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From Autopoiesis to Autoimmunity in Legal Systems
Willis Santiago Guerra Filho1
The following paper aims to address the adequacy of Luhmanns systemic
approach to describe the legal order of so-called "peripheral" (democratic)
states under the present post-modern historical conditions, that leads to a
globalization of (post-industrial) society. In the background we may found the
major question about what kind of relationship has such an approach in
socio-legal studies to a critical one, especially that of so-called
poststructuralists such as Deleuzeand Derrida. We are to try to go beyond
those efforts although having them as requisites. In order to do so we begin
with a depiction of the legal order's general features in the society we live in
worldwide nowadays, as well as a sketch of the evolutionist theory of
autopoietic social systems, to end up with an appraisal of a paradigm shift
towards an immunological approach as it has being discussed in the
Humanities by authors like Roberto Esposi to and also by others from
different fields of research.
Key-words: World society autopoiesis poststructuralism critical socio-legal theory -
immunology
The theory of autopoietic social systems develops a conceptual
framework to be applied on the study of societies that attained a particular
historical condition, to which belongs at first place the democratic feature of
political institutions and the capitalistic domain of economic values in those
1
Professor at the Graduate Legal Studies Program of the Catholic Pontifical University atSo Paulo, Brazil. Research fields: Legal Theory, Philosophy of Human Rights, Social and
Political Theory.
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societies. This means, in Luhmann's own words, the forthcoming of a
gesellschaftlicher Primat der Wirtschaft viz. economic society instead of
"political society (societas civilis), so that "das politische Teilsystem der
Gesellschaft seine fhrende Stellung an die Wirtschaft abgibt, das heit sich
primr wirtschaftlichen Problemstellungen unterordnet" (Luhmann, 1981:
149). The process of globalization leads us to figure the whole world as a
society, the "world society" (Weltgesellschaft, Luhmann, 1971). Considering
this society as a system, we'll have also on this system a "core" (or "center")
and a "periphery". "Central" would be the (participative) democratic and
advanced capitalistic parts of the world society, while the others would remain
"peripheral" until the accomplishment of their integration in the "economic
world society" (wirtschaftliche Weltgesellschaft). Here we must remind that
"core" and "periphery" in terms of autopoietic systems' theory is not to be
seen as corresponding to criteria of geopolitical division of the world, so that,
for instance, Latin America as a whole would be at most a peripheral part of
the West, and so on. As Luhmann explains, modern (or, in my terms,
postmodern) society is the one and only world society, that is to say, a global
system, since "as a consequence of functional differentiation, only one
societal system can exist. Its communicative network spreads over the globe.
It includes all human (i.e. meaningful) communication" (1990c: 619). In the
global system some subsystems, as for instance the scientifical and
economical, already overcame territorial boundaries, while others still
attached to it, as it is clearly the case of political and legal systems. Although,
as there is a difference on the distribution of economic capital within any
given society, there is also such difference in the distribution of political
democratic and juridical values from the core to the whole society, be it in the
South or in the North part of the Globe. (See, for a similar view, Souza
Santos, 1988: 376; 1992: 138.) This is not to be comprehend in terms of
countries that are peripheral, since the center and its periphery would be
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physically everywhere, as long as its characteristics are shown. But if we
follow the indications of Luhmannin his final masterwork from 1997, when he
asserts that protests always come from the periphery against the center, by
pretending to be out of society, then we come to the conclusion that as the
society of society autopoietically unfolds itself so the distance between
desires and its satisfaction tends to vanishes, something that Kojves
lectures on Hegels Phenomenology of spirit would support, as there we
find the (Herderian) idea of geistigeTierreich (see Forster, 2009).
The theory of autopoietic social systems is an "evolutive acquisition" (N.
Luhmann& R. De Giorgi, 1991b: 221 ff.) of post-industrial society and it is
fashioned to describe its (virtual) reality. It substitutes the epistemological
opposition "subject X object" (= objekttheoretischer approach) by the
functional differentiation "system X environment" (= differenztheoretischer
approach), and regards as its object not the human being, but their exchange
of communication (Luhmann, 1987: 192 ff.), thus generating a conceptual
framework more adequate to the "informational" society of postmodern era.
This happens as far as the theory of autopoietic systems aims "to improve the
instruments of self-observation, i.e. of communicating within society about
society" (Luhmann, 1987: 137).
As a matter of fact, according to Luhmann(1990a, 1990b), there exists
a dependency between judicature and legislature, which is clearly seen in
such a rule as that in art. 97 of the German Constitution: "Judges are
independent and subject only to the rule of law". This means that they are
free from the political task of furnishing the general rules of conduct for a
given society, and cannot be politically responsible for their own decisions
that enforce those rules. On the other hand, they are free to operate with the
law, in so far as they use only legal arguments to solve the social problems
that are brought to their consideration. We are faced here with what
Luhmann calls "the paradox of coercion that becomes freedom", since
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judges are subjected to legislation but not to legislature, as far as every
statute enacted by legislators is subjected to the interpretation of judicial
officials - even rules like the one mentioned above in art. 97, of the German
Constitution, where "rule of law" (Gesetz) is understood as "law" in the most
broad sense (Recht) to include, for instance, constitutional rules and
principles. (See Hesse, 1984: 210, note 54.)
