The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy

Abstract

The article connects two strands of the recent sociolegal debate: (1) the empirical discovery of new forms of spontaneous law in the course of globalization, and (2) the emergence of deconstructive theories of law that undermine the law's hierarchy. The article puts forward the thesis that law's hierarchy has successfully resisted all old and new attempts at its deconstruction; it breaks, however, under the pressures of globalization that produced a global law without the state, as self-created law of global society that has no institutionalized support whatsoever in international politics and public international law. Consequently, the article criticizes deconstructive theories for their lack of autological analysis. These theories do not take into account the historical conditions of deconstruction. Accordingly, deconstructive analysis of law would have to look for new legal distinctions that are plausible under the new conditions of a doubly fragmented global society. The article sketches the contours of an emerging polycontextural law. I. Deconstructing Systems After deconstruction, what is left of law as a hierarchy of rules, founded on a political constitution, endowed with an institutional identity, based on the distinction between legislation and adjudication and legitimated through democratic representation and constitutional rights? Derrida (1990) uses the conceptual tools of deconstruction to dismantle the political architecture of the legal system: Deconstruction is generally practiced in two ways or two styles, although it most often grafts one to the other. One takes the demonstrative and apparently ahistorical allure of logico-formal paradoxes. The other, more historical or more anamnesic, seems to proceed through readings of texts, meticulous interpretations and genealogies. (Derrida 1990:957, 959) Deconstruction reveals the foundation of law, the origin of its authority, to be a grandiose logico-formal paradox. Law is grounded only on itself, based on an arbitrary violence without ground, la fondation mystique de l'autorite. Nor does the genealogy of legal decisions reveal law's stable identity as a system of valid rules, but only exposes law's recurrent aporias, situations of undecidability with ever shifting unstable differences in changing historical contexts. Law becomes a deconstructed disunity of discursive fragments which at the same time is haunted by the never satisfiable specter of justice.1 At first sight, theory stands in stark contrast to the intentionally obscure language of deconstructivism, which is not willing to reveal its theoretical presuppositions. The contrast holds true for style as well as for substance. While deconstructivism refuses to define a specific method or determine a guiding theoretical intention (Derrida 1988:82), systemism stylizes itself as an orderly theory cultivating conceptual precision and elaborating systematic theory constructs.2 In substance, the theory of law as an autopoietic system stresses law's autonomy, its normative closure, structural determination, dynamic stability, emerging eigenvalues in binary codes and normative programs, and its reflexive identity.3 How does this theory respond to the challenge of deconstruction? Is the radical constructivism of autopoietic law the very counter-program to anti-metaphysical deconstructivism? Second-order theory's first answer to deconstruction, may come as an surprise.4 Instead of reaffirming law as a system of rules, it observes law as a chain of operations that observes other operations under a certain scheme. Thus, it does away with any stable identity of law. Observing systems in its double meaning dissolves the stable order of legal structures into a fluid sequence of differences that acts simultaneously as the subject and the object of legal distinctions and indications. In second-order observation, law loses any fixed identity, any welldefined ontological status (Luhmann 1989). …