societal guidance through law

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SOCIETAL GUIDANCE THROUGH LAW ?

HELMUT WILLKEBielefeld

1. INTRODUCTION

Of. Course, law always has bee a part of societal processes, from simple, archaicto modern, complex societies. Wherther societies create their law or rather lawencapsulates a blueprint for society has bee a matter of ongoing debate. The positiontaken here in incongruent with the battle lines of that debate, and instead acdentuates agenetic-functional-ist vantage point. The central question which leads my argument is: if modern, democratic-capitalist societies wanted to direct their processes of self-transformation or continuous adaptation to changing circumstances in specific way —

instead of just letting things happen — what then could be the possible role of law? Canlaw be a means of organized sociertal change? What kind of law is necessary in order toimprove legal intervention beyond symbolic use and guesswork?

In trying to outline a possible answer to these questions, I presuppose that atpresent within the context of the context of the evolution of modern societies theevolution of law has reached a point where it makes sense to conceptualize the legalsystem as an autopoietic substem of society. This means: the legal system isunderstood as reproducing itself as a system with its structures and elements (theelements being legal acts or legal communications) through operations which aredetermined by that very legal system. By the way, there is no nedd to ponder over thequestion whether it is permissible to transfer «autopoiesis» as a concept originating inbiology to social systems. For we are not transferring any biological or ontologicalmeaning, but rather are using a general structural-operational concept of self-reproduction. Stripped to this concept, autopoiesis can be an operational modus of anysystem which is complex enough to organize its own self-continuation in a givenenvironment.

In an evolutionary perspective, we can see that modern societies develop on thebasis the primacy of functional differentiation. The functionally differentiated subsystemsof society — mainly economy, politics, religion, education, science, etc. — gainedconsiderable relative autonomy from each other and from the central integratinginstitutions: state and law. Some of these subsystems have redacalized their degree of relative autonomy to a state of operational closure, to autopoiesis. This process is basedon:

— the co-evolution and co-ontogeny of society and its subsystems;— the internalization of evolutionay mechanisms (variation, selection and

retention) into the subsystems which then can up their own evolutionarypotential;

— the fact that this permits and promotes differential evolution of the whole andthe parts of society; and it is based on

— the increasing internal complexity (eigen-complexity) of the subsystems whichleads to an important shift in the tyoe and quality of restrictions to further

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evolution: evolution becomes less restricted by external environmentalconditions and more dependet upon internal «coorsinative conditions»(WHYTE, 1965), or internal conditions of operational integration and the«fitting» of innovations.

The more evolutionary processes within societal subsystems become dependent

on internal criteria of viable operating procedures, the more those parts will follow their own specific developmental path. This in turn makes it difficult for a society as a wholeto maintain the necessary connection between its parts. Co-evolution of society and itssubsystems presupposes a minimum of common environmental conditions and mutualselective criteria. However, it is not obvious any more which common orientations or references exist between subsystems like educations, art, and technology or religion,science, and economy, etc. On the contrary, there is ample evidence of a high degree of divergent specific rationalities, of contrasting relevancies, and of indifference towardmost of the internal operations of the other respective subsystems.

This actual evolutionary situation shows a profound dilemma of modernsocieties, a dilemma caused by two evolutionary principles which recursively createproblems for each other: no the one hand, the principle of functional differentiation leadsto specialization and increasing interdependencies, because each specializedsubsystem is viable and retains its evolutionary potential only in combination with allother subsystems. And on the other hand, the principle of «operative closure» (Varela,1981:37ff) radicalizes autonomy and recursiveness and thus increases the subsystems’independencies, because with elementary circularity (MATURANA, 1982:35), self-referentuality (LUHMANN, 1984b: Ch.11), and self-reproduction (MORIN, 1981:JANTSCH, 1981) the subsystems become inner-directed not only in the self –organizations of their own structure but also in the recreation of their specific elementsand operational procedures. Working basically self-referentially, a subsystem will beimpressed by events in its environment only very selectively and according to its ownselective criteria.

It is obvious that any solution of this dilemma demands a simultaneous growth of independencies as well as interdependencies between the subsystems of society. Theidea of autopoiesis is tailored exactly towards providing this seemingly paradoxicalsolution: namely, to base a specific, highly developed sensitivy to relevantenvironmental events on an elementary circularity of the system´s operations. Of course, this is as yet just a terminological solution. And the question is, wherther it canbe reconstructed as a factuak solution in its preconditions, mechanisms andconsequences.

A good empirical indicator for the dilemma of growing interdependence andindependence is the fact that all subsystems — including economy, technology, scienceor law — create massive negative externalities for other subsystems and thus for eachother; and that yet it seems very difficultto induce sensitivities for the effects of theseexternalities or cost-benefit-calculations in each subsystem (see for the case of economy LUHMANN, 1983; for the case law TEUBNER, 1983). Therefore, there isindeed a structural deficit of rationality (LUHMANN, 1984b:645) of the societalsubsystems; at least in relation to a satisfying rationality of society they are notsufficiently self-constitutive. They depend on additional constraints and contingencies of their societal environment. These constraints and contingencies result from the kind andquality of interrelations between the various societal actors (e.g., groups, organizations,

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subsystems). In a «loosely coupled» (WEICK, 1976) highly complex system, of course,these interrelations consist of an intractable compound of positive and negativefeedback circuits, of competitive and cooperative action sequences, of directive andreactive decision processes, atc. However, it seems possible to axtract at least thereedifferent types of organization from the internal complexity of society.

1. One way of organizing the interrelation of different elements is to let thingshappen though gradual, mutual, invremental adjustment, to go with the fluctuatioswherever they develop. The consequence is incrementalism, or more generally,evolution means «muddling through» the chance varations of contingencies by solvingpresent problems in a decentralized way, in a short range time perspective, locally, andwithin the circumstances at hand. The intellgence — and the costs — of evolution lie inrestricting the possibilities of change to adapting to stochastic changes of possibilities.Muddling though solves the dilemma of functional differentiation by asymmertricallystressing local autonomy and «order through fluctuations» (PRIGOGINE, 1976).

