Auctoritatis Interpositio : How Systems Theory Deconstructs Decisionism

Judgement between Cognition and Decision

Typically, legal thinking characterizes judicial decision-making in one of two ways: on the one hand, the Judgement is viewed as a stylized conclusion whose content educes from legal sources; ¹ by contrast, other authors, amongst them Carl Schmitt, reserve an alternative function for the judicial elite, characterizing judgement as an act of will, whose normative content entails a creatio ex nihilo. ² Accordingly, for Schmitt, the auctoritatis interpositio

[i]s justified by the specificity of the normative and arises since a concrete judgement must be made of a concrete fact, even though the only available evaluation criterion is a general principle of law. Accordingly, every decisional instance entails a transformation … every transformation entails an auctoritatis interpositio … the very essence of judgement is the fact that there can never be absolute declaratory judgements. With regard to the content of the decisional norm, each constitutive and specific decisional moment entails something new and foreign. Normatively speaking, the Judgement is born out of nothingness. (Schmitt, 1979: 41)

This doubt is also confirmed by analysis of the full text. The Court commences with a textual analysis of legislation, but states that such analysis is mostly an insufficient basis for a decision. Luhmann, who rejects the notion that the wording of the text establishes a large pool from which small decisions derive, would not disagree:

Having a written form of the text does not necessarily guarantee that there are limits to the boldness of the interpretation. But it guarantees the unity of the social medium for the acquisition of new forms, namely good reasons for a certain interpretation of a text. (Luhmann, 2004: 324)

As a consequence, Luhmann treats the esteemed hierarchy of legal sources as a simple metaphor (Luhmann, 2004: 124). With this, he explodes the shortcomings in Carl Schmitt that are revealed by Ingeborg Maus’ critique that Schmitt oscillates between decisionism and substantiality, between ex nihilo legal judgements and his conception of concrete orders (konkretes Ordnungsdenken) (Maus, 1976: 19ff.), between Thomas Hobbes and Donoso Cortes (Meuter, 1994):

The concept of positivity suggests that it can be understood through the concept of decision. Positive law is supposed to be validated through decisions. This leads to the charge of ‘decisionism’ in the sense of a possibility to decide in an arbitrary fashion, dependent only on the coercive force behind such decisions. Thus, this leads in fact to a dead-end; after all everybody knows that in law decisions are never simply made arbitrarily. Something went awry with this line of reasoning. (Luhmann, 2004: 76)

The collapse of traditional western legal thinking into contradictions, as well as the forlorn effort to channel the unitas oppositorium into intentional, contemporaneously non-arbitrary, judgement, are clear indications that the law of modernity is inexorably permeated, both in relation to its aspirations and in practical reality, by antagonism between legislative-binding and decisional-freedom; or a contradiction which law can only ever address through praxis and from which it can never, qua the very nature of the conflict itself, find peace. This is a contradiction which has its very deep-seated roots in the fact that legal self-description is not governed, in a final instance, by whichever determining societal structure prevails; is not fashioned by an external actor, to whom law seemingly owes its own representative existence. The legal self-descriptions, as they appear within the theories of adjudication presented here, are, instead, more easily traced back to a complex network of power–knowledge relationships. They are not simply concerned with the question of how and by means of which operations the symbolic validity of law is transformed; instead, they themselves also play a direct part in the constituting of the legal medium. Urs Stäheli is, accordingly, correct when he concludes, with regard to law, that the existence of such continual processes of reconstitution requires us to react: on the one hand, with a genealogical analysis of symbolically-generated media; and, on the other, with an analysis of the permanent purification strategies, which must be applied in order to secure the functionality of the medium (Stäheli, 2000). This means, both for the theory and for the practice of legal decision-making, that the question of the identification of the border between the interior and exterior of the functional system of law – the expression of law and non-law – must be shifted to be answered in the light of conflicts about the articulation of the medium of law and debate on the determination of what can ever be considered to be a valid judgement (in abstract form, see Stäheli, 2000: 184ff.). The relevance of such a form of analysis of the symbolically-generated medium of ‘law’ is then confirmed since it demonstrates that the unveiling of lacunae within legal self-referencing processes – the incomplete nature of the deductive relationship established between legal decisions and legal norms – inevitably ends in an everlasting process of dislocation within law. In elucidation: the process of abstraction upon which the law medium rests, has always carried with it the seed of impossibility, or the germ of legal self-representation of law within law. All processes and attempts designed to normalize the daily social appropriateness of legal operations are, thus, in the final analysis, a contemporaneous attempt to rid the system of its paradoxes. The problem is that there is neither a pre-existing legal system representing its societal exterior nor a pre-constituted societal signifier for what is law. Societal structure and legal semantic are thus linked with one another in a circular process; and it is to exactly this process that the concept of auctoritatis interpositio refers. However, even the interposition of this authority cannot furnish an end to the infinitely regressive question of whether law is lawful, or whether it is correct that legal judgements are intentionally made in all potentially capricious freedom; and not least so since the opposing alternatives adopted by Carl Schmitt and Hermann Heller readily demonstrate that strategies designed to deal with law’s need for decision-making, themselves require a decision to be made.

