The paper reconstructs Luhmann’s conception of legal argumentation and justice especially focussing on the aspects of contingency and self-referring operative closure. The aim of his conception is to describe/explain in a disenchanted way—from an external, of “second order” point of view—the work on adjudication, which, rather idealistically, lawyers and judges present as being a matter of reason. As a consequence of some surface similarities with Derrida’s deconstructive philosophy of justice, Teubner proposes integrating the supposed reductive image of formal justice described (...) by Luhmann with the ideal conception of justice presented by Derrida. Here this kind of attempt is rejected as epistemologically wrong. In addition, Luhmann’s theory is argued to have other shortcomings, namely: the failure to understand the pragmatic function of principles, and the incapacity to describe the current legal questions linked with cultures and legal pluralism, which characterise our society. (shrink)

The universalism of rights is a corollary to the individualistic semantics of the Enlightenment and the French Revolution. Paradoxically, the grounds of universalism were those legal and political concepts that theoretically describe the 19th century nation-state (such as sovereignty of the people, citizenship, rights, and the like). All these concepts of the liberal tradition construct the nation-state on the presupposition of a highly homogeneous political community of rational subjects, whose homogeneity consists in the very social, economic, political and sexual conditions (...) of their rationality. This kind of legal and political semantics is no longer adequate to characterize contemporary society which is a multicultural, highly in-homogeneous world-society. It no longer incorporates an ethic which is able to enforce universal leading values for human action. (shrink)