Edited by Antonina Bakardjieva Engelbrekt and Joakim Nergelius
Chapter 6: Ontological and Epistemological Complexity in Comparative Constitutional Law
Otto Pfersmann To state that law is complex seems not to make a very contentious claim. But, what does the claim mean? According to Niklas Luhmann’s famous thesis, law has as one of its main functions to reduce complexity by stabilising expectations.1 Luhmann (1987: 6) defines complexity as ‘the totality of possibilities of experience and action the actualisation of which a context of meaning admits of’. He distinguishes an unstructured, amorphous, from a structured mode ‘to the extent to which possibilities exclude or limit each other’. Law especially through positivity and variability (Luhmann, 1987: 210) can thus, according to him, increase both complexity and ‘possibilities for a meaningful selection’. Thus, though highlighting the ambiguous nature of law, this account remains fundamentally optimistic. To this view, I shall oppose a slightly different concept of complexity (I) which I shall try to apply to the domain of comparative and more specifically of comparative constitutional law. This discipline may contribute to reduce complexity and hence to resolve problems (III). It may often add artificial complexity. It does so through conceptual confusion (II) and misrepresentations of its object (IV). I. COMPLEXITY AND THE PRINCIPLE OF AMPHIBOLOGY Law can equally reduce and increase complexity and it can do this both at the ontological and at the epistemological level. However, the concept of ‘complexity’ has to be reformulated in a different way. First, the concept introduced by Luhmann is misleading. Instead of indicating an objective or subjective situation in which one has to deal with a...
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