The Debate over the Reflexive Paradigm
♦ As indicated in the preceding chapters, I am convinced that the paradigm framework can shed a great deal of light on the dilemmas of regulating intimacy in the contemporary epoch. Many of the negative consequences and regulatory paradoxes in this domain stem from use of the wrong paradigmatic approach by courts and lawmakers. Moreover, the pluralization of the contexts and forms of intimate association and the explosion of issues requiring legal attention (ranging from contraception, abortion, surrogacy, genetic engineering, homosexuality, and nonmarital intimacy of all sorts to divorce, marital rape, and sexual harassment) have created the need for a differentiated approach to regulatory strategies. Unless serious thought is given to legal forms, the effects of regulatory choices, and the core assumptions guiding lawmakers and courts, even the best-intentioned normative discussions and political resolutions will have ambiguous or negative consequences.
I believe that the reflexive paradigm provides the most appropriate perspective for dealing with such issues. This paradigm presupposes the decentered character of contemporary society and a nuanced relationship between the state and civil institutions. It enables one to acknowledge contextual differences and ethical multiplicity in modes of intimacy, as well as the plurality of possible legal approaches. It thus allows for a reflective choice among forms of regulation and an intelligent combination among these.
We are already in the world of legal pluralism when it comes to law and intimate relationships, as even a casual perusal of the types of regulations in this domain will reveal. But theoretical clarity regarding the issues and range of choices is lacking, as is an adequate reflective awareness of the overarching paradigmatic framework with which multiplicity, plurality, and alternatives should be approached. That is why the regulation of intimacy under the new cultural and social circumstances of contemporary society seems to create intractable dilemmas. Anachronistic or ad hoc regulatory responses too often substitute for reasoned reflection regarding the underlying assumptions and effects of legal intervention in the shifting and increasingly uncharted domain of intimacy. But recognition of social and legal pluralism should not and need not entail normative or conceptual incoherence. I argue that a new paradigmatic approach involving reflexive law offers a systematic way to reframe and even resolve many of the old dichotomies and regulatory paradoxes.
As I indicated in the Introduction, however, the reflexive paradigm has itself become the target of criticism. Three charges have been raised against it: first, that reflexive law is simply a new form of privatization and/or neocorporatism involving the delegation of authority and decision making to ultimately irresponsible powers; second, that this paradigm undermines either the rule of law or democracy or both; and third, that the general theory of legal paradigms is unconvincing, because it rests on an untenable evolutionism.1
In this chapter I consider these charges. In order to do so I discuss the strengths and weaknesses of four attempts to develop a new legal paradigm. I argue that the reflexive form of law is a useful type of regulation in certain circumstances. However, as we have seen, a great deal depends upon how it is institutionalized. But I also argue that it is necessary to shift over to a cogent version of the reflexive legal paradigm, for this provides a perspective that allows one to reframe choices and alternatives and resolve regulatory dilemmas in the domain of intimacy. I begin by presenting the four main conceptions of the paradigm: the systems-theoretical approach; the action-theoretical approach; the sociological reflexivity model; and the theory of “responsive law.” I then address the most important charges leveled against this paradigm and conclude with a summary of my own conception.
The search for a new paradigm of law was triggered by a growing awareness of the regulatory paradoxes inherent in the centralized, directly interventionist approach to steering typical of the welfare state. The welfare paradigm deploys a particular form of law: substantive, purposive, goaloriented, and implemented through regulations, standards, and rules. This materialized law aims at achieving specific goals in concrete situations. In part it seeks to secure the equal worth of liberty (substantive in addition to formal equality) or real freedom for all. Rematerialized law revives status in order to target differences in power and resources that undermine equal liberty and social justice. The type of legal regulation it uses is thus more particularistic than classic formal law, yet often involves vague and open-ended directives. Therein lies the problem.
From the systems-theoretical perspective, the main flaw with this mode of regulation is that it leads to negative externalities and overall ungovernability. 2 From the action-theoretical perspective, the problem is that it undermines instead of fostering the liberty it seeks to equalize because it increases arbitrariness and paternalism.3 From both perspectives, responsibility and autonomy of the regulated are threatened, although these terms have rather different meanings in the two approaches. The solution is not, however, to return to formal law cum private ordering associated with the liberal paradigm but to shift over to a new paradigmatic approach.
THE SYSTEMS-THEORETICAL MODEL OF REFLEXIVE LAW
As Gunther Teubner has argued, following Luhmann, the welfare-state model of substantive law often appears ineffective and even harmful because it assumes the impossible task of steering society from a single control center: the polity.4 This approach derives from a misleading and anachronistic conception of state/society relations: the presumed constitutive omnipresence and omnicompetence of the political. Indeed, it operates with a “rather primitive” model of linear causality guiding purposive legal action: “Legislative goals are thought to lead to the selection of a legal program which in turn changes social behavior so as to realize the desired goals.”5 Societal institutions are construed as directly amenable to administrative channeling. Personal preferences are deemed open to molding by “environmental” incentives or disincentives.
This model is misleading because of its failure to acknowledge the specificity and internal requirements (self-referentiality) of the differentiated spheres of society. It is anachronistic because contemporary society is decentered: composed of differentiated subsystems (e.g., economy, science, politics, law) with such high degrees of internal complexity that none of them could evolve the requisite control capacity for steering the others or coordinating them coherently and compatibly.6 Welfare state law lacks the requisite social engineering capacities to steer development in highly evolved, functionally differentiated modern societies.
Moreover, remoralized, repoliticized law would destroy the specific juridical rationality of the legal system (its own self-referentiality) without replacing it, as Weber and then Luhmann pointed out long ago.7 Such a legal response would increase rather than mitigate the proliferation of negative externalities among subsystems. Since centralized political/legal regulators lack the requisite knowledge of the respective subsystem they target (be it the economy, scientific research, or intimate association), efforts to maximize the rationality or fairness of a subsystem through goaloriented directives inevitably have unintended consequences that often create insoluble problems in the other subsystems. Substantive legal directives cannot anticipate or control for all possible damaging side effects.8 The problem is how to rationalize the interplay between already differentiated and rationalized subsystems.9
It is not necessary to reproduce the arcane language of systems theory or to buy into the thesis of self-referentially closed, autopoietic subsystems, to grasp the main point in this argument. Teubner maintains that compensatory state intervention targeting undesirable side effects of modernization is ineffective and tends to shift legal doctrine from juridical conflict resolution to more of a legal policy orientation, turning law into a form of social technology for which it is poorly suited.10 Indeed, this regulatory strategy inevitably ends in a trilemma: it leads either to “incongruence” of law and society or to the “overlegalization” of society or the “over-socialization of law.”11 In the first case, the regulated system reacts by not reacting because the regulation does not comport with the internal logic or relevance criteria of the regulated system. It is, in short, ineffective. In the second case, the regulations are influential but negatively so: they have disintegrative effects on internal interactions within the regulated field. This occurs when the regulatory programs obey a functional logic or follow criteria of rationality that are poorly suited to the internal social structure of the relevant sphere of life. Many of the problems of legal regulation of intimacy fall into this category. In the third case, regulatory failure involves threats not to the reproduction of the targeted subsystem but to the autonomy of law itself. The instrumentalization of law for policy purposes can involve its surrender to the regulated field, threatening its own self-production. Law becomes overpoliticized, overmoralized, overpsychologized, overtechnicized, and so on. Law risks losing its general or universalist character either by directly delegating legal and regulatory functions to private instances or by serving particularistic purposes.
