II. Non-humanism, anti-humanism, dehumanisation

Let us begin with an exploration of the main autopoietic exclusion, which is that of humans from society. Exclusion in this sense means that the theory does not focus on humans and their actions, but on systems, such as law, politics, mass media and so on, all of which, taken together, comprise society. Autopoiesis reserves several counter-intuitive exclusions from its focus, but none more so, nor more polemically debated, than the human exclusion.

Autopoiesis is emphatically a non-humanist theory. It only observes systemic communications, not human actions. In the context of the theory, communications are not understood as human connections but as internal constructions of each system. Thus, the legal system constructs communications, such as legal argumentation, court decisions, statutes and so on, on the basis of its systemic code (lawful/unlawful) which determines the boundaries of each system. The total sum of legal communications (namely whatever falls into either of the two values lawful/unlawful) is the legal system; anything else is the system's environment, namely whatever the system is not. This can include other systemic communications (say, political, religious, economic and so on, according to the functional differentiation of the systems), as well as non-communications. Systemic communications are not communicated to other systems but remain within the legal system and form its operations. In other words, communications are neither human operations nor communicable to other systems. This counter-intuitive understanding of communication has further, equally counter-intuitive consequences.

First, although humans form part of the process of production of communication, they are not the causal origin of such communications. Humans are not agents of actions within society, but conduits conveying meaning between and within systems as part of the communicative activity of society (King, Reference King2009, pp. 79–82; Luhmann, Reference Luhmann, Teubner and Febbrajo1992b, p. 411). When a judge decides on a case, she does so in her professional capacity. She will have other characteristics beyond her office, but, in terms of her decision, these parameters can only be accommodated to the extent that they can fit within the way the legal code is applied, how legal thought is structured, and the manner in which legal language is expressed (see also Blaschke, Reference Blaschke2015, on autopoietic agency). Humans have two roles in autopoietic thinking: they are ‘semantic constructs’ and ‘independent autopoietic systems’ (Teubner, Reference Teubner1993, p. 26). As constructs, they are situated within the system as aspects of the system, such as in the case of the idea of the judge delivering judgment. As independent systems, they exist as people: the actual person of the judge. Both exist simultaneously and separately to one another, the ‘personal biases and subjectivity’ of the judge being translated into the language of the system (King, Reference King1993, pp. 227–228). The same is true of the commercial lawyer acting within a court system and seeking to convince the judge; their personal biases and subjectivity can only be articulated and interpreted through the language of the system because the legal system interprets these communicative utterances through its internal semantic construct (Nobles and Schiff, Reference Nobles and Schiff2013, pp. 250–251). To approach the system otherwise is to risk being misunderstood, or to be made invisible and inaudible.

The second and most drastic consequence of the communicational focus is that humans, as independent autopoietic systems, are excluded from social systems and society at large. It is clear from the above that the theory is not merely non-humanist but rather anti-humanist. As Moeller (Reference Moeller2012, p. 21) puts it,

Luhmann displaces the human not just from the centre, but also the greater focus of the theory, and replaces it with communications. Instead of communicating, humans perceive (a less exigent operation than communication because it does not depend on being selected and communicated; see Luhmann, Reference Luhmann and Bednarz1995, p. 412) and interact (a reciprocal perception of perception amongst human beings present to one anotherFootnote ²). Both perception and interaction can become communication (Luhmann, Reference Luhmann, Gumbrecht, Pfeiffer and Whobrey1994, p. 380). Social systems and humans are able to operate as environment to each other, while also maintaining their separation (Luhmann, Reference Luhmann1992c, pp. 75–76; see also Philippopoulos-Mihalopoulos, Reference Philippopoulos-Mihalopoulos2010, p. 111), thus triggering changes within the other system. As Luhmann (Reference Luhmann1997) suggests, communicating and perceiving/interacting are complemented by a third modality, that of living. Through the latter, the body puts in an appearance, albeit infrequent, in Luhmann's writings. The connection between mind and body in Luhmann has been the subject of some debate in the literature (Bankowski, Reference Bankowski1994; Borch, Reference Borch2011; Cesaratto, Reference Cesaratto, la Cour and Philippopoulos-Mihalopoulos2013; Halsall, Reference Halsall2012; Paterson, Reference Paterson1994), and can be summarised as one of reciprocal autopoiesis, where one can irritate the other but not have unmediated access to it. Mind and body remain firmly excluded from society (consider Schütz, Reference Schütz2009, pp. 237–238).

