Andreas Philippopoulos-Mihalopoulos’s Niklas Luhmann: Law, Justice, Society is brimming over with affable criticisms and deliciously playful ideas. Intended as a critical reading of Luhmann’s sociological and theoretical work, it stands out for its delightfully uninhibited approach to a subject matter not normally treated that way. While this is undoubtedly an original achievement, it is not always clear that its account of the autopoieticist enterprise is based on adequate understanding. The problem with the book appears to be one of depth of focus.

The first element examined is the emergence of a functionally differentiated society. Joining an already long line of critics, Philippopoulos-Mihalopoulos reproaches Luhmann’s theory for its ’arbitrariness’. An ‘arbitrary point’ is, for instance, ‘the differentiation among the various societal systems [underlying] functional differentiation’ (p. 15); ‘arbitrary’, the creative proto-logic of distinguishing (p. 37); ‘arbitrary’, the assumption that systems are brought about by first distinctions (p. 43). This is more light-hearted challenge than sharp argument, but the difference in level between Luhmann and his critic is disturbing. One wonders whether it is possible to criticize Luhmann in a more finely tuned way.

Among the many works which seem to prove this possibility, French critic Jean Clam’s German-written Kontingenz, Paradox, Nur-Vollzug (Reference Clam2004, pp. 158 et seq.) stands out. Both critically cutting-edge and theoretically fruitful, Clam foregrounds not the somehow judgmental ‘arbitrariness’, but a sophisticated notion of ‘artificiality’. He distinguishes, within autopoietic reflexivity, basal autopoiesis and derivative autopoiesis, the former applying to cases where autopoiesis cannot be evaded, being an integral part of the very operations involved; the latter, where a specific and elaborate semantic dispositive is required for continuation. Communication as such is an example of basal autopoiesis; derivative autopoiesis is, on the contrary, at work in law and the other functionally differentiated social systems. Without resounding or moralising censure, Clam impressively shows how the failure to indicate and clarify the non-coincidence of basal and derivative autopoiesis overstates the case of systemic autopoiesis, how legal autopoiesis remains ‘improbable’, how nothing ‘naturally’ precludes the spectre of law’s becoming non-autopoietic again. For clearly most legal history has been a history of non-autopoietic law.

So much for Jean Clam. We turn back to Andreas Philippopoulos-Mihalopoulos, whose next point of criticism concerns the most popular – if clearly not the easiest – word of the Luhmannese language: the ‘paradox’. Here are the critical charges:

The relentlessly confrontational overtone should not distract from the fact that what Philippopoulos-Mihalopoulos is asking for here is clear enough. He wishes to see the use of the word ‘paradox’ limited to tensions that appear in the sphere of being. The opposition he thinks of is between the ‘reality’ of autopoiesis and something that points beyond it, the latter being exemplified in the series ‘Grundnorm’, ‘transcendence’, ‘telos’ and (more problematically) ‘the sublime’. There is nothing wrong with using the word ‘paradox’ in this way – it has firm traditional credentials. But the point here is that Luhmann uses the term in a different way – not related to being but to making, not ontological but poietological. Luhmann’s ‘post-ontological’ (Clam, Reference Clam2004, p. 166 et seq.) paradox emerges in the form of function-related perplexities, embarrassments, short-circuits. It might be added that, if paradoxes came up only within the Old-European ontological universe highlighted by Philippopoulos-Mihalopoulos, this would not be all that alarming in Luhmann’s view; alarming, and in need of elaborate manoeuvres of ‘de-paradoxification’, are only those paradoxes that surface right within the function-related routines of autopoietic systems.

It is Luhmann’s realisation of the role of complexity in modern society that has triggered his admission that there is no longer space for the display of teleological schemes, found since Aristotle. In fact, as it has been pointed out by many authors, Luhmann’s theory does not wish to provide a supplementary philosophical exercise about society, but an alternative conception intended to save sociology from the frustrations which such exercises incur. And, as should always be remembered in order to do justice to his basic concepts, indeed in order to simply locate them correctly, Luhmann’s vocabulary is itself an integral part of his venture to rebuild sociology on the recursive operations of the autopoietic model.

Every operation of legal decision-making – every use of the distinction lawful–unlawful – is fated to generate a paradox. Why? Philippopoulos-Mihalopoulos tries hard, but the question has a simple answer. Luhmann’s epistemology is based on the idea that every time one names, refers to, or in Luhmann’s and Spencer-Brown’s (Reference Spencer-Brown1969) wording, ‘indicates’ an object, a state of things, etc., one draws or uses a distinction which remains unnamed as such. Where the paradox gapes, blocking any further operation, and can only be lifted by means of an external reference serving as a tool of what Luhmann calls ‘de-paradoxification’ is the front line between declared designation and undeclared distinction. To de-paradoxify a paradox means to indicate its distinction (which of course can only be done by reference to a new distinction, etc.). This process of de-paradoxification deserved to be dwelt upon in more detail: instead the reader is told that the ‘[p]aradox returns making deparadoxification a jolly pastime with temporally limited validity’ (p. 64), which, even if it is both witty and precise, seems strangely indifferent to the theoretical stakes.