In all these cases, regulatory failure can be attributed to the lack of respect for the autonomy and internal logics of the regulated subsystem. But centralized legal/political control does not only lead to dedifferentiation; it also undermines responsible decision making. Indeed, as Ulrich Beck has pointed out, if the state poses as the center of coordination it thereby assumes responsibility for the negative externalities of decisions that have actually been made elsewhere. Instead of fostering responsibility within each subsystem for the consequences of its own actions, law takes on tasks (anticipating and warding off risks) and responsibilities with which it cannot cope.12
It is worth reemphasizing that this critique of the welfare model of regulation is not a neoliberal plea for deregulation. Teubner argues that although strategies of reformalization would increase subsystem autonomy, deregulation and/or reprivatization (shift over to private ordering) would not resolve the problem of negative externalities.13 Although it is true that formal law did facilitate social autonomy, its means of doing so—withdrawal from regulatory functions and retreat to sheer formality—can no longer cope with the problems generated by the autopoietic structure of social subsystems.14 The task at hand is far too complex for such a simple solution. Indeed, juridification has three desiderata: to integrate environmental demands into the system (fostering responsibility) without undermining its conditions of self-production and reproduction and without undermining autonomy.
It is Teubner’s thesis that reflexive/procedural law can accomplish these tasks. The way to counteract the negative externalities of specific institutional practices and combat the self-closure and irresponsibility of subsystems vis-a`-vis their environment is to foster forms of reflection within them. This can occur through the regulation of self-regulation. Reflexive law does this by applying procedures to procedures (reflexivity): by establishing the structural premises for future decisions within the subsystems in terms of norms of procedure, organization, membership, and competencies that can make overall processes of decision making sensitive to side effects and externalities and change the weights of different parties and members.15 Indirect and self-limiting, reflexive regulatory law respects the autonomy of the regulated subsystem while prodding it in the direction of social purposes (responsibility).16 Restricted to stimulating appropriate forms of self-regulation, reflexive law thus preserves its own autonomy as well: “Law’s role is to decide about decisions, regulate regulations. . . .Law realizes its own reflexive orientation insofar as it provides the structural premises for reflexive processes in other social subsystems.”17
Regulation of self-regulation is necessary because the tendency toward self-closure renders subsystems insensitive to their own externalities regardless of how internally rational they are. Deregulation is thus the wrong approach. The purpose of regulated self-regulation is to foster internal reflection: to force the organization to internalize outside conflicts in its own decision structure, so as to become socially sensitive to the effects of attempts to maximize internal rationality, and to develop effective internal control structures.18 In other words, external stimulation of internal self-regulating processes, which, in principle, cannot be controlled from the outside, is required.
The main mechanism for creating sensitivity to externalities is the establishment of discursive structures within the subsystems, according to Teubner.19 But the purpose of this form of “democratization” is, from the system-theoretical point of view, neither the increase of participation nor the neutralization of power structures; it is, rather, to make possible the internal reflexion of external implications of future actions. Although there is some confusion about the difference in meaning between the terms reflection and reflexivity, it seems to be the case that Teubner sees postregulatory regulation as reflexive insofar as it applies procedures to procedures of self-regulation. Reflexive law tends to rely on procedural norms regulating processes, organization, and the distribution of rights and competencies. It fosters “reflection” (systemic self-consciousness) internally by the establishment of discursive structures that allow for communication and bargaining within each particular subsystem between various actors conscious of potential external effects of decisions. Reflexive law thus is a new legal form that solves the problem of governability.
Teubner uses the example of contract law to make his point. Under formal law, the only issue to resolve regarding disputed contracts is whether certain general and objective conditions were met: the absence of force or fraud, the meeting of minds. Formal law is indifferent to outcomes. By contrast, substantive regulation of contracts would involve the direct intervention of legislatures and courts in setting and altering contract terms to achieve a desired goal. Alternatively, reflexive legal regulation would attempt to subject contracting parties to mechanisms of public responsibility designed to ensure that bargaining processes take account of various externalities (reflection) while also equalizing bargaining power. Thus the law regulating collective bargaining, or co-determination practices, is reflexive: it applies procedures (stipulated by law) to procedures of conflict resolution and internal decision making. Yet Teubner is careful to note that the reduction of power discrepancies or inequalities is no more the point of reflexive law than is increased participation in decision making. Such normative concerns are studiously avoided by the systems-theoretical approach. When unavoidable (as in the goal of averting negative externalities), they are translated into systems-theoretical language.
Indeed, Teubner maintains that one can no longer hope for universal legitimation structures, for a generally applicable morality of discourse or even for a common procedure of reflexion in complex differentiated societies. He insists that reflexion processes have to differ according to the specific internal logic of the regulated subsystem. What is appropriate to the economy may differ from the forms of reflexion that suit, for example, the educational system.20
To be sure. As Andrew Arato and I pointed out in 1992, however, the relentless anti-normativism of this approach prevents Teubner from showing how and why internal discursive structures institutionalized in the various subsystems would actually be sensitive to environmental problems (broader societal concerns) or lead to the creation of procedures of decision and conflict resolution compatible with universal norms.21 It is unclear why sheer reflexivity and increased subsystem autonomy would have normatively desirable consequences. If discursive structures within each subsystem speak only the language of that subsystem, as the idea of self-reference implies, neither reflection, self-reflection (self-consciousness of the subsystem’s own logic and place in the environment), nor reflexivity (application of its own types of procedures and assumptions to itself) would automatically foster more social responsibility. Moreover, since nothing coordinates the internal structures of receptivity (discourses) triggered by reflexive law with general norms or societal goals, or with other subsystems, proceduralism gets reduced to particularistic subsystem reflexion. It thus cannot produce universalist, democratic legitimacy. According to Teubner, there is no superior coordination regime in contemporary decentered societies. There is only external pressure, irritation, and, in response to this, internal reflection that takes the form of translation. For example, law affects other subsystems as an external irritation that causes a response in the shape of a translation of legal requirements into the subsystem’s own language. Translation is thus necessarily mistranslation: hence the creation of a new meaning. For example, legal rules get translated into cost factors in economic discourse, into power positions in political discourse, and so on. One can tell only after such translation has occurred whether it has led to a productive or a negative misunderstanding: one leading to disintegrative or other destructive consequences. The means by which subsystems influence one another are thus not through the articulation of universal principles in law or through external superior coordination mechanisms (administration/politics) but rather through collision, translation, productive, or dysfunctional misunderstanding.22
Accordingly, the theory of reflexive law has been subject to a range of criticisms. On the one hand, as already indicated, it has been attacked for its democratic deficit, in particular for its lack of universalism and hence of democratic legitimacy. Some have pointed to its strong neocorporatist orientation, while still others see it as a new and dangerous form of privatization.
It has also been criticized for further undermining the rule of law (legal formality) and hence for fostering arbitrariness, insofar as reflexive law seems to rely on vague indeterminate standards. On the other hand, the Teubner model has been taken to task for relying on an untenable evolutionism that masks the negative uses to which reflexive law can and is being put. From this perspective, reflexive law can turn into a new and penetrating form of juridical normalization—providing the illusion of autonomy while enforcing conformity via subtle, almost imperceptible forms of regulation. These criticisms are serious but if appropriately reframed, the idea of reflexive law and of a reflexive legal paradigm can be defended.
THE ACTION-THEORETICAL APPROACH: A PROCEDURAL PARADIGM
Habermas’s recent discussion of legal paradigms can be seen as one such effort at reformulation. Proceeding from a frankly normative perspective, Habermas’s theory of procedural law aims at solving the legitimation problems inherent in the welfare paradigm and left unresolved in the systems- theoretical approach to reflexive law.23 His concern is not primarily with steering problems, issues of ungovernability, or negative externalities threatening system-integration, although he certainly is aware of these.24 Instead, reasoning from an action-theoretical perspective, Habermas recently argued that the welfare paradigm of law poses two distinct threats: it undermines individual autonomy and harms the integrity of communicative structures necessary for reproduction and social integration of the life-world.25 Consequently, democratic legitimacy is also at risk.