In this context the judicature turns out to be of central importance to the
efficiency of legal order in present societies with a democratic political
organization. To be recalled are the acute remarks made by L. M. Friedman
(1976) on the change of the role played by Courts in the industrial societies of
modern world, which became much less occupied with the settlement of
individual litigations, as with the solution of social problems. As a result we
observe the need for change in the role to be played by judicature in
comparison to other state powers. Judges can no longer be only "la bouche
de la loi", as they were referred in the classical doctrine of Montesquieu.
They must also become "la bouche du droit".
Legislation no longer furnishes the required guidelines to a satisfactory
judicial treatment of issues, such as those that we have to cope with in the
hyper-complex postmodern society, brought into light after the body of
statutes were enacted. (See Arnaud, 1992: 30, 2ndcol.) This will only lead to
an extreme degree of dependency upon judicial creativity in order to provide
solutions which are at the same time adequate and legitimate. And this
means also an emphasis on the importance of the procedural laws, that
regulate the judicial exercise of power.
In such a view, the indeterminacy viz. the subjectivity of judicial
decisions (since they can be grounded in many - and even opposite -
plausible ways), pointed out by D. Kennedy, doesn't brings about, as he
states, the "nonclosure in the legal system according to its own criteria"
(1985: 999). This would happen if we were representing an "alopoietic (= non-
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autopoietic) system". In an autopoietic legal system the result of a judicial
decision has always the nature of aprima facievalid statement of what is to
be considered "right", "lawful" (Recht) in the system, since the system itself is
the condition of this validity (Geltung). (See Luhmann, 1991a: 278.) Here we
may also remind the observation made by Trubek(1990: 43), that "[t]he more
that post-modernist ideas advance within legal culture, the more we begin to
see law not as a set of determinate commands, or even as contraditory-yet-
structured sets of rules, principles, and visions, but rather as a series of
fragments which are deployed though a wide range localized process or
practices". Those processes can be seen as media to the circulation of legal
communication in the legal system.
These circumstances make of judicature the unit of the legal system
that by definition operates recursively (i.e., in a feedback and self-
referentiated relationship) only with elements of this system, what makes of it
a "functional differentiated" system. Although there are elements to be found
in the environment that also belong to other systems - of morals, economics,
politics, etc. -, as long as they are used by judicature to justify decisions, by a
sort of "Midas touch" they are converted into elements of the legal system:
the system is closed with, not to the environment. "Nur in der Welt ist das
System ein operativ geschlossenes System" (Luhmann, 1991: 305,
emphasis as in the original). A. Goldsmith (1993: 257) sees much in
common in Luhmann/Teubner's conception with Stanley Fish's basic thesis
of "permeable autonomy of law".
That is why it is postulated that judicature occupies the core of legal
systems and because of that it is autonomous, or "self-produced" (=
autopoieticMaturana& Varela, 1973) systems, while legislature, together
with other units, are peripheral. On the political system, conversely,
legislature occupies the core, while judicature appears on the periphery. Here
is of interest to refer a study by Mario Bunge(1990: 219), where he asserts
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that (a) peripheral in a system is what occurs in its boundary; (b) a
specific function of the system's boundary is to carry out the system-
environment exchanges; (c) in the boundary one finds the system
components that are directly coupled to environmental items.
W. H. Clune (1989) also uses the image "core" and "periphery" in his
construction of a (topological) "Basic Model of Legal Thought". At the
dimension of decision making agencies, processes and decisions he also
puts the courts in the core and legislature in the periphery (ib.: 190 et seq.).
Also Boaventura de Souza Santos(1988) uses the distinction in his attempt
to design a "cartographie symbolique du droit".
The assumption of the legal system as an autonomous - in the sense of
autopoietic, self-referential (see Varela, 1975: 20, 1st.col.,principio, et seq.,
2nd.col., in fine) - social system doesn't mean to advocate its isolation from
the others social systems of morals, religion, economics, science, politics
etc., that are functionally differentiated from one another in present complex
societies. (See, v.g., W. Kargl, 1991, and for a different, misleading view A.-J.
Arnaud, 1989, 1991, and J, Bjarup, 1992: 328.) By autonomy is not meant
"autarchy". This autonomy means only that the legal system functions with its
own (binary) code, that is to say, in the determination of what is legal viz. right
(Recht) or illegal viz. wrong (Unrecht) there is no need to import criteria from
other systems, although they are connected with the legal system by means
of procedures of many sorts - legislative, administrative, contractual and,
specially, judicial -, which are essential to the system's operations of juridical
self-reproduction (= "operational closedness", operative Geschlossenheit). As
G. Teubner (1987: 20) exemplary formulates, "[t]he more the legal systems
specializes in its function of creating expectations by conflicting regulation,
the more it develops and refines norms and procedures, which can be used
for future oriented behavior control. This can only be formulated in the
following paradoxical terms: Law, by being posited as autonomous in its
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function - formality - becomes increasingly dependent on the demands for
performance from its social environment - materiality". (Emphasis as in the
original) Proceduralization to my view represents the way out of the aporetical
conflict between the modern feature of formality and the pre-modern
materiality of law in postmodernity. (See for a dissent understanding
Blankenburg, 1984, and the reply of Teubner, ib.)
