Gunther Teubner Research Articles

Concepts of justice beyond suum cuique

The concept of justice is fundamental in many spheres of human life and in academic disciplines such as law, philosophy, and theology. This article surveys a range of concepts of justice from these disciplines, threading a path from the idea of justice as fairness or proportionality in the works of Hart, Kelsen, and Rawls, to the notion of justice applied in a legal system (juridical justice) as understood by Gunther Teubner, then to concepts of justice beyond equivalence in the work of Ágnes Heller, either seeing justice as a step toward the good or understanding justice as righteousness. The article ends up discussing the idea of love as justice with the help of Paul Tillich. This paves the way for the possibility of critiquing worldly law and juridical justice from the perspective of an ontological concept of justice. The aim of the article is to put the understanding of justice which dominates the conceptual apparatus of the legal discipline in a new and critical light.

Regulation of People's Economy in Regions Based on Pancasila and Reflexive Law Theory

Pancasila serves as a fundamental normative framework encompassing politics, economics, and culture. Reflexive law functions as a coordination system for actions within semi-autonomous social sub-systems during transitional periods. This study aims to analyze the regulation of the populist economy within the context of Pancasila and reflexive legal theory. The research methodology is normative, employing a conceptual approach. The primary finding indicates that Pancasila must be embraced as a way of life, deeply embedded in the national consciousness, spirit, and ethos, and reflected in thoughts, attitudes, and actions related to the populist economy. Furthermore, the dissemination of Pancasila's understanding is essential, particularly in regions of Indonesia that have not yet established regulations on modern retail restrictions. It is imperative for government officials, especially those at the regional level such as members of the Regional House of Representatives, Regional Heads, and strategic policymakers, to thoroughly comprehend Pancasila grounded in a populist economy when formulating policies based on Pancasila. Additionally, the government can enhance its preparedness by aligning with Gunther Teubner's perspectives on harmonizing modern law with public interests. Teubner argues that to improve public welfare and address the crisis of formal rationality, the law needs to be rematerialized. This rematerialization of law depends on the application of reflexive law as a coordination mechanism within and among semi-autonomous social subsystems. In the Indonesian context, this approach aligns with the values of Pancasila and the concept of Economic Democracy.

We Accept: Bit-by-bit Constitution

Abstract In “We Accept: The Constitution of Airbnb”, published in 2020, I drew on Gunther Teubner’s systems theoretical approach, including to digitalisation and societal constitutionalism, to rethink Airbnb as an auto-constitutionalising domain. This dynamic process, the paper proceeded to suggest, instantiates a structural change, what can be described, in systems theoretical terms, as a “co-evolution” of multiple social systems through structural couplings. It renders observable an “emergence” of a general model of functioning – terms of use and engagement – epitomised by a reconceptualisation of the “social contract” as a network of “standard form contracts” or “contracts of adhesion”, and of an increasingly dominant mode of subjectivation: the standard formation or auto-constitution of subjects as adherents. In this new contribution, I continue this processing of social systems theory and Teubner’s work, this time through a deconstruction and reconstruction of Internet communication. Through this recursive illustration of social systems theory and Teubner’s work, the paper develops a social systems theoretical account of “process”, “constitution”, and “structural change”.

Restoration of gender inequalities through anti-abortion reforms: Can Teubner’s “anonymous matrix of communications” help feminists?

Abstract This article is a response to the new wave of legal changes restricting access to abortion in several countries across the world, which have substantially undermined the global advances in the field of reproductive rights observed in recent years. To address this problem, the article derives insights from two important bodies of literature that are usually perceived as theoretically and ideologically counterposed, namely feminist legal studies and systems theory. In juxtaposing two important academic literatures, the article exposes gaps in both, and it demonstrates the conceptual potentials inherent in this juxtaposition. The article engages with the work of Drucilla Cornell and Gunther Teubner, who – despite their very different intellectual backgrounds – provided progressive interpretations of systems theory. It further critically examines whether societal constitutionalism can help feminists explain the recent developments in abortion law across the world. It engages critically with Teubner’s arguments concerning the role that human rights play in constraining the expansive tendencies of social systems, such as politics and religion, revealing the limitations of Teubner’s arguments in relation to reproductive rights and justice. At the same time, the article helps restate the contemporary relevance of systems-theoretical approaches in atypical fields like reproductive justice and gender studies.