To be sure, this is not the first time he addressed the issue. In an earlier critique of welfare state juridification based on the distinction between law as institution and law as medium, Habermas focused primarily on the threat to horizontal solidarity and communication (colonization) posed by substantive legal regulation.26 When juridification entails bureaucratic implementation in areas of life that are not formally organized, like families, this threat is particularly grave.27 In such a context, law functions as a reifying steering medium. It substitutes nonlinguistic forms of action-coordination (administrative criteria) for natural language communications. 28 Juridification of this type is thus not only dysfunctional for social integration (prong 2 of the regulatory trilemma, i.e., the overlegalization of society); it also threatens personal autonomy.
Accordingly, in his first writings on the subject, Habermas focused on a form of postregulatory regulation that would restrict law to establishing an “external framework” (an external constitution) in sensitive areas like family or education. This framework would provide incentives to individuals to communicatively coordinate their interactions on their own, in fair and just ways, in light of the purposes of the institution in which they were operating.29 The restriction of procedural law to “external constitution” via the institutionalization of procedures for discursive conflict resolution within certain life-world domains was primarily geared toward protecting the autonomy and integrity of communicative interaction within them. It did not, however, address the problem of rationality crises, or acknowledge the more general character of the regulatory trilemmas that arises with regard to all the social subsystems. Nor did this approach offer an adequate solution to the problem of inequity within or unfairness across regulated domains.
Habermas has abandoned this analytic approach for a variety of reasons. Yet in his more recent and more systematic discussion of legal paradigms he continues to pursue the project of a “reflective continuation of the welfare state,” even if his critique seems to some to be less radical than in the past. This time, however, the main focus is on parrying the threats to private and public autonomy inherent in both the welfare and liberal paradigms, respectively. The negative “dialectic of legal and factual equality” that appears intractable from the perspective of both orientations cannot be avoided unless one sees that the normative key is autonomy: “In a legal community, no one is free as long as the freedom of one person must be purchased with another’s oppression. The distribution of compensations only follows from an equal distribution of rights, which in turn results from the mutuality of recognizing all as free and equal members.”30
Autonomy, from the action-theoretical perspective, thus cannot be interpreted as freedom from external steering or subsystemic integrity. Nor can it be construed as the unfettered exercise of choice (the liberal paradigmatic model) secured by noninterference, or assimilated to well-being (the welfare approach). The distributive aspect of equal liberty and equal treatment—the just distribution of benefits—is the result of universalist realizations of the system of rights. But, and this is crucial to Habermas’s interpretation of the procedural paradigm, the latter is not possible unless public as well as private autonomy—public participation in the practice of interpreting, legislating, and exercising rights—is guaranteed.31 Autonomy on this approach accordingly means freedom from oppression plus voice: having a say in fashioning the rules according to which one lives together with others. The two are linked because the ways in which oppression is enacted and experienced even in the private intimate domain must be publicly articulated by those affected in order to properly perceive and protect against it. Inversely, the threat to autonomy and the clash between liberty and equality in the system of rights can be avoided only if the realization of the system of rights involves public autonomy—democratic input. Democratic legitimacy, in other words, is not only intrinsically important, it is also the only way to prevent legal regulation from becoming paternalistic and normalizing.
On Habermas’s understanding of the procedural legal paradigm, the key mechanism for accomplishing this is reflection. Like Teubner, he understands this paradigm to involve procedural rather than substantive regulations. However, “procedural” for Habermas does not refer to a type of law, but to the input side of lawmaking. In particular, it refers to the quality of the processes of democratic lawmaking and of the discursive interaction (voice) among the citizenry and lawmakers. Procedures are to provide for voice, for participation, for influence of the citizenry on legislation and on the formulation of the norms guiding regulation, hence providing democratic legitimacy.
Moreover, although he often uses the word “reflexivity,” Habermas for the most part means reflection in the sense of conscious awareness on the part of those involved and those affected by a particular area of legal regulation. He does also speak of self-reflection (thought applied to thought), which is a form of reflexivity. But in his version of the procedural paradigm of law, the application of procedures to procedures refers to the meta-procedures of discourse ethics being applied to all discursive public spheres to foster fair and reflective participation in the democratic genesis of norms; it does not entail privileging a specific, new form of law.
Indeed, Habermas explicitly rejects such a move.32 To be sure, he too advocates indirect rather than direct forms of administrative steering. But the point in advocating mild forms of steering (together with democratic procedures to decide on the normative direction of regulation) is to bring administrative, regulative power under control by linking it to communicative power. Neither context-sensitivity on the part of regulators, nor self-limited regulations fostering reflection of environmental consequences in decision-making processes typical of the reflexive form of law as conceived by Teubner, can yield the requisite democratic legitimacy.33 Only society-wide public discourses through which communicative power is generated and which then influence legislation via the official circulation of power can yield the appropriate general norms and principles to guide regulation in whatever form.
The process of reflection Habermas has in mind presupposes the co-originality of citizens’ private and public autonomy and aims at securing these simultaneously. As Andrew Arato has pointed out, there are two directions in which reflection determines the specificity of the procedural paradigm for Habermas.34 The first seeks to avoid placing private and public forms of autonomy, rights and democracy, in an antagonistic relationship as in the liberal and welfare paradigms. “The process of reflection Habermas has in mind leads first and foremost to an understanding of the ‘co-originality’ and complementarity of public and private freedom, democracy and rights.”35 This theoretical awareness is complemented by a focus on public political action in relation to the input side of lawmaking involving publics in both the state and civil society. Reflection is thus rooted in the democratic genesis of law.
Reflection in the form of self-reflection also serves to mitigate the dialectic of legal and factual equality haunting the liberal and welfare paradigms. As we have seen, liberal legal formalism has been blind to the role that private power and privilege play in blocking the autonomy of those formally free and protected by rights. The substantive, authoritative, intrusive interventions of welfare regulations, however, tend to equalize at the cost of normalizations that restrict freedom.36 The first secures formal civil and political rights but not equality, while the latter insists on the importance of social rights and entitlements to ensure that civil and political rights are really available to all. But this second approach often backfires because the ways in which some “social rights” or entitlements are structured undermines personal autonomy.37 Thus in each case the system of rights is developed in a one-sided or paradoxical manner. The solution lies in institutionalizing democratic procedures of reflection and self-reflection entailing the participation of all concerned in articulating the ways in which the relevant social rights and conceptions of equality and autonomy should be understood. This, according to Habermas, would permit the adoption of precisely those social rights necessary and appropriate to the adequate functioning of all rights.38 By focusing the legislature’s attention on the conditions for mobilizing law, the procedural paradigm would simultaneously solve the problem of democratic legitimacy and avoid the antagonisms between the two dimensions of the core principle of our constitutional system: equal liberty.
It would also reconcile private and public autonomy. Habermas’s point is that citizens must experience the organization of legal protection as a democratic political process. They themselves must be able to take part in the articulation of social interests. Those potentially affected must have a role in the clarification of the differences in experiences and situations that become relevant for an equal opportunity to realize equal liberty. Habermas refers to feminist critiques of both formal and instrumental law to make his point: “In women’s struggle for equality, as well as the transformation of the paradigmatic understanding of the corresponding legal programs . . . the rights meant to guarantee the autonomous pursuit of a personal life project for women cannot be adequately formulated at all unless the relevant aspects for defining equal and unequal treatment are convincingly articulated and justified beforehand.”39 Indeed, it is the absence of voice, the lack of an appropriate connection between public norms and individual experience/reasoning, that accounts for the paternalism and normalizing effects of legal regulation.
