Marcelo Neves, São Paulo: Grenzen der Autonomie des Rechts in einer asymmetrischen Weltgesellschaft: Von Luhmann zu Kelsen*

This article sets out to move from questioning the autonomy of law from the external standpoint of sociology to problematizing it from the internal legal standpoint. The first step is an analysis of the Kelsenian theoretical model of the hierarchically structured self-production of law, taking into consideration the concept of reason for the validity of a norm and of a legal order, as well as the role of efficacy as a condition for validity. The second is a presentation of Luhmann’s conception of autopoiesis of the legal system, and in particular the function of the Constitution in the operative closure of law. Based on this exposition, the discussion then focuses on the limits of both conceptions, but in reverse order: first questioning the possibility of transporting the concept of autopoiesis to the different conditions for reproduction of law in contemporary world society, and then raising objections to the adequacy of the concept of hierarchically structured self-production of law to the many different legal orders in today’s world. The conclusion drawn from these critical observations is the argument that the Luhmannian sociological theory of the operative self-reference of the legal system and the Kelsenian legal theory of the self-produced step-structure of law are applicable only to legal systems minimally grounded in the rule of law.

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