2. A second way to organize systemic interrelations is planning. Central planningpresupposes a centre or a hierarchical top in societies, be this the State, the economy or any other subsystem or organization. Planning under the primacy of the State meansgeneral, obligatory laws. These laws. These laws describe and prescribe futurepreferred of affairs and they direct administrative action though purposive programs andgoal-directed forms of intervention (WILLKE, 1983b). Societal planning by the State or by public administration must assume that it is possible and rational to intervene directlyinto any societal subsystem by means of law Planning under the primacy of theeconomy means, on the other hand, the preponderance of long-range economiccalculations and of considerations of productiveness over all other criteria of decision-making. Both forms of planning postulate clear priorities and posteriorities and so salvethe dilemma of functional differentiation by asymmetrically stressing central decision-marking and though bierarchy.

3. Guidance is a third of systemic change.Guindance consists of twocomplementary parts a reflexive, decentral guidance of contexts (or contextualconstraints) which pertain to all substems and buil up an interplay of «poly-centred»internal milieu and «poly-contextual» «self-diversity» of subsystems (for the latter termsand connotations see GUNTHER, 197; LUHMANN, 1985a:4); and the complementarypart of self-referential self-guidance of each subsystem. Dcentral guidance of contexts issupposed to men that a minimum of common orientation of «world view» among societalactors seems indispensable for constituting and maintaining a complex differentiatedsociety. However, these common contexts cannot be generated any more by a centralunit or a hierarchical top decisionmaker. No single actor or organization or subsystemcangeneralize its own specific rationality or world view and declare it binding for allothers. For no single subsystem is in a position to transcend the internal complexity andimpenetrability of all other highly developed subsystems. No single individual or corporate mind can construct an adequate internal map of the overall complexity of society; nor can it «understand» all parts and the intricacies of their operations. Socentralized directives necessarily are suboptimal (for a good presentation of suboptimality see ZELENY, 1982:47ff).

Whereas it seems common sense that under conditions of hiht complexity, centralplanning and directional intervention must remain suboptimal, it is far less evident tomany social scientiss that evolution is suboptimal, too. Thelogic of evolution, however, is

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not positive selection and thus, optimization of a certain ecological domain; rather it isnegative selection (CAMPBELL, 1989:73ff) or the exclusion of lethal variants. Soevolution does not allow for adequate reactions to perceived long-range risks or deviation-amplifying trends. For example, these trends might be caused by negativeexternalities or unintended consequences of purposive action. This means that

something more that muddling through is necessary to cope wit the current, seemingly«natural» deamáturgies of global problems, e.g., overpopulation, resource exhaustion,environmental pollution, the arms race, etc.

In this paper, I argue that this «semething more» could be societal guindance.Guindance solves the problem of functional differentiation — or in Max WEBER’Sphrase, the paradox of rationalization — by following a dual strategy in order to integratea complex society decentralized contextual guindance on the one hand self-guindanceof the subsystems on the other hand. As societal actors the subsystems, organizations,and other corporate actors take part in formulating the patterns and procedures of contextual guindance, e.g., in that they participate in concerted actions, socio-economiccouncils, multi-partite commissions, bargaining systems or similar institutions of collective discourse. The fact that the relevant actors participate in shaping contextualrules or patterns, is a certain guarantee that theses actors modulate their autonomousprocesses of self-guidance in accordance with the premises of the chosen contextualpatterns. In essence, this is self-commitment by participation. Guidance thus promotesorder though self-commitment.

In order to make these three different forms of organizing societal change moreplausible, the following three sections take up the themes of evolution. Planning andguidance respectively and try to throw some light on the role of law in each of thesebasic operational modes.

II. SOCIETAL EVOLUTION AND THE ROLE OF LAW

Here I am only concerned with discussing an understanding of the patterns of present societal change in terms of the theory of evolution. Evolution is based on certaincombinations of chance and necessity (MONOD, 1971; MORIN, 1981; RIEDL, 1985:Ch.3). This pertains to all forms of evolutionary order, from self-organization, to self-reference, to self-reproduction, e.g., in the form of a hyper-cycle (see EIGEN andSCHUSTER, 1979). Various chance constellations of parts show a relative stability andproneness to repeat themselves as «frozen accidents». These constellations representthe raw material of evolution if they become the raw material of evolution if they becomethe building blocks of new constellations on an emergent level. The relative stability of the new level then depend crucially on an arrangement which organizes the chanceevents of the lower level. The process of organizing implies necessity: necessity asconstitutive condition of the possibility of a more complex level. In other words, relativestability and repeti tiveness imply the structuring of events, and structure mean to controlchance by setting necessary conditions.

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Evolution then can be seen as a mechanism for structural change. It reacts toexactly those chance variations in the elements of a system which «fit in» as newelement of a new systemic context (LUHMANN, 1978:422). Evolution is controlled bychance insofar as the necessary variations in the elements happen stochastically. At thesame time an furth evolution is controlled by the structures that already exist within a

system. For these structures organize the internal complexity of an evolving system andso limit th range and potential of varation. Concerning the case biological systemsWHYTE has put succinctly:

«The conditions of biological organizations restrict to a finite discrete spectrumthe possible avenues of evolutionary change from a given starting-point. The nature of life limitis its variations and is one factor directing phylogeny (WHYTE, 1965:2).

Similarly societal evolution doesn´t start from scratch. It is determined by its ownstructural nature. All viable variations must comply to the «coordinative conditions» of the existing system. Put in the terminology of the theory of autopoiesis, this would meanthat any variation within an autopoietic system is bound to maintain the autopoiesis of that system. Only the kind and quality of autopoiesis, that is the type of organization of self-reproduction, is open to evolutionary change (see MATURANA, 1982:37).

Evolution seems to be a universal trait of all forms of organized entities includingsymbolic systems. It is therefore safe to assume that even evolution itself as a principleform of organized change evolves to more intricate forms of evolution. In ordinary natureevolution there is no difference between « is » and « ought » (Sein und sollen). Futurestates develop out of variations of the potentiality of the present state. Future resilts or event cannot influence present process: the irreversibility of time.

