Crítica do direito e teoria dos sistemas

Abstract

This article focuses on critical system theory approaches to law and society. It reveals how these approaches modify the orthodox systems-theoretical framework and discusses the resulting mode of critique. The main argument is that the Left-Luhmannian turn draws on an aporetic mode of critique which was already prevalent in the legal critique of the early Frankfurt school, most notably in the work of Franz L. Neumann: It criticizes law's self-reference in the name of society and-vice versa-criticizes modern society in the name of an autonomous legal system. While it is argued that this mode of critique is highly productive, these approaches show a lacuna when it comes to social antagonisms and power relations. An analogy to Theodor W. Adornos reasoning on the relation of form and violence is introduced in order to circumvent the fallacies of an either nihilist or affirmative take on law and society.