The Judgement Paradox

The founding paradox within law, which makes itself felt as a paradox of application within legal decision-making, determines that assertions made in theories of adjudication, which characterize the legal duty within a decision-making situation as a simple one of making a legislatively-appropriate choice between the legal positions presented during proceedings, appear, at best, to be mere truisms. By elucidating contrast: the legal positions presented during proceedings might thus only be viewed as worthy of comparison when they are recognized as having equal value as law. It is exactly at this moment that each position must work to undermine the other: parties to the proceedings attempt, through argument, to emasculate their counterparts’ claim to embody the law. To what degree then is a decision still required? Clearly, a decision is initially required on the issue of whether the positions might even be viewed as legal options. This immediately constitutes the first element within a binary alternative: although both parties might lay claim to the law, only one will be able to assert their claim to exemplify law in fact. This, in turn, constitutes the second element of binary choice: simply stated, the emphasis placed on judgement as choice inevitably traps discussion in a circle whereby a choice is made possible between two conflicting positions because a choice can only be made in favour of one, that is, the choice is made possible since there are two options to choose between. This tautology is thus an indication of the existence of a fundamental problem: a difficulty that cannot easily be resolved within any effort to pre-furnish the judgement with a pre-existing point of reference; a problem that is no more or less than the fact that a decision must be made, in order to ensure that we are dealing with a judgement. A further paradox is thus lurking in the shadows, one which, according to Luhmann, can be expressed in the abstract as follows:

Sometimes the majority of available possibilities are denoted as alternatives; sometimes, only one restricted vision of alternatives out of the legion of non-simultaneously realisable possibilities is given this accolade; and it is often unclear which of these two mutually-incompatible meanings is meant. This linguistic ambivalence appears to be an indicator for the fact that we are dealing with a paradox. (Luhmann, 2000a: 124)

With this, the ‘decision-making paradox’ can initially be modelled in line with the notion of the observation paradox (Luhmann, 2000a: 123). Thus, in analogy to the observation paradox, decision-making paradoxes can never be resolved because every decision incorporates its opposite (Luhmann, 2000a: 131). Here, Luhmann makes renewed recourse to George Spencer Brown’s (1979) formulations, in order to emphasize that we can only speak of a decision, of an act of ‘distinction’, when something exists from which our decision must be ‘distinguished’. In other words, decisions do not arise following a more or less tortuous process of calculation, but, rather, only where a contingent choice is made between alternatives (Luhmann, 1999a, 2005). Luhmann concurs with Heinz von Foerster: ‘Only those questions that are in principle undecidable, we can decide’ (von Foerster, 1992, cited in Luhmann, 1999a: 289). In elucidation, a decision cannot be understood in the simple terms that its pre-requisite is one that can and must be taken. A similar problem arises where the decision is represented as an alternative: and does so to the degree that the possibility of alternative choice extends far beyond binary choice, such that the decision not only encompasses the equally possible – the matter impacted upon and ‘incorporated’ within the decision – but also refers to matter impacted upon through its ‘exclusion’ from the decision. These are the alternatives that arise by virtue of the fact that the decision is an act of observation: ‘The formula “alternative” is the formula that transforms the decision into an act of observation. The decision is an indication of which facet of alternative choice it prefers’ (Luhmann, 2000a: 131ff.) So far so good; but the problem nonetheless becomes a virulent one when we question ‘how the decision relates to the form of alternative choice, within which it must opt for one of the possibilities’ (Luhmann, 2000a: 133). Thus, the only possible answer is one where:

the decision itself does not appear within the choice of form of alternative. The decision is not one of the options, which one might choose … But, in the absence of alternatives, no decision can exist; alternatives alone make the decision a decision. Thus, the decision seems to be the incorporated excluded third party; or, the act of observation, which employs the distinction, without being able to characterize itself within this operation. (Luhmann, 2000a: 134)

