This is a subject that has occupied me since I wrote my doctoral thesis, i.e. for the past 40 years. I would like to summarize my experience of the relationship between law and social theory:
1. There is no single social theory upon which the law could orient itself. Such a theory cannot exist, neither ought it to exist.
2. Over the last 80 years, German law has on three occasions succumbed to the temptation to subject itself totally to a theory of society. This has led to two theory disasters. It remains to be seen whether the third such disaster will also occur in the law.
3. The law is faced with a dilemma here. Total acceptance of a social theory is impossible, yet of necessity the law is exposed to the influence of social theory. The way out could be: a “distanced approach,” whereby the law does not take social theories at their nominal value, but in a complex process of translation generates “added value” to legal doctrine.
Verba docent, exempla trahunt. So let me begin with a legal case.
2. PUBLICATION BIAS: A LEGAL CASE AND THREE THESES
Publication bias—this is a worrying but widespread phenomenon that is being discussed in a number of countries.Footnote 1 In order to develop an effective drug against a serious but rare disease, various private and public institutions join together to form a private-public partnership (PPP) network, based on bilateral agreements among them. Since the high costs make such projects unprofitable for the pharmaceutical industry, the financing is mainly provided by a private foundation and subsidies are paid by the national health department. A university institution undertakes the basic research, while the clinical studies are carried out by a private research institution, a contractual research organization. A private pharmaceutical company organizes the production and marketing of the drug. A communication agency takes care of the dissemination of information and publication of results in scientific publications and the media.
Following successful licensing on the basis of the clinical studies presented, the drug comes on to the market. However, after a while reports begin to mount up on serious side effects in many patients. Subsequent systematic research shows that the PPP network has been responsible for serious manipulation. The side effects were well known within the network, but the network has successfully prevented publication of the relevant results. The publication of experiments in which negative consequences occurred has been suppressed.Footnote 2 This had been indeed authorized by the bilateral agreements between the research institutions and the pharmaceutical company.Footnote 3 Other series of experiments have been published, but their results have been falsified in favour of positive effects.Footnote 4 It was not just the pharmaceutical company that was involved in the manipulation, but also the groups of researchers and the communication agency, which had their own interest in providing a falsified presentation of the results.
The numerous scandals surrounding publication bias have certainly given rise to strong reactions. Empirical studies have shown that this is a ubiquitous problem. Initial attempts are also being made to take regulatory counter-measures. Yet the problems that arise here are not simply problems of political control, but also fundamental issues relating to constitutional law: Does the fundamental right of academic freedom also give rise to third-party effects within semi-private PPP networks? Can the fundamental right of patients to health be asserted vis-à-vis the network or individual members of the network?
The question of whether and how fundamental rights can claim validity vis-à-vis private networks is also of great interest as far as social theory is concerned. Theories of the “network society,” as developed by Manuel Castells for example, see the collective actor networks throughout society as the distinguishing characteristic of post-modern societies, and identify “network failures” as serious social risks.Footnote 5 The way fundamental rights are being endangered in non-governmental spheres, in markets, organizations, and networks, is not only a matter of concern to jurists, but is also an issue raised by various social theories, for example the constitutional sociology of Chris Thornhill; it is a phenomenon which is attributed to the expansionary tendencies of non-governmental collective actors.Footnote 6
Since both of these subject areas are juristic “virgin territory,” the findings of social theory may well prove to be highly relevant for the law. However, if we are seeking specific conclusions as far as legal practice is concerned, we are faced with some thorny problems:
1. Competition between theories: How is the law supposed to make a selection if competing social theories give rise to mutually incompatible analyses of networks, or simply do not agree concerning the validity and effect of fundamental rights vis-à-vis non-governmental collective actors? On this point, my thesis in a single word is: transversality.
2. Knowledge transfer: Can the results of social theories be directly applied within the law, i.e. can they be implemented in network adequate standards of fundamental rights? And can social theories guide the selection of sanctions against violations of fundamental rights so that they can be effective vis-à-vis the particular logic of networks? Again, my thesis can be expressed in a single word: responsiveness.
3. Finally, there is the extremely difficult question of the normativity of social theories: Can normative criteria for fundamental rights in mixed public-private networks be derived from social theories? My thesis: self-normativity.
