Theory of Evolution for a law of Market-Society

On Marc Amstutz, Evolutorisches Wirtschaftsrecht. Vorstudien zum Recht und seiner Methode in den Diskurskollisionen der Marktgesellschaft
As Marc Amstutz shows, contemporary commercial and economic law is characterised by a series of demands which are not easily compatible. To put the problem in theoretical terms: commercial law is required on the one hand to adapt itself to economic needs and circumstances andonthe other handtosafeguard itsinner logic and autopoiesis. Amstutz tries to escape this dilemma by the figure of »conversation-circles«, which allows subsystems to connect within certain boundaries their communications with one another. Thereby the subsystems, such as commercial law, by no means give up their autonomy which is, as Amstutz explains, due to evolutionary mechanisms: the rather firm internal order of systems is exposed to external forces and influences. The system permanently operates at the edge of chaos, a situation by which evolution is made possible. Though Amstutz’s work is a great achievement in the theoretical analysis of modern law, what remains unclear is the position of human actors. Amstutz is not successful in building the bridge between social actors and social systems. The crucial problem how »structural coupling« works is not solved. Therefore his arguments concerning the methods of jurisprudence are not entirely convincing.

The Constitution of the Experiment in Modernity


The question whether freedom of religion requires permitting the slaughter of animals in accordance with Islamic rites – a question which was the subject of a decision by the German Federal Constitutional Court in 2002 –is an example of the general problem how the law and the constitution of a modern, secular society can deal with the Sharia, a theonomous law which claims authority by divine revelation. The genetic links between western christianity and the development of the foundations of modern society in Europe do not provide evidence of the incompatibility of Islam and modernity. But they do emphasize that the tensions resulting from the immigration of 3 million muslims in Germany are a great challenge for the constitutional order. A modern constitution of the Western European and North-Atlantic type, such as the german constitution (Grundgesetz), does not allow the dissolution of the tensions between secular law and individual religious autonomy unilaterally in favour of the secular law. This kind of tension is by no means unknown in modern society. Functional differentiation and individualization are core characteristics of modern society. But in view of the challenge by Islam and other challenges, such as ecological problems, we can ask if the »experiment in modernity«, the project of the Enlightenment, is destined to fail because of the dissonance and the lack of understanding between the partial systems of the society. This question is the starting point to outline evolutionary processes of integration in modern society. In this context the constitution proves to be an important tool of integration. Controversies about the scope of validity claimed by the partial systems are matters of constitutional law. The modern constitution is a specific form in which modern society describes itself as a unity insuring »practical concordance« between colliding freedoms and claims of validity. In the conflict of modern ethical principles of animal protection and Islamic rules of slaughter, freedom of religion demands respecting the Islamic communities’ own path to knowledge and authority, notwithstanding the possibility that the arguments and the results may be unacceptable from the point of view of modern, scientifically based thinking. That is the crucial point in the decision of the Federal Constitutional Court. On the other hand, the constitution demands to be strictly respected in its core principles. Both freedom and respect for the core principles of a modern constitution form a basis for a social learning process which can contribute to a productive relationship between Islam and modernity.

DDR-Geschichten*


*Felix Mühlberg, Bürger, Bitten und Behörden – Geschichte der Eingabe in der DDR, Berlin: Karl Dietz, 2004, 329 S., ISBN 3-320-02947-9

Unity

Theoretical Aspects of a major Transfer of Law and legal Staff
The unification of the German states in 1990 was accompanied by a major transfer of law and a remarkable transfer of legal staff. The legislation which followed in the train of the unification was extraordinary in its dimensions. It does not, however, present fundamentally new problems for the evolutionary theory of social systems. The role of conscious, intentionally planned political action as well as the efficiency of legislation – both striking aspects of German unification – can reasonably be taken into consideration by the theory. The challenging question is how western administrative law could settle down and survive in the »niche« consisting of the heritage of the former GDR, despite the fact that citizens in Eastern Germany for the most part have little understanding of the principles of western administrative law. The phenomenon of such a weak structural coupling between communication systems and individual mind was possible because of the lack of any alternative. People in Eastern Germany can use the new law because it is managed by a Professional legal staff, and they depend on the utilization of the new law even if they scarcely understand it and even if they do not accept that it is just law. The evolutionary theory of social systems can explain why there is little probability of alternatives in spite of weak structural coupling. Therefore the theory must observe not only the communication systems but also the coordination that has grown up on the basis of the new communication systems and that has led to an evolutionary path which limits other possibilities.