The autonomy of the system is condition of possibility of its connection
with other systems, that is to say, of its "openness" (Offenheit). (See
Luhmann, 1987: 603 ff.; Neves, 1992: 36 et seq.)
In the maintenance of the legal system's autonomy the judiciary is
above all supported by a "cognizing unit", which is the legal doctrine. Perhaps
because aware of this state-of-affairs is that E. L. Rubin(1988) advances his
thesis of the "unity of discourse" between judicature and legal scholarship.
That unit (and the mentioned unity as well) is absolutely necessary to
the autopoiesis of social systems, since it is responsible for its self-
observation (that is, for instance, what makes social systems differ from
biological or chemical systems - Luhmann, 1987: 64) and for the recognition
of the elements that are from this specific system - and not from another one,
placed in its environment (see Luhmann, 1987: 60 ss.): "Auch die
Beschreibung des Rechts mu noch rechtliche brauchbar sein" (Id., 1988:
13). Critical theories appear to this view as an advanced moment in this
process of the system's reflexive self-observation, thus contributing to its
operational closure. (See Id., 1991: 277.) The as same it happens with
jusnaturalistic and axiological theories, they do not have to be rejected by
(autopoietical) systems theory, but rather included in its more comprehensive
theoretical framework. (See Id., 1988: 15 et seq.) Here we must remind that
the conception of "society as a system" is considered by Trubek(1990: 5) as
"a major advance in legal thought" brought to North-America by the
law and society movement, what makes it congenial also to the critical
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tradition.
Legal theory not only improves the interpretative apparatus used by
judicature, but it also furnishes interpretations that can possibly be adopted
by judges, and by doing that helps them to fulfill their fundamental task of
defining the conflicts and solutions that are to be seen in accord to the law, by
modeling a specific juridical perception of social reality. "These perceptions
differ significantly from our day-to-day understanding of these phenomena as
well as from sociological or economic theories. The legal system develops
certain specific social constructions of reality (Berger and Luckmann) in
order to decide social conflicts under the guidance of legal norms. In creating
its own reality from the perspective imposed by the exigencies of conflict
resolution, the legal system abstracts highly selective models of the world,
thereby neglecting many politically, economically, and socially relevant
elements" (Teubner, 1983: 279).
The conception of legal order as an autopoietic system doesn't fit to the
reality of (semi-)peripheral modern or (peripheral) traditional sectors of
societies and/or social groups, (so, e.g., Adeodato, 1991: 112) and that
mostly because of their low level of social integration (Neves, 1992: 155 ss.,
210). Luhmann is aware of this circumstance, as he shows when he states
that since (post)modern (world) society "depends more on self-regulative
processes than any other previous society (...) it cannot afford a high degree
of social integration" (1982: 133). But as long as a legal order is not only a
reality, a Sein, but it also builds an ideality, a Sollen, the theory of autopoietic
legal systems furnishes an important knowledge about the possibilities of law
in peripheral parts of the (postmodern) world society, that is to say, about how
it could - and should not - be. This may lead to a critical (= normative) use of
this kind of (descriptive and constructivist) socio-legal study. An example
might be seen in the work of Marcelo Neves(1992: 182 ss.,passim), when
he identifies the lack of legitimization in Brazilian Constitutional Law to
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problems in its "self-reflection" and self-reproduction as an autopoietic legal
system.
If, according to C. Geertz (1983: 173), "as any other trade, science,
cult, or art, law, which is a bit of all these, propounds the world in which its
descriptions make sense", so that it is "a distinctive manner of imaging the
real", then the theory of autopoietic legal systems is a way of imaging this
"manner of imaging the real". Its universalistic viz. "holistic" (in the sense of
"non-redutionistic") nature can easily induce us to consider it as a sort of
"Grand Theory" or, using R. M. Unger's terms (1987: 37 et seq.), a "deep-
structure theory", when my point is that we would do better using it as a
"proto-theory", i.e., "a body of ideas that can serve as point of departure to
different views of social reality and possibility" ( id. ib.: 528). Such a
sociological theory of law represents an attempt to escape the present
"exhaustion of paradigm" (Abel, 1980: 826) in this field - and, at least, it does
open it to an interdisciplinary dialogue without precedent and as we see, in
the world society in which we live in nowadays, with its hyper complexity and
multicentrality, as it is described by autopoietical systems social theory, there
is a need to investigate the present differentiation of systems in such a
society, that might be fulfilled by the systemic approach addressed here.