However, even at the level of organic systems there are some advances in theevolution of which might be important for social evolution, too: mainly morphogenesisand epigenesist. In morphogenesis the phenotypical form of an organism changes froman embryonic beginning to a mature state. What makes morphogenesis interesting isthat during this process a multitude of ontogenetic differentiations and bifurcationshappen. They are not predetermined by the genetic code, but instead, they arecanalized by an interplay between genetic information and additional orientinginformation derived from specific environmental or contextual conditions (BATESON,1972:393). In morphogenesis contextual information is used to decide on contingentdevelop-mental paths according to given environmental circumstances. Thus the pureself-referentiality of genetically coded systemic operations is open to selectivecontextual information in order to optimize, within limits of course, the morphogenesis of a system.

Complementarily, epiugenesis can be understood as a process whereby asystem as a plenotype selectively uses its store of genetic information (that is, thegenotype) in order to adapt is ontogenesis optimally to given environmentalcircumstances (WADDINGTON, 1976; JANTSCH, 1976;58). Again in the terms of thetheory of autopoiesis, epigenesist is the interrelation of the autopoiesis of a system andof structural coupling (MATURANA, 1928:19) between system and environment (whichincludes other systems).

Simce highly complex systems cannot be described fully by a finite set of rules(GOEL´S assumption, see HOFSTADTER, 1984:24FF) morphogenesis and epigenesist

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as forms of coevolution seem to become necessary. More concretely, epigenesist alsoseems inevitable because of limited time and limited capacity for information processing.

Both forms of an evolution of evolution clarly show that the ontogenesis of acomplex system is not restricted to rigidly carrying out the program of a genetic code.On the other hand, autopoietic circularity and operational closure do not mean that a

system is completely independent of its environment and in this sense a « closedsystem »; rather, an adequate development relies on a combination of autonomousprograms of self-guidance (or autopoiesis) and orienting contextual information whichpermit, varation within varation. In this way, it is possible to run « developmental tests »(BONNER, cited in PATTEE, 1973:138) in order to check whether possibledevelopmental paths can be taken or not. Evolution, then, definitely moves away from «blind » evolution. In morphogenesis and epigenesist at least, evolution includesinstances of controlled selectivity which means: conditioned choice. Epigenesis thusallows for various and different system-environment-ecologies, for differing solutions of aco-evolution of autopoietic system s and structurally coupled environmental niches. Tobe ure, there is still a certain « adaptive » relationship between autopoietic systems(e.g., organisms and their environment). But it is neither complete dependence nor fullindependence; nor is it really a matter of « learning ». The only thing operationallyclosed systems can do, is.

To answer environmental changes and stimuli with a rearrangement of their internal structural and functional organization, and the specific mode of suchrearrangements is exclusively dependent 1982:45).

In other words, there is a considerable degree of indifference or indeterminationbetween environmental events and the system´s responses. Environmental events onlyact as triggers for systemic operations and possible internal change; they do notdetermine what will happen internally. For it is the system´s own structural arrangementand operational rules that determine which environmental event is considered a relevantdifference, and therefore a stimuli for internal operations (ROTH, 1982:42).

Approaching the intricate question of the role of law within the co-evolution of lawand society, it is wise to keep in mind some of the lucid corrections GORDON(1984:100ff) applies to conventional legal histories:

1) the relation between the conditions of social life and the course of historicaldevelopment is underdetermined and especially not determined by a single or necessary evolutionary parth;

2) «the causal relations berween changes, in legal and social forms are likewiseradically underdetermined: comparable social conditions … have generated contrarylegal responses, and comparable legal forms have produced contrary social effects.»;

3) « legal forms and practices don´t shift with every realignment of the balance of political forces. they tend to become embedded in “relatively autonomous” structures »that are part the reality construction of social groups and actor»;

4) this « relative autonomy » means that law cannot be explained completely byreference to external factors (e.g.political, economic, scientific, educational, religious,etc.). Formal law is shaped also by its peculiar internal structures, and theses structuresbecome the «coordinative conditions » of the further evolution of law.

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All this sound familiar if one doesn´t mistake social Darwinism for currentevolutionary theory. Things get more complicated and even more interesting whenGORDON (1984:102ff) moves on to an even more fundamental critique of legal historiesand legal self-descriptions . He discusses the necessity to overcome the division of theworld into social and legal spheres, the law-society-distinction, altogether.

… in practice, it is just about impossible to describe any set of «basic » socialpractices without describing the legal relations among the people involved — legalrelations that don´t simply condition how the people relate to each but to an importantextent define the constitutive terms of the relationship … (GORDON, 1984:103).

I think that in this assertion GORDON is right and wrong at the same time. He isright insofar as indeed law is an integral aprt of all aspects of social life, and increasinglyso. In modern societies this is a consequence of a process of « inclusion » 8seePARSONS, 1972:20, 40ff; LUHMANN, 1981:25ff). In practice this means that evenseemingly remote aspects of social life — e.g. details of family life, education, scientificresearch or production of art, etc. — invaded by legal rules. Since these legal rulesshape rules shape expectations, they gradually become interwoven into the fabric of social life. So infact, juridification seems to blur the distinction of law and society.

However, this is only half of the story. In a somewhat paradoxical way indifferentiated societies inclusion is only one of two complementary sides, the other onebeing exclusion. Exclusion means that each differentiated subsystem hinges itssensitivity on an increasingly exclusive point of view. Each subsystem selects a specificaspect from polyvalent « compact » societal events. For example, an airplane crashgives altogether different information to economy, science, law, religion, technology,military, culture or whatever subsystem you choose. Different information results fromdifferent selective criteria, relevancies and references. And the more differentiated thesubsystems become, the more exclusive are their information-producing relevantdifferences and the more they exclude all other considerations.

For example, law bases its operations on the selective criteria of legal-ilegal,lawful-unlawful, just-uniust or similar distinctions. It refrains from taking into account (thatis, it excludes) differences like holy-unholy, beautiful-ugly, moral-inmoral, wise-srupid,profitable-unprofitable, etc. The situation seems paradoxical because we have inclusionand exclusion at the same time. The paradox disappears, however, if we bypass the(possible) logical contradiction and realize that actual exclusion builds on potentialinclusion, and vice versa. In other words, ever more societal events can becomerelevant to any subsystem in a more fragmented way. So we get «fractals » whichcombine exclusion and inclusion in a sort of recursive escalation. In the (more familiar)terms of the theory of functional differentiation this means that inclusion is not anandicator of de-differentiation. Inclusion rather indicates re-integration without destroyingdifferences — and this is a formula for an efficient strategy to cope with high complexity.