The theory's anti-humanism should not surprise us. It is in line with (indeed predates) current anti- and post-humanist theories, such as new ontologies, post-humanist ethics, new materialisms and so on (see Philippopoulos-Mihalopoulos, Reference Philippopoulos-Mihalopoulos2014). Luhmann is unwilling to consider the human as a unity; he has ‘give[n] up the attempt to “singularize” the human being’ (Moeller, Reference Moeller2006, p. 80; see also Halsall, Reference Halsall2012). In that sense, the argument to return to the subject, and to the human subject in particular in the way humanism and enlightenment theories envisage, has been rehearsed and found lacking (Grear, Reference Grear2007, Reference Grear, Fineman and Grear2014). Luhmann has rejected humanistic concepts of society as no longer satisfactory (1997, p. 31; see also Moeller, Reference Moeller2008, p. 127). Autopoiesis has partly fulfilled its radical potential by resisting a world description given over to the facile causalities of human actions (Moeller, Reference Moeller2012). It describes the complex process of the production of reality, which so often takes place away from human control, without valorising the human. This is one of the hardest paradigm shifts initiated by autopoiesis, because it requires leaving behind ‘the fiction that played the role of the consolatory companion throughout many centuries of European Dasein’ as Schütz (Reference Schütz and Teubner1996, p. 275) puts it. In autopoiesis, and in what is increasingly becoming our prevalent reality, human actions are deeply mediated by technological loops, financial opacity, political interests, legal complexity and so on – all systemic operations through which human action is understood sociologically.

III. Exclusion as erasure

The horizontal, absolute and incontestable exclusion that has haunted autopoiesis must now be confronted. This is not, as we have said, the exclusion-as-necessary-condition to take the excluded seriously, but the exclusion as an absolute erasure, where neither third values nor human rights can operate, even in the latter's qualified capacity as an enabling grid. This is the cumulative exclusion from function systems and from society as a whole, eradicated from autopoietic observation even as an indirect source of communication. Luhmann's description (1997, Reference Luhmann, Moeller and Moeller2008a; see also Neves, Reference Neves2001; Moeller, Reference Moeller2006, pp. 59–63) of the Brazilian favelas in the 1990s points precisely to such an exclusion, indeed a hyper-exclusion, where the excluded are not registered by any system. Yet, this hyper-exclusion entered autopoietic description, which had seemed to ignore non-Western cultural contexts. Neves (Reference Neves2001) has pointed precisely to this discrepancy: in Brazil's favelas, the rampant exclusion from society is so absolute and cumulative that autopoiesis bears no relation to experienced reality, and in particular to the humans that provide the social events that fuel communication (Neves, Reference Neves2001, p. 263). However, while Neves postulates that this experience manifests solely in so-called peripheral societies, we contend that there is no reason why similar exclusion could not emerge in so-called Western, autopoietic society.

Society produces exclusion through its normal functional operations (Moeller, Reference Moeller2006, p. 61). In recognition of this, society makes some efforts to mitigate the ill-effects of exclusion through the welfare state (Philippopoulos-Mihalopoulos, Reference Philippopoulos-Mihalopoulos2010). However, there are limits to the compensatory capacity of social security (Luhmann, Reference Luhmann1990, pp. 22–23), and thus welfare represents only a nominal attempt at overcoming exclusion. Through its welfare operations, society converts its understanding of exclusion into a communicable event, which allows the communication about exclusion to be internalised, preventing further reflection because of its institutionalisation. Thus we arrive at the uncomfortable conclusion that the welfare state society cares in order not to care (Philippopoulos-Mihalopoulos, Reference Philippopoulos-Mihalopoulos2010); compensatory mitigation cannot deal fully with social exclusion, just as human rights offer only qualified support.