The modelling of the judgement as an application of the law does not help us to leap across this abyss. Historically, this was the unsuccessful effort that was so exhaustively made by positivism, but which, however, was not only to fall at the hurdle of the incomplete nature of deductive relationships within the legal order as a whole, but was also unable to overcome, or even address, the following problem: although lawyers must make themselves invisible within the decision-making process, such that a decision can be delivered as an act of legal application; nonetheless, as both Luhmann and Jacques Derrida note, decision-makers constantly leave ‘trace[s] de l’effacement de la trace’ (Derrida, 1972: 76ff.), traces of the effacement of traces, by means of which the judgement can always be traced back to the lawyer (Luhmann, 2000b: 379; Luhmann, 2005: 87). In the classical tradition, judgements might never be the decisions of lawyers; an imposed stipulation, since judges would otherwise be substituting their decisions on the law for the judgement of law. In any case, as Luhmann notes in reference to Michel Serres (1987), the decision-maker is

the parasite of his own decision. He profits from the fact that the decision rests upon an alternative. The decision comes and goes, he remains. The decision can nonetheless still be the subject of further communication; questions can be posed to the decision-maker (thereby identifying him). (Luhmann, 2000a: 134)

The Decision as Political Dimension Within Law

Social systems of politics and law are structurally coupled with one another. Law makes use of this structural coupling – that is, the Constitution – to compensate for its lack of a stabilizing central purpose or final instance, which might act as anchor for judicial decision-making (Luhmann, 1990). According to the western legal sources tradition, however, transference of decisional responsibility should serve to ensure that the legal order is a self-contained one. Nevertheless, Luhmann does not feel that the ‘closed’ nature of the legal system – a closure upon which he lays repeated emphasis (Luhmann, 2004: 76) – is thereby comprised. Stabilization is, instead, facilitated by the distinction made between ‘codes’ and ‘programmes’: within law, coding entails the distinction made between law and non-law; programmes are rules, which dictate the apportionment of these values in concrete cases (Luhmann, 2004: 196). Within complex societies, programmes facilitate a large measure of openness to changing environmental conditions.

This never leads, however, to the dissolution of the unity of law as long as this unity is present in the system through one, and only one, binary code, which cannot be used in the same way anywhere else in society. (Luhmann, 2004: 118ff.)

Aristotle was thus early on able to describe the enthymeme in terms of the treatment of probability: certain premises are not uttered since they are, in any case, understood, such that their explication would be found to be tortuous, unnecessary and boring. This becomes highly troublesome, however, when this vehicle of self-evident meaning serves dubious premises: cannot law also be unlawful? The sole protection against such inconvenient doubt is the degree of residual conviction; a force most effectively called into existence where premises are not stated, thereby evading all possible attack through negation. The enthymene plays to acceptance. Self-evident premises remain unspoken and thus amenable to their desired mode of completion. The syllogism formally appears to derive conclusion ‘b’ from ‘a’, thus silently suppressing ‘reasoning ground c’. In this manner, ‘c’ appears to be incontestable. In the overwhelming silence of the leading premise, the thundering of hegemony is often not heard. Thus, the leading premise is usurped by power; an appropriation which is all the more effective, the greater the degree to which the persuasive force of a leading premise is increased by means of the silencing of all doubt about its persuasive facticity, and the greater the extent to which paradox is suppressed through silence. The question posed to law as to what is law, is then substituted for by the question of what is plausible within social relationships (Stäheli, 1998).

Equally, however, an answer is readily found within a polycentric, differentiated society. Amongst others, politics, the economy, science, technology, the media, social relations and codes of morality, are constantly poised to colonize law through secondary coding, which offers particularist powers an opportunity to overwhelm the normative capital of universal rationality. The transformation of law from the focal point for conflicts to the implementation vehicle for political, religious and scientific, etc., rationalities is a constant threat (Teubner, 1997). This is true both for cost-benefit thinking and, for example, for the military threat-defence calculation. Notions of power, efficiency, truth, instrumentality or security, seek to take the place of justice and to institutionalize their partial system logics across the whole of society, to the inevitable cost of social pluralism. This brings with it a danger that the democratically legitimated ordering power of law will be subsumed within the imperialism of each particularist rationality.