To risk an analogy: the fact that in the human body blood permeates all tissuesdoes not prove that the distinction between blood and tissue gets blurred. On thecontrary, there is a more complex and intricate interplay, and still the two entities remaindifferent and differentiated.

The effect of all this seems to be that law simultaneously becomes moreubiquitous and more secluded. This leads me to conclude that the indeterminancy of lawis not only located in social contradictions, that is, in the pervasive and fundamental

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contradictions in society at large (as GORDON, 1984: 114-16 aptly points out). Thisindeterminancy is also located in fundamental internal contradictions of the legal system,resulting from an attempt to re-normalize the paradox of operational closure andevolutionary openness.

Hopefully, by now, it is evident that this perspective fits modern evolutionary

thinking very well. Within the context of a functionally differentiated system the co-evolution of law and society is compatible with these internal contradictions. So, in myview, the problem is neither the danger of de-differentiation of law and society («blurringthe distinction») , nor a possible aloofness of law (« separation of law and society»). Thereal problem is, I assume, that the legal system is not confronting «the» society; andtherefore the «law-society distinction » is misleading altogether. By now, modernsocieties are a conglomerate of highly developed, internally complex subsystems withdynamic and diversified evolutionary potential. This adds up to a degree of complexityand « new intrasparency » (HABERMAS, 1985a) that produce contingencies whichprobe the limits of evolution. Obviously, an evolutionary concept of law is bound to beblind to the imminence of these limits. By now, practically each developel societalsubsystem — be this economy, technology, military, science, health system, trafficsystem, agriculture, energy production or a dozen other ones — are in a position togenerate almost global disaster simply by following their extremely specializedevolutionary path. Who or what is to stop them? Which instance or institution is to setthe constraints to this sort « blind » evolution?

Whatever the answer to these questions might be, it should be clear that todaynatural evolution is no guarantee for the survival of society or of Man. So it is notaltogether surprising that some people are seriously searching for alternatives to naturalevolution.

III. SOCIETAL PLANNING AND THE ROLE OF LAW

Whereas the classical legal State (Rechtsstaat) and liberal society might havecome close to the idea and ideal of structurally controlled societal evolution, the adventof interventionist State and welfare society signals purposive administrative action,planning, and substantive notions of justice. Postliberal societies are characterized byovert intervention of the political-administrative system in areas previously regarded asself-guiding and beyond the reach of state action or purposive control. And secondly,welfare society is characterized by increasingly complex internal relations of intervention, control, regulation, and poly-centred purposive action: «society consists of a constellation of governments, rather than an association of individuals held together bya single governmet» (UNGER, 1976:193)

In evolution as in tradition, the present unfolds out of past events and pastexperiences. The future is meaningless because of the irreversibility of time. In naturalevolution and traditional society, future constellations cannot have effects on presentevents. Surprisingly enough, though, in the human brain natural evolution builds up apotential for memory, reflexivity, self-reference, and «reflexive abstraction» (PIAGET,1971:320) which gradually undermine the «natural » direction of causality and time. Themind can conjure up imaginary realities and reverse causality and time by permitting

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virtual, future events to influence present action. Well known sociological examples areself-fulfilling or self –destroying prophecies — and planning.

With planning, actors want to influence, change or correct the « natural » courseto influence, change or correct the « natural » course of events. They want to preventundesirable future events or to promote desired ones. « futurity » (MARUYAMA,

1967:183) comes into existence when the internal complexity of a system becomesorganized in a way which permits the unity of the system to be represented within thesystem. In addition to a circular, self-referential structuring of internal events, futuritypresupposes that a system operates on the basis of a self-description (which actuallycan be understood as a « script » for the sequencing and coordination of autopoieticoperations). A self-description represents a sort of blueprint which tells the system ateach point in time what to do in order to continue its autopoiesis. (Probably even ahypercycle needs a self-description in the form of a « molecular memory » in order toreproduce itself within feasible time). If, in the course of functional differentiation the self-description of a system becomes observable to that system — e.g., in the form of aninternal model of itself — and thus an object for internal manipulation, the system indeedliberates itself from the gravity of past and present. Like the Baron of Munchhausen, itlifts itself by its own boot-straps out of the range of « natural » causality and time. For now it is not forced any more to restrict its self-reference to actual being and pastexperience. It is free to use as point of self-reference a virtual reality, the wealth of thepossible and contingent. In practice, this means that a complex autopoietic system canimagine a desired self-description as an expression of a desired contingent identity. Itcan re-introduce this virtual identity as a point of reference into its operations («re-entry»the sense of SPENDER BROWN, 1979:69ff). It can plan its selftransformation to a newidentity.

In taking advantage of these faculties of the mind of psychic systems, socialsystems, too, may decide to plan. Social or societal planning of course, alsopresupposes that virtual future events or constellations have real effects on presentaction or communication. Societal planning starts with a normative projection of a futurestate or identity of the respective system. Planning aims at anticipating desired system-states and therefore good planners need to imagine futures which depart radically fromthe present and the present course of events (OZBEKHAN, 1970).

The wisdom of evolutions, CAMBELL (1969:77) says, « is retrospective, referringto past environments ». The plight of planning is that it is bound to refer to futureenvironments. And it is exactly this ingredient of planning which makes societal planningor any planning of complex systems so difficult and may be at present even impossible.

The behavior of complex systems often is counter-intuitive because their elements are interconnected non-linearly in reactive, recursive or deviation-amplifyingnetworks. In practice, this means for example, that complex systems within society donot react at all to various changes of policy or strategy or to new goals. They appear rigidly structured and ridden with a built-in « institutional immobility » (SCHARPF, 1973-67). On the other hand, however, they may react to specific interventions os structuralchanges in a drastic and unexpected way. Each system has a few very sensitive points.But in order to find these points, it is necessary ti unravel the internal dynamics of thesystem, e.g. using sensitivity analysis, simulation, or similar sophisticated methods (seeFORRESTER, 1972; DORNER, 1983; Ch. 1-3; VESTER and HESLER, 1980).