The Best of All Possible Worlds: Gunther Teubner’s Theodicy

Abstract The present contribution is a critical reading of Gunther Teubner’s text “The constitution of non-monetary surplus values”. On the basis of this text, Gunther Teubner’s theodicy, i.e. his doctrine of the rotten and irrational foundations of modern society and the normative way of dealing with them, is elaborated and embedded genealogically. The article then ends with remarks on the “katechontic” role that, according to Gunther Teubner, law has to play in a “fallen” society.

When Gorillas Strike: Constitutional Protection of Non-Market-Institutions in Labor Law

Abstract The “wildcat strike” against the poor working conditions of the bike couriers of the delivery service Gorilla at the beginning of 2021 ended in numerous dismissals by the employer. The trade unions did not support the strike, so that participation in the work stoppage was deemed unlawful by the courts. Under German law, strikes are only permitted as a means of exerting pressure in collective bargaining. However, it must be asked whether, with the changes in forms of employment and the associated limits to trade union representation of interests, it is still justified to regard the right to strike exclusively as an appendage of collective bargaining autonomy. Not only the pressure of international law, but also Gunther Teubner’s concept of non-market institutions as necessarily resistant collective actors against economic profit pressures call for the further development of legal protection of collectivities. Alternative labor struggles for the often precarious conditions of increasing mobile, digitalized and transnational gainful employment would then have to be recognized under certain conditions.

‘Global Bukovina’: Gunther Teubner’s Homage to Eugen Ehrlich

Abstract Gunther Teubner’s theory of transnational, globalised and fragmented law is founded on the polycentric emergence of law in the context of social interactions. This article examines the link, established by Gunther Teubner himself, between his understanding and Eugen Ehrlich’s theory of ‘living law’. This link is analysed as the result of an opposition between two fundamental paradigms of legal theory: the ‘creationist’ understanding and the ‘evolutionist’ understanding of law. Gunther Teubner’s homage to Eugen Ehrlich contributes to revealing the critical power and current relevance of the thought of this founder of legal sociology. Based on the theories defended today by Gunther Teubner, Eugen Ehrlich’s work thus still seems useful for thinking about the contemporary state of law.

“But his sense of justice turned him into a brigand and a murderer.” On Gunther Teubner’s “Self-subversive Justice: Contingency or Transcendence Formula of Law?”

Abstract Teubner’s article on self-subversive justice is an inspiring example of the way in which he tries to move forward Luhmann’s sociological endeavour of understanding law in terms of how it understands itself. Moving Luhmann’s autopoietic systems theory forward is something that Teubner significantly does in many of his writings. Here he contrasts various social and legal philosophical accounts with a potential sociological account of justice that utilises the contrasting versions of both Luhmann’s autopoietic systems theory and Derrida’s deconstruction theory. To appreciate how justice operates self-subversively is to appreciate how law cannot avoid striving to overcome itself, and how justice both in its many universal and alterity forms enables this. Teubner gets close to marrying not only Luhmann and Derrida, but also sociological theory and literary or poetic theory; also marrying judicial creativity with that of other creative arts. Law constantly looks to justice within its own practices, but at the same time beyond those practices and thereby challengingly confronting itself and its search for justice in doing so.

Bioethics-CSR Divide

Bioethics-CSR Divide

Law as an Autonomous Discipline

The development of legal studies is colored by the views of legal scholars who are in opposition to one another, namely views that emphasize that law is sui generis, self-sufficient, and immanent rationality as well as the view that law is not independent or can be influenced by other disciplines, such as politics and economics. Based on these differences in views, the problem to be examined is formulated, namely whether the science of law is an autonomous scientific discipline. These problems are examined based on the type of normative research with a conceptual approach. The analysis related to legal autonomy begins with examining the subject matter of jurisprudence which is nothing but an attempt to find out the nature of law or an attempt to answer the question ’what is law?’. Many jurists have provided definitions of law, including Roscoe Pound, Jeremy Bentham, Hans Kelsen, H.L.A. Hart, Ronald Dworkin, and John Finnis. These jurists have something in common in that law is a rule of conduct or has a normative character. Next is described a view that rigidly states that law is autonomous, namely from Ernest J Weinrib with his concept of ’law as immanent rationality’, and a view that does not rigidly state that law is autonomous, namely from Gunther Teubner and Niklas Luhmann with his concept of ’law as an autopoietic system’. The conclusion of this research is that law is autonomous, but not understood in a rigid manner, where law is closed and open at the same time.
 Keywords: law, autonomy, openess