In sum, the Habermasian conception of the procedural paradigm is characterized by the application of procedures of democratic reflection to the determination of the meaning of rights. This is a bottom-up process:private citizens in civil society debate and express their views in civil publics, and these generate communicative power and opinions that (ideally) influence the deliberations within the legislature. The latter legislates in light of the relevant principles and public opinion, generating norms that then guide the courts, authorize and program the administration, and inform whatever regulations emerge in the juridification process. The publicly mobilized critique of judicial decisions, in turn, intensifies justificatory obligations of activist courts.40 No regulation, in Habermas’s view, however sensitive to context, can adequately concretize the equal right to an autonomous private life unless it simultaneously strengthens the position of those affected in the political public sphere where they can clarify the relevant aspects that define equal status.41 Thus, voice is crucial both to personal autonomy and equality. This is why on the proceduralist paradigm, the realization of basic rights is a process that secures the private autonomy of equally entitled citizens only in step with the activation of their political autonomy.42
Accordingly, representative democracy on the procedural paradigm is not state-centered as it is in the other two legal paradigms. Instead, it is dualistic: it focuses on forms of communication between unrestricted civil publics and decisional bodies in the polity. This circulation of opinion targeting legislation secures universalist principles and political responsibility in the interpretation of rights even if context-sensitivity and differential classifications are necessary in their application. For it ties legislation to the actual discursive genesis of norms guided by the principle of reasonable nonrejectability: only those norms, rules, and regulations are legitimate that could not be reasonably rejected by those affected. Just which these norms are can be discovered, au fond, only by attending to those potentially affected insofar as they exercise voice in articulating the respects in which they are affected.
What has been gained with this shift in perspective? First, it should be clear that it is possible to respect the integrity of the internal logic and requirements of subsystems without concluding that universalist principles of legitimacy and the political center (legislation for the whole of society) have no role to play, something of a non sequitur in Teubner’s analysis in any case. Inclusive and universalist normative principles regulating regulation need not recenter society in the state or fall prey to the regulatory trilemma if such regulations are self-limiting, that is, aimed at general guidance, not substantive, bureaucratic steering. Democratization of legislation (in the above sense) and of the administration (see below) would, moreover, address the specter of neocorporatism haunting the reflexive paradigm. For, asHabermas and others have correctly noted, if the administration abandons its role of normative guidance regarding those subsystems whose internal complexity and social power render them inaccessible to direct legal imperatives, then legitimacy suffers. Reflexive law of the sort exemplified by the application of procedures regulating collective bargaining and management (mitbestimmung) discussed by Teubner is open to the charge of neocorporatism precisely because it cannot guarantee the desirable level of equality of outcomes or fairness across organizations.43
When faced with political decisions relevant to the whole of society, the state must be able to perceive, and if necessary assert, public interests as it has in the past. Even when it appears in the role of an intelligent adviser or supervisor who makes procedural law available, this kind of lawmaking must remain linked to legislative programs in a transparent, comprehensible, and controllable way. There is no patented recipe for this.44 Only a mobile, alert, informed public sphere that affects parliament can secure the sources from which legitimate, universalistic law can arise.
Despite its advantages, however, this approach suffers from the mirror difficulty of the Teubner model. If Teubner fails to adequately address the problem of normative universalism, Habermas seems to purchase universalism at the price of efficacy on normative and empirical levels. It is certainly important to argue for the monitoring of administration through general laws and articulate, attentive civil publics able to generate ideas, influence, and critique. But unless these find an anchor within the subsystems themselves, the influence of the latter will be too diffuse, and the control power of the former will be too weak to get results. To be sure, Habermas also suggests the partial democratization (“constitutionalization”) of the administration itself, pointing to a variety of possible forms ranging from participation of clients, ombudspersons, quasi-judicial procedures, hearings, and so forth.45 This brief discussion of internal democratization of the administrative subsystem is reminiscent of Teubner’s idea of institutionalizing internal discourses. And it proceeds from a normative perspective concerned with fostering voice, autonomy, participation, and democratic legitimacy. But Habermas does not link this proposal to any new legal form—it is a mere desiderata. Moreover, the proposal targets only one subsystem and does not address the issue of receptivity to norms and democratic input in the others. Nor does it deal with rationality problems of coordination noted by Teubner. In short, for the most part Habermas’s procedural paradigm addresses primarily the official circulation of power.
Thus far the key theories of the reflexive/procedural paradigm have yielded ambiguous results: reflexivity of a subsystem may increase its autonomy and power and trigger forms of self-regulation that are compatible with the subsystem’s rationality yet sensitive to its external effects. But there is nothing in the systems-theoretical approach to convince us that this would have normatively positive or legitimate results for society as a whole. Enhanced self-regulation of a subsystem must be made compatible with the enhanced self-regulation of others, raising the obvious problem of coordination. The regulation of self-regulation via reflexive law also has to occur in the name of legitimate public purposes; otherwise it could appear to fall prey to the third prong of the regulatory trilemma: the capturing and instrumentalization of law by the subsystem’s own purposes (the oversocialization of law).
On the other hand, reflection in the procedural paradigm on the Habermas model would generate legitimacy by addressing the problem of the normative direction of self-regulation. It allows us to raise the evaluative and normative questions regarding which sorts of outcomes, including openness to multiple discourses, ought to be avoided or fostered by postregulatory regulation. But Teubner’s suspicions against appeals to a general society-wide discourse (or democratic forum) are right in one key respect: there is no convincing indication that rationality and coordination problems can be resolved through focusing on the input side (democratic legitimacy) of legislation without attending to legal forms of regulation that could trigger subsystem responsibility. Learning and openness to multiple discourses must occur within each subsystem; otherwise both democratic publics and political philosophy become overburdened. Nor is there any indication that legislatively articulated legitimate norms would resonate for (orient the action of) actors within the various subsystems without mechanisms to provide incentives for this. In short, we come up against the problem of institutionalization regarding norms, incentives, and mechanisms of reflection and reflexivity.
Curiously, this issue has not been seriously addressed by either model of the reflexive/procedural paradigm. Part of the problem lies in the failure to adequately theorize the distinction between reflexivity and reflection. Unless this is done, one cannot see that there is an issue of institutionalization involving a choice among, and the best way to set up, reflexive mechanisms. Only once one sees, pace Luhmann and Teubner, that reflexivity is a neutral process that can have positive and/or destructive effects, depending on how it is institutionalized, can one confront the real issues: which institutional form should reflexive law take, how ought reflection to be institutionalized in the various domains, and whether one should shift over to reflexive law in a particular domain at all.
A PROPOSED SYNTHESIS: THE SOCIOLOGICAL REFLEXIVITY MODEL
Although it is not concerned with law or the forms legal regulation takes, the sociological reflexivity model developed by Ulrich Beck provides us with some very useful insights and theoretical tools in this regard.46 Beck makes the neutrality of reflexive modernization his core premise, thereby placing institutional issues at the center of his analysis.47 Indeed for Beck, how to institutionalize reflexive mechanisms is the key political question to be faced in contemporary “risk societies.” Moreover, he zeroes in precisely on the distinction between reflexivity and reflection from a dualistic perspective: systemic and action-theoretical. Beck revisits this conceptual problematic in order to theorize the dynamics of negative externalities and political/normative deficits apparently inherent in contemporary processes of “reflexive modernization.” It is from Beck’s work that we can see that reflexivity is complex and neutral. Hence it cannot be advocated as a cure-all without, as it were, reflection on its implications in law and every other domain.
What Beck understands by reflexive modernization is the application of modernity to itself. If modernization involves the dissolution and disembedding of traditional social forms and their replacement by the social forms of industrial society, then reflexive modernization entails the disembedding and dissolution of modern industrial society and the potential replacement of its respective social forms by new reflexive ones characteristic of risk societies.48 The important point about this process is that it involves the application of modernity’s own dynamism to modern institutions (self-application).
Reflexive modernization, however, occurs surreptitiously—it involves the unplanned, unsteered, modernization of modernity. The transition from industrial society to what Beck calls “risk society” occurs in the wake of the autonomized dynamism of modernization, following the pattern of latent side effects.49 Reflexivity—involving self-thematization and the application of a process to itself—does not necessarily involve consciousness or reflection and it is ultimately ambivalent. The enhancement of a system’s ability to do its tasks when a process is applied to itself can have destructive and not only power-enhancing outcomes for the others. The application of scientific reasoning to science as an enterprise, of legal reasoning to law, would not alter the structure of risk production. Reflexively modernized social subsystems do tend to produce negative externalities (risks) for one another and for individuals, while the state is less and less able to guide or steer society as a whole.
