Reflexive and Autopoietic Law

The concept of “reflexive law” was elaborated during a paradigmatic change in social science, sociology of law, and sociolegal studies in the 1980s. It is closely associated with social systems theory, critical theory, and recent theories of modernization. It means that law is a self-regulatory system producing its own mode of [Page 1278]communication about both internal operations and external demands of social regulation. The concept of reflexive law has initiated new discussions regarding the status and role of sociological and sociolegal knowledge and its impact on legal doctrine.

In social science, the concept of reflexivity has several different meanings. The idea of reflexivity of human action and social order was elaborated within the framework of ethnomethodology when Erving Goffman and Harold Garfinkel introduced their respective theories of human action as a consistent monitoring of behavior and its contexts. According to this view, social order is created by people in their reflection of the social world and is the cosequence of descriptive and conversational processes. The ethnomethodological concept of reflexivity perceives social order as created and constantly examined in the processes of social communication.

Apart from the ethnomethodological context, the concept of reflexivity has been adopted by theories of reflexive modernization, which claim that modern societies and knowledge turn to and examine themselves. Reflexivity means a next step in the process of social modernization and rationalization. In his seminal 1986 book Risk Society: Towards a New Modernity, Ulrich Beck argued that recent developments of modern societies would result in a reflexive usage of science and technology in order to respond to growing risks. Similarly, Anthony Giddens, in The Consequences of Modernity (1990), argued that social practices were constantly examined and reformed in the light of information about those very practices and that this reflexivity of modern social life was a consequence of modernity.

According to these views, reflexivity is a useful response to the negative effects of modernity and its technological reason. Nevertheless, reflexive sociology had been already outlined by Alvin Gouldner in 1970 in The Coming Crisis of Western Sociology. Unlike conventional sociology, which claimed to produce objective truths, Gouldner's reflexive sociology bound knowledge with the political and socioeconomic context, providing its critique and transformation. Theories of reflexive modernization elaborated in the 1980s and 1990s were often inspired by similar legacies of critical theory and sociology.

Social systems theory also adopted the concept of reflexivity, especially the theory of autopoietic systems elaborated by Niklas Luhmann (1927–1998). According to Luhmann, reflexivity is a process in which a social system refers to itself and communicates about its communication. It is a system's self-description established by the system itself, that is, part of the system's autopoiesis. Unlike reflexivity of ordinary communication analyzed by ethnomethodology, “procedural reflexivity” of a social system is part of the functional and systemic differentiation of modern society and its evolution. Nevertheless, the autopoietic concept of reflexivity has systemic meaning, which does not incorporate a reflexive social and political agency outlined by theories of reflexive modernization.

Within the context of sociological theory of law and sociolegal studies, the concept of reflexive law emerged in the first half of the 1980s when Günther Teubner reacted to Philippe Nonet and Philip Selznick's calls for responsive law in Law and Society in Transition: Towards Responsive Law (1978). As originally formulated by Teubner and Helmut Willke in the early 1980s, reflexive law was related both to internal structures of the legal system and to its external links and social regulation through law. After this early period of attempts to reconcile Jürgen Habermas's discourse theory with Luhmann's systems theory, Teubner radicalized the concept of reflexive law in the light of autopoietic systems theory and formulated law's reflexivity as a problem of self-referential communication, self-regulation, and self-reproduction in his highly influential Law as an Autopoietic System (1989). Reflexive law became part of a larger theoretical ambition to establish a theory of the autopoietic legal system and thus provide a new approach to law's capacity of social regulation. Law's reflexivity was the result of its autopoietic character.

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