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Most social planning fails because planners are looking for clear-cut causalrelations and computable indicators. Planning in complex systems, however, calls for areconstructions of the relational structure of an intricate operational network. It is hard tosee how law could fit in or even be helpful in this task.

Planning, like evolution, can be see as a form of controlled structural change.

Planning differs from evolution in that control is exercised structurally and procedurally:the existing structures determine the range of internal « fit » (ALEXANDER, 1970:15ff);additionally, in planning, the possibilities of change are controlled by the constraints thatfollow from the normative protections which define the plan´s objectives. Planning aimsat organized interventions into the ongoing processes of social systems in order to arriveat specific desired changes, It, therefore, is bound to assume that interactive or operational options are contingent, and that these contingencies can be controlled bypre-selective devices. Pre-selection reinforces selectivity — and of course control(CAMPBELL, 1969:73f) — since it excludes certain avenues of action and favors others.

In contrast to evolution, planning implies intentionality, goal-directedness,systemic rationality, and a long range time perspective. These exigencies indicate aprofound pa dox of planning: planning as a designed correction to «natural » evolutionbecomes a part of the system in which planning takes place and so planning must reactto the fact there is planning in the system. Planning may become enta gles in plannedcountermoves to planning and the planni of countermoves to countermoves, etc. (for anice exam see HOFSTADTER, 1984:75ff). The very conditions that ma planningexceedingly necessary, also prevent planning succeeding. The more planning is neededbecause of turb lent environments, internal complexity, and concatenate interdependentoperations, the more demanding it is come to gripd with planning. It follows that planningis very ambivalent strategy. It is supposed to be a strategy cope wit higt complexity. Inbeing implemented, howev planning increases the complexity of a system to « hypcomplexity » (LUHMANN, 1984b:673) and makes it even manageable.

Planning may work if the planner or the planning tem has a highly developedunderstanding of the inter structure and dynamics as well as of the operational mo andpower-dependence relations of the planned system. Planners nees to know theessential causal networks and sensitive points of the system. They must be able to theeffects of intentional interventions (including their intended consequesnces) (seeMASUCH, 1984:135f). At at the level of societies these preconditions of planning far from being fulfilled.

In this situation, planning through law and planning seemed to provide a way out.It appeared to be possible reinforce selectivity by backing the necessary pres-selectnormatively. Normative plans and planning law were to select certain patterns of expectations in an effort to nar the range of developmental paths down to the one consttion which conformed to the projected goals. It is safe to that this strategy essentiallyfailes. At least, planning, ries, strategies and methods simply are not develop enough tobe able to keep the promises of planning.

Therefore, it might be helpful to try an intermediate step which is placed betweensimple evolutionary muddling through on the one hand, and overly complex planning onthe other hand. I would like to call this intermediate strategy societal guidance.

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IV. SOCIETAL GUIDANCE AND THE ROLE OF LAW

For years, scholars of widely differing theoretical and empirical backgrounds havestated that within the context of welfare society the role of the State has changed. Lawas a major medium of public policies can be expected to not remain unaffected bytheses changes. Some of the more important observations are:

— In interventionist and welfare policies government is semi-sovereign at best:The welfare policies of the modern state are co-operative rather than sovereign acts of government. They can only succed if harmonized with the independent behavior of individuals, families and small social groups that may resist or react unpredictably togovernment policy » (ROSE, 1976:273).

— Public policies by an «association of governments » become fuzzy. Thedistinction between public and private welfare, general and special enterests, equity andprivilege are hard to draw: « as government assumes managerial re sponsibilities, itmust work in which the complexity and variability of relevant factors of decision seemtoo great to allow for general rules, whence the recourse to vague standards » (UNGER,1976:196).

— The major societal subsystems call for and recject the state at the same time.This «double-bind » patterns public communication and indeed, has some schizophrenictouches. On the other hand, the state simultaneously tries to fence in organized interestgroups while it needs their problem-solving capacity and consensus-building potential toimplement its policies. As a result, the state gradually becomes one actor among othersin the game for societal control and guindance (WILLKE, 1983:117ff).

— A functionally differentiated society hasno central institution which providesintegration. «is a society without top and without centre … it is a system without speaker and without inner representation » (UHMANN, 1981:22). The control of each subsystempredominately lies in its autopoietic operational pattern. And the control´s control is thesocietal context which for the subsystem means the participation in a communicationaland co-evolutionary network. Cambining autopoiesis and communicational coupling, thesubsystems — including law and state — test and develop interactional relations. Theseintersections are based on mutual internal intransparency of the subsystems and onmutual transparency or « understanding » of their interrelations. So, in spite of beingblack boxes to each other, there is a degree of «whitening up » which depends on thequality of intersystemic relations (LUHMANN, 1981:49-51; Glanville, 1982).

The latter point directly leads to my central thesis regarding the role of law insocietal guidance: law ceases to be an instrument of direct intervention. Instead, apossible and productive role of law is to pattern the interrelations of societal subsystemsin a way that permits a combination of autopoietic self-guidance and decentralizedcontextual guidance of the societal frame. Of course, then a main problem will be under which particular conditions these two aspects may be antithetic, and which particular conditions allow a combinatorial synthesis.

Like evolution and planning, guidance also aims at controlled structural change insystemic contexts. In evolution, such changes are triggered by chance variation of elements and controlled though selective retention according to environmental and

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internal coordinative constraints. In planning, structural changes are controlled by anormative projection of a future system state. Triggers for theses changes are notchance events but systemically relevant incongruencies, conflicts and contradictionsbetween the acting parts of a differentiated system.

Guidance is less ambitious. Its goal is to arrange framework for societal change

which conditions the relations between partially autonomous, self-guiding subsystemsas acting units. Guindance can be defined as a form of organizing the conditionalities of partially autonomous parts of a differentiated system which permits the integration of thesystem on an emergent level of action. In other words, guidance aims at a capacity of anacting unit for present decision making which takes into account future necessities,prerequisites or possibilities of the system — e.g., a society — as a whole.