In this, Beck agrees with Luhmann and Teubner, although unlike them he sees the nonprogressive side of reflexivity. The subsystems are indeed the locus of dynamism: important decisions are taken within the various subsystems of science, medicine, business, and so on that are very innovative and affect all of society. But without adequate forms of self-reflection, conscious debate over appropriateness of locally developed goals and norms, and the appropriate regulation of self-regulation, this dynamism can be dangerous. Uncontrolled genetic engineering, biotechnology, and production decisions having long-term effects on the environment are only the most obvious examples. Thus reflexive modernization involving the self-confrontation of modernity with its own processes (reflexivity) is an ambivalent development. It is the terrain on which to repose the problems of regulation, but it is not in itself the solution.
In short, the process of autonomized reflexive modernization is neutral:it can culminate in self-referential subsystem closure that worsens societal risks and leads ultimately to self-dissolution of the infrastructure of modernity. Or it can provide fertile grounds for focusing on interrelationships, contextual understandings, and cross-boundary communication, by triggering reflection and new forms of political action.50 In other words, the reflexive paradigm can but need not involve the conception of a de-centered society composed of autistic subsystems, following the logic of differentiation, autonomy, and self-thematization. It is not doomed to construe subsystems as hermetically closed around their own codes and rationality as does Luhmann and, to a great extent, Teubner. Reflexive modernization could become reflective, entailing cross-linking, networking, intertranslatability or fusion of codes, and other new forms of interrelatedness following a logic of mediation and self-limitation. For Beck, unlike for Habermas, however, this would not proceed via societywide reflection influencing the state, which then coordinates and steers society from above. Like Teubner, Beck thinks the idea of a decentered society precludes this. Rather, Beck proposes a version of the regulation of self-regulation that involves the building of reflection (in Beck’s hands, democratic public spaces) into reflexive mechanisms within the various subsystems.
In order to see this, however, one must be clear that reflection (knowl-edge) and self-reflection (self-knowledge and thinking about thought) are different from reflexivity even if self-reflection is one form of the latter. One must also be careful in using the term reflection to avoid the progres-sivist illusion that has accompanied it since the Enlightenment. Classical reflection theory is overly optimistic, according to Beck. It involves the idea that reflection, knowledge, and self-reflection (self-consciousness) proceed with modernization such that more and more agents acquire the ability to know and think about the social conditions of their existence and to change them. Reflection theory thus relies on the ideas of subject philosophy: the knowing subject masters more and more of her environment (and herself) through reflection. Sociologically it implies that more reflection, more experts, more science, more public sphere, more self-awareness and self-criticism will open up new and better possibilities for action.51
Beck’s theory of reflexive modernization dispenses with this happy consciousness. As indicated, reflexivity involves the problematic of unconscious unintended self-application, and self-endangerment of modernized social spheres. The point is that destructive modernization of modernity can, although it need not, occur without reflection, beyond knowledge and consciousness. But the appropriate response is not to try simply to add reflection or self-reflection, understood as conscious awareness into the mix, as if knowledge would entail mastery of formerly uncontrolled processes. Reflection as well as self-reflection can involve the illusion of rational control or autonomy and the triumph of normalization, as Adorno and Horkheimer’s critique of the dialectic of enlightenment—as well as Foucault’s critique of the techniques of self-interrogation, confession, and self-discipline that orient modern forms of self-reflection—so penetratingly demonstrated.52 To introduce reflection into processes of reflexive modernization must mean neither self-thematization in Luh-mann’s sense nor some sort of expert overview or conscious intellectual mastery by the sovereign knowing subject(s) (elites): complexity precludes this. Rather, it must involve the creation of democratic public spaces for “reflection in concert” by all those potentially affected via discussion and debate on norms, values, and goals, in a variety of institutional forms, in each subsystem.
Beck calls this solution to the twin dangers of reflexive modernization—irresponsible decision making by the subsystems and lack of legitimacy—“subpolitics.”53 Since social subsystems increasingly rationalize their internal processes in ways that have harmful side effects for others, their decisions and decision-making processes become thematized by the public, and they become more and more dependent upon legitimation.54 They are thereby opened up to political claims. But the politics to which they must become open ought to be “subpolitics”: the creation of spaces within the subsystems for political participation, critique, and reflection by those potentially affected, such as lay individuals, social movements, and citizen initiatives, in addition to the experts and organized interests included in corporatist models of interest-bargaining. The participation of such groups in thematizing problems allows for self-criticism, learning, and self-limitation.
Here, of course, Beck is reasoning from an action-theoretical perspective. There are actually two steps in the process of introducing reflection into reflexive subsystems in Beck’s approach. Somewhat like Habermas, Beck argues that it is only by way of nonexperts who publicly articulate their experiences and sensitize society to problems in general-public societal discussions, appealing to norms and values and opening them to reflection, that risks become perceived and recognized in the first place.55 Nonspecialized discussion by ordinary persons in ordinary language can be informed by expertise, but in articulating experience one does not speak in the code of the relevant subsystem or as an expert; rather, one uses the ordinary language of prudential judgment.
Thus the general civil public sphere has a crucial, albeit informal, signaling role to play here. But it must be able to connect up with and influence insiders in the various subsystems: provision for normative discussions within each subsystem and for participation of all concerned is crucial to ensure openness and receptivity to self-limitation. The presence and voice of nonexperts as well as experts in institutionalized public spaces within each subsystem also requires the translation of codes into ordinary language so that there can be communication about concerns that transcend the system’s own exclusionary internal code and rationality. Within each domain, ordinary persons can raise the relevant normative and political questions selected out by the subsystem’s own code. Thus subpolitics solves the Teubner problem of cross-boundary communication and the opening up of subsystems to social standards of relevance and norms.
Beck’s model of subpolitics comports rather well with the conception of a reflexive legal paradigm developed by Teubner, since it too renounces direct substantive regulation and steering by the state of the various subsystems. But Teubner, as we have seen, construes “democratization,” or the establishment of reflection within each subsystem, exclusively in the sense of an internal reflexion of social identity involving sensitivity to the outside effects of attempts to maximize internal rationality by subsystems.56 To Beck, on the contrary, democratization is understood from the action theoretical point of view as involving voice and participation. Reflection established within the subsystems would thus involve more than self-thematization. On the one hand it would ensure autonomy and self-regulation, while creating openness to participation and lay forms of communication and reasoning about goals and norms that translate the specific code of a subsystem into ordinary language without violating its rationality. On the other hand, Beck’s conception of the institutionalization of subpolitics would open up subsystems to learning and influence of social norms in ways that elude Teubner’s model.57 Subpolitics, in short, establishes receptors for influence of public values, norms, and concerns within each subsystem. It appears to avoid the exclusiveness of neocorporatism because it includes the unorganized within the decentralized public spaces opened up within the subsystems. The advantage that the subpolitics model has over the local self-knowledge of system theory is that it can be informed by norms generated in a multiplicity of discourses and hence potentially can bring together expertise with democratic discussion on the local level, as it were.
