Systems Theory and the Constitutionalization of International Law

In this paper, I propose a critique of the Habermasian model of the legitimacy of global institutions, drawing on Luhmann theory to explain how legal systems multiply, recreate and maintain themselves in worldwide social system. Recently, legal theorists have drawn on Habermas work to suggest that it is possible to imagine a constitutionalization of international law and legitimation of international institution along broadly Habermasian lines (Von Bogdandy 2012; Von Bogdandy, Dann and Goldmann 2008; Von Bogdandy and Dellavalle 2009; Von Bogdandy and Venzke 2011). The broad trend has been to theorize the development of legitimate international law in terms of processes of will formation outside the state that mirrors the distinction drawn by Habermas and Fraser between strong and weak publics – where strong publics are parliaments and other deliberative institutions, and weak publics are those public spheres which influence parliaments and international organizations such as the EU, international courts, NGOs, etc. Similarly, the tendency is to treat the role of law in terms of the hinge theory of law as outlined in Between Facts and Norms – law is a ‘transformer’ which transforms commands from the public sphere and the lifeworld into a specific language of commands for the economic and bureaucratic fields (Habermas 1994). 

I will argue, against the Habermasian, in my paper that the model of international law proposed here is empirically incompatible with law making in the international arena. Luhmann and Teubner’s model of law formation does a better job of describing both meaning formation in law (Teubner 1989 and the relationship between various different branches of both public and private international law, and the public sphere (Ladeur 2005; Teubner 1997). I will make reference to the so-called Solange Decisions in making this argument.