3. THESIS 1: TRANSVERSALITY
3.1 The Particularities of German History
In Germany, the relationship between social theory and law has experienced highs and lows which have not arisen to such an extreme extent elsewhere. It started at a general European level, with periods in which jurisprudence existed in a close symbiotic relationship with theories about how humans live together. This applies not only to cosmologies of natural law, but also to the period of the Enlightenment, when philosophy boldly claimed to develop a social theory which would lay down binding principles in regard to politics and law. The law of reason expressed this symbiotic relationship, in which, according to Franz Wieacker, “the old western philosophy of law and society (‘natural law’), in the form which had been given to it by the early Enlightenment, acquired direct influence on jurisprudence, legislation and the administration of justice among most European nations.”Footnote 7 This development reached its high point in the German-speaking countries, when Carl von Savigny responded to the social theory of Immanuel Kant, formulated as a society of individuals, with the modern-day Roman Law system: “All law exists because of the moral freedom inherent in each individual human being.”Footnote 8 Kant’s social theory, which states that citizens have spheres of freedom of choice which are ideally delimited from each other in such a way that the law can assume a form which is capable of generalization, was translated into a legal doctrine which saw itself as a comprehensive system of subjective rights.
Soon, however, philosophy had to give up its role as the “leading science” for the law. Due to the advancing functional differentiation of society, different spheres of rationality within society each took on their own separate existence, so that it was no longer possible to hold on to a single overriding viewpoint from which a unified legal concept of society could be developed.Footnote 9 In today’s “society without any apex or centre,” as Niklas Luhmann describes it,Footnote 10 it is in principle impossible to devise any generally valid social theory into which the law could be incorporated. “Under these conditions the social system itself becomes so complex that it is no longer possible to make do with a single system description.”Footnote 11 Instead, from a perspective of social rationalities that are utterly different, and yet are interwoven with and dependent upon each other, a multiplicity of independent social theories are developed. This situation does not even give rise to a “normal” controversy of theories that could ultimately be decided in favour of whichever theory is the most plausible. On the contrary, an entirely new kind of situation arises, to which the philosopher Günther Gotthard has given the name “polycontexturality.”Footnote 12 Out of their own specific rationality, different social “meaning worlds” create their own separate theories of society, which generally speaking can no longer be reduced to a single standard theory, but exist side by side on a basis of equal origin. Max Weber has already spoken of a “new polytheism” in a historical situation, which makes any “monotheism” of theories impossible.Footnote 13 There is no longer one theory of society, but only equally justified partial theories relating to areas of society. Yet each one of these—and this is what gives rise to concern – at the same time lays claim to universal validity as the only valid theory of society. It is this paradox—a multiplicity of partial rationalities with totalitarian claims—that the law has to face today, if it aims to find a satisfactory relation to social theory.Footnote 14
Economic theories have long since gone beyond the boundaries of their actual subject area—economics—and claim to provide a theory of all social relationships, which society, and therefore also the law, understands as a vast network of utility calculations. Efficiency becomes a principle of law.Footnote 15 In a similar way, political theories perceive society as power and interest conflicts between groups and political assemblies, and claim to represent a binding “leading science” in regard to society and the law.Footnote 16 The democratic-consensual foundation as the core of political rationale demands to be implemented everywhere in the law. In their turn, sociological role theories, which were developed for the micro-level of society, are extrapolated to the macro-level, raising the reciprocity of social roles to the status of a general social norm.Footnote 17 Again, moral criteria typically take the form of specific interactions as a demonstration of mutual respect. And yet the social theories of moral philosophy claim regulatory sovereignty over social (nowadays, principally ecological) issues and demand to be implemented in the form of legal norms.Footnote 18 Finally, social theories are also being developed in science itself, for instance in critical rationalism. Such theories insist on the impartial search for truth as the core of scientific rationality, and limit social theories to diagnosis and prognosis. Nevertheless, they demand the general scientification of the law in a process of “technocratic universalization.”Footnote 19
At the Laboratorium Weimar, where the loss of a general social orientation was seen in the law, the pluralization of social theories and law reached its high point. Faced with the accelerating pluralism of social theories—sociology, economics, political sciences, social philosophy—German jurisprudence embarked upon some bold experiments. The great controversies concerning constitutional theories (Carl Schmitt, Hans Kelsen, Hermann Heller), the dispute surrounding the alternative economic constitution or economic democracy (Franz Böhm and Hugo Sinzheimer), the invention of legal sociology, “Free Law” and the “Jurisprudence of Interests,” the competing approaches of sociological jurisprudence, the “economic viewpoint” in the law, and “political justice” are an expression of this pluralism. In particular, it is the acquisition of independent status by autonomous areas of the law (especially economic law and labour law) that bears witness to the huge influence which the pluralization of social theories has had on the pluralization of the law itself.Footnote 20
However, German law abruptly abandoned this pluralism of social theory and law when, under massive pressure from the political sphere, it became subject to the monopolistic claims of a single Weltanschauung. During the low points of the more recent history of German law, totalitarian social theories were successful in imposing their normative rules upon the law whenever these rules were at the same time supported by political systems. In the twentieth century, the law in Germany succumbed more than once to the temptation to subject itself to just such an “imperialism” of one social theory, basing not only its fundamental structures but even single norms on the requirements of whatever leading political theory was dominant at the time.