However, by focusing exclusively on subpolitics, Beck’s analysis, like that of Teubner, remains deficient from the standpoint of democratic legitimacy. The regulation of self-regulation that his model offers occurs exclusively on the subsystem level. The institutionalization of spaces for subpolitics provides for discussion, participation, and genesis of norms within but not among or across the various subsystems, for Beck neglects the universalizing aspects of politics despite his recognition of the importance of overall societal discussions. He consistently shows contempt for the official circulation of power in the representative political process and thus downplays the issue of the democratic genesis of universal principles and legal norms that should guide or orient self-regulation.58 Yet he does not offer other mechanisms or candidates for mediating between the various subsystems, or for communicating information about successful problem-solving techniques across organizations. Consequently, Beck’s model risks being construed as a form of democratized neocorporatism despite its anti-elitist thrust. It suffers from the opposite weakness of Habermas: if the latter fails to reflect on the institutional mechanisms necessary to secure influence of general public debate at the level of subsystems (Beck’s forte), the former neglects the general democratic process of legislation, and the universalizing thrust of society-wide discussion influencing the legislative articulation of legal norms (representation) that must regulate self-regulation. Unless mechanisms for the influence of societal discussions and general legislation via the representative political process exist, particularism and inequalities across each organization and subsystem would be inevitable. Moreover, there will be no vehicle for the voice of those who are not participants in civic initiatives, social movements, or particular organizations.
Beck reduces the state’s role to providing incentives for the establishment of (and legal protection for) institutionalized subpolitics within each domain. This is a necessary but insufficient step, in my view. He cannot draw on Habermas’s insights, however, because he, like Teubner, is convinced that the impossibility of centrally steering society through the state means that the public articulation through legislation of general rules and principles is impossible or meaningless. Hence for him subpolitics replaces rather than supplements general politics.59 But as I indicated via the example of sexual harassment, reflexive law must operate on both levels. It should trigger the establishment of reflexive mechanisms within a subsystem—institutions for conflict resolution, for participation and discussion about norms and issues, and for contextual concretization of abstract principles—but it must simultaneously involve the legislative enactment of norms and procedures regulating self-regulation oriented by general principles, actionable sanctions, clear criteria, and publicly acceptable goals.
In order to be legitimate, in other words, reflexive law must be oriented to genuine public purposes. Otherwise it risks degenerating, as indicated, into neocorporatism. Even worse, it could turn into a new form of privatization in which the state delegates its responsibilities for regulating and decision making to private elites reinforcing their power and privilege in relation to the rest of society and violating basic principles of fairness. But law must also respect the local purposes of what it regulates. From the system-theoretical point of view, the issue is the integrity of an organization’s or subsystem’s code. From an action-theoretical point of view, what is at stake is not only the protection of spontaneous social communication processes, not only the political participation of those affected in articulating experiences and debating norms and goals, but also the integrity of the particular local ethos and purpose of the specific subsystem or organization.
Advocating what he calls “responsive self-regulation,” Philip Selznick has long maintained that public values and concerns for morally legitimate outcomes must inform the theory of reflexive law.60 But reflexive law must also foster and respect the “internal morality” of institutions. If the key normative question is “self-regulation for what?” the key issue for institutional design is the proper form of institutionalization.61 Accordingly, Selznick calls his version of regulated self-regulation “responsive law,” meaning that regulators should be responsive to and respectful of the internal morality of that which is regulated. In addition to maintaining integrity, however, responsiveness also means dealing constructively with (openness to) new problems, demands, and expectations.62 Indeed, whether or not it is appropriate for the state to shift over to indirect, albeit regulated self-regulation depends on whether an organization is properly institutionalized—equipped with an appropriate “internal morality” or “corporate culture.”63
By “internal morality” Selznick means the set of standards that must be honored if the distinctive mission of an institution or practice is to be achieved. He gives us several examples: the internal morality of family life, he maintains, includes trust and shared commitment, while that of adjudication involves impartiality and the opportunity for each party to offer proofs and arguments.64 Since each institution has special functions and values, the important thing from the point of view of external regulation is whether or not a particular organization has a well-developed internal morality and whether it or the people who make it up respect its integrity.
Thus, unlike Teubner, Selznick focuses on the normative issues raised by reflexive law. He insists that organizations must be seen both as open and closed systems and that the management of increasingly blurred boundaries constitutes the key problematic in contemporary institutional life. For example, a school may need to be a good parent, especially if parents are under stress, while parents may need to be good teachers.65 What is required accordingly is to think of legal regulation in terms of fostering regularized (normatively structured) forms of openness within a particular system and between the system and its environment. In order for external norms to be effective, this means that internal structures for consultation, communication, and learning must be established and reinforced. 66 Thus like Teubner and Beck, Selznick focuses on forms of regulation that would foster the autonomy of the relevant subsystem to the extent to which it develops institutions that facilitate internal and external communication. He is concerned, however, with the normative level ignored by Teubner and which is secondary to Beck, whose main concern is with subpolitics rather than respecting institutional moralities.
Steering legal attention to institutional design aimed at reinforcing internal moralities and respecting the purpose of institutions is a form of reflexive law, insofar as it involves structuring of mechanisms for internal self-regulation.67 Unlike substantive law, responsive law does not attempt to directly guide behavior, but unlike formal law, it does more than set up abstract rules of the game. Thus, responsive regulation differs from deregulation and privatization to the extent that it orients regulation toward the public interest while fostering the institutionalization of internal moralities that would justify strategies of self-regulation. Responsive law maintains autonomy but does so by being responsive to and facilitative of the intrinsic moral purpose of an institution. Somewhat along the lines of Habermas’s early colonization thesis, the idea is that when such internal moralities exist, regulators should restrict themselves to external, limited rather than internal, heavy-handed, disintegrative forms of control.68
The idea of internal moralities thus adds another important piece to the discussion of reflexive law, especially as it pertains to the regulation of intimate association. It clarifies one aspect of the normative stakes that subpoliticsmust respect in order to avoid dedifferentiation and the regulatory trilemma. It tries to link general principles and local norms through the concept of an interplay between openness and closure, boundedness and interdependence, and the thesis of the genesis and institutionalization of morality from below, as it were, thereby acknowledging the problem of the sources of obligation and responsibility.
Nevertheless, Selznick’s argument, like Beck’s, tends to sacrifice the general to the particular, the universal to the local. Over and over again Selznick states that regulation cannot demand conformity to “eternal rules”; that the administration of justice cannot be “rule-centered”; that the shift from external to internal control is an advance.69 His disdain for the legal articulation of general principles stems from the way in which Selznick construes the regulatory choice facing us today. Formal rule-bound law, in Selznick’s view, is, in short, a thing of the past. Either we opt for heavy-handed intrusive regulation of those areas that lack appropriate institutionalization of internal moralities and impose norms from the outside, or we choose context-sensitive open-ended generalized directives (responsive law) that “encourage the formation of private regulatory institutions.” 70 In the latter case, regulators should refrain from demanding conformity to external standards and rely instead on the internal morality of an institution as a resource for public policy.71
This, inmy view, is a false choice, one that derives from Selznick’s failure to analyze internal moralities from a dual perspective. Internal moralities must be respected (this is the meaning of responsiveness or context-sensi-tivity), but they can also function as receptors to generalized and legally articulated societal norms and principles within the local, if properly institutionalized. The choice is not between local moralities or general norms externally imposed by the state. Rather, the issue is how to set up the regulation of self-regulation such that mutual recognition and mutual influence of local and general purposes and moralities occurs.
What gets lost in Selznick’s analysis, moreover, is clarity regarding the particular legal form to be used in indirect, external regulation. Indeed, it seems that Selznick believes that responsive reflexive law must operate with very vague general standards and open-ended directives, much like materialized welfare law, if it is to be sufficiently responsive to the organization it is regulating. Small wonder that this approach, like its predecessor, has provoked fears for the rule of law. This sort of “responsiveness” to the local risks brings us back into the regulatory trilemma, carrying the threat of the oversocialization of law. Selznick’s rather com-munitarian interpretation of responsiveness, in short, tends to downplay the dimension of reflexivity and of proceduralism in favor of preserving substance (local sittlichkeit) blurring the differences between reflexive and materialized law.
