Introduction: Constitutional Blind Spots and Theories of Differentiation

This chapter examines ways in which Luhmann’s sociology can be used to enrich empirical understanding of institutional structures in contemporary global society. In particular, it discusses how the formation of the institutions that typify modern societal order, both at the national and the transnational level, can be illuminated by his theory of functional differentiation. To achieve this, it proposes a counter-intuitive way of reading Luhmann. It argues that his sociology provides the most adequate construction of the institutional determinants of world society, not if it is simply employed a literal sociological lens, but if it is observed through a method that probes critically at its conceptual adequacy. Centrally, this chapter advances a dialectical engagement with Luhmann’s theory of functional differentiation: it accepts his account of differentiation as a matrix for examining modern society, yet it argues that institutional organs with a central position in society have resulted from historical trajectories of differentiation that deviate from those imputed to society by Luhmann. It claims that Luhmann’s theory has utility as a framework for distilling many social phenomena in broad terms, but many institutional phenomena come most sharply into focus as they jar against the terms of his systemic observation. As a result, his theory frequently illuminates social institutions in a rather unintended fashion. On this basis, this chapter claims that, more than any direct application of Luhmann’s thought, it is through engagement with the aporia, blind spots and oversights in his work that we obtain the most accurate perspective for describing the underlying institutional form of society. In promoting this approach, this chapter aims to show, using a broadly Luhmannian method, how explanatory simplifications in systems theory hold clues for the comprehension of society, challenging us to think through the given categories of systems theory to generate more complex descriptions of empirical realities.

As its primary object, this chapter discusses Luhmann’s understanding of the legal system and the political system and his interpretation of the processes by which contemporary society structures legal and political communications to produce and preserve its essential differentiated form.