The limits of mitigation should be seen alongside Neves's criticism of autopoiesis as being unable to describe social exclusion in ‘less developed’ societies (an unsatisfactory label both in his and our eyes)Footnote ⁵ (2001; see also Moeller, Reference Moeller2006, pp. 59–63). This argument rests on the observation that there exists a damaging combination of under- and over-integration into society, allowing hierarchical levels of access and concurrent levels of (dis)benefit. The under-integrated typically lack access to, for example, legal processes, whereas the over-integrated have the capacity to rise above and abuse those processes, and may act with ‘impunity’ (Neves, Reference Neves2001, p. 262). Moeller also develops this idea, observing that, in order to participate in the economy, to be able to buy and sell, one must have money, the functional inclusivity of the code of economy is not helpful (2006, p. 60). As with an inability to assert one's legal rights, a lack of money ‘easily leads to exclusion from other systems’ (Moeller, Reference Moeller2006, p. 61).

As we have said, in the West exclusion is partly ameliorated by the welfare state. However, the social system at large (namely society as the sum of social systemic communications) can only deal to and with that which it has the conceptual capacity to comprehend. Thus, the issues dealt with by the welfare state are understood by the system against the backdrop of a construction of itself, situated in a particular temporal and spatial context, and against a unique history that shapes its responses to novelty (see also Schütz, Reference Schütz2011, pp. 190–191). In consequence, the responses that such a system is able to make are limited, not just by its function, but by the situatedness and history against which those codes have come to understand themselves. This does not, however, prevent the possibility that more comprehensive exclusion may also be present for those whose needs the increasingly shrinking welfare state does not anticipate, and those whom systems choose not to address. Such exclusions variously deprive the individual of access to, for example, legal advice and advocacy, housing, personal security, food and water, employment and political representation. Alternatively, though with the same consequences, individuals may suffer from ‘derivative’ deprivation brought about through their relationship to someone who has been denied access (Fineman, Reference Fineman, Fineman and Grear2014, pp. 18–19), or due to illness (pp. 20–21); it is to this construction that we address our critique. The presence of any of these deprivations, direct or derivative, is an indicator that the individual is under-integrated by society, and thus is either wholly or partially excluded, or at risk of exclusion; we argue that there is no reason why this cannot occur in ‘developed’ societies.

The risks inherent in an unmodified, Western-centric, autopoietic framework arise from the inequality of communicative opportunities it generates. That is, despite the presence of ostensibly mobilising human rights (Neves, Reference Neves2001, pp. 262–263), there are those who are immobilised by virtue of their under-integration into a society which denies them access to, for example, the protection and processes of law (Neves, Reference Neves2001, p. 262; contrast with Verschraegen, Reference Verschraegen2002, pp. 262–263). Although not actually isolated, both because they are recognised (and ignored) by their absence from society, and also because complete isolation is almost impossible for most of humanity in an electronically connected world (Neves, Reference Neves2001, p. 261), they are nonetheless constrained and thereby excluded in practice from social systems (pp. 261–262). Law is one system which stands to be profoundly affected by this exclusion:

In a society where limitations are placed on the equality of opportunity to engage with functionally differentiated systems, the autopoiesis of society is partial. The parsing of autopoiesis exposes the vulnerability of the system and risks dedifferentiation: there is a disjuncture between the apparent accuracy of the operational description offered by autopoiesis, and the levels of autopoietic society that exist below these operations; the physical, the human. This is problematic because the system will be subjected to the sub-dermal pressure to dedifferentiate as those excluded from social processes look to other avenues for answers to their questions and the resolution of their difficulties (see also Verschraegen, Reference Verschraegen2002, pp. 271, 273); the vulnerable will seek the exposure of vulnerability.