The political opportunity arises within these processes because legal internal treatment of paradoxes is itself ‘political’ (Stäheli, 2000: 271ff.; Blecher, 1991: 165ff.). In contrast to the institutionalized politics of the political system, the ‘political’ expresses itself within law as: ‘as decision in a context of undecidability: as the resolution of breakdowns of meaning into antagonistic arrangements … as dissolution of the paradox of law into conflicts between law and non-law’ (Teubner, 2006: 57). The political campaign against the usurpation of law by instrumentalist theories of law ⁷ – a battle fought constantly, amongst others, by Martti Koskenniemi within the realms of international legal theory debate (2000, 2004) – is not, when understood in this manner, a struggle of institutionalized politics against institutionalized politics, but, rather, a legal politics of self-reflection, which has as its goal the maintenance of the openness of the legal code as an empty signifier and the defence of the legal form as being free for heterogeneous determination (Stäheli, 2000: 255ff.). Where legal decisions are commensurate with happenings within a process of legal signification, they may thus be understood as specific legal operations, which unravel the paradox, and which attain their political status through the simultaneous existence of a variety of potentialities, and through the fight to secure realization of one of these potentialities within law (Stäheli, 1998: 61ff.).

Regardless of the fact that Carl Schmitt had no time for such a form of ‘pure’ independent law (Schmitt, 1996a; and in explicit disagreement, Kelsen, 1968), he was similarly unable adequately to describe these decentralized political phenomena, because he defined the political as ‘the potential for an indisputable, clear distinction’ (Schmitt, 1996b: 11), and sought, in line with conceptual logic, to locate it within the binary friend/enemy code (Böckenförde, 1985: 16). By virtue of the fact that he structured the realm of public relationships with reference to the political – that is, the realm exhibiting the greatest degree of variety ⁸ – Schmitt’s analysis is an inexorable captive to the mass media machinery of the political system. Polyarchical political tendencies – in particular, those found within the legal system (see for the transnational context Fischer-Lescano and Liste, 2005) – cannot, however, be portrayed within this theoretical position.

In contrast to Schmitt’s vision, the concept of decision-making and law expounded by systems theory is pluralist in nature. Its deconstructive decisional theory is not anti-formalist in the manner of Schmitt’s decisionism, but is, in stark disagreement, hyper-formalistic, to the extent that it takes legal form very seriously indeed. In this regard, it also eschews the efforts of the Constitutional Court to solve conflict by means of an authoritative exposition of a supposedly higher and objective value order (critique to be found in Maus, 2004). This is not least apparent with regard to its treatment of the rationality conflicts noted above – that is, antagonistic collisions between the economy, politics, religion, etc. – which rejects both ‘camouflaging formulas for judicial or interpretative decionism’ ⁹ and ‘practical consensus’, as well as all evaluatory schemes of supposedly universal values and principles, and, instead, demands the identification of the antagonistic societal rationalities, which seek to make use of law, in order to universalize their partial systems logics (Ladeur, 2004: 12ff.). Such real-world social contradictions must be reformulated within the quaestio iuris, and thus reformulated, be framed, in order to facilitate their reconciliation. The critical sphere of collision is, in each case, to be identified by virtue of antagonism between norms, which, in their turn, were fashioned within the individual realms of distinct partial rationalities. At its core, the matter is one of the evolution of abstract-general incompatibility norms in the context of relationships within the large-scale social system, together with the generation, by means of structural coupling, of corresponding legal norms; as well as one of preparing law to respond to destructive conflict between incompatible operational logics (Teubner, 2000). This approach paves the way for an extremely formalistic treatment of the legal form. The legal task is thus one of having regard for paradoxes of legal form (Teubner, 2006: 41ff.), of foundational work with legal norms of varying provenance, and of constant struggle to defend law from unilateral instrumentalization by political, economic or religious systems; meanwhile, the democratic challenge is one of channelling ‘concrete factual orders’ (Wiethölter, 2005: 75) into civil society processes of constitutionalization (Teubner, 2004b).

Combining the modes of observation maintained in systems theory with those pursued within deconstructivist approaches similarly proves to be an aid to the clarification of defensive strategies against the constant threat of secondary coding of the law (on this challenge, Teubner 2001a: 34ff.). The simple, pre-deconstructive system–environment distinction on its own is blind to the potentiality for secondary coding of law. We must proceed from the assumption that external influencing of law is impossible, since law will either assert its own autonomy or will cease to exist. Luhmann himself recognized the potential for border incursions and invasion (Luhmann 1969: 149, fn. 49). Systematic, personal political decision-making, when taken together with forceful political interpenetration efforts (Luhmann, 2004: 109ff.) can result in a fusing of otherwise autonomous social spheres, which reconstitutes the autopoiesis of law as an allopoiesis, and, within which, secondary coding might be given comprehensive preference above law (Neves, 2001).

