there the eruption of social situation reproduces an indeterminacy-producing paradox whereby informational difficulties gain such a dominant position in the enforcement of ordained rules that all other questions move into the background in comparison, and the success of enforcing ‘planned measures’ practically becomes a problem of information.

How, then, is legal order possible at all? And how might the ILS answer responsively with rational arguments to the extreme demands of law's ecologies, whilst simultaneously fulfilling the internal requirements of normative consistency? This I shall turn to next.

3.6.1 Social dimension

The social dimension refers here to the way identities are created and maintained. Of particular relevance is how the ILS employs the concept of human rights to enable conflict systems to catch up with their environments. The idea here is to offer them legal counter-mechanisms for equalising disparate access to functional systems such as health, as exemplified when political impulses for the reversal of exclusions constitutionalised the human right to water.Footnote ³⁰ However, within the context of trans-boundary waters, these impulses have tended to play out elsewhere. This is because, when disparate access occurs, the rule that sovereign states should (as opposed to ought to) facilitate assistanceFootnote ³¹ only takes on the task of mediating the experiences of political interests: it does not suggest actions for determining what ought to be added beyond law's tautological should. Indeed, it hardly offers any ethical solutions, but rather it merely throws the problem back to the political system in such a way that makes it clear that there are no purely ethical answers. How then to overcome the paradox?

Significantly, it is the ‘contemporary paradox’ of human rights (Luhmann, Reference Luhmann2004, p. 487) that deprives political systems of their dominance. This is because it is no longer exclusively the world of states and their reciprocal treaty agreements where norms of law are subsequently breached. Rather, human right claims are validated increasingly by their very violation and the subsequent outcry,Footnote ³² as exemplified in the Rogun hydropower project in Tajikistan: Uzbekistan-based protest movements oppose dam construction; a scandal develops; the media decry violations; the world bank commissions feasibility studies.Footnote ³³ Nonetheless, if it is true that such a sequence of scandalisation shows a high degree of affinity with communication channelled via the mass media, then these communications must also satisfy the media's rigorous selection filters for whether the event will surprise and ‘liven up the scene’, generate feelings ‘of common concern and outrage’ or create ‘self-induced uncertainty’ so as to guarantee good prospects for sustaining autopoietic self-reproduction (what will happen in tomorrow's news?) (Luhmann, Reference Luhmann and Cross2000b, pp. 28–29). Yet, as a consequence of these filters operating on the basis of forgetting,Footnote ³⁴ the political system can neither rely upon, nor be expected to depend upon, the quantitative ‘nonconsensual and nonpersonal’ (Moeller, Reference Moeller2005, p. 137) data calculations of public opinion frequently presented by the mass media. Instead, it is left to operate on the basis of guessing the responses to its own world-political projects, strategies and interventions, and adjusting these decisions accordingly, so as to maintain the production of collectively binding decisions.

Viewed in this way, one can see therefore why ‘human right movements are not antagonistic to society’, but are rather ‘more or less in perfect accord with functional differentiation’. It is no wonder, as Moeller writes, ‘that their semantics are shared by most politicians, by the mass media, and even by the economy’ (2005, p. 108). Yet, underneath this systemically conformist development in society lies the more painful factual (lived) experience of rights – the observation that the inclusionFootnote ³⁵ of everyone within functional differentiation has not being completely successful. Indeed, it is precisely this embarrassment as to why society responds with the rhetorical exuberance of universal rights that aspires to exclude no one (Verschraegen, Reference Verschraegen2002, p. 268). But such exuberance is also paradoxical. This is because, though functional systems must treat and present their associated environments as equals, they must, however, function unequally. For instance, one can speak of equal opportunities for access to clean water, but this cannot designate equality in result, because systems have to function unequally: one must have money at their disposal in order to pay for recreational uses of water; one must pass exams in order to become a practitioner; and one must keep to conventions of litigation in order to prevent violent outbreaks; and so on.