Such discussions as the above, taken in conjunction with Luhmann's encountering the favelas, and Neves's intense criticism of the autopoietic Western-centrism, are very important on the level of theory. Indeed, this is how protest enters autopoiesis: from within, yet breaking it apart.Footnote ⁶ It is the visibilisation of the invisible:

Functional differentiation promised an invisibilisation of social inequalities, but now the invisible has become visible (although still not instrumental for society, at least not in the way functional differentiation is) and the hyper-excluded have become registered (see also Fineman, Reference Fineman, Fineman and Grear2014, p. 14). Society stands in ‘embarrassment’, on the one hand experiencing the ‘unmitigated indifference’ promoted by the inclusion/exclusion dynamic, yet on the other in ‘stunned silence’ (Schütz, Reference Schütz and Přibáň2007, p. 48). No longer limited to non-Western contexts, these invisible exclusions have come to shake the system from within, they are a protest against the visible order. This can only be a good thing.

IV. Bodies

We have discussed above how autopoiesis deals with human exclusion, both on the level of theory, as a condition for humans to be taken seriously, and on the level of the social exclusion of humans from society, which on the level of theory is seen as the invisible hyper-exclusion. We now propose to examine the concept of embodiment in autopoiesis as a means of introducing the vulnerable corporeality of systems, which, in a way, finds itself at the core of the human exclusion issue. In an interesting paper, Halsall (Reference Halsall2012) envisages a way in which bodies could be part of autopoiesis: through their physicality, bodies irritate systems which, in their turn, modify their communications in order to accommodate such irritations. This is what Philippopoulos-Mihalopoulos (Reference Philippopoulos-Mihalopoulos2007) has called absent environment, namely the materiality of the systemic environment that irritates the system from the inside. While this still holds true, we aim at something more radical here: we are showing how, through the concept of vulnerability that emerges from the materiality continuum between systems and bodies, autopoiesis challenges itself and its various exclusions.

For a theory with biological, material beginnings (Maturana and Varela, Reference Maturana and Varela1972, Reference Maturana and Varela1992), Luhmann's sociology is remarkably incorporeal. Both systems theory and autopoiesis have in their bases corporeal processes originating in cells, neurons, ecosystems and so on. Although Luhmann was selective in choosing what he needed from the various theories in order to integrate them into his own grand sociological theory, the exclusion of the material/corporeal is quite striking. It can be understood, although not quite justified, if put in the context of its emergence: Luhmann proposed a sociological enlightenment on a scale that could not accept regional, cultural or personal variations. It had to appear solidly abstract and suitably universal in order to appeal to the various situations to which it was designed to apply. In consequence, it is assumed that a proper consideration of corporeality would open the theory up to an ungeneralisable amount of variation. The body would upset the mind.

A clear indication of such marginalisation of human embodiment in autopoiesis is the name that Luhmann reserves for humans: ‘psychic systems’. Autopoiesis implicitly conflates the concept of the ‘psychic’ system with the idea of incorporeality, presumably because of the non-material commonality between psyche and mind. The particular construction of psychic perceptions and interactions as things that might at some point become systemic communication in a mind/society binary, and the elimination of the human as the object of sociological enquiry, has led to the exclusion of the physical body as an object of inquiry, and with this the loss of its spatial and material context.

For a vision of society that is in other respects so radically different from that which has preceded it, the falling back on the old mind/body distinction is problematic for autopoiesis. Indeed, it appears to echo positivism and objectivity, and a reliance on a construction of the human as the liberal subject. The corporeal exclusion has denied the theory access to a wealth of experiences and understandings accessible via the body, such as an examination of historically incorporated structural inequalities. In the absence of sociological tangibility of the body, it is easy to fall back on the interpretive structures, biases and concepts of the past. This appears to have left autopoiesis behind those radical theoretical enterprises which have sought to supersede the old approaches, such as feminist legal studies, critical legal and socio-legal theory, new materialisms and so on. Autopoiesis needs the body (see Halsall, Reference Halsall2012).