Evolution operates at athe level of elements and builds on elementary variationsof the constituting parts of an autopoietic unit. Planning works at the level of systemsand treats the elements as dependent variables. Guidance as an intermediate strategysets in at intermediate level: it aims at the relations between the subsystems or actingunits of a system, Guidance connects the elementary level and the systemic level infacilitating or catalyzing those relations between elements which produce specifiedsystemic states. From the continuous evolutionary variation of elements those patternsare selected which conform to preferred overall constellations. This means that on theone hand, there is no need to control the variation of the elements in detail — animpossible task even in moderately complex settings. Nor is there a need, on the other hand, to figh the continuous evolutionary change of elements. On the contrary, guidancetakes advantage of this wealth of variation and just lightly pushes certain evolutionarypaths and discourages others. Evolution realizes a negative form of selectivity since itworks by negating lethal variants. Guidance, in contrast, constitutes a positive form of selectivity since it positively promotes only certain options out of an array of contingentpossibilities. In a strict sense of the word, guidance is the civilization of evolution, asubordination of natural evolution under societal criteria of choice.

We may conclude then that guidance builds on accidental elementary variation,but is not triggered by them; and that it takes into account systemic contradictions butdoesn´t pretend to solve them by erecting the « new » society. Instead, guidance workson the structural and procedural in terferences between the various (organizational,corporate or subsystemic) actors of a complex society. The constraints, contingencies,and externalities of these actors need to become interrelated in a way that promotes apreferred pattern of expected structural change. This term of guindance leans on theidea of « pattern prediction » (v. HAYEK, 1972), but it conditions pattern prediction withthe sociological idea of « expectations » as primary structures of decision-making(LUHMANN, 1984c). Guidance has a normative component which can be called «pattern prescription » since it consists of pre-selecting certain patterns of expectations.

And this term of guidance leans on the idea that complex autopoietic systems are« inferential systems » (MATURANA, 1982:36). It states that the recursive organizationof an autopoietic system implies the prediction that an interacvtion which has takenplace once will take place again under adequately similar circumstances. Inferentialsystems in MATURANA´S sense produce expectations from past experiences.Guidance broadens this concept and includes the production of future-orientedexpectations, or more specifical ly, the expectation of future structurally controlledchange of structures. This incidence of controlling the change o structures with the help

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of purposively arranged structure and procedures indicates an important recursiveaspect o guidance: guidance is a variant of evolution which has be come reflexive; it isevolution controlling itself. The criteri of control derive from a system-rationality that canonly described procedurally and not substantively any more (se SIMON, 1978;1983:70FF). Procedural rationality here is sup posed to mean that systems condition

their contingencie and potentialities of development on the gfact that they boun to acand decide continuously in spite of intern and external turbulence, uncontrollable « noise», and une pected opportunities. Under these conditions an attainable level of rationalityis a rationality of following predetermined procedures which provide stability of from andflexibility of content. Procedural rationality is the corner-stone of reflexion as a way tointroduce « weak altruism » or « enlightened self-interest » (SIMON 1983:58) into therelation of partially autonomous actors. Reflexión induces actors to realize that theycannot avoid being possible (that is: viable) environments of other systems . Reflectingthis, systems may decide to restrict the range of their options to the few or even to thesingle one which complies with the conditions of productive — or at least no-destructive— system-environment-ecology.

Although this sound very theoretical and may even be lacking the obligatoryprofessional cynicism, there is no denying the fact that societal guidance actuallyoperates in this way, for example, in the form of concerted actions or various forms of ´neo-corporatist practice (SCHMITTER, 1983; WILLKE, 1983). There are considerableguidance activities going on within and between all parts od society. The politicalsystems of modern welfare societies cannot escape the pressure to intervene inpractically all societal domains, be this family, schooling, science, traffic, home building,energy consumption or whatever. But also, the economy or religion, military, health,technology or other systems try hard to guide societal processes in an effort tointentionally change their respective societal environment in a preferred direction.

It is not at all surprising that these diverse efforts at societal guidance actuallyhappen. What may come as a surprise, however, is the fact to what high degree theseefforts fail. Often they produce detrimental effects and even more often they are but awaste of time and resources. Arguing from the vantage point of the theory of autopoiesis, these failures should be expected. For highly developed societalsubsystems are intransparent for external observers — and to some degreeintransparent even to self-observation. Their specialization, operative closure, and their self-referential way of structuring events make them opaque and resistant unrefinedexternal intervention. Although autopoiestic systems are by no means completelyindependent from thei environment, it is apparent that direct intervention works as littleas cannon boat diplomacy or big stick policy. There fore, it becomes exceedinglyimportant to specify in which respects a certain autopoietic system is independent andcan not be directed though external intervention, and in which respect it is open externalstimuli. The concept of au topoietic systems may help to clarify this point.

This concept can be transferred to social systems, think, if one focuses on therelation between partial open ness to distinct external stimuli and operative closure of the systems, which here means self-guidance of its internal operations. In respect tosocietal guidance three points need to stressed:

1) In complex societies direct control of subsystems law or administrative policiesis not attainable. The control ling actor — the « regulator » — would have to adequtelrepresentr or model the internal complexity of the controlle systems. This either leads to

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simplification by de-differentiation or to ungovernability because of hypercomplexity (CcNANT and ASHBY, 1970).

2) In spite of these difficulties societal guidance of the specialize parts alonewould imply neglecht the developmental cond tions of the society at large. At present avariety of possibl developmental paths could lead to unbearable costs and rutures in a

societal or even global dimension. So it seems in prudent and impudent to let thespecialists do their thin and hope for evolutionary incremental adaptation.3) To have neither « direct control » nor «anything goes » amounts to advocating

decentralized contextual guidance. Contextual guidance must work in the language andwithin the discriminations (relevant differences) and distin tions of the guided system(TEUBNER and EILLKE, 1984). The question here, is whether can help in realizingcontext al guidance in this sense.

1. Structural Coupling through law?

Law has an unproblematic guidance effect where it creates expectations that areaccepted on a routine basis by societal actors, e.g.

— because the specific operational order of the system is only marginallytouched by the new expectations (at least in the perception of the system), or

— because the law clarifies a situation where it is not the content of the decisionthat is important, but the fact that a decision was made: a common example isthe decision to drive on the right or the left side of the road; or

— because within an autopoietic unit there is no doubt that guidance isnecessary and strategies must be chosen. If, in this situation, law postulates

just one of several possible and — in the perspective of the guided system —adequate options, this form of guidance probably will pose no problems.