Nowadays, the lack of trust in false pretensions that claims to possess a
privileged access to reality and the (only) right solution to the complex
questions we are dealing with is what requires the assumption of an
"epistemological democratic" standpoint. This means that we have to promote
a wide debate to include the greatest number of positions, so that without an
excluding ideological bias we can gather the correct aspects from each one in
order to build appropriate answers to our questions. What is meant here is
not the "end of ideology", but, on the contrary, the assumption of a new type
of ideology, that is a (self-) consciously assumed ideology, opened to include
assumptions of other ideologies and credos, even those strictly religious,
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and J. Habermas.
What I wish to stress here is the fact that in postmodern society there is
a plurality of equally valid descriptions of it - and prescriptions based on them
-, which to a certain degree can be combined to give a more adequate -
because more comprehensive - solution to social problems. (In this sense,
Luhmann, 1991: 44, 55 et seq., in spite of the fact that he advocates, like
Habermas, the continuity - and accomplishment to the latter - of modernity
nowadays and prefers to call "middle modernity" what I consider as the last
phase of it.)
If we now focus on one of those systems, namely the legal one, it is
possible to observe through the lenses of luhmanniansystems theory that it
is at the same time separated and articulated with others social (sub)systems,
so that mutual irritations are absorbed through the so called structural
coupling between the center and periphery of one another, in order to
maintain their stability and simultaneously growth in their environment,
autonomously. Legal systems and political systems are connected through a
particular media of operative closeness called the legal constitution of the
State. Constitutional Supreme Courts emerge from the very core of legal
systems and thus belong to the center of this system, but we may very well
postulate that they are passing through a sort of migration to its periphery
with a strong tendency to occupy the center of political systems. These courts
become co-responsible with the operation of the binary code of both systems,
that is to say, the lawful or non-lawful code in the case of legal system and
the government or opposition in the case of political system. This is due to the
centrality of the definitions about constitutionality of legal norms both to legal
and political systems. So we are now to face the question of the risks that
such a development might bring about, as Luhmann(1997) make us aware
referring to Dieter Grimm (1991)s book on the future of Constitutions. (Now
see also Grimm, 2013) At stake is the maintenance of the autopoiesis in the
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global system, if we consider the legal system as Luhmann (1993) once
proposed, that is to say, as a kind of immunity system in society, with the task
to vaccinate it against the diseases of conflicts through the legal depiction of
such conflicts as prescriptions to be followed by courts conceived as immune
against politics. And the main risk here appears to be that of auto-immunity, in
the sense brought to light by Derrida - first at an interview on drugs and then
extensively in works like Traces - and after him by scholars like Martin
Hgglund (2008), Nass (2006, 2012), Andrew Johnson(2010) andProtevi
(2001).
Such an approach forces the shift from a logic of opposition, inside
versus outside, to a differential logic of potencies that posits overlapping and
opposed systems. Proteviexplains the importance of such a shift:
The immunological systems task is one of reading, of espionageand counter-espionage. The endgame of auto-immune disease -especially when it targets the immune system itself - is that of theimpossible task of undoing the mistakes committed by the internal
police who confuse internal police for foreign agentsmasquerading as internal police dedicated to tracking downforeign agents masquerading as internal police (.) Forimmunology, the question is never one of inside and outside, butof the economic distribution between intakes, assimilation orrejection and excretion. The unitary, self-present body is explodedinto a systemic interchange, a point of exchange of forces; inother words, immunology studies forceful bodies politic. Theoutside is already inside, in relation to the inside; the regulation of
this interchange is the job of the immune system (2001, p. 102).
Auto-immunity is an aporia: the very thing that aims to protect us is the
thing that destroys us. The paradox of legal autopoiesis ending up in auto-
immunity reveals the unavoidable circularity of Law and its political roots at
the constitutions. A constitution is a legal statute of definitions. A constitution
as a set of laws creates a structural vocabulary and thereby constitutes its
own logical language game. What is against the constitutions is, by definition,
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illegal. The use of logic, as a mobilization of divergent immune-strategies, is a
power-mechanism intending to protect itself a priori. Politics is but one
specific structure of language. Politics furnishes the structure of the legal
systems binary logic of lawful/unlawful. Derrida believes that the concept of
auto-immunity upsets this traditional and prevalent misuse of definitions, and
can open up the possibility of a new type of political thought. It is only by
opening itself up to the other, threatening to destroy itself, that the organism
has the chance to receive the other and become another one, in order to
remain the same, i.e., alive. This explains the solution he proposes under the
name of hospitality, the quality of the host, which is gramatologically at the
same time similar and antithetical to hostage and hostility, a circumstance
referred also by Lyotard in his political writings, when he figures a secret
host as that to which each singularity is hostage. This is due to the troubling
analogy in their common origin: hostis. Hospitality carries within it the danger
of hostility, but likewise all hostility it retains a chance of hospitality. If
hospitality carries within it its own contradiction, hostility, it is unable to protect
itself from itself and is stricken with an auto-immune propensity for self-
destruction.