Book Review: Three Liability Regimes for Artificial Intelligence. Algorithmic Actants, Hybrids, Crowds, Anna BECKERS & Gunther TEUBNER (ed.). 1st edition. Oxford:Hart Publishing

Book Review: Three Liability Regimes for Artificial Intelligence. Algorithmic Actants, Hybrids, Crowds, Anna BECKERS & Gunther TEUBNER (ed.). 1st edition. Oxford:Hart Publishing

The Myth of Transnational Public Policy in International Arbitration

Abstract This Article traces the concept of transnational public policy as developed in the context of international arbitration at the intersection between legal theory and practice. The emergence of such a transnational public policy, it is claimed, would enable arbitrators to safeguard and ultimately to define the public interests that need to be protected in a globalized economy, irrespective of national laws. A historical contextualization of efforts to empower merchants and their practices in Germany and the United States in the nineteenth and early twentieth centuries highlights their reliance on the mythical lex mercatoria that shaped English commercial law. Further contextualization is offered by the postwar invocation of “general principles of law recognized by civilized nations,” to keep at bay the application of supposedly less civilized, parochial legal orders, and by the consequent emergence of the “new” lex mercatoria as conceptualized especially in France. These developments paved the way, on the theory side, for later conceptualizations of self-constitutionalizing law beyond the state, especially by Gunther Teubner, and, on the practice side, for the notion of transnational public policy developed by arbitrators, especially by Emmanuel Gaillard, culminating in jurisprudential claims of an autonomous arbitral legal order with a regulatory dimension. In all these constructions, the recourse to comparative law has been a crucial element. Against this rough intellectual history, the Article offers a critique of today’s construction of transnational public policy by probing into its constitutional dimension and the respective roles of private and public interests. This allows, in particular, to draw on parallels to historic U.S. constitutional debates on the allocation of regulatory powers in federalism.

Transfer Pricing and Business Restructuring in the Manufacturing Industry: A Study of Korean and Indonesian MNEs

This research considers business restructuring and transfer pricing behaviour of Korean principal multinational manufacturers and Indonesian subsidiary manufacturers by applying the polycorporate network of Gunther Teubner’s view of hybrid relational contracts. Under this view, the agent acts in its own interest, but at the same time it attaches and performs its business on its duty and loyalty to its principal. Korean multinational firms create a transaction price with their subsidiaries that in most cases is based on non-market prices. On the other hand, Indonesian subsidiaries act less independently in most of their business activities, and the decisions taken are highly depend on their principal. Regarding the transfer pricing issue, it shows that the common disputes of both types of manufacturer are quite similar; payments for the use of intangible property and the technical aspects of assessing the arm’s length nature of the price, such as the use of comparables, the most appropriate method to assess comparability and the proof of economic benefit arising from the transaction performed. The differences between the two types of business entities concern the ability to bear the business risk in light of their manufacturing characteristics. transfer pricing, business restructuring, polycorporate network, international tax, supply chain

Litigating the Immunities of International Organizations in Europe: The ‘Alternative-Remedy’ Approach and its ‘Humanizing’ Function

There is a clear normative tension between the immunities of international organizations and the human rights to a court and to a remedy. Most national jurisdictions around the world have so far failed to recognize such a normative conflict and applied immunities irrespective of their consequences on individual claimants. However, following the <em>Waite and Kennedy </em>jurisprudence of the European Court of Human Rights, a number of European national jurisdictions have accepted the idea that applying international organizations’ immunities may lead to breach the right to a court in case the claimants do not have access to an alternative remedy. This contribution focuses on the latter approach, which will be called ‘alternative-remedy approach’. Drawing upon Gunther Teubner conceptualization of fundamental rights, it stresses the violence of the today’s prevalent approach toward immunities, and maintains that, by refocusing the decision-making process on the situation of individual claimants, the alternative-remedy approach ‘humanizes’ a decision-making process otherwise blind to the fate of human beings in flesh and blood. The ambiguity of the European Court of Human Rights’ jurisprudence as to the relevance of the alternative-remedy standard is also discussed, together with the consequences it had on the case-law of European national courts.

We accept: the constitution of Airbnb

ABSTRACT This paper investigates the transformation of Airbnb as a platform for a more general reflection on the technological and technical constitution of domains, political platforms, and subjectivities. Part I explores the various (juridical and digital) technologies and techniques employed by the service provider to ‘fight discrimination and bias’, as well as to encode a world where everyone can ‘Belong Anywhere’. Part II draws on social systems theory and Gunther Teubner’s societal constitutionalism, rethinking the processes analysed in Part I in terms of auto-constitutionalisation. The auto-constitutionalisation of Airbnb, Part III suggests, instantiates the emergence of a new grammar of political action, epitomised by the Airbnb Terms of Service agreement, and a new generalisable mode of subjectivation: the standard formation of subjects.

