Gunther Teubner Research Articles

Networks. Legal Issues of Multilateral Co‐operation – Edited by Marc Amstutz and Gunther Teubner

Networks. Legal Issues of Multilateral Co‐operation – Edited by Marc Amstutz and Gunther Teubner

Social Construction and System in Legal Theory: A Response to Professor Preuss

Preuss' paper significantly advances the critical theory of law. As a side benefit, he provides English-speakers with an excellent introduction to the work of two leading West German participants in the debate, Jürgen Habermas and Gunther Teubner. Preuss' paper reveals considerable common ground between critical legal theorists in Germany and the United States, but also important differences of perspective and concern. I suspect that many American legal critics will think that Preuss' criticisms of Habermas and Teubner do not go far enough, that his criticisms raise a fundamental challenge to the current emphasis on structure and system in the German debate. In any event, Preuss' paper suggests the usefulness of a greater German “reception” of the American emphasis on agency and social construction. No doubt American legal criticism would likewise be enriched by entering into a more sustained dialogue with structuralist and systems theory.

Amateur Hour is Over

Across Europe, there has been growing enthusiasm for the inclusion of voluntary organizations in welfare work. This article shows that this results in a new politics of voluntarism in a Danish social policy context. The communication of various organizations taken together constitutes the self-referential communication of a hybrid ‘third-order’ organization. Using key notions drawn from the work of Niklas Luhmann, the article explores how the communication of what Gunther Teubner has called the ‘many-headed hydra’ of such organizations can be understood. In the case of voluntary social work, communication rests on an undisputed distinction between professionalism and amateurism that fosters a number of paradoxes. These paradoxes are shown to be constitutive of voluntary social work itself.

Sustainable Development and Fragmentation in International Society

Integration is at the heart of sustainable development, which has been presented as a concept of reconciliation and harmonisation among environmental, economic and social fields. This chapter analyses sustainable development from the point of view of autopoietic theory. This approach paints the gulf between various social systems, and between systems and the 'lifeworld' or public sphere dominated by ordinary language, in stark terms. At the same time, certain proponents of this approach, including Andreas Fischer-Lescano, Oren Perez and Gunther Teubner, point to interesting and promising possibilities for making systems work together. If fragmentation within law, and among social systems more generally, is to be understood as the inevitable consequence of increased complexity in society, then a concept like sustainable development, with its explicitly integrative thrust, is concurrently extremely useful and very difficult to implement. Keywords:autopoietic theory; Fischer-Lescano; Gunther Teubner; international society; Oren Perez; social systems

Self‐subversive Justice: Contingency or Transcendence Formula of Law?

The Modern Law ReviewVolume 72, Issue 1 p. 1-23 Self-subversive Justice: Contingency or Transcendence Formula of Law? Gunther Teubner, Gunther Teubner University of Frankfurt am Main aProfessor of Private Law and Legal Sociology, University of Frankfurt am Main, and Centennial Visiting Professor, London School of Economics. For critical comments on an earlier draft, I would like to thank Sonja Buckel, Eva Buddeberg, Andreas Fischer-Lescano, Rainer Forst, Roger Friedland, Malte Gruber, Vagias Karavas, Fatima Kastner, Richard Nobles, Soo-Hyun Oh, Andreas Philippopoulos, Marcus Pöcker, Hubert Rottleuthner, David Schiff, Anton Schütz, Fabian Steinhauer, Thomas Vesting and Rudolf Wiethölter. My thanks for careful editorial help go to Chris Foley.Search for more papers by this author Gunther Teubner, Gunther Teubner University of Frankfurt am Main aProfessor of Private Law and Legal Sociology, University of Frankfurt am Main, and Centennial Visiting Professor, London School of Economics. For critical comments on an earlier draft, I would like to thank Sonja Buckel, Eva Buddeberg, Andreas Fischer-Lescano, Rainer Forst, Roger Friedland, Malte Gruber, Vagias Karavas, Fatima Kastner, Richard Nobles, Soo-Hyun Oh, Andreas Philippopoulos, Marcus Pöcker, Hubert Rottleuthner, David Schiff, Anton Schütz, Fabian Steinhauer, Thomas Vesting and Rudolf Wiethölter. My thanks for careful editorial help go to Chris Foley.Search for more papers by this author First published: 29 December 2008 https://doi.org/10.1111/j.1468-2230.2009.00731.xCitations: 24 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Citing Literature Volume72, Issue1January 2009Pages 1-23 RelatedInformation