As a concept, and particularly as an aspect of legal theory, the body has been dealt with extensively by feminist legal theorists. While space does not permit a complete exploration of this rich discourse, we must acknowledge the lessons for autopoiesis which can be gleaned from it. Feminist critique of law has exposed the notion of the body in legal thought and theory as essentially the male body (Naffine and Owens, Reference Naffine, Owens, Ngaire and Owens1997,p. 12; Naffine, Reference Naffine2011, pp. 194–195). The legal theorist who transcends his body to avoid the limitations of the natural, achieving rationality and intellectual purity, is inevitably found to be a masculine theorist (Smart, Reference Smart1989, p. 91). The principle reason why modernist theorists left the body behind, it is claimed, is because any association with the body as a concept integral to understanding social experiences ‘seems to cast doubt on the rationality and objectivity of the very mind of the theorist or social scientist’ (Smart, Reference Smart1989, p. 91; see also Bottomley, Reference Bottomley, Bainham, Day Sclater and Richards2002, pp. 130–131). In this construction, the female represents the opposite of all that is thought of as central to scientific exploration; indeed, it can be seen in binary terms (Smart, Reference Smart1989, p. 103). Ultimately, the traditional form of legal thinking seeks to render law's construction of bodies genderless, while actually remaining masculine. This has allowed the concealment of vast absences in legal thinking because the female remains an unacknowledged absence in law (Smart, Reference Smart1989, pp. 91–92); such an approach has also permitted hierarchical and discriminatory treatment, and indeed social exclusion on the basis of bodily characteristics that deviate from this norm (Fineman, Reference Fineman, Fineman and Grear2014, p. 21). The challenge for feminist legal theory has been to expose this absence, without provoking ingrained beliefs about the binary differences between male and female, or males and others (Smart, Reference Smart1989, p. 113; consider also Bottomley, Reference Bottomley, Bainham, Day Sclater and Richards2002, p. 114; Naffine, Reference Naffine2004), so as to recognise the experiences of men and women, and men and other categories we might draw upon, as different, and to highlight this difference as being important to legal thinking.

By incorporating the body into law, the embodiment of individuals is recognised as having a direct bearing upon their lived experiences, and how they approach understanding (Bottomley, Reference Bottomley, Bainham, Day Sclater and Richards2002, pp. 127–128). It also obstructs the tendency to classify individuals with complex and diverse histories and needs into homogenous ‘at risk’ groups of, for example, ‘undocumented immigrants’ or the ‘poor’ (Fineman, Reference Fineman, Fineman and Grear2014, p. 16). This establishes multiple categories of person as active sites of meaning-making, and prevents the law from being thought of as an all-encompassing, all-powerful (male) force, that imprints its beliefs, structures and decisions on an essentially passive (female) body (Bottomley, Reference Bottomley, Bainham, Day Sclater and Richards2002, p. 132). Importantly, it requires that individuals be recognised as multi-faceted, being neither simply (and put simply) female or male, immigrant or citizen, rich or poor, old or young (Fineman, Reference Fineman, Fineman and Grear2014, p. 16). Reflecting on Deleuze, Bottomley argues that by reintroducing the body as a part of what it is to be a human experiencing society, the body comes to be recognised ‘as a site of multiplicity and potential’ (Bottomley, Reference Bottomley, Bainham, Day Sclater and Richards2002, p. 147).

