The Rule of Law

Friday, October 21, 2005
But which type: Natural/Common, Constitutional, or Reflexive?

In a post below Flenser did yoeman's service to describe for us the types of law we live under. Within that discussion I indicated that I think it is unfortunate that matters of such heated discussion as contraception and abortion have been defined as matters of "privacy". Wishing they were framed otherwise is not terribly useful without suggesting some way to unlink them from the larger question of privacy.

While searching for some way to go about that I stumbled upon the "transnationalist" legal philosophy of Reflexive Law. The ideas involved with reflexive law can be found here, here, and here.

From yet another find I'll grab a brief description of the concept of Reflexive Law:

The term "Reflexive Law" was first introduced back in 1982 by Gunther Teubner. Published shortly before Helmut Kohl became German chancellor the article was written in a context, where the social-liberal dreams of a political reform of society, guided by scientific-rational planning and implemented by social-engineers through the means of law had collapsed some years ago and the only alternative rising from the dust of general disillusionment with a supposedly omnipotent government were the neo-liberal and neo-conservative programmes of Thatcherism and Reagonomics. Under these circumstances Reflexive Law was a somewhat clairvoyant anticipation of the late Nineties ideas of Tony Blair and Gerhard Schroeder on a "third way" between market and state; on a Civil Society basically regulating itself, supported, if necessary activated, but essentially merely framed and supervised by the State. That is to say regulated self-regulation is the core political concept behind Reflexive Law. However, Reflexive Law is not meant to be a political concept in itself. To the detriment, like self-regulation it is a concept which potentially fits to all kinds of policies, from neo-conservative subsidiarity, over neo-liberal spontaneous ordering in free markets, to neo-socialist or communitarian ideas of democratic self-government in small and cosy parts of society.

In terms of legal theory Reflexive Law is quite a German concept in that it is built – again as a kind of third way - on the descriptivist Systems Theory of Niklas Luhmann and the normativist Discourse Theory of Jürgen Habermas. Although Teubner's book on "Law as Autopoietic System" of 1989, in which the concept of Reflexive Law is elaborated, seems to be somewhat cynical and, therefore, is perceived to be a mere application of Systems Theory, there is still a lot of normative hope that we find in it, that is to say: self-regulation symbolizes Kant′s perception of freedom and autonomy as self-legislation whereas regulated represents Hegel′s hope for solidarity and rational integration of society through the State.

Fascinating (to say the least). Bringing this a bit closer to home and outside the scope of corporate law where the concept seems to have the most traction to date, we have Jean L. Cohen and Regulating Intimacy: A New Legal Paradigm.

Are these the sorts of legal insights and progress those SCOTUS justices known to search beyond US jurisprudence are after?


Syl said...

Thanks for putting this together. I started with the last link first (don't ask) but didn't get too far.

I get the paradoxes and the shifting boundary between private/public.

I just didn't quite get (or get to) the solution through a change in legal philosophy.

I'll just say that any legal philosophy offered as a solution that still allows the state to regulate my use of contraception, punishes me for making a sexist joke in an office, or decides whom I should or should not have sex with is no solution at all.

And, believe me, I'm way past menopause and totally not employed, and none of these issues affect me personally. But I'm just as concerned about them as if they did.

I'm sorry that I don't think as deeply on these issues as religious and legal scholars. I'm just a plain ordinary citizen who's become alarmed at the intrusion of the law into our personal lives.

terrye said...


I know what you mean.

I quit smoking more than years and 15 pounds ago. But I stll think that asking people if they smoke at home or on their off time is out of line.

And my biological clock stopped ticking some time ago, but I know as a matter of plain common sense that making a woman have a baby she is bound and determined not to have is a whole lot more complicated than passing a law, whatever kind of law it may be.

My understanding of what Miers said on the subject is that the facts of Griswold are not going to come up again so when we discuss it today we do so with regards simply to the way the law was overturned.

Fine and dandy. However you do it a dumb is a dumb law.

I know that is simplistic, but then again this is not brain surgery. It is birth control.

I think knucklehead is a brave fellow for bringing up the notion of transnational law.

Knucklehead said...

I have no desire to see transnational law, or reflexive law, brought into our domestic legal affairs.

I just brought it up here because I found it while trying to figure out if and what the legal community is thinking about in matters of "privacy" and, perhaps, how to decouple "birth control" from "privacy".

One of the big reasons, IMO, to fight against and worry about "judicial activism" is because the sorts of items like "reflexive law" and, from what I can see, matters of "family law" have been removed from public discussion and are the excusive province of the "deep thinkers" hidden behind the podiums of our law schools and the benches of our courts. I don't like that one bit.

Our laws are ours for better or worse. They are not the property of a "council of the robed and wise elders".

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