DANGERS OF REFLEXIVE/PROCEDURAL/RESPONSIVE LAW: ARBITRARINESS AND/OR NORMALIZATION
Critics of reflexive law fear that it entails, like the welfare model preceding it, the loss of integrity of the legal medium itself.72 It is not only the com-munitarian model of responsiveness that has triggered such fears. Indeed, Ingeborg Maus argued nearly fifteen years ago that Teubner’s tendency to view formal law along with the classic rule of law virtues once associated with it—clarity, cogency, impartiality—as anachronistic opens his model of reflexive law to the charge of threatening the rule of law. Despite his insistence that reflexively triggered forms of self-regulation must be socially sensitive and public-regarding, Maus and more recently Bill Scheuerman have argued that unless regulations of self-regulation are themselves clear and cogent, they will be as open to manipulation by privileged social and economic interests as material law has been. Echoing older critiques of the materialization of law, Maus and Scheuerman argue that when regulation involves vague and open-ended legal norms (e.g., the best interests of the child), it will invariably become arbitrary and unfair, playing into the hands of the powerful either in the state or in the private institution. This holds equally true for procedural and organizational norms as it does for more substantive directives.73 Indeed, the powerful may well prefer soft and open-ended legal regulation because it allows them to benefit from their existing advantages in bargaining or in private mediation processes.74
Nevertheless, Maus does not retreat to a position calling for the revival of formal law. She is aware of the dangers of overburdening legislatures and courts with administrative tasks of regulation (ungovernability, irrelevance, or destruction of the legal medium), yet she accepts the need to regulate and to decentralize regulatory functions. However, as Scheuer-man cogently points out, “Maus underscores the fact that the legal framework of ‘regulated self-regulation’ nonetheless will have to respect some traditional formalistic ideals (by insisting that procedural and organizational norms are relatively clear and cogent) if reflexive law can meaningfully hope to counteract the advantages often enjoyed by the privileged within regulatory law.”75
It is not enough to equalize the bargaining positions of those affected; to ensure voice for all affected, or to respect autonomy, one must also protect against arbitrariness and particularism. The powerful in society and in the state can be controlled only if law retains its classic virtues. In other words, legislation will retain its claim to be universalistic, and law will hold onto its normative structure (law as institution) if regulatory principles and general procedures are clearly delimited and impartial, and if law (thereby) maintains its distance from the domain whose self-regulation it is regulating.
This involves a challenge to a simplistic evolutionism regarding legal forms, however. Maus has argued that it is possible to detach classic rule-of-law virtues from the rigid doctrinal legal formalism that is characteristic of the liberal legal paradigm and to shape reflexive or procedural law according to these virtues without buying into other doctrines or methods of the earlier paradigm.76 She thus avoids the genetic fallacy as well as a rigid evolutionism that ties legal forms, legal paradigms, legal methods, and doctrines together too closely. Scheuerman also argues that rule-of-law virtues still have a decisive role to play within reflexive law.77 They both thus accept the idea of legal paradigms and the argument that there is indeed something new and normatively valuable in the reflexive legal form without maintaining that everything characteristic of earlier legal forms is ipso facto anachronistic and without assuming that it is impossible to create combinations of forms, methods, and doctrines within a new paradigm. I quite agree.
Some critics, however, throw down the gauntlet to the entire concept of legal paradigms, by challenging the very idea of evolution regarding legal forms. Indeed, both the systems-theoretical and the action-theoretical approach to reflexive/procedural law have been accused of a naive progressivism regarding legal evolution that is misleading in its assessment of the normative advantages and newness of reflexive or procedural legal forms. Erhard Blankenburg’s is the most penetrating critique.78 Of course he acknowledges that new legal forms emerge, but they do not supplant old ones: rather, they all coexist in complex messy ways supplementing but not replacing one another.79 Moreover, he insists that legal development is not linear in terms of density. Law does penetrate into areas that in the past were not subjected to legal regulation; it has also retreated from some domains as a mechanism of social control. Blankenburg cites the “cross-national” tendency to deregulate sexual behavior and the sharp decrease in disputes over honor and status in Europe since the nineteenth century.80 In other areas substantive law has changed in ways that limit the relevant legal issues in conflict resolution: for example, guilt has become irrelevant to modern no-fault divorce.81
Blankenburg’s point is that formal, material, and procedural elements of law have long existed in different combinations and relations to each other and thus one cannot speak of evolution between legal paradigms or of a new legal rationality. There is thus nothing new in the “reflexive” approach to law. Regulating procedure and leaving substantive rules to be worked out over time has always been the technique of the “wise legislator” entering new fields of regulation, according to Blankenburg.
Moreover, the normative claims made for reflexive/procedural law are misleading. Instead of preserving horizontal ordinary social communication (Habermas’s concern) or enabling self-regulation and protecting institutional autonomy (Teubner’s concern), Blankenburg argues that the observed increase in the use of reflexive law multiplies the overall density of regulation via the juridification of formerly unregulated social areas (pace Habermas) and that this has the effect of normalization, expanding rather than limiting social control (pace Teubner).82 Proceduralization and greater chances for participation in organizational decision making are not an unambiguous good. First, postbureaucratic regulations actually tend to deflect rather than facilitate protest via cooptation.83 Even worse, reflexive legislation often results in overregulation because it delegates rule production to lower-level regulators—participatory bodies and/or supervisory agencies—who are quick to fill in the gaps of discretion left open by legislation. They tend to produce highly detailed and cumbersome rules and regulations that make those involved long for the old-fashioned hierarchical bureaucracies.84 We have seen this in the case of sexual harassment law. Thus Blankenburg prefers resistance to the pressures to enmesh unregulated areas in legal regulations (any form of juridi-fication), over the allegedly misleading claims of “self-limitation” made by advocates of reflexive law.
Teubner’s response to these arguments is not without interest, for the critique forces him to clarify and refine the evolutionary dimension of the theory by specifying what really is new in the context and form of reflexive law. What is new about the context are the problems posed by increasing functional differentiation, internal subsystemic complexity, and self-refer-entiality of subsystems equipped with their own codes and purposes. This is what law must now take into consideration when issues of regulation come up. The recognition of the complexity and requisite integrity of each differentiated subsystem poses the problem of respect for their autonomy—the core problematic of reflexive law, in Teubner’s view. Thus, pace Blankenburg, reflexive law cannot be identified with just any procedurally oriented type of law. Of course, procedural law has existed for centuries, but the problem of what kind of procedure the law will develop in order to cope with a high degree of social autonomy and self-referential tendencies toward closure is another, and specifically contemporary, matter.85 The internal models of social reality and the forms of regulation that the law develops in dealing with social systems that are resistant to regulation remain important. Thus one can speak of legal paradigms, after all. Indeed, Blankenburg is the one who is naive insofar as he has the expectation that delegalization is the way to preserve the few remaining arenas of social autonomy. This approach indicates that he remains caught up in the liberal legal paradigm.
To be sure, Teubner agrees that preserving social autonomy was the core value of the liberal legal paradigm, one which it attempted to secure via a withdrawal from regulatory functions and a retreat to sheer legal formalism.86 Formal law defines its task as guaranteeing freedom for autonomous social action. But the twentieth century has revealed the dysfunctional consequences of such a legal-political withdrawal: legal formalism cannot satisfactorily deal with the negative consequences of the self-refer-entiality of other social systems. It does, admittedly, preserve the autonomy of the legal system itself. But it cannot redress the disadvantages (risks) generated by autonomized subsystems for the rest of society. Thus, pace Blankenburg, a way of regulation has to be found that takes self-reference seriously, but one that does not involve direct, substantive, regulatory action. For purposive law, as we have seen, is often ill-suited to the complex structure of self-organizing social systems. The reflexive paradigm is aware of the autopoietic tendencies of its surrounding social systems (the new model of social reality) and adapts its structures accordingly. It develops reflexive law as a new way to preserve the original substantive value of social autonomy that developed with liberalism, without withdrawing from regulation and without threatening its own autonomy by heavy-handed interventions. This at least is the problematic and the desiderata of the reflexive paradigm.