Therefore, in the absence of an explicit, corporeal and material inclusion of the body in autopoiesis, it can be said, in agreement with feminist legal theory broadly construed, that the human (in his exclusion from the autopoietic legal system and society at large) is constructed as essentially male, taking his cue from a series of acts, precedents, conventions and so on that have been shown to have an essentially male history (albeit one asserted as objective, neutral, rational). That is, the semantic construct of the body that exists in law in the form of the legal person is male, and the lack of an awareness of the physical closes off the opportunity to recognise the inaccuracy of this patriarchally inspired construct and so confront it (Naffine, Reference Naffine2011, p. 203; see also Weinbach, Reference Weinbach, La Cour and Philippopoulos-Mihalopoulos2013, on gendering autopoiesis to show gender as a form of control mechanism for systems); furthermore, such a construct may not be habitable in reality (Firth and Mauthe, Reference Firth and Mauthe2013, p. 473). The work of feminist legal scholars indicates that an absence of consideration of the body in law leads to inaccuracies that in turn create inequalities of treatment and access.Footnote ⁷ This realisation may lead to the exposure of further such inequalities of treatment beyond the female; for example, in relation to physical vulnerability of the body, given that the body of the male is normally portrayed as ‘clearly delineated’ and ‘impermeable’ (Naffine and Owens, Reference Naffine, Owens, Ngaire and Owens1997, p. 12).

Is this, however, equal to an autopoietic opening to materiality? An autopoiesis with an underdeveloped concept of the physical body lacks the richness of experience that the body, as a site of ‘potential’ that is ‘(always) in the process of becoming’ (Bottomley, Reference Bottomley, Bainham, Day Sclater and Richards2002, p. 140), may offer. This is not, as we have already said, a call to return to the subject, or to place human action at the centre of things. It is instead a call for the development of the concept of the autopoietic body in order to accommodate a wider range of perceptual and interactive experiences as legitimate so that they can figure coherently in communication. If the legal system operates in such a way as to exclude meaning coming from corporeality, then the inclusion of the latter will allow the legal system to recognise some of the limitations of its present boundaries, and to reassess what it has previously (hyper-)excluded as noise (consider Smart, Reference Smart1989, p. 11 on the classification of certain aspects of the human experience as consisting of non-legal knowledge). Corporeality in autopoiesis would narrowly, although inexorably open the theory to the observation of the hitherto invisible and unobservable: the acknowledgement of an outside – what Rasch (Reference Rasch2000a, p. 119; see also Reference Rasch, Rasch and Wolfe2000b, p. 210) calls ‘the Spasm of the Limits’.

Luhmann was not indifferent to spasms. Indeed he took them seriously, as his description of the favelas reveals: ‘existences reduced to the bodily … attempting to get to the next day’ (2008a, p. 42; see also Moeller, Reference Moeller2006, p. 62), and ‘physical violence, sexuality, the elemental and impulsive satisfaction of necessities’ and ‘the observation of bodies’ (1997,p. 633). In these later works, an understanding of embodiment from within autopoiesis is sketched. It does not, however, point to well-integrated, well-behaving, normalised bodies whose movement and pause could become, at some point, part of systemic communication. Rather, a different sort of body emerges, hitherto excluded, invisible, but also noisy, fragile, exposed: in other words, vulnerable. It is here that the concept of vulnerability can be seen as key to understanding the autopoietic body, and ultimately as a means of mitigating the risks of hyper-exclusion.

V. Vulnerability

Vulnerability, as articulated by Fineman (Reference Fineman2008–2009, Reference Fineman2012, Reference Fineman, Fineman and Grear2014), has already appeared as a key concept across several areas of legal thought (see, for example, FitzGerald, Reference Fitzgerald2010; Sherwood-Johnson, Reference Sherwood-Johnson2013; Grear Reference Grear2011, 2014; Fineman and Grear, Reference Fineman and Grear2014; Stychin, Reference Stychin2012). As it is normally understood, vulnerability clashes with autopoiesis: ‘vulnerability is – and should be understood to be – universal and constant, inherent in the human condition’ (Fineman, Reference Fineman2008–2009, p. 1, emphasis added).Footnote ⁸ Yet, as will become clear, there is also a close alignment between autopoiesis and Fineman's vulnerability because ‘dependency and vulnerability are not deviant, but natural and inevitable’ (Reference Fineman, Fineman and Grear2014, p. 17). Vulnerability is an intrinsic consequence of the material commonality between systems and bodies, as we shall see below. To start with, the factual accuracy of the statement that everything is exposed to ‘the ever-present possibility that our needs and circumstances will change’ is inescapable (Fineman, Reference Fineman2008–2009, p. 12, see also pp. 8–9; Reference Fineman2012, pp. 71, 86). Vulnerability appears to be universal in the same way as the concepts underlying human rights; liberty and dignity.Footnote ⁹ Indeed, perhaps more so, as neither systems nor humans are invulnerable to the changing of conditions nor the entropy of natural processes, or artificial decay. This does not make it a universal concept in the same way as third values or rights. Rather, we suggest that vulnerability aligns with the self-preserving operations of autopoiesis itself in a way that needs to be consistently invisibilised.