Thus, to deny the principles of equality as well as inequality that are basic to function systems is to deny the impossibility of avoiding differences in life conditions. Dreaming of an inclusive universal society is therefore not revolutionary; it is conservative (Moeller, Reference Moeller2005, p. 107). In fact, however well intentioned aspirations may be, such activism, as a by-product, creates unconsciously the conditions for what Luhmann describes as a ‘totalitarian logic’ that is readily converted into a logic of time (1997, p. 628). This is because efforts to assert for instance the human right to water, which are at least in part responses to a trade-law perspective that tends to treat water simply as a commodity (Ellis, Reference Ellis2009), potentially endanger the principles of precaution and prevention put forth by the rationalities of integrated water resource management,Footnote ³⁶ the result being, then, that, in the absence of a global ‘constitutional conflict of laws’ (Teubner, Reference Teubner2012, pp. 15–174), the future becomes the grand excuse for the projection of dialectical developments. State B claims that the construction of a hydropower dam will increase economic growth, supposing that a quantitative surplus allows a better redistribution of resources; or State A enhances the effort in matters of water security in order to allow a recovery operation for the ‘backward’ (namely very small tribal societies that are mainly isolated from the functional systems of politics, law and the economy). Yet, in doing so, this leads to a phenomenon whereby ‘all exclusions are systematically understood as residual problems, and are interpreted in such a way that they become incapable of questioning the totalitarian logic itself’ (Luhmann, Reference Luhmann1997, pp. 625–626).

This leads to another problematique, as will be explored next: if it is true that fundamental exclusions entail a dramatic increase in both individual freedoms and risks (Verschraegen, Reference Verschraegen2002, p. 269), then how ought the law to accommodate such a paradox?

3.6.2 Spatial dimension

The spatial dimension refers here to various materialities (e.g. the topologies of a river or the data spread about these topologies) that the law recruits as the locus for paradox management. In making productive use of materialities that are afforded by, elicited from or ascribed by functional systems, the idea here is to simultaneously enable and limit a conflict system's possibilities – that is, in other words, to invent new distinctions that do not deny the paradox, but temporarily displace it and thus relieve it of its paralysing power (Teubner, Reference Teubner2001b, p. 32). For example, the task of the science system might be to fix the threshold of acceptable collateral effects incurred on the river basin from hydropower development. The task of the political system might be to fix the final amount of environmental pollution acceptable to the public. And the task of the law might be then to refine, regulate and continue these operations in one direction (and not the other) towards the desired goals. But, whilst these distinctions serve as an expedient to meet the particular demands of critical observers, the paradox, nevertheless, just like the sun, passes underground and reappears in the future. For, as Halsey puts it, to delimit the more ‘majestic’ aspects of nature is to admit to the basically intrusive character of such operations dividing ‘filth from cleanliness, pollution from purity, violence from non-violence’ (Reference Halsey and Philippopoulos-Mihalopoulos2011, p. 219). Arguably, the demarcation of boundaries is therefore what states cede not only to maintain illusions of minimal dimensions of the habitat needed for survival, but also to justify ongoing generalised ecological violence. Law's co-implications with violence thus demand alternative avenues for shifting the paradox out of sight. How can this be done?

One solution is for the law to bypass the political system by basing its norm production instead upon an economic systems formula for managing scarcity. Key here is the language of prices. For instance, though concepts such as eco-services, eco-compensation or benefit sharing cannot halt the physical processes of ecological destruction, they can at least improve a conflict system's sensitivity towards ecological degradation via the economic valuation of ecological resilience and biodiversity. They can in other words make the future become more accessible. They can react to ecological destruction in numerous self-referential ways, such as by attributing responsibility for it or by creating new cost categories and market opportunities for businessmen (Luhmann, Reference Luhmann1997, p. 133). And they can store possibilities by granting conflict systems the capacity to lay claims on services or goods and the subsequent trading of futures via the mediums of money, as exemplified, for instance, when the downstream state establishes a system of incentives, such as side-payments that change the behaviour of upstream polluters. Is the solution simply, then, for law to facilitate the flow of repayments and allow for debt to be nominally settled through an economic system's cyclical processes? The answer is a definite no if one takes into consideration that what the economy really seeks is not equilibrium, but the continuing self-reproduction of itself through the medium of money.

