Everson, Michelle and Fischer-Lescano, A. and Christensen, R. (2012) Translated (German to English) - Auctoritatis Interpositio: how systems theory deconstructs Decisionism. Sage.
Abstract
A deconstructivist interpretation of Luhmann’s systems theory can provide a new basis for the understanding of legal decision-making. While legal scholars traditionally describe the process of judgement either as a stylized conclusion whose content educes from legal sources (judicial deduction) or – in the tradition of Carl Schmitt – as an act of will, whose normative content entails a creatio ex nihilo (judicial will), contemporary legal thought supports, for the most part, some form of compromise between the two theories. In a systems theoretical perspective, however, the opposing notions of will and deduction have to be traced back to a fundamental paradox of law, the paradox of legal decision-making. We argue that this paradox-oriented approach is not just another variation of decisionism of a Schmittian nature. Rather it goes well beyond decisionism in that it takes account of the societal context of the decision-making process and insists on the importance of the legal form and the autonomy of law as a social system. A deconstructivist interpretation further sets the stage for a new conception of the political dimension within law, by pointing out that legal decision-making in the light of undecidability is itself a political act. This conceptionalization calls for an identification of real-world social conflicts and their reformulation within the quaestio iuris.
Metadata
| Item Type: | Other |
|---|---|
| Additional Information: | Social & Legal Studies 21(1), 93-119 (2012) |
| School: | Birkbeck Faculties and Schools > Faculty of Business and Law > Birkbeck Law School |
| Depositing User: | Michelle Everson |
| Date Deposited: | 14 Dec 2022 13:28 |
| Last Modified: | 02 Aug 2023 18:18 |
| URI: | https://eprints.bbk.ac.uk/id/eprint/49508 |
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