Molecular Federalism and the Structures of Private Lawmaking

This symposium contribution explores molecular federalism, an idea floated briefly in the author's earlier work on private lawmaking. The many private lawmakers - ranging from familiar organizations like the American Law Institute and the New York Stock Exchange to less well known ones, like the International Chamber of Commerce and associations of banks - are here envisioned as part of a federalist scheme that operates at a molecular level rather than at the level of the state. Assuming that many private entities have de facto lawmaking power, as suggested in the earlier paper, their function and legitimacy, and the strengths and weaknesses of private lawmaking, are assessed under the rubric of federalism. The paper takes up both horizontal and vertical aspects of molecular federalism, considering the possibilities of competitive private lawmaking and the potential for (and limits of) governmental control. The article accounts for the extraterritoriality of private lawmaking and considers how private legislation may escape some of the vertical checks and balances associated with state-based federalism, not only through extraterritoriality, but also through some surprising shifts in the federalist hierarchy. The paper also explores the question of how one legal regime can become dominant, while other contexts may suffer legal fragmentation. The paper attempts to place its analysis within the context of some prominent U.S. theorists of federalism, including Herbert Wechsler and Justice Brennan, and contemporary European theorists, such as Gunther Teubner. The conclusion is that molecular federalism, like its state-based counterpart, produces mixed results, and often in a way that accentuates both the strengths and the weaknesses of state-based federalism. The paper also suggests that a constitution for private lawmaking, or a similar system of meta-rules, may be necessary to allow private lawmaking to come closest to its potential.

Paradoxes and Inconsistencies in the Law by Oren Perez and Gunther Teubner (eds)

Paradoxes and Inconsistencies in the Law by Oren Perez and Gunther Teubner (eds)

Molecular Federalism and the Structures of Private Lawmaking

This article explores Private lawmakers—ranging from familiar organizations like the American Law Institute and the New York Stock Exchange to less well known ones, like the International Chamber of Commerce and associations of banks—are here envisioned as part of a federalist scheme that operates at a level rather than at the level of the state. The function and legitimacy of private lawmakers, and the strengths and weaknesses of private lawmaking, are assessed under the rubric of federalism. The article takes up both horizontal and vertical aspects of molecular federalism, considering the possibilities of competitive private lawmaking and the potential for (and limits of) governmental control. The article accounts for the extraterritoriality of private lawmaking and considers how private legislation may escape some of the vertical checks and balances associated with state-based federalism, not only through extraterritoriality, but also through some surprising shifts in the federalist hierarchy. The paper also explores how one legal regime can become dominant, while other contexts may suffer legal fragmentation. The paper attempts to place its analysis within the context of some prominent U.S. theorists of federalism, including Herbert Wechsler and Justice Brennan, and contemporary European theorists, such as Gunther Teubner. The conclusion is that molecular federalism, like its state-based counterpart, produces mixed results, and often in a way that accentuates both the strengths and the weaknesses of state-based federalism. The paper also suggests that a constitution for private lawmaking, or a similar system of meta-rules, may be necessary to allow private lawmaking to come closest to its potential.