The racial theory of National Socialism was the first and also the most horrifying low point in terms of the dominance of a political theory over the law.Footnote 21 Following the theory catastrophe in 1945, the relationship of the law to social theories in Germany led in the direction of two opposing and extreme positions. In the east, under massive political pressure, another totalitarian social theory, dialectical materialism, took control of law and state—with fatal consequences for the rule of law.Footnote 22 The west, by contrast, responded to the unspeakable theory/law symbioses of fascism and real socialism with a different extreme: a kind of “immune reaction” of the law against any invasion by the “bacillus” of social theory.Footnote 23 Having presumably become wiser after this twofold experience, legal doctrine in the Federal Republic, which regarded itself as autonomous, rigorously fought off all alien influences of social theory. This self-imposed defence against any kind of interdisciplinarity remained unshaken even by the brief yet feverish attacks of social theory which occurred in 1968; indeed, the phenomenon of “sociology before the gates of jurisprudence,” which was feared to be a reversion to totalitarianism, further increased the trend towards the “self-immunization” of legal doctrine.Footnote 24 In legal comparison it is astonishing how extensively the law opened itself up to the social sciences in other legal systems, particularly in the common law. Foreign observers are quite disconcerted to register how German jurisprudence, which because of its strong theoretical orientation enjoyed international respect in the nineteenth and early twentieth centuries, went on to deliberately narrow its focus to mere doctrine.Footnote 25 It is ironic that German law in the postwar period, in its state of profound uncertainty, followed many international influences, with a particular preference for the American legal world, although it resolutely turned away from the numerous “law and …” movements which predominated in the US.
There was, however, one exception. For in the 1970s and 1980s, one social theory with a claim to sole representation, which had already for some time dominated all areas of the law as a “leading science” in the US, enjoying massive political support and an abundant flow of private financing, appeared on the scene in Germany as well. Transaction cost theory, the theory of property rights, public choice, and economic analysis of the law are various movements in economic theory which aim to substitute the worn-out concept of justice with the ideal of the economic efficiency of the law.Footnote 26 These movements claim to entirely supersede the former orientation of the law with its basis in moral philosophy, and refuse to countenance any other social theories whatsoever. They self-confidently and openly profess a kind of “theory imperialism,” permitting interdisciplinarity (for example in institutional economics), but only on their own terms. However, after economic theories had over a period of 30 years succeeded in expanding massively into all areas of life, right through to the economic analysis of love relationships and religious faith,Footnote 27 there occurred—in the financial crisis of 2008—the third theory catastrophe, under the effects of which the interpretational monopoly of economics in many disciplines collapsed. However, the question of whether this catastrophe also marks the end of the imperialism of economic thought in the law remains undecided.
3.2 The Distanced Approach
What the law needs in its relationship with social theory, following such abrupt changes between heights and depths, is a distanced approach. Admittedly, in the light of these three catastrophes, the dedicated self-immunization of legal doctrine in Germany after the war appears to be almost the only option. Yet there is a possible alternative: transversality. In philosophy, transversality was developed as a process for dealing with the post-modern plurality of discourses which has followed the collapse of the “grands recits.”Footnote 28 Transversality in the law would mean: the law recognizes that, under extreme differentiation of society, there is no justification for the existence of any single generally valid social theory, but only for a multiplicity of theories of social areas which are equal in terms of their origin. These derive their justification from their co-existence, i.e. from the high level of autonomy and the simultaneous reciprocal interdependencies of different social rationalities. The law would then reject not only its one-sided economization, but also its one-sided politicization, sociologization, scientification, and moralization. It would defend itself against any claim to totality of any theory. However, it would accept the intrinsic right of social theories that exist side by side. It would transform—and herein lies the challenge—the new plurality of language-games into the formation of legal concepts and the formulation of norms. This is possible if the law insists on the partiality of the various social theories and only opens itself up to their influence to the extent that they make statements which are valid for their part-area.