Vulnerability exposes the violence of the inequality which flows from both isolated and cumulative hyper-exclusion from society (consider also Fineman, Reference Fineman, Fineman and Grear2014, p. 24), namely from individual systems and society, respectively. The liberal version of the equality/inequality discourse seeks balance through the formally equal treatment of individuals (Fineman, Reference Fineman, Fineman and Grear2014, pp. 14–16; see also Verschraegen, Reference Verschraegen2002, pp. 274–275). On this view, unless unequal treatment of an individual is attached to an aspect of a specific operation of the system, the systemic element of inequality is not addressed (Fineman, Reference Fineman2008–2009, p. 4). Inequality which flows from outside the control of the system is not part of the system's inclusion/exclusion decision; that someone cannot afford to access the legal system in order to have the opportunity to be subjected to law's inclusion/exclusion decision is not a concern of formalistic equality measures undertaken by law; it is not within the system. Furthermore, because ‘inequalities are produced and reproduced by society’ (Fineman, Reference Fineman2008–2009, p. 5), it may appear that such structural inequalities are inevitable. However, these inequalities are ‘certainly not natural’ (p. 5), they are not the inevitable result of societal interaction, but instead are the historical consequence of a particular, and in the case of autopoiesis unquestioned, direction of societal development (Fineman, Reference Fineman, Fineman and Grear2014, p. 17); vulnerability may be inevitable, but specific inequalities are not.

Despite the impression that autopoiesis may be not just mirroring but perpetuating structural inequalities, it is clear that neither law nor any other system has the ability to change or eradicate social inequalities (consider Fineman, Reference Fineman2008–2009, p. 5); nor can one seriously advocate the idea of all-inclusion.Footnote ¹⁰ What should instead be drawn out from this understanding of inequality is that the individual experience of vulnerability always exists, in a particularised and personal way, within a wider network of systemic inequalities and imbalances (Fineman, Reference Fineman2008–2009, p. 10). Not everybody is able, or indeed enabled, to engage equally well with society, either in the playing of particular roles (for example, employee, parent, citizen), or through interaction with other psychic systems (such as lawyers and doctors). This is largely because of the variable ability of humans to emulate the liberal subject (Fineman, Reference Fineman2008–2009, p. 11, Reference Fineman2012, p. 84, Reference Fineman, Fineman and Grear2014, p. 14). Humans are not, therefore, afforded equality of opportunity to engage with systems, even if those systems should then reject their efforts as irrelevant or misconceived (the feminist critique of law's deafness, why it chooses to reject, should not be forgotten, but space does not permit an exploration of this here; see further Smart, Reference Smart1989).

This form of inequality bears a close resemblance to the problems Neves indicated in relation to over- and under-integration (2001, pp. 261–263). It recognises that although the inequalities brought about by the exposure of one's vulnerability might be confined to each system (for example, a lack of access to legal advice, a lack of employment), their effect is cumulative, and the resulting exclusion total. In the same way as the denial of fundamental human rights prevents access to, and movement within and between systems, an under-integrated individual, where their vulnerability is exposed, is also ejected from, or never permitted in the first place to approach, the social system. The problem of under-integration is, therefore, not to be seen as unique to ‘peripheral societies’ of limited functional differentiation, but as a risk to all societies (contra Neves, Reference Neves2001, p. 263). The vulnerability of the embodied human demonstrates that we are all at risk of losing access to social communication, as the recent European Union financial and social crises have demonstrated beyond doubt.