A perspectiva sistêmica na sociologia do direito: Luhmann e Teubner

Este artigo se propõe a analisar de forma crítica as contribuições de Niklas Luhmann e Gunther Teubner para o desenvolvimento da Teoria Sistêmica do Direito (TSD). Sua hipótese principal é a de que os autores analisados convergem para uma crítica comum às teses fundamentais das teorias sociológicas clássicas que afirmam que o direito é um epifenômeno das relações sociais dos diversos agentes e seus interesses: indivíduos, classes, corporações, partido etc. A Teoria Sistêmica, ao contrário, afirma que o direito pode ser analisado como um subsistema social que, a partir da operação de um código próprio, imprime um sentido e um conteúdo às comunicações dos agentes da ação, de tal maneira que não apenas as relações sociais entre os agentes criam o direito, mas também o direito cria realidades orientadoras das ações dos agentes.

Transnational Governance and Constitutionalism edited by Christian Joerges, Inger-Johanne Sand, and Gunther Teubner Hart Publishing, Oxford and Portland Oregon, 2004, pp. xv, 375

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Frail Connections: Legal and Psychiatric Knowledge Practices in U.S. Adjudication over Organ Donations by Children and Incompetent Adults

This chapter traces a number of U.S. cases involving children and also incompetent adults as organ donors for a family member. Inspired by Mariana Valverde's approach, it focuses on aspects that pertain to the evidence and rhetoric used in legal texts. The chapter outlines the conditions of twentieth century U.S. law that arguably made it porous to social sciences and psychiatric evidence in the first place. It modulates this view with Gunther Teubner's idea of the law as a self-referential system. The chapter then describes and analyses a number of cases. Subsequently, it analyses how psychiatrists came to be recognized as experts in organ donation cases. The chapter ends by asking and attempting to respond to a question that cannot be overstated: did psychiatric expertise really have a genuine impact on the law in cases involving children and incompetent adults as organ donors?. Keywords: Gunther Teubner; incompetent adults; organ donation; psychiatric expertise; twentieth century U.S. law

Compound corporations: The public law foundations of lex mercatoria

In the introductory essay to an edited volume entitled Global Law Without a State, Gunther Teubner claims that lex mercatoria, the law of TNCs, is the 'most successful example of global law without a state'. Contrary to Teubner's claim, as compound corporations, transnational corporations (TNCs) are fundamentally intermingled with and dependent upon states throughout their legal life. The state, far from being a neutral rule-maker, often employs its public law powers to promote certain private commercial interests. In this paper, the author examines this relationship between public and private persons from the perspective of the state's corporate partner. Toindicate the public law nature of the corporate partner, we refer to these nominally-private persons as compound corporations. Such corporations alchemically mix public and private law elements to strengthen their legal power. Compound corporations have existed in various forms throughout history, including during the colonial period.

From the Autopoiesis to the Allopoiesis of Law

This article discusses the empirical limits of the concept of autopoiesis of law in world society today. The argument is based principally on observation of the problems of reproduction of the legal system in ‘peripheral countries’. The central thesis of the article is that, in the countries of ‘peripheral modernity’ the reproduction of the legal system is blocked by a wide variety of social factors, in such a way that one can speak more of the allopoiesis than the autopoiesis of law. Beginning with a biological concept, the article considers the sociological concept of autopoiesis, and then analyzes the concept of autopoiesis of law. Based on this theoretical parameter, the argument about the allopoiesis of law in the ‘peripheral countries’ is presented. Finally, the article returns to the central theme of the allopoiesis of law in ‘peripheral countries’ and points to the indications of a normative concept of autopoiesis of law in the theories of Niklas Luhmann and Gunther Teubner.

A Non‐Essentialist Version of Legal Pluralism

The concept of legal pluralism has been touted by many socio‐legal scholars as a key concept in the analysis of law. Yet, after almost twenty years of such claims, there has been little progress in the development of the concept. This article will argue that the underlying cause of this lack progress lies in the fact that promoters of the concept have relied upon function‐based, essentialist concepts of law. It will describe the problems generated by such concepts and, following this general analysis, will review the versions of legal pluralism articulated by Boaventura de Sousa Santos and Gunther Teubner. The critique of their versions of legal pluralism will lead into the posing of a non‐essentialist alternative which avoids the conceptual problems of prevailing versions of legal pluralism, and provides a better tool for purposes of research and analysis of the relationship between law and society.