The question of depth of focus comes up again when we approach the concept of ‘constitution’, understood both as the site of the structural coupling of law and politics and as the paradox:

What the theory calls ‘paradoxes’ are emergent blockages in processes of decision-making. For the reasons just mentioned, they are fated to arise, imposing a need for a solution. Yet is the constitution a case in point? It is described, as the author correctly points out, as a case of structural coupling, and it should always be kept in mind that ‘paradox’ and ‘structural coupling’ are answers to two entirely different questions. Philippopoulos-Mihalopoulos analyses in detail various key elements and difficulties that surround the structural coupling of law and politics. He considers issues of legitimacy, constituent and constituted power, the production of binding decisions, and the opposition between normative and cognitive expectations. He analyses with a sharp critical eye how all this sits with the problem of boundary formation. Perhaps it should have been borne in mind that when Luhmann, in various articles and in Das Recht der Gesellschaft (Reference Luhmann1995), speaks of Verfassung (constitution) as the object of a structural coupling between legal and political system, his main examples are taken from formal (positivised) constitutions rather than from an unwritten constitution, which, as everyone knows, is a concept peculiar to the UK. Now it is fair to suggest that this gap between the constitution – the ever unconsolidated site of an unpositivised process – and the Constitution – a specific written norm – is sufficiently relevant to be addressed explicitly, especially when one is writing for an English-speaking public about a continental author. As soon as this distinction is ignored, it becomes difficult to understand what Luhmann is actually talking about.

Philippopoulos-Mihalopoulos also compares the autopoietic concept of environment to the concepts in use within environmental law, drawing his reader’s attention to their shared inability to find a demarcation or connection between mobility and stability (p. 172), and to the idea of trying to push ‘the limits of autopoiesis through a critical application of environmental law and ecological thinking in general’ (p. 173). The word is the same, but whether there is any overlap between its ecological and autopoietic uses is an open question. Autopoiesis is unable, it is argued, to answer the challenges presented by the ecological issue: it is ‘acentric’, meaning that its operations are ‘fractally’ dissociated, leaving the system without any ‘all-thematising quality that renders it central beyond any context’ (p. 176). Granted, the system is not ‘central’ (even if it includes its boundaries and – to this extent and in this sense – also its environment); granted, also, ‘autopoiesis de-individualises the individual’ (p. 177). Both of these claims only repeat statements made frequently by Luhmann himself. Likewise, the author’s apparent disagreement with Luhmann as to the individual, whose Luhmannian status within a zone of ‘inclusion–exclusion’ is considered as being ‘less empowering’ in terms of control of society, echoes an explicit postulate in Luhmann, in whose view individuals in modern society are effectively much less ‘empowered’ than is often assumed. One further point where Philippopoulos-Mihalopoulos presents a criticism which, on a closer look, coincides perfectly with an explicit postulate of Luhmann’s is that ‘autopoiesis begins and carries on with a difference’ (p. 178). We don’t reach a genuine disagreement until we read that ‘the primacy of difference over unity may be put into doubt’ (p. 178), while the comments that ‘autopoiesis discredits. . .or significantly trivialises. . .prescription’ (p. 178) appear once again as in line with Luhmann, who never pretends to supply a social actor with a solution, but remains within the sphere of analysis and description: all he claims is that any ‘solution’ is predicated on non-moralising, non-normative analyses and descriptions.

There are passages – especially in the final chapter – where Philippopoulos- Mihalopoulos’s critical acrobatics result in an impressive series of original examples which are among the best of the book, and which brilliantly complement the numerous quotations from Luhmann, the novel perspectives on the fundamental concepts of the autopoietic theory of modern society, the citations from numerous legal scholars in order to emphasise the controversial points that constitute the bulk of the book. This is certainly a book full of surprises and unique and personal interpretations of Luhmann's theory of societal autopoiesis, as well as of Philippopoulos-Mihalopoulos’s own intricacies. Its multifacetedness makes it a rather complex book, not easy to read through, which sometimes manages to be somehow ‘autopoietic’ itself and which shows a high level of skill in critical writing. Given the overflowing unconventionality of its underlying hermeneutical approach, one might wonder whether this is a book that can be suggested as an introduction to the theory of autopoiesis. Yet it certainly is a book for all those who have an interest in the reception of the theory of social autopoiesis and of the methodology of critical legal scholarship in its current state.

Michael King’s Systems, not People, make Society Happen aims at dismantling non-Luhmannian approaches to society without as much as mentioning either them or Luhmann, simply by unfolding, step by step, a deliberately simplified version of autopoietic system-theory. King succeeds in this exploit, however, at the price of a massive de-theorisation of the theory of autopoiesis. This book will thus be most successful with those law and sociology undergraduates who notoriously complain about the difficulty of understanding autopoiesis. The importance of this book is directly related to the influential status of this constituency.