Law gets into trouble where it creates expectations that are not easily acceptedby the target system. In the first place, it is most important to see that we are dealingwith the relations between interdependent and independent systems. If normativelypostulated expectations (that is, legal rules) are not « voluntarily », then force is not anadequate alternative. For force reduces the problem of coupling incongruentperspectives to a short-cut strategy of dedifferentiation and destruction of complexity. Incontrast to force, power is a very important guidance resource. Power is useful even ininterdependent relations as long as it influences premises of selection and refrains fromreplacing them: « The success of a power structure lies in enhancing differentiations of situations and selectivities that still can be bridges » (LUHMANN, 1975:22).

Law is form of coding — and thereby controlling — political power. Law,therefore, acts as a medium of guidance if it succeeds in influencing the selective criteriaand the selection processes of a target system. In a most general sense « influence »means to transfer reductive slections and selective choice (LUHMANN, 1975:74).Interactive influence means that mutually external selections become relevant for systemic operations. In the co-evolution of different systems this amounts to «instructive interaction » between autopoietic units. Influence the can be seen a modus tobridge the contradiction of operative closure and environmental coupling.

Even within operative closure the internally coded expectations and preferencesthat direct the specific selectivity of decision-making and action generation can be

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changed in their relative weigh by introducing additional alternatives (see ZELENY,1982: Ch.4). Preferences result from expected utilities of (in some way) calculated cost-benefit-ratios. Costs and benefits usually consist of quite different factors. If one of theses factors changes its value because of external events, new preferences mightresult within the system. However, external events will only be observed and recognized

by a system if they are relevant (or present themselves as relevant) to the discriminatoryrules of that system. These discriminatory rules postulate the quality and range of thosedifferences which produce information by making a difference. They can be seen as asort of scanning device. It permits the system to scrutinize its societal environment for events that indicate differences which can be processed internally and from which thesystem derives some information. In a strict sense « in-formation » here means aconstellation of factors which influence the course of events in a system: « anydifference which makes a difference in some later event », (BATESON, 1972:381, myemphasis).

In the special case of autopoietic system, guidance then is a process whichsucceeds in establishing patterned connections between a system and externalinterventions in spite of the « inner-directedness » of systemic process. In most generalterms, this type of connection between system and intervention demands a grammar of transformational rules which allow for the transfer of external conditions into theinternally determined operational cycles of an acting unit. This King of interrelationbetween two or more structurally determined systems obviously happens in eachinstance of co-evolution of distinct systems when there is some interactive behavioralcoupling — his on the basis of general structural coupling, of the co-evolution merely of transferential mechanisms, or of even more selective gate-keeper devices which permitthe controlled of external stimuli into the system. For example, it seems possible tocircumvent the « immune-reaction » of an autopoietic tem against external interventionsby coupling in a sluicelikemanner dispositions (in the system) and events (in itsenvironment) or by coupling systemic operational rules and external messages whichpertain to theses rules. The latter ex ample illustrates the possibility to eventuallychange the rules through messages which contain information about rules. Taking intoaccount that in social interaction all structures of events « have a self-closing or cyclicalcharacter », as ALLPORT (1954;288) has put it ago, the problem is to couple differentsequences of events in order to arrive at concreted action and intelligible interaction.

In other words, the point is to find those « transferential operations » (BRATEN,1984:161) or « interface devices » (WALLER, 1983:1) which make it possible for theintervening as well as for the guided system to shift between self-referencing and other-referencing. The difference between the two perspectives could be used to extend self-observation to the level of reflexion. At the level of modern societies law can operate asa medium of guidance— whereby the legal system is a mediator of political interventioninto societal subsystems — only if the law is in a position to facilitate tors and sopromote reflexion as a modus of controlled coevolution.

There is a variety of conceptual instruments to describe interesystemic relationsbetween autopoietic systems. Accordingly, there appears to be a variety of forms inwhich law can be used to pattern intersystemic relations. Of course, any discussion of the role of law in societal guidance has to take into account that law and the legalsystem itself have become an autopoietic system (LUHMANN, 1983a; 1984d; 1985b).law is not just an instrument of intervention and change Rather, law takes part in a «

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Interarchical » (MCCULLOCH 1965:40ff) process of self-transformation and it shouldexpected that law itself changes to new forms in the course of this process. Wheres it istempting to speculate abou the characteristics of these new legal forms, I restrict my nalcomments to outlining some patterns of intersystemic relations. The guidance capacityof law will depend a great dea on the development of legal « operational procedures »

tha permit a legal framing and institutionalization of these paterns of intersystemicrelations.In inter-reference (note the nice contrast to interference common or overlapping

language forms, communication fo mulas, standards, reference points of procedures aredeve oped which permit dialogue. This leads to a dialogue mod of black box interaction(PASK, 1981; BRATEN, 1984) usir conversations and explanation of explanations askey tions. In practice that implies developing a common la guage (a system of signs andsymbols) or a transformation language, e.g., a « compiler » for a certain problem areaorder to make certain events accessible and relevant for or more autopoietic systems.

An example is the specification of Euro-norms, DIN VDI-definitions. Economy andlaw (and possible other tors) can refer to these definitions; and although they havedifferent effects in different contexts; these definition constitutite a common code and sopermit intelligible communication. Another example is the use of the money, agaum ineconomy and in State budgeting. Although, aga different contexts will produce differenteffects, inter-reference to the same medium makes it possible to establish conversationsbetween the two (and possibly other) systems a to recognize by way of dialogue theincidence of consent dissent. Law is far from using the money medium as a mea of inter-reference in a sufficiently effective way. One of difficulties seems to be thatlegislators would have to in economic terms and the transfer decisions into a frame. Thispresupposes a grammar of transferential operations that simply doesn´t seem to exist.However, newer concepts like the economic analysis of law on the one hand, and thetheory of property rights on the other hand, are encouraging insofar as they create abody of common symbols and equivalent structures between law and economy. Moregenerally, the point in inter-reference is to provide a normative construction of compliance through negotiations (CLUNE) and a logic of bargaining (LADEUR) betweenpartially autonomous actors.

