Abstract

If, as Max Weber famously argued, science in general (Wissenschaft)*that is, the focused, disciplined use of reason*cannot justify itself on its own terms, then each individual science*law is among his examples*remains without foundation. Law, Weber wrote, operates by distinguishing between legality and illegality. Whatever is brought before it by way of formally correct procedures demands and receives judgment. An action is either legal or illegal; a person either not-guilty or guilty. But law itself remains in legal limbo. Law as a science cannot determine whether the science of law is legal.1 This conundrum, Niklas Luhmann would say, is the foundational paradox, the paradox of all foundations, and thus the foundation of all of Luhmann’s speculations. Modernity consists in the functioning of operationally closed social systems that reproduce themselves internally, autopoietically, by means of their own elements. Seen from the perspective of sociology, or at least Luhmann’s sociology, social systems - law included - find their legitimacy only through the continued success of their operations. Legitimation durch Verfahren [Legitimation through procedure],2 as Luhmann famously and controversially put it early in his career. (Published: 1 September 2010) Citation: Ethics & Global Politics, Vol. 3, No. 3, 2010, pp. 239-254. DOI: 10.3402/egp.v3i3.5488