We seem to be going in circles. Teubner does grasp what is new in our contemporary situation and the reflexive legal form, but he is unable to take the same distance toward reflexive law that he advocates toward the liberal paradigm; thus he invites the charge of progressivism, or naive evolutionism. Blankenburg is also right: there is indeed a coexistence of legal forms, but this does not mean that the concept of legal paradigms is mistaken or that there are no normative advantages to reflexive forms of law.
RECONCEPTUALIZING THE REFLEXIVE PARADIGM: A SYNTHETIC, PLURALIST APPROACH
In order to get beyond this vicious circle of objections and counter-objections, it is necessary to adopt a reflexive attitude toward the reflexive paradigm itself. In other words, just as it is possible to disconnect some rule of law virtues from their embeddedness in the liberal legal paradigm and their link to legal formalism, so too one can conceptualize the reflexive legal paradigm in such a way that reflexive law is one, but not the only one of the possible forms of legal regulation compatible with it. Indeed, from this perspective, one can also sever forms of material law from the welfare paradigm’s simplistic model of society and its voluntaristic statist phantasm of administratively shaping preferences and controlling outcomes. It is possible, in short, to choose to use direct substantive intervention and direct prohibitions when, upon reflection, these are deemed necessary and appropriate.
One has to see, in other words, that the reflexive paradigm of law is, as Andrew Arato has argued, reflexive on the meta-level toward itself. It involves both a specific form of law as well as a new conceptual framework and a new (decentered) societal model that pluralizes our regulatory options.87 In addition to refining the reflexive/procedural legal form itself in order to cope with problems of self-referentiality and to avoid regulatory paradoxes, Arato argues that the reflexive paradigm puts us in the position to select regulatory strategies on the basis both of context sensitivity, contextual creativity, and post-facto learning. In short, one can approach reflexivity from both an action-theoretical and a system-theoretical perspective, synthesizing, as it were, the Habermasian and Teubner perspectives: “On reflection we should see that procedural law now has a double status in the conception, unlike that of formal and materialized law. It represents not only a new form of law but also a new framework within which the choice of legal forms is to be made. For this reason it is a good idea to insist on the ‘reflexivity’ of procedural law.”88 The meta-theoretical reflexivity of the reflexive legal paradigm thus involves not only a more sophisticated model of society (complex, decentered, differentiated) than its predecessors but also a reflective attitude toward the legal medium itself. It allows for the thematization of a plurality of legal forms and indeed of the possibility of a choice among them.
Arato’s dualistic conception of reflexivity thus theorizes what Blanken-burg has noticed on the empirical level. But it also gives democratic reflection in decisional political publics (so central to the Habermasian procedural model) its proper task: namely, to reflect upon general social norms and choose among the three types of legal forms: formal, substantive, and reflexive. I would add that reflection in political publics must also be attentive to the different forms of institutionalization possible for each type of law. The normative discussions and experiential input of civil publics within each subsystem and in civil society at large must inform these decisions as should the desiderata of maintaining the integrity of what is regulated and the reciprocal autonomy of regulated and regulator (Teubner’s and Selznick’s concern). In other words, the regulation of self-regulation involves the democratic articulation of principles, goals, and norms as well as a choice among forms of institutionalized autonomy. On the reflexive paradigm this democratic articulation occurs at two levels. First, on the input side—that is, on the level of the official circulation of power—it involves receptivity of political bodies to the influence of civil publics, as just indicated.89 But it also involves, second, fostering the establishment of procedures, discursive structures, and mechanisms of conflict resolution within the subsystems that render them receptive to the influence of political publics and legal principles on the one side, and that open them up to what Beck called subpolitics, and what Teubner called learning, on the other.
Accordingly, reflexive or procedural law has no intrinsic normative priority or superiority in an evolutionary sense over other legal forms. Hence it is not susceptible to the charge of naive progressivism. To be sure, in the appropriate context reflexive law does have distinct properties that render it a highly desirable option. As Arato puts it, “Reflexive law . . represents a legal form especially suited to combine three advantages: non-intrusive, postregulatory regulation, a renewed formal structure preserving the integrity of the legal medium, and the normatively desirable combination of freedom and regulation.”90 However, this does not mean that one should always opt for the reflexive over the other legal forms. Context and the political options must be considered as well as other normative desiderata.91 I shall give more examples pertaining to the domain of intimacy in the next chapter..
This clarification of the status of the reflexive form of law is important in another respect. The reader might think that it is paradoxical to claim simultaneously that reflexive law fosters self-regulation by leaving outcomes indeterminate and that reflexive law should be better institutionalized so that it rests on clearly defined legislative goals with real sanctions backing them up. What is at stake in this objection is the distinctiveness of reflexive law altogether, albeit from a different point of view than Blan-kenburg’s.
The problem seems to be the following: If we take the proceduralist attributes of reflexive law seriously, view it as basically indeterminate and therefore consistent with nearly any substantive outcome, then the difference between it and privatization evaporates. To deliver an area over to “self-regulation” could in fact simply be a form of privatization that delegates far-reaching authority to those potentially affected by a particular form of regulation. A directive meant to encourage voluntary self-regulation would be an example. On the other hand, to the extent that reflexive law rests on clearly defined legislative goals, this problem is reduced but at the cost of also reducing the real significance of self-regulation. Indeed, reflexive law appears then to approximate material law.92
The idea of “regulated self-regulation” as a form of reflexive law should, in my view, rest on clearly defined legislative goals. But everything turns on how one understands the term goal. By this I mean principles, not outcomes. Thus the reforms I suggest in Chapter 3 for sexual harassment law aim at better institutionalization of the principles guiding the regulation of self-regulation. These principles—equality, anti-discrimination on the basis of race and sex, personal freedom, and protection of privacy—are articulated both on the constitutional level and in national legislation. They are broad enough to leave particular ways of conforming with them relatively open and to permit local, contextual development of the content of these norms, but they are not completely indeterminate. Indeed, in different periods they acquire a rather specific range of meanings. 93 But whatever the going interpretation, these principles should guide self-regulation.
Reflexive law does entail incentives to private institutions to “self-regulate” so that their practices and workplaces generally conform to such principles. Regulated self-regulation, however, would have to involve more than mere reliance on voluntarism—it must put in place legal sanctions of a special sort. The threat of lawsuits and monetary damages and the stipulation that companies must institutionalize grievance procedures in harassment law is a perfect example. Reformed reflexive law in this area could further articulate and institutionalize the substantive principles guiding regulation and even specify the appropriate types of procedures and procedural protection, without becoming a form of materialized law. As in the case of collective-bargaining processes that are highly institutionalized and oriented by clearly articulated principles, the outcomes would still not be determined or stipulated. Nor would administrative controls replace the communicative structures generated by appropriate forms of self-regulation. We thus have to distinguish between principles and outcomes when clarifying the term goal. Reflexive law does not determine specific outcomes; to that extent it is indeterminate. But it is based on liberal principles embedded in the Constitution: in the cases of collective bargaining or harassment law, these are the principles of equal liberty and anti-discrimination. Accordingly, this form of legal regulation is oriented toward ensuring that autonomous actors comport with constitutional principles. This does not guarantee outcomes, but it steers self-regulation in the right direction. Reflexive law is thus a distinct legal form.
The paradigm concept need not be linked either to a rigid structuralism, by insisting on complete historical discontinuity and normative incommensurability between epistemic formations and legal forms, nor to an evolutionary model that insists on normative progress, privileging the reflexive legal form as a panacea.94 Instead, the paradigm concept serves to take historical transformation into account while incorporating the idea of development in the sense of building upon and expanding opportunities, allowing for continuities as well as change. The reflexive paradigm, on the meta-level, however, is superior cognitively and normatively insofar as it opens up learning, abandons anachronistic models of the social structure, reveals political choices among forms of regulation, and renders inescapable the responsibility for them on both levels.