Modulation is a more « directive » way to influence a target system. It means toimprint external meaning on the ongoing process of a system, for example by offeringadditional alternatives or by influencing the costs of a factor. In this way, the range of co-existence permitted by the autopoietic operations of a system is movel into an externallypreferred direction. an example is the political moderation of the conditions of profit-making in a « socially responsible » market economy. Welfare laws, e.g., aboutconsumer protection, liability or safety regulations « modulate » economic calculationswithout abolishing the basic meaning of the profit-principle for the economy, that is,without destroying its autopoietic self-reproduction. Another example is the « finalizing »of scientific knowledge (v. DEN DAELE and WEINGART, 1975; GASTON, 1975) as apolitically or ethically motivated effort to discourage some and encourage others of therange of possible developmental paths within science.

A similar way to exert influence is conditioning. The influencing system setsstimuli as antecedental conditions for triggering specific interl operations of theinfluenced system. For example, this can be temporal conditioning, e.g., timing,sequencing pace-setting of defining changes in activity levels. Or it can be material

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conditioning, when resources, opportunities or other preconditions for systemicoperations are arranged by an external actor.

The role of law in both modulation and conditioning can be described as « indirectrule ». The point is to create contextual conditions or « triggering patterns »(HOFSTADTER, 1984: Ch. XI, XII) which make it probable that the targe system will

choose according to its own rules of operation to do what it is expected to do. Anyintervention of this sort (in contrast to direct intervention) is an activity towards aninfluenced system which aims at combining contextual constraints — whixh in aconcrete instance are considered necessary in the perspective of the whole, e.g., afamily, a group a society — and the internal logic of operations of a par which still is tobe respected because it defines the identity of the influenced system. Theses forms of intersystemic relations are particularly relevant for therapeutic practice and for educational processes. But there is a reason to believ that therapy and education asforms of «people processing must be extended to « system-processing » as soon asorganized collective action emanates from social systems tha have acquired autopoieticqualities. Here law could acquir the role of canalizing the structural change which thesesystems deem necessary for themselves in order to come grips with environment.

With respect to autopoietic systems, guidance cannon mean anything else thanforms of supporting or facilitation self-guidance, just as intervention can only meanstrategic for enticing and triggering self-adaptation. Guidance is fined by aiming at astate of affairs which differs from the naturally growing, evolutionary developmental path.Guidance as a form of intersystemic relations then amounts setting some conditions toenable a system to adapt itself a new (environmental) situation. This can be done, for ample, by creating or improving the conditions for inter-reference, modulation,conditioning reflexion and integration. For example, one can think of legal rules for democrat procedures of consensus-building in voluntary association in the economicfield, or of curricular or of similar ways facilitate the sort of change that the subsystemsthemsely (!) consider desirable or necessary.

These conseps or models for describing intersystem relations betweenautopoietic systems may show, on the hand, that even systems which for each other seem to be black boxes, can establish regulative and adaptive relations. On the other hand, these concepts show that these relations can only be productive if the autonomyand autopoiesis of the respective other-system is seriously respected.

The importance of this seond point, it seems to me, encapsulates the relevanceof the concept of autopoiesis for law. The idea of an autopoietic quality of the fullydeveloped subsystems of modern societies makes it inevitable to see that any form of legal guidance, e.g., of the economy the educational system, of science and technology,the healt system, etc., presupposes a seemingly paradoxical achievement: tostrengthen the autonomy and operative closure of the guided system in order toincrease its responsiveness and sensitivity to specific external conditions. This alsomeans that juridification and other forms of « direct rule » can be expected to inducedysfunctional side effects and evasive strategies (HABERMAS, 1984:522ff;1985a:203ff).

In contrast to HABERMAS (1976:260ff), I assume that the legal system of thewelfare society is not an institucional embodiment of post-conventional rationalitystructures. The orientation of law towards universal ethical principles of conventionality,of legalism and of universality may characteriza the early constitutional State an the

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classical liberal legal order of equal and free participation in a market economy. Butmodern law cannot pretend any more to be built on universalistic principles. On thecontrary, modern law provides a net of physical-social and emancipative ameliorationswhich officially promete equity though positive discrimination and social security throughdetailed regulation of private concerns. Law benevolenty aims material rationality in a

situation where the most that can be obtained by law is procedural rationality.In essence, the problem is that law needs to adjust to the organizationalprinciples of a new societal formation. It is a formation characterized by heterarchical(nonhierarchical) circular and functionally interdependent relations of powerful collectiveactors. Many societal subsystems, including the legel system itself, have condensedtheir relative a tonoy and specialized system rationality to operative closure, including aprimacy for self-reference. This means th law is not in a position any more to establish auniversalistsocietal system rationality — neither a neo-liberal market society, nor a neo-absolutistic primacy pf politics.

Almost a hundred years ago, Emile DURKHEIM, amo others, observed afundamental change in the role of lay following from a first serious wave of functionaldifferention of « modern » society in the course of the 18th ar 19 th centuries. Lawchanged from repressive to restituti sanctions because in a differentiated society « colepublique » and public revenge because of violations of collective consciousness, didn´tmake sense any mo (DURKHEIM 1966).

Of. Course, DURKHEIM had in mid the relations of individual actors. Today, Isuppose, we have to extend his tion of restitutive versus repressive law to the level of lective societal actors. Law¨s function is not to repress the actors in order to retain theprimacy of the state or of polics. Instead, law can play an active role in restituting areasindependence and autonomy as a precondition is probably mo balance of power insociety; and — which is probably mo difficult — it needs to restitute the conditions of collect communication in a situation where among the societal su systems there is aBabylonin confusion of differently spcialized tongues, following from the « eigen-selectivity the perspectives » (LUHMANN, 1984b:153ff) of the differebt subsystems.

Without a doubt, this brings legal theory back in close relations with democratictheory. Legal theory has take a stance in the evaluations of processes of juridiftion /de-

juridification, regulation/deregulation, new corpratism/new fundamentalism (seeTEUBNER, 1985; SCHMITT 1983; OFFE, 1984; WILLKE, 1983). And, inevitable, toobrings legal theory in close conct with sociological theo Most badly needed then areconceps which transgress limits of academic disciplines. To me, it seems that topoiesisis such a concept, although it still is quite fragmentary and elusive,a nd therefore, it isdifficult to discuss its potentiality. But then — who said it will be easy?

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