Le Pluralisme juridique chez Gunther Teubner: La nouvelle guerre des dieux?

RésuméSe situant dans la perspective de la théorie des systèmes, Gunther Teubner fournit une contribution importante à la problématique du pluralisme juridique. Empruntant à Max Weber le thème du polythéisme des valeurs, Teubner s'attache à démontrer l'actualité de la métaphore de la «guerre des dieux», en transposant toutefois l'analyse sur le plan proprement sociologique d'une pluralité des rationalités discursives et systémiques caractéristique de la société contemporaine. Abordant le pluralisme juridique à partir d'une représentation de la société comme fragmentée en une pluralité de sous-systèmes autonomes, Teubner est en mesure d'éviter certains des écueils sur lesquels bute la conception pluraliste du droit, telles une vision trop monolithique du droit étatique et une absence de délimitation adéquate des phénomènes juridiques. Ceci n'empêche pas la théorie autopoïétique défendue par Teubner de se confronter à des difficultés majeures: en particulier, l'idée d'un système juridique radicalement autonome présupposée par la théorie ne se concilie pas aisément avec la conception d'une pluralité des ordres juridiques à la base du paradigme pluraliste.

History as Non-History: Points of Divergence and Time Lags between Friedrich Kessler and German Jurisprudence

Journal Article History as Non-History: Points of Divergence and Time Lags Between Friedrich Kessler and German Jurisprudence Get access Christian Joerges Christian Joerges 1Christian Joerges is Professor of Law, University of Bremen and European University Institute, Florence. A first version of this paper was presented to a symposium on the influence of German speaking emigres on legal developments in the United States and Germany, organised by Marcus Lutter, Michael H. Hoeflich and Ernst C. Stiefel in September 1991 in Bonn, Germany. I am grateful for the many comments I have received during and subsequent to that event and I am particularly indebted to Gerhard Haupt, Ulrich Jessurun d'Oliveira, Eric Stein, Massimo La Torre, Gunther Teubner and Rudolf Wiethölter. The German version was published in Marcus Lutter, Ernst C. Stiefel & Michael H. Hoeflich (eds.), Der Einfluss deutscher Emigranten auf die Rechtsentwicklung in den USA und in Deutschland 221-253 (1993). The revised English version was completed in 1992-93 when I enjoyed a fellowship at the Institute for Advanced Study, Berlin. Translation of this article was done by Petra Wilkens and Michelle Everson. Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 42, Issue 1, Winter 1994, Pages 163–193, https://doi.org/10.2307/840731 Published: 01 January 1994

Is Law an Autopoietic System?

Gunther Teubner, recently appointed Professor of Law at the London School of Economics, over the last ten years has developed the idea of law as a kind of self-regulating (or 'autopoietic') system. He has now produced a book which restates his position and addresses a number of the criticisms to which it has been subjected and extends his thought in response to the criticism.' Unhappily for the reader, he explains crucial points inadequately and the reader is expected to be or to become familiar with contributions to the debate in other works, which are not always easily available. In this review article of his new book the main terms of Teubner's so-called autopoietic theory will be analysed and its value assessed.

Corporate Governance and Directors' Liabilities; Legal, Economic and Sociological Analyses on Corporate Social Responsibility. Edited by Klaus Hopt and Gunther Teubner. [Berlin: De Gruyter. 1985. xii + 462 pp. DM.164

Corporate Governance and Directors' Liabilities; Legal, Economic and Sociological Analyses on Corporate Social Responsibility. Edited by Klaus Hopt and Gunther Teubner. [Berlin: De Gruyter. 1985. xii + 462 pp. DM.164