In a text from 1996, Derrida (2002) describes the way in which both
religion and science (faith and knowledge according to the title of the text) in
their traditional forms rely on the notion of an absolute instance that would
remain immune in the sense of unscathed, untouched by otherness, and
invulnerable to ingression: in other words, an instance of the purest
sovereignty, as it is convincingly shown by M. Lewis (2014) in a forthcoming
essay, which I summarize here.
Derridas text is concerned to demonstrate the impossibility of such an
immune instance due to the very logic of immunity itself, according to which it
is always possible for immunity to turn back on itself to become autoimmunity.
In this way, the supposedly complete totality attacks and breaches its own
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totality. From the very start, deconstruction was concerned to show that
anything which presents itself as a totality cannot do so without referring to
some other thing from which it distinguishes itself. The necessity of such a
recourse inevitably contaminates the pure autochthony and autarchy of any
totality. The reference of the same finite totality to the other is a
necessary relation. And this other in turn must refer to another other in order
to constitute its own identity. And this process of referring will go on to infinity.
Thus the identity of the same can never entirely be stabilized, determined
once and for all. This means that the reference to the other lays one open to
a loss of identity, an identity that one will never in truth have had. The novelty
here is to be found in its describing this self-undermining or self-
deconstruction of an only putatively absolute instance in terms of immunity
and its autoimmune recoil.
Lewiscites three passages from this text in order to demonstrate that
Derridabegins by speaking of the notion of immunity in the context of faith
and knowledge, before showing how the same notion functions in the
contexts of politics, law, Christianity, and biology. He then goes on to suggest
that, if one takes ones mark from the biological context, the notion can be
generalized without limit to all identities.
Here are Derridas words, which introduce the idea of the impossibility
of absolute immunity in the case of religion:
The same movement that renders indissociable religion and tele-
technoscientific reason in its most critical aspect reacts inevitably to
itself. It secretes its own antidote but also its own power of auto-
immunity. We are here in a space where all self-protection of the
unscathed, of the safe and sound, of the sacred (heilig, holy) must
protect itself against its own protection, its own police, its own power of
rejection, in short against its own, which is to say, against its own
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immunity. It is this terrifying but fatal logic of the auto-immunity of the
unscathed that will always have associated science and religion.
(Derrida 2002 [1996], 79-80)
These lines may be taken to describe the starting point of Roberto
Espositos project, and indeed the latter cites this passage in (2011, pp. 52-
53). In this connection, one should also among with Lewisnote thatDerrida
here inserts a footnote on thepolitical relevance of the notion of immunity,
and he associates immunity with community on exactly the same
(etymological) grounds as Esposito: The immune (immunis) is freed or
exempted from the charges, the service, the taxes, the obligations (munus,
root of the common of community) (Derrida 2002 [1996], 80n27). Derrida
gives a succinct account of this part of Faith and Knowledge in Rogues:
The formalization of this autoimmune law was there carried out around the
community as auto-co-immunity (the common of community having in
common the same duty or charge [munus] as the immune), as well as the
auto-co-immunity of humanity (2005 [2003], 35).
Derridagoes on to speak of the way in which this idea of immunity is
then transplanted into the domains of law (diplomatic immunity, for instance)
and Christianity (the legal inviolability of the space of the temple), before
moving on to the example which is most crucial to us, a chronologically later
use of the term immunity in the context of biological life. Here Derrida
ventures an extremely helpful and clear definition of auto-immunity. In this
passage, we should heed the way in which the reference to biological
immunity in particular seems to authorizeDerrida in asserting the generality
of autoimmunity:
It is especially in the domain of biology that the lexical resources of
immunity have developed their authority. The immunitary reaction
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protects the indemnity of the body proper in producing antibodies
against foreign antigens. As for the process of auto-immunization, which
interests us particularly here, it consists for a living organism, as is well
known and in short, of protecting itself against its self-protection by
destroying its own immune system. As the phenomenon of these
antibodies is extended to a broader zone of pathology and as one
resorts increasingly to the positive virtues of immuno-depressants
destined to limit the mechanisms of rejection and to facilitate the
tolerance of certain organ transplants, we feel ourselves authorized to
speak of a sort of general logic of auto-immunization. (ibid., emphases
added)
Hgglundlargely focuses his analysis around this generalization (2008,
15), which he refers to Rogues, while nevertheless excising it from its
particular context, where Derrida locates the explanation for the crisis of
scientific reason which reason itself produces, according to Husserls
account in the very structure of the present and of life, in the
temporalization of what Husserlcalls the Living Present (2005 [2003], 127)
(Hgglund2008, 15).
It is crucial to note the way in which Derridashifts from a negative to a
positive version of autoimmunity: auto-immunity makes it possible for the
integrity of the organism to be destroyed, it can precipitate the end of life, but
it also opens up the possibility of prosthetic grafts, transplants, and implants,
which can prolong life. The intruder to which one is hospitable may turn out
to be an enemy or a friend. It is this duplicity in value that Derrida uses to
authorize his generalization of the logic of autoimmunity. It is this absolute
neutrality between positive and negative outcomes that Hgglund has
attempted to prove. The ultimate adequacy of such an account and in
particular whether there is not a preference in Derrida, or indeed an ethical
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imperative that impels us towards this openness, cannot be assessed here.