Transnational constitutional pluralism, its promises and pitfalls

Uma miríade de novas teorias constitucionais converge em atribuir um papel emergente para as formas de regulação social não submetidas aos sistemas políticos e autoridades dos Estados nacionais. Diversas abordagens tentam entender a diversidade e a multiplicidade de camadas, níveis e atores que constituem a constelação pós-nacional das estruturas regulatórias. Uma das propostas teóricas mais proeminentes é a ideia de um constitucionalismo pluralista transnacional de Gunther Teubner. Este artigo apresenta a proposta de Teubner e propõe uma crítica do conceito de constitucionalização para além do Estado. Ao final, o artigo argumenta que, embora a abordagem pluralista de Teubner ofereça uma descrição interessante sobre as relações entre poder e direito no nível transnacional, há limites funcionais à sua pretensão de que essas constituições sejam equivalentes e funcionais das constituições políticas.

Societal Constitutionalism in Japan: Neighbourhood Associations as Micro-relational Constitutional Sites

AbstractOver the past few years, Japan has been witnessing the emergence, regeneration, and spread of micro-relational forms of cohesion, solidarity, and responsibility in response to theryūdō-ka shakaiandhikikomoriphenomena. These terms refer to the crisis of social relations and co-operation, which commenced after the collapse of the Japanese economy in the early 1990s. While scholars, particularly sociologists and anthropologists, have consistently inquired into these micro-sites of civic friendship and responsibility, their juridical status is yet to be ascertained. This article argues that the paradigm of societal constitutionalism developed by Gunther Teubner can be of precious assistance in conducting such an assessment. In particular, it offers a contextualization of Teubner’s reflections on constitutional pluralism and fragmentation of social functions from the perspective of Kiyoshi Hasegawa’s state-centric scholarship on the regulatory dynamics of neighbourhood associations as micro-relational communities in suburban areas. A particular is given, and only given, within relations.1

Constitutional sociology and corporations: a conversation with Gunther Teubner

O presente trabalho corresponde a uma entrevista realizada com o sociólogo alemão Gunther Teubner. Nele, o autor aborda aspectos centrais relacionados à sociologia das constituições e sua contribuição para a compreensão dos efeitos negativos do lado negro da diferenciação funcional. Gunther Teubner é professor emérito de direito privado e sociologia do direito na prestigiosa Universidade Goethe. Seu trabalho é amplamente conhecido por suas contribuições para o campo da sociologia do direito, particularmente por sua teoria do direito autopoiético, o conceito de direito reflexivo e, atualmente, por sua teoria da constitucionalização da sociedade.

Il mercato globale del diritto costituzionale: dal diritto frammentato al diritto liquido

The current transition towards a world-society makes it necessary to rethink the pillars of the constitutional system and the very concept of Constitution. The article starts from classical theories on pluralism and moves into functionalism, in a systemic perspective. With this theoretical background, two apparently opposite contributions are analyzed: Gunther Teubner’s neo-constitutionalism and Marcelo Neves’ trans-constitutionalism. The article tries to provide a new model of analysis that considers both theories in a framework synthesis. Therefore, it proposes the application of market analysis (demand/supply model) to the global constitutional system. The theoretical link is the identification of a demand and an offer of constitutional norms at a global level. In this context, there is a spatial-temporal difference between cognitive processes and normative processes. The former are subject to rapid changes and insist on a space that goes beyond national borders; the latter refer to the national territory and depends on the complex procedural process. Then, the pivotal issue becomes the achievement of the equilibrium point, which seems to depend on the level of inter-systemic and intra-systemic communication.

Healthcare resource allocation in the English courts: a systems theory perspective

Engagement with sociological perspectives can enrich an understanding of medical law and provide a basis for critique of certain of its key premises. Since both law and healthcare are frequently conceptualised and analysed as systems, the theoretical frameworks developed by Niklas Luhmann and Gunther Teubner would seem to offer particular promise in this regard. This article explores a particular area of medical law to which an understanding of the social (and political-economic) context of decision-making is of clear importance – adjudication upon the allocation of scarce resources – in order to identify what insights may be gained from an approach grounded in systems theory.