Here, the paradox reappears in the form of developing the complexity of the economy at the cost of ignoring ecological sensitivity. The danger of this is that the high degree of selectivity of the economy, the subduing of nature's wildness by ascribing it ecological value and the selling of nature in order to save it (McAfee, Reference McAfee1999) bring too little resonance into play for the economy to react to ecological dangers (Luhmann, Reference Luhmann1989, p. 116). Moreover, all this invokes are not actions with direct ecological effects (Luhmann, Reference Luhmann1989, p. 119), but rather it produces a socially internally felt ‘deep disparity’ (Deleuze, Reference Deleuze, Lester and Stivale1990, p. 261). One cannot afford to look too closely, for that would expose the unremarked violence of representation; or one should stop imagining the catastrophe, for that would produce ‘catastrophic’ strains and breaks in public and private finance. And there the tunnel vision of incentivising environmental protection through the promise of development simply reproduces the paradox of functional differentiation, whereby it seems that enabling the dramatic advance of human civilisation comes at the cost of making it less secure. How then to suppress the paradox?

3.6.3 Conceptual dimension

The conceptual dimension refers here to how the ILS recruits the communitarianism of an ‘international community’ so as to alleviate the negative consequences of functional differentiation.Footnote ³⁷ But, since communitarianism cannot be reduced to any central authority or privileged position, its interpretation therefore demands a more procedural understanding. We may call this legitimation through procedure whereby the ‘psycho-juridical requirements’ (Teubner, Reference Teubner2006, p. 511) of reciprocal state consent are silently replaced with hidden technical legal exceptions of good faith, or else the socialisation of treaties. But then how does one present the tautologies of the international community in such a way that it provides meaningful normative aspirations, and not just reflect quasi-imperial power arrangements?

One possibility is the re-entry of external references (namely non-legal communications), which is diagnosed as the ‘best known way out’ (Luhmann, Reference Luhmann1992, p. 79). By including the excluded – that is, by including all that is not communicated through communications – the ILS transcends positive law via its secondary closure, via legal self-observation. The ILS in other words subverts its own requirements of (Eurocentric-rooted) logic, such as its complexity-reduction mechanisms of excluding the ‘others of international law’ (Orford, Reference Orford2006) or its complexity-building mechanisms of institutionalising the ‘universal’ so as to maintain the structural biases of the ‘Civilised, Advanced, Developed or Rich’ (Eslava and Pahuja, Reference Eslava and Pahuja2012, p. 211). And it does this all for the purpose, as Philippopoulos-Mihalopoulos put it, to see society in its multiplicity: to internalise ‘communications battling against systemic walls, observations that never manage to be anything more than self-observations, boundaries that shift according to differentiated temporalities’ (Philippopoulos-Mihalopoulos, Reference Philippopoulos-Mihalopoulos, La Cour and Philippopoulos-Mihalopoulos2013b, p. 68): all for the sake of legitimising the law – and nothing else.

Nonetheless, including the excluded can never be done arbitrarily. That would lead to epistemic confusion (Teubner, Reference Teubner, Nelken and Pribán2001a). The making of exemptions and the non-application of law would, after all, in the absence of high structuration, dilute certainty and derange orderly legal processes. Instead, inconsistencies must be repressed by deploying the logic of systemic integration: to present the law's inconsistency as consistency so as to make the proof of errors possible and avoid giving impressions that general principles of international law have been jettisoned in favour of the concrete interests of states and actors. Indeed, norm advancement can be imposed, but only within the framework of sovereign constitutions; treaties can be terminated, but only for particular reasons of illegality; subjective rights can be taken away, but only in the public interest and against compensation.

