Exclusive Legal Positivism and Legal Autopoiesis: Towards a Theory of Dialectical Positivism

Abstract

In spite of a relatively short period of popularity in the 1980s–1990s, legal autopoiesis is not amongst the most debated theories in contemporary jurisprudence. On the methodological side, this loss of interest was, to some extent, predetermined by its sociological origins, metaphorical apparatus, the complexity of Niklas Luhmann’s theory of social systems and its stylistic density.1 From the normative perspective, the gist of criticism and disapproval among legal scholars could be narrowed down to their scepticism towards the autopoiesis’ motto: law as a self-referential system. Taken superficially, the self-referential character of law breaks the ‘taboo of circularity’,2 endangering in some sense the very idea of democratic governance. It would be a trivial task, however, to demonstrate that the closeness of the system of legal norms has an operational character and is intrinsically connected to its openness. This issue has been explicitly articulated by the founders of legal autopoiesis in their reply to accusations that autopoiesis is a revival of some type of autarchic solipsism of law I do not intend in this paper to trace the evolution of autopoiesis in law and its eventual decline. My primary objective is to offer dialectical account of the discussion about the essence of law, as takes place between legal positivism and non-positivism using autopoietic analysis of law as a means in support of legal positivism. I develop my arguments in 4 sections. After the introductory notes, which set the overall tasks of the paper, Section II provides a brief description of the theory of social systems, analysing the principle of autopoiesis and its repercussion on the system of law and highlights the main research agenda of exclusive positivism (I will also use the term exclusivism). Section III articulates in more details the main problems related to law’s incorporation of morality, providing a theoretical background for the theory of dialectical positivism (I will address the meaning of dialectics and dialectical positivism in Section IV), which is subsequently applied in Section IV to the issues of the indeterminacy of the law, legal interpretation and argumentation.