As the title suggests, King pulls out the idea, the ‘eternal truth’, purportedly indispensable and in any case shared by mediatised common sense as much as by politicised social theory, that society is correctly conceived of as a collection of co-existing individuals. The first chapter redefines modern society in terms of systems and events, by challenging the assumption that dealing with an event supposes finding a ‘cause’. Some space is also invested in emancipating the effort of sociological sense-making from any suggestions based on human nature, religious beliefs or secular ideologies. On the other hand, King suspects that the study of human behaviour is less helpful than is often assumed. The book makes a convincing case that considering systems rather than people as constitutive elements of society increases sociological insight. Since this book is intended for a general audience, the author prefers the reader to concentrate on the ideas rather than the identity of their inventor. The source of these ideas is, of course, Niklas Luhmann’s work. Remarkably, King’s tender effort to spare the boredom-allergic reader any information that is not directly cognition-related goes to such lengths as to withhold Luhmann’s name until the very last pages of the book – indeed, the afterword.

Yet, while giving in to every formal or presentational compromise, King remains utterly uncompromising with regard to the content. The book is brimming with virtuoso achievements in the art of translating theoretical concepts into down-to-earth language while maintaining their bite. ‘Contingency’ is out, but ‘unforeseen events’ are in. Equally in are scenarios from daily life, through the clever introduction of a certain moot case or problem case methodology. ‘Bob’s business plan’ provides a very clear illustration of risk and other aspects of time-bound uncontrollability, and indeed of the system/environment distinction itself. The common mistakes of the traditional, obstinate, but impossible vow (or duty) of the social sciences to deliver predictions of society’s future, and the Luhmannian ways of escaping them, are equally carefully outlined.

At this point the reader is ready to be hit by autopoiesis’s intimate excess, the counter-intuitive statement which has traumatised so many Luhmann-beginners at first exposure: not enough that people are not in control of society; people are not even part of society! Notice that pre-Luhmannian sociology has always, unwaveringly, rested its case on society’s members as the substance of the social. Through this gate, the entire traffic of ideologies and beliefs about the nature and potential to be attributed to mankind and individuality had entered right inside sociology, precluding more ambitious – if less social – ways of understanding society. A distinction between ‘people as conscious systems and society as communicating systems’, where conscious systems constitute the environment of communicating systems, now replaces their earlier identification.

While the formal indulgence and mooting methodology result in occasional drawbacks – such as a certain condescension present in examples like ‘Bob, Jane and their unexpectedly ill child’, on the whole, the simplistic approach turns out to be worthwhile. Moreover, after a purposefully extremely easy first part, the more complex remainder of the book (ch. 5 et seq.) demands more attention. Here King introduces the embattled concept of structural coupling in order to explain the relations between systems, in terms of co-dependence and impact upon each other, but not before a very illuminating and necessary chapter on the issue of ‘reality’. Here, once again, basic concepts starting from the system/environment distinction are re-examined and compared to the idea of various ‘truths’ and ‘realities’ that come not only from media-sponsored, if mythical, beliefs, but also from various scientific disciplines and that prima facie contrast with each other, but are commonly accepted as valid by modern society.

An insightful parallel between conscious systems and social systems and the way they construct their ‘reality’ follows, showing the advantages of conceiving society in terms of the differentiation of system/environment, and leading ultimately to the complex and problematic concept of the re-entry of the distinguished into the distinction. The author explains ‘re-entry’, once again with an example from daily life (but technical Luhmannian terms are no longer proscribed). He has recourse to concepts that have been previously introduced and progressively explained; even a tricky concept like ‘re-entry’ becomes understandable this way. Always alternating between argumentative and ‘problem question’ style, King, after supplying his reader with all the necessary elements, starts presenting – by means of a fictional anecdote – the operations of the various social systems (using the legal system as a prime example), careful to distinguish their level from that of organisations and interactions.

The penultimate chapter includes a much-needed historical overview of how pre-modern stratified societies, based on a hierarchical model, were organised, and how this has changed in modern society where a stiffly hierarchical social order and its institutional guarantees have been abandoned, giving rise to a functional differentiation, alone capable of sustaining a global society. This extremely brief historical clarification is also quite successful, as it avoids any compromises at the theoretical level. The last chapter pulls the threads together of all the discourses in the book, leading to some reflections on what social system theory can do better than a humanistic perspective on society, in order to avoid any intellectual capitulation when faced with current signs of failure, disappointment, and decreasing control over one’s life and projects.

Niklas Luhmann and social system theory are known for their complexity and for the controversy to which they increasingly give rise. In some parts of the world, as soon as the German sociologist’s name is mentioned, a distinction is drawn that cuts right through academia, from scholars who, while not missing any other fashion, never had the temerity to open a book by Luhmann, to undergraduates who find refuge only in the mantra ‘I am lost’. This book springs from the decision to deprive these self-protective measures of any semblance of a rational basis. The task of explaining a complex theory in easily accessible terms to a wide audience is in many ways even more complex than the theory itself, and King succeeds in doing so with flair and resourcefulness, keeping his wager of simplicity alive throughout. This makes this little book an invaluable introduction to Luhmann’s theory; it is certain to prove an effective aid to struggling students and other beginners.