Patrick Capps

Legal Autonomy and Reflexive Rationality in Complex Societies

Proponents of the idea that law has assumed an endemically closed character consider that there are severe limits to the possibility of successful legal regulation in highly complex and socially differentiated societies. This idea reaches its most radical form in the theory of law as an autopoietic system which suggests that the autonomous individual at the core of most traditional legal theory should be replaced by the self-creating and self-maintaining legal system. Advocates of this theory suggest that legal scientists and practitioners should reject traditional rationales of legal regulation and adopt a new, and more modest, mode of legal rationality called reflexive law. In this article, we argue, first, that the idea that specialized autopoietic subsystems have epistemic primacy is flawed and, second, that this initial argument coupled to a conception of the function of law which is held in both autopoietic theory and more traditional conceptions of law reveals an insight into the possibility of effective legal regulation in complex societies. Specifically, effective legal regulation in complex societies requires a reformulation of reflexive law so that basic principles of political morality are incorporated within its autonomous domain.

Book Review: Random Justice. On Lotteries and Legal Decision-MakingRandom Justice. On Lotteries and Legal Decision-Making by DuxburyNeil. Clarendon Press: Oxford, 1999. £45.00 (hb), £19.99 (pb)

search for a genuinely transnational legitimacy as utopian. By contrast, Joerges claims that Lindseth would have to show how the Community’s administrative supranationalism could be reanchored in the Member States’ constitutional orders-‘hardly a less utopian project’ (at 27). There is, unfortunately, truth in both propositions. The web of infranationalism can no longer rely solely on the mediated legitimation of national constitutional orders. Gerstenberg and Sabel’s polyarchy is, for now, beyond European citizens’ prevailing understandings of democracy. It could hardly be otherwise. Making the democratic case for European integration to a sceptical public is far from easy. However, in its own modest way, a book such as this, which demystifies the operation of various key elements of the EU regulatory system, and attempts to locate it within a novel theoretical framework, has its part to play.

Incommensurability, purposivity and international law

Within international law, theory is often considered peripheral to more pressing practical problems. In the first part of this article, it is argued that refusal to take account of theoretical and methodological issues entails that particular descriptions of international law lack validity, and, hence, rational reasons cannot be provided as to why one account should be considered preferable to any other. This problem of rational justification, which emerges in a variety of forms, is referred to as the incommensurability thesis. The argument is illustrated with respect to the ninth edition of Oppenheims International Law. In part two, a methodology is advanced which demonstrates how a justifiable account of international law can be generated which avoids the incommensurability thesis. This methodology states, specifically, that international lawyers must develop (a) a coherent understanding of the kind of function international law performs in maintaining social order in the relations between states and (b) a substantive conception of social order. Therefore, in order for a particular account of international law to possess validity over rival accounts, international lawyers must take account of social theory and moral and political philosophy. The final part of this article discusses the concepts of international law offered by Weil and Kant, which can be understood as examples of the methodological approach offered in this article.