Yet, despite the necessity for maintaining symbolisms of normativity, the ILS must also paradoxically replace this tradition with a difference that, when observed, always regenerates the unobservable. For the law cannot only be identified from texts alone; it must be discussed and argued over; it must be tilted ahead and ever searching for adequate connections to operate. Consequently, to prevent the circular regression of legal argumentation, the demands for objective responsibility require the re-engineering of the law's procedural and conceptual apparatus – hence its self-simplifying devices, the legal lie of fictional legal persons. The inclusion of ecological rights in political constitutions; the gradual juridification of animal rights; the change in legal language from the semantics of protection of nature via ecological interests to rights of living processes; the slow process of granting standing to ecological associations; and the expanding conceptualisation of ecological damages are just a few indicators of such trends (Teubner, Reference Teubner, Nelken and Pribán2001a, p. 32). But this new criterion of decision-making and its bias towards ‘presumptive consequences’, rather than time-binding decisions (Tarlock, Reference Tarlock2004, p. 220), inevitably increases the variety of the ILS, whilst the maintenance of redundancy becomes its problem. Indeed, the law's inadequate sensors of agency, causality and proof of harm requires a focus that paradoxically disengages from such ‘juridically potentially problematic assemblages’ (Philippopoulos-Mihalopoulos, Reference Philippopoulos-Mihalopoulos2013a, p. 414) so as to acknowledge the difficulty of phronesis (Whiteside, Reference Whiteside2006, p. 30), that being the problem of a normalising environmental crisis (Barry, Reference Barry, Levy and Wissenburg2004), the inadequacy of internal reconstruction processes and the interconnectedness of an open ecology whereby ‘everything is connected to everything else’ (Commoner, Reference Commoner1971, p. 33).

This opening of the law to the uncharacterised sphere of the excluded, however, does not mean sabotaging the routinised recursivity of legal operations. Rather, it is the very indeterminacy of law that becomes the precondition for law's ability to justify and criticise existing practice (Koskenniemi, Reference Koskenniemi1989, p. 614). In transforming infinite into finite information loads, in the translation of indeterminate complexity into determinate complexity, abstract formal legal argumentation sets bounds on acuity. It propagates a culture of formalism that resists power, holds social practice accountable and compels claims to be made in a universal way (Koskenniemi, Reference Koskenniemi2001, p. 502). In short, it imposes structural constraints upon what is possible, limiting the scale of complexity upon which conflict systems might unfold, thereby lowering the overall extent of the ungovernability within society. But, in the event that conflict systems exploit the constitutive paradoxes of international law (Koskenniemi, Reference Koskenniemi1989) to pursue their parochial interests, the ILS finds its last resort by resigning itself to externalisation: it recruits the vocabularies of risk as its new manager of contingency.

Here, it is the formation of institutionalised production regimes (Teubner, Reference Teubner, Nelken and Pribán2001a, p. 34) that takes on this task. In functioning as structural links between autonomous functional systems – between law, economy, politics, education, research and so forth – production regimes increasingly cushion the law from its fears of abstraction. They produce informal standards that propose aspirations, objectives and norms that do not necessarily derive from functional possibilities (e.g. the end of poverty or environmental sustainability). They facilitate political ‘loose talk’ by expanding communication and irritationsFootnote ³⁸ among systems, enhancing in turn societal awareness for a growing variety of concerns (Peña, Reference Peña2015, p. 65). And they enable the ILS formal production modes (i.e. international customary law) to do something unthinkable for a mere treaty order: to establish binding norms even against the express will of the parties to the treaty, legitimated not via the state treaties, but via the orientation of law towards the public interest (Teubner, Reference Teubner2012, p. 50).

We may call this space of public interests one of fleeting, fragile, almost imaginary consistency (Luhmann, Reference Luhmann1997) – one that the ILS will have to productively misread, perhaps creatively,Footnote ³⁹ as a hard-core reality if it is to transcend particular preferences in the name of maintaining open political discourse. But the fact remains: if one really insists upon exposing inherent tensions and contradictions, then this new drive for public accountability, ethical ‘hydrosolidarity’ and ecological modernisation that the ILS finds itself along a practical continuum with may not be the ideal structure for addressing risks. Yet, in a particular way, it serves the purpose of precisely hiding tensions and contradictions so as to immunise society from terminal indecision.