Against a Systemic Legal History

Abstract

This paper questions the resort to systems theory as the foundation of an evolutionary legal history. In particular, the theoretical legacy of Niklas Luhmann upon which Marie Theres Fögen proposes to draw seems to have limited application outside a context in which advanced system differentiation is present. Although (like Marx, Durkheim and Weber before him) Luhmann drew in a broad evolutionary trajectory, he was concerned principally with “functionally differentiated society”. Earlier phases – covering precisely those formations that historians will presumably focus upon – are very hazily sketched in and relatively poorly theorised. In general, we should not too readily acknowledge “the exhaustion of the paradigm of modernity” (Santos, 1995) or rush to proclaim the obsolescence of multi-dimensional approaches such as those of Bourdieu (1977) and Giddens (1984). Any legal history that marginalises both human actors and the conditional environment has a considerable task in making up the ensuing deficit.