However, transversality means more than just recognizing the territorial autonomy of the theories associated with different part-areas. The proper response to the interconnectedness of social part-areas, which is associated with their autonomy, must be a systematic exploration by the law of the inner logic of all competing part-area theories.Footnote 29 Max Weber anticipated this transversality when he spoke of a “chain of final decisions” which is inevitable in the new polytheism, decisions which situationally have to be taken over and over again as we pass through the claims of different rationalities.Footnote 30 This would not be any arbitrary “pick and choose,” but a self-imposed obligation to carefully examine the claims of all theories in order to do justice to the plurality of social rationalities.
Transversal reason in the law would categorically reject the claim to totality currently asserted by economic theories, while at the same time acknowledging their relative internal law as a self-description of the economic system. The autonomy and simultaneous interconnectedness of part-area theories would be properly taken into account if the primary relevance of economic expertise is acknowledged in economic law, which would, however, at the same time mean that within economic law other social theories are also legally relevant in a secondary sense.Footnote 31 A similar principle applies in respect of political theories of the law, such as John Rawls’s theory of justice, which can claim primary (but not exclusive) validity only in regard to the field of political constitution, or Habermas’s discourse theory, which has arrogated to itself the status of a social theory but which must be demoted to that of a moral theory of interaction in the real world, and can only in that context aspire to discursive rationality. Even systems theory (which is the one I personally favour) cannot lay claim to becoming a new “super-theory” and thus a leading science for the law, for it is only a partial theory of social communication, its differentiation and its interdependencies—a specialist in regard to the general, so to speak—which expresses no preference for any of the partial rationalities of the modern age, and certainly does not develop any partial rationality of its own with a claim to sole representation, but instead takes as its central theme the equal validity of different social rationalities.
Let us return to the subject of “publication bias.” What does the distanced approach of transversality mean in regard to the legal classification of a public-private network, in which pharmaceutical companies, academic institutions, and public bodies co-operate in order to develop a new drug? The starting point is that a new kind of phenomenon such as a PPP network cannot be satisfactorily covered either by the law of contract or by social law. Neither the legal concept of the contractual purpose nor that of the corporate purpose does justice to the aims of a network of different institutions. On the contrary, as numerous authors have come to agree, a separate legal concept has to be developed, that of the “network purpose.”Footnote 32 Here, the law readily opens itself up to the analyses of economic transaction costs theory, according to which rational actors choose the novel form of the network when it offers advantages in terms of transaction costs by comparison with the structures of contractual or corporate law.Footnote 33 But, as soon as the economic theory goes beyond this and insists that the network purpose is exclusively based on minimizing transaction costs, and if in addition it tries to hand over the regulation of conflict principally to private governance in the network, rejecting any intervention by state law on grounds of inefficiency,Footnote 34 the law must oppose the economic monopoly on interpretation. Only in the transversal examination of other social theories does it become clear that the legal concept of the network purpose covers an area of greater complexity than any mere minimization of transaction costs. It is to be understood as a multiple orientation, embodying a commitment to the various individual projects of the network participants, on the one hand, and on the other hand to the overarching project of the network as a whole.Footnote 35 With the transversal approach, the law successively examines the impulses provided by economic, political, sociological, and ethical theories, and other subordinate theories, coming to an understanding of intersystemic networks as an organizational arrangement in which the conflict between different social rationalities is actually institutionalized. A legal concept of the network purpose which is defined in this way places an obligation on the actors to adjust their behaviour to different and contradictory logics of action. In the case of the public-private research network, the participants are required simultaneously to take into account four mutually exclusive categorical imperatives, specifically the contradictory requirements of economic profitability, scientific knowledge, medical standards, and the political focus on the common good. In fact, as various social theories have stated, networks appear as a result of their hybrid nature to be almost tailor-made for absorbing several contradictory rationalities within themselves, permitting mutual interference without any hierarchical classification.Footnote 36
Can a legal network constitution respond to such challenges? Instead of merely promoting the minimization of transaction costs, a legal constitution of networks will develop principles of institutional autonomy, fundamental rights, procedural fairness, the rule of law, and political responsibility in these mixed public-private configurations.Footnote 37 The legal form of the network purpose ought not to recognize any theory as having a monopoly—there must be no exclusivity for the reduction of transaction costs, or for policy orientation, or for the acquisition of scientific knowledge, or for ethical standards of behaviour. Instead, this legal form must seek to cover the multidimensionality of the networks by exploring different social theories. It is forbidden for the law to accept the dominance of any other social part-rationality.