The communicative approach, however, is also subject to the threat of colonization of the legal code by other social systems. The founding coding of a social system entails an act of distinction, which can only be made semantically. This semantic distinction, however, can never be fully divorced from its context, such that it constantly threatens to become merely a part of the game. Legal conflicts are not simply constituted by opposition between two social systems, amongst whom the law is then divided; instead, they are made up of opposition between two representations of law, two incompatible conceptions of right and wrong, which cannot be reconciled within the concrete case at issue. And it is here that the utility of Teubner’s theoretical fusion of systems theory and deconstruction becomes apparent, most particularly, his suggestion that they might be mutually deployed to cure each other’s partial blindness. The primary operation performed within deconstruction is a continual questioning of the accepted usage of the signifier/signified couplet and a continual insistence that the signifier is merely a repository for very many further visions of the signified (Müller and Christensen, 2004: paras 507 et seq.). As a consequence, stability is not easily explained, and it is here that an aid may be found through conceptual substitution, or the deployment of the systems/environment distinction. In reverse, the text/context distinction can help to clarify the law/society distinction, taking the place of the system/environment distinction. The conviction that each and every repetition will change the rule undoubtedly makes the form somewhat phantom-like and indistinct; however, this disadvantage within the description of stability, is balanced by the advantage that change might thus be better described, and, more particularly, the shortcomings of coding – the fact that it is not isolated from and free of the influences of the programme context – be better revealed. And it is from this revelation that the task of the judicial centre to defend against the colonization of the code by the periphery is derived. Concepts of law educing from the periphery must thus be subject to re-entry. To the extent that law is maintained as an empty signifier, antagonistic social systems are forced, during the course of social interaction within legal proceedings, to discover exactly where the limits to universal logic are to be found. Law can function as the ‘gentle civilizer’ of social systems (Fischer-Lescano and Teubner, 2004; see also the formulation of Koskenniemi (2002) in the realm of international law and a world of states), if judges take note of Rudolf Wiethölter’s formulation of the main duty of the lawyer: ‘the cure of the soul of law is, today, commensurate with ministration to the legal paradox, its simultaneous maintenance and resolution’ (Wiethölter, 1994: 113).

Conclusion: Decision as Law Delayed

The performance of law is distinguished from the performance of power because power is concerned with decision. The result alone has significance. This has little to do with trial and argumentation. Yet, the decisionist promise that conflict will be ended by decision is still not redeemed. Conflict continues even after the decision. For this reason, justification is required. Yet, even this does not suffice, because the decision decided what could not be decided through a simple act of recognition. For this reason legal proceedings and argumentation exist, including parties to the conflict within the decision. Yet, even this cannot guarantee conflict resolution. Rather, during the process of proceedings, conflict changes its nature. The system is also different before and after the judgement. The system must be justified anew through retroactive coupling, thus to remain stable by means of change. Law is accordingly concerned with postponement by means of supplementation. This alone ensures that the social system of law may metamorphose and retain its learning capacity. Conflicts are a precondition for morphogenetic processes of transformation and for their cognitive openness to a societal environment (on the concept of morphogenesis, plundered from Maturana, see Luhmann (1996)).

Law employs trial proceedings, argumentation and justifications to treat conflict, thus offering society a means to delay and make the assertion of power more difficult. The derivation of law from legislation during the course of proceedings, its transmission into the decision, the justification of the law and all consequent criticism may be understood negatively, as a form of law which profligates itself within its social environment. Yet this process may also be understood positively, as a well-crafted attempt, governed by rules, to prevent the concretization of justice. (Teubner (2001b) is instructive on the enhanced value of the proprium of law).

Law is only created out of conflict between the parties. Legal creation, however, is not commensurate with the generation of something that is absent, the bringing into existence of something that has no existence. This would merely be an extension of the metaphysics of presence. Law is neither present within the legal text, nor within the speech of the parties, nor even within the judicial justification. Legal decisions are similarly not the creatio ex nihilo of authoritative decision-makers but are, instead, events which divide a process of signification into a time before the decision and a time after the decision, but which, likewise, do not determinatively conclude the process of signification by means of the absorption of uncertainty. The legally constitutive impossibility of a distinction between legal and non-legal questions, which underlies this process, and which was captured in medieval terminology within the abrogatio/derogatio formula, ¹⁰ cannot be overcome by means of a decisionist exercise of power. This impossible distinction marks law to this day: legal decisions embody delay in the giving of the law. Law cannot be identified from the text alone, hence it must be discussed and argued over. However, since the speaking of the law only seldom leads to consensus within non-coercive discourses, a decision must be taken. Yet, because a decision could be decided differently, justification is required. And because even this is not enough, an act of legal implementation is needed. However, postponement is equally not ended by implementation, because there are never any final grounds, only penultimate grounds. The auctoritas is delayed within a continually fluctuating interpositio. This is neither personally, contextually nor temporally determinable.