Edited by Peer Zumbansen and Gralf-Peter Calliess
Chapter 10: The Genesis of Law: On the Paradox of Law’s Origin and its Supplément
10. The genesis of law: on the paradox of law’s origin and its supplément Marc Amstutz How did law originate? Was it by distinguishing itself from that which was not lawful? But then, which came first, lawfulness or unlawfulness? Or is there another possibility? Ex facto ius oritur? As so often the case, it is Luhmann who takes the most radical stance: law has no beginning, it starts from the middle. ‘Legal practice,’ he writes, ‘always operates in situations where the law is an historical given, since otherwise the idea that it is distinguishable as legal practice would never even occur to it. Thus, from an historical point of view, law does not have any beginning; there are only situations in which it is sufficiently plausible to assume that the practice of observing legal norms also existed prior to that time.’1 Law begins, in other words, with an act of differentiation, perhaps no more than the creation of a before and an after, a construct that, like all such distinctions, is possible only in hindsight. In systems theory, every social system requires a primary distinction on the basis of which it operates. The political system distinguishes between power and the lack thereof; the economy between what represents value and what does not; art between what fits certain aesthetic criteria and what fails to do so. For the legal system, the primary distinction upon which it operates is that between the lawful and the unlawful. A side product of...
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