Hgglund staunchly maintains that there is not, and this is one of Naas
reservations about his work, along with a number of other commentators (cf.
Naas2012, 365n14).
In Autoimmunity, six years later, in 2001, called upon to discuss the
attacks of September the eleventh, Derrida recalls and redeploys this logic in
the context of democracy and the anti-democratic threat to democracy which
appears to come from outside but which is in fact an intrinsic consequence of
democracy itself (in this context, American democracy).
Democracy will perhaps end up becoming the example of autoimmunity
that Derridaprivileges, even more than the biological, and indeed we might
surmise that while it was the double (positive and negative) connotations of
the biological sense of immunity that allowed him to generalize the notion,
one of the most important results of this will have been that it allows him to
understand the concept of democracy. Before himself quoting the passage we
have cited on the autoimmunity of the unscathed (2002 [1996], 79-80),
Derridacomments on his earlier text as follows: I there proposed to extend
to life in general the figure of an autoimmunity whose meaning or origin first
seemed to be limited to so-called natural life or to life pure and simple, to
what is believed to be the purely zoological, biological, or genetic (2003
[2001], 187n7).
Reflecting the context into which this passage has been transplanted, in
his later quotation Derridaunderscores the word terrifying and goes on to
suggest that, according to the logic of auto-immunity, the greatest threat of
terror comes from within, in that destruction of the immune system which
allows the relatively strict border between ones self and the outside and
hence ones very identity to collapse, not because of an enemy attack from
the outside, but due to an internal corruption. My vulnerability is thus, by
definition and by structure, by situation, without limit. Whence the terror.
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Terror is always, or always becomes, at least in part, interior. And terrorism
always has something domestic, if not national, about it. [...] [T]he enemy is
also always lodged on the inside of the system it violates and terrorizes
(2003 [2001], 188n7).
We are confronted here with the truth exposed in Walter Benjamins
1922 essay Kritik der Gewalt, where Kritik means both critique and
foundation as well as Gewalt means both violence and state Power. There
he argues, as Nietzsche did before him in his polemical tract On the
genealogy of morals (Second Essay, Section 17), that law cannot establish
itself without an original act of violence and cannot maintain itself and
preserve social order without continual violence. Law is intended to protect
citizens from violence, but its inherent structure implies that it must both
founds and maintain its authority with violence. Violence is much like a cancer
or an auto-immune disease of AIDS type, secretly implicit within the concept
of Law (Roberto Esposito, 2011). In Luhmanns terms, the original
distinction of law from violence results in negation, but the negated is not
cancelled: negation, maintaining what is not indicated as actualizable for the
next selection, is the operator of potentialization in every selection of social
systems. As a result it becomes clearer that the relationship of violence to law
is auto-immune. Law cannot define itself in opposition to violence, because it
is entirely reliant upon it. The foundations of Law and State are exhibit in this
auto-immune reversal. Luhmanns most peculiar understanding of negation
is what opens to the co-origin of actuality and possibility as well as that of
Law and violence: actual Law is potential violent.
Carl Schmitt would then in a Hobbesian mood advocate, in a book
that Benjaminhighly praised, that to protect and to preserve the law requires
a sovereign, which preserves the privilege to break it (supposedly) if it is
needed. If we recall that the etymology of immunity comes from the Latin
immunis, which literally means exempt, then to properly immunize the law
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there must be no border, no limit, no exemption, that with the law cannot, by
definition, be surpass. So violence is laws parasite, that is to say, if
communication can be seen as the mutual effort of excluding the unwanted
third, there is a noise or paradox that has to be overcome in order to produce
meaning, as Luhmann puts it in his opus magnum from 1997 quoting
Deleuzes Logique du sens, and if this is the parasite, then it is right to see
it as the operator that re-opens communication by interrupting the flow of
information upstream and discharges it downstream in a distorted and less
well defined form (in the proposal of Michel Serres). To become immune
against this parasite turns out to be lethal for societal systems, since they are
defined in Luhmanns terms precisely as communicational systems. The
killing of the parasite is likely to become a sort of Gods and mans second
death after resurrection, since in his polemical talk delivered at a conference
in Frankfurt to discuss the local Schools critical heritage (I See Something
You Dont See) Luhmann nominates Serres parasite to substitute the
subject of the observers observations. As we can conclude with Badiou
(and Kojve, as Pluth, 2009, convincingly demonstrates), man with his
access to ideas as those of justice and truth is the parasite of eternity that
was inoculated in the mortal animals humans live in, and this in the
anthropogenic act of man self-creation upon the material support of the
animal homo sapiens, as it is suggested by Kojve in his book on
phenomenology of right (see 34). It must have been in this sense that
Kojve wrote that man is a fatal disease of the animal (see Agamben,
2003), for in his reading of Hegel he plainly suggests that self-consciousness
is some kind of malady.
And as matter of fact, the legal system and its closer counterpart, the
political one, are very far from getting stronger in the society of society, as
Luhmann ends up treating present world society. We face here both the
limits and the critical potency of the idea of law as an autopoietic social
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demonstration of sovereign or disciplinary power. Such a possibility is
directed connected to a positive valuation of immunity as a condition not only
of hostile closure to avoid mortal diseases or menaces but also as a drive to
become open in order to hospitably include the amount of the other outside
that is needed not only to resist against it, while it is an agent of
differentiation, complexification and growth of life powers.
Otherwise we will end up reaching the point where everyone is, de
facto, an enemy of the state, at least in the light of such rules as the U.S.
National Security Presidential Directive (NSPD - it is remarkable the
coincidence with the Nazi-Partei`s acronym) 51 from May, 2007? Are we not
all policed? Since we can be attacked by internal enemies, everyone is a
potential and imminently actual Enemy.
Schmitt (1996, 2007) asserts that this is properly a depoliticalization,
since for him the essence of politics lies in the distinction of the friends from
the enemies. On the contrary, for Derrida partisan politics, the enemy within,
is, in reality, our current saturation in overpoliticalization. The partisan conflict
is the true essence of the auto-immune symptom of an ongoing world civil
war. Derrida, indeed, wants, acknowledges and demands a depoliticalization.
Is it another name for the deconstruction as it is for Lyotards (1979, 1988)
post modernity or a sign of democratic withdrawal as suggested by S. iek
(2003), especially in this age of overpoliticalization? More so, he advertises a
new concept of politics, a non-political concept of politics, altogether; he
demands a new concept of democracy. This is of course, a democracy to
come, within a politics to come, through a friendship to come. Is it
possible? Derridas answer: perhaps. In his well-known formula, it is only
possible as im-possible. Its impossibility is the condition of its possibility.
Luhmannwould not deny such a com-possibility in the human world that he
conceives under the conditions of double contingency. From my point of view
we could say with Leibnizand Kantthat, if it is necessary, it must be (made)
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possible.
For now we can only assert that Politics is no longer able to maintain
through enforcement of a legal order the irreducible opposition between what
is internal and external to it as a system, which under such condition tends to
de-differentiate, disintegrating in the environment. The increase of human
rights disrespect in traditional states of law is very symptomatically. And they
are negate without any tangible compensation, not even an illusion of
(security from) the contact with the environment. Would the world society
resist to such a collapse of both its legal and the political systems into one
another? And if it does, would it one day becomes a better place to live in or
even worse as it already is now? Are we facing the dissolution of national
states by their melting down into a global empire? Is it Schmitts
katechon(J. Hell, 2009), the most powerful enemy, the adversary par
excellence, that is the Antichrist, holding back the perpetual peace of the
impossible universal State to come (at least, for Schmitt, in The concept of
the political)?Will the increase of violence surpass the State, the Law and
the moral humans it has shaped (in Nietzsches terms)? And again, would
such a development bring about the overcoming of mankind or the return of
the inhuman? We definitely need to learn how to think in terms of flip/flop
distinction. And people like Drucilla Cornell (1992b: 68 ff.), Peter Sloterdijk
(2009), William Rasch (2000), Urs Stheli (2010) and Andreas
Philippopoulos-Mihalopoulos (2009) were definitely right, when they
established connections between Luhmannand Derrida, against the will of a
(Post-luhmannian) Teubner (1982, 2001, 2006), for Luhmann (2002a)
himself made deconstruction equivalent to (his) second order observing,
finally considering it the most pertinent description of the self-description of
modern society - as postmodern or, to respect his option,
postcatastrophical (catastrophe here understood in the sense meant by
Ren Thom, 1975).
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So we have to face a shift not only inside the paradigm but of the very
form that stabilizes state-of-affairs and imposes meaning to events, after its
fragmentary explosion, that results in the loss of the one-and-the-same world
to which we dedicate what Husserl (1931)called in section 104 of his Ideas
the primary belief (Urglaube) or Protodoxa (Urdoxa) in his attempt to
express the intentional back-reference of all modalities of belief. This makes
us recall what Luhmann in his earlier book on legal sociology refers as the
material dimension of social expectations, which Andreas Philippopoulos-
Mihalopoulos explains as the acknowledgement of the necessary
community of the world in order for expectations to exist, that appears in the
form of the need for a fictional consensus on which the reciprocal
confirmation and limitation of expectations is exercised. It is comprehensible
then the alert Luhmann (2002b) give to all those who think universal like
Frankfurtiansstill do, by telling them something they dont see, namely that
they miss the point, as long as they assume that they live in one and the
same world and that it is a matter of reporting in accord about this world.
Lately, Evan Thompson(2007) discusses under a Husserlianpoint of view
such a necessity that to different consciousnesses corresponds different
worlds.
We turn out thinking that the instantaneous and catastrophic destruction
of the World Trade Centers not only one but two towers, that is to say, of both
the real and its simulational clone might have caused such an enduring
impact due to the materialization it made of our lost confidence in a unreliable
reality, since it as mutable as a virus. Then we must mourn the consensual
parasite and welcome the virotic diremption (Entzweiung) of rhizomatic
mutualism (Deleuze & Guattari) producing the differend (Lyotard), an unity
that is multiple in itself, since it is (autopoieticaly) created in between
antagonic poles. Here it is useful to recall, with M. Zahani(2000), when in an
interview with Didier Eribon, Deleuze, referring to A Thousand Plateaus,
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pointed out that what he and Guattari (2004) call a rhizome is also one
example of an open system). And as we learn from a recent breeding of
Luhmanns and Baudrillards contributions to social thinking, [T]he
persistence of a two-side-form can be assured only by producing doses of
some simulated other, no longer available in its natural form (Ren
Capovin, 2008). If it is so, let us hope for the coming in the societal world
system of an AIDS-like virus, a virus that really aids finishing the social anti-
human and natures love/hate double-bind (Bateson, 1972, pp. 271 ss.),, by
doing the auto-immune apocatastasis. Apocatastasis is a term created by
Origenes of Alexandria (185-253 B.C.), also known as OrigenesCristian, in
order to name the final restoration of all things in its absolute unity with God.
It represents the redemption and final salvation of all beings including those
which are in hell. It is an event after the apocalypse itself. The apocatastasis
would synthesis the power of the embodied Logos or Verb, that is to say, of
Christ himself as a redeeming and salvation power, which recognizes no
limits. This proposal lead to the supposition that there is not only one created
world, the one that initiates in the Genesis and ends in the Apocalypse, as it
is suggested by the Christian Bible. On the contrary, in His creative activity
God generates an infinity succession of worlds, which will stop only in the
apocatastasis, when all beings will rest in God. This idea of an infinity
succession of worlds resembles what is predicated by a now very much
accepted hypothesis in quantum physics to be found in Hugh Everett IIIs at
the time it appears extremely controvert 1956 PhD thesis on the wave
function.
Otherwise the legal systems worldwide will increasingly react against
diversity and by doing so it undermines the very foundations of humanity's
both natural and cultural ambiance. This is the worst that the present
enduring crisis can lead to.
On the basis of this model, these metaphors that I produced here, and
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from which, for example, I would say Europe is suffering from an allergy. Is
undergoing an allergic reaction, the crisis is allergic, which does not mean
that it cannot be serious! There are very serious allergies; I suffer from an
allergy, for example. How did I contract my allergy? Excessive protection in
childhood, excessive closure to the environment and then, as a result of
being exposed to the environment, may cause such disturbs as hay fever and
some other much worse of the kind. So we might think that Europe has an
obsession with Europe, which needs to be overcome as well. In other words,
above all, Europe needs to open up again. All this concentration of an
integration that is coming at the expense of the open stance that countries
like Portugal and Spain has previously had, even putting themself, why not,
somewhat outside of Europe, as they were until relatively recently, at the
times I myself had the chance to hear on those countries people saying they
were to go to Europe. In other words, there's no longer any doubt that if you
are in Portugal or Spain, you are in Europe. But why is it that the Iberic Lands
cannot recover its transatlantic vocation, its overseas calling, its ability to
integrate more deeply into the world system, which their history widely
demonstrates. What is happening is a problem of integration of the Euro
zone, of Europe, to global society, this global society whose origins lie in
Europe itself. With this sense of closure in on itself, this preoccupation with
itself, it is missing opportunities that it can no longer see, as a kind of blind
spot. The same is happening with other countries with such grand cultural
backgrounds like Greece, which is the very source of western civilisations
and nowadays are going through what we got to see. With the cultural capital
that it has, we in Brazil needing it so much, we are a great power now; it's a
joke from my point of view, with all due respect to my countrymen and others
that believe so. It is true that we are having some success there, but our
cultural deficit is very large while the culture surplus of Greece is much larger,
i.e., there is no strictly European solution for the European problem. Because
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this is the problem, Europe's obsession with itself, when there is no European
immune system, but instead there is a global immune system causing a kind
of allergy in the European sector of this world, which will be overcome above
all if it is recognised as such, this problem of aversion to what is external and
obsession with what is internal.
The immunological turn in the autopoietic paradigm, aware of such
circumstances, intends to emphasize rather the po(i)etical aspect than the
auto, the selfness, which is the possessive individualism that stills possess
us. Let us now extend some more such a proposal. This new interpretation
situates immunity in a nonexcluding relation with its common (or communal)
opposite. The essential point of departure [...] is a conception of individual
identity that is distinctly different from the closed monolithic one (Esposito
2011, p. 17).
Espositolinks this advance in interpretation to the history of technology
and suggests that this new understanding of immunity and identity has been
made possible, even inevitable, by advances in genetic and bionic
technologies: rather than an immutable and definitive given, the body is
understood as a functioning construct that is open to continuous exchange
with its surrounding environment (id. ib.). And crucially, he states that, the
immune system may very well be the driving force behind this exchange (id.
ib.).. The immune system is thus not something opposed to the common, but
the very possibility of a genuine intertwining of self and other. As Luhmann
once stated, a frontier is at the same time a place of separation and of
encounter.
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