A similar multiple orientation has already been developed in the legal concept of “corporate group interest.”Footnote 38 This is hardly surprising, for corporate groups are networks in just the same way as the contractual combinations which we are addressing here. But, by contrast with the law on corporate groups, which in addition to the legal guarantees of the autonomy of subsidiaries also protects the purely economic interests of the subsidiaries against the parent company and vice versa,Footnote 39 a great deal more is at stake in the case of intersystemic networks. Not just the acquisition of profits, but also the institutional integrity of research institutions, medical facilities, private trusts, and public administration have to be respected in the decentralized structure of a network. While it remains expedient in the law on corporate groups to formulate a common economic corporate interest which is common to all members of a group in the form of procedural and substantive legal norms, a network purpose in PPP co-operations can only consist in a process of searching for an area of compatibility between different rationalities.
This associative purpose of intersystemic networks finds its legal embodiment—in parallel with the contractual purpose and the company purpose—inter alia in duties of loyalty for the network participants which are reinforced by means of sanctions.Footnote 40 These duties apply both in regard to the other participants (and therefore require their separate interests to be taken into consideration) and also in regard to the network as a whole (and are therefore directed towards the success of the project).Footnote 41 The manipulations of the research results, which in the circumstances of the case we have described were carried out, on the basis of their respective separate interests, by the communication agency in co-operation with the pharmaceutical company and the scientific establishment responsible for carrying out the clinical studies, were a blatant violation of both forms of the duty of loyalty, and give rise to very serious legal sanctions. Unlike the contractual purpose or the company purpose, the network purpose imposes an obligation to promote the different rationalities involved and at the same time to balance them against each other. By contrast with the traditional balancing of interests in the individual case, the result of the transversality approach would be that the autonomy of different rationalities, and the way in which they are interconnected, are examined in a legal balancing process.
4. THESIS 2: RESPONSIVENESS
The distanced approach is also recommended in another respect. If the law, in the transversal process, has reached a decision through its contacts with social theories, then these require that their findings be taken over into the law without being falsified in any way. Legal doctrine in particular (the scientific character of which is in any case dubious) appears to be guilty of obfuscation here.Footnote 42 Accordingly, inspired by Jhering’s polemic against conceptual jurisprudence, American legal realism has ridiculed traditional legal doctrine as “transcendental nonsense” and replaced it with a conception of the law (based on political theory) as a consequence-oriented social policy. Critical Legal Studies has intensified the “trashing” of doctrine on the basis of critical social theory and has demanded the open politicization of legal conflicts. The principal representative of economic legal theory, Richard Posner, has denied any autonomous contribution by legal doctrine to the rational establishment of norms, and has called for the obsolete moral-political orientation to be replaced by criteria of economic efficiency. Other authors in turn have demanded the unity of the social sciences, so that jurisprudence as a “real science” is only a subsection of the social sciences and has no independent status.Footnote 43
This must be vigorously contested with the statement that any authentic transfer of knowledge from social theory into the law is an impossibility. It cannot succeed because of the unyielding autonomy of the legal system. This is the lesson not only of traditional legal doctrine, but also of advanced systems theory.Footnote 44 The functional differentiation of society, which we have already addressed, encompasses the law itself, as well as other social systems. Supported by the exclusive validity of the right/wrong “binary code,” the law develops a complex structure of concepts which we call “doctrine,” which is in fact incommensurable with scientific theories. The code of law, which is different from other “binary codes” of society, forms the basis of the uncircumventable autonomy of legal doctrine, which categorically excludes any one-to-one takeover of social theories.
Nevertheless, in the light of the interdependence of social part-rationalities, an interconnection between social theories and doctrine is necessary. However, this interconnection can only arise on the basis of autonomy on both sides. It is therefore misleading to speak of the relative autonomy of the law; on the contrary, a relationship of mutual enhancement exists between the autonomy of the law and its interdependence with other social systems.Footnote 45 In the first place, this means a strict division of tasks between two independent search processes: social theories provide structural analyses of social phenomena; they identify social problems which are generated by these phenomena in their environment, and they are able to provide directional information aimed at finding possible solutions to the problems, which they subject to a functional comparison. This is something that legal doctrine can connect with, if (diachronically in the path dependency of historically developed legal concepts, and synchronically in the context of the code of law and existing law programmes) it develops independent norms.
The interconnection between law and social sciences goes beyond the mere staking out of territorial boundaries at the point when legal doctrine starts to carefully examine different legal institutions in order to determine whether, in terms of their internal normative logic, their “inner basis,” they are capable of responding sensitively to the structures and problems of the social phenomena as perceived by the law. These subtle search operations, which are performed with the aid of the sensory concepts of doctrine, are to be referred to here using the term “responsiveness.”Footnote 46 The responsiveness of the law is not to be achieved before the forum of the social sciences, which ensure the authentic use of the term, or before the forum of a superordinate third instance acting as an intermediary between law and social theory, but only before the “forum internum” of the law itself. In a complex process of examination, the law allows itself to be challenged by the external problem analyses of social theories, but only if they are usable according to its own selection criteria, and it reconstructs these internally in its own language, in which it can then match problems and solutions together. Only when this process of reconstruction places legal argumentation in a position where it can distinguish within the law between norms and facts, between legal concepts and social interests, has a point been reached where the law is able to raise the question of social adequacy; in other words, the question of whether legal decisions do justice to those aspects of the outside world as these have been internally reconstructed.Footnote 47 To that extent, the legal reception of social theories is never an authentic takeover, but always a “re-entry” of the system-environment difference, through which an imaginary space arises in the law, i.e. it is always an internal legal reconstruction of external demands made by society, by people, and by nature.Footnote 48 Responsiveness, as the law’s capacity to be challenged by social theories, is by no means a “floodgate” through which—as Niklas Luhmann puts it—“social knowledge could increasingly and seemingly without restraint be able to flow into the law. Quite the opposite: the emphasis is on system subjectivity, if such a formulation can be permitted, and thus on the unavoidable system relativity of all perspectives.”Footnote 49 The conflict between autonomous law and autonomous social theory is in principle not insuperable, indeed it is to be desired.Footnote 50 It can only (to use an exaggerated formulation) be overcome by means of a productive misunderstanding within the law. The misunderstanding is unavoidable, and becomes productive when legal doctrine treats social theories as external “challenges,” but instead of dismissing these in splendid isolation reconstructs them within the law, forming its own concepts, and responds to them with the autonomous formation of norms.
If the “translation” of social theory into legal doctrine is undertaken in this way, then it has the potential to generate added value in terms of legal doctrine.Footnote 51 The process occurs not as a mere transfer of identical meaning in another language, but in such a way that the law’s own terminology allows itself to be challenged, in accordance with the conditions of its inner development logic, by social theory constructs, and thereupon to be inspired to create quite differently structured new formations. It is only this three-stage process of challenge-reconstruction-norm setting that generates the doctrinal added value that cannot be achieved either in the self-immunization of legal doctrine or in the direct transfer of social theory constructs into the law.
Where would the doctrinal added value lie within the PPP network with regard to the legal questions we raised at the start of this paper? “Network” is not a legal concept. There is no way that the efficiency principle, on the basis of which economists analyze networks as hybrids between market and hierarchy, is able to serve as a legal guiding principle, far less as a directly applicable legal norm in regard to networks. Neither can the principle of the “social embeddedness” of economic transactions, which sociologists emphasize as being a characteristic feature of networking.Footnote 52 Instead, strict division of tasks is necessary. Network theories identify the idiosyncratic logic of action of networks, reveal the opportunities and risks of network-controlled forms of action, and open up alternatives for structural solutions that extend beyond market and hierarchy. Contractual law allows itself to be challenged thereby, reconstructs the problems associated with networks using the law’s own concepts, and, on the basis of its own traditions of thought, develops independent norms and principles for networks which can be applied as appropriate legal solutions for the new kinds of co-ordination and liability problems that have arisen.
The real challenge of any responsive procedure consists in finding out which, among the various historically developed legal forms of private law, is most likely to have the normative potential for devising statutory definitions of offences and legal consequences for network-adequate rules. What legal form is capable of achieving, over and above the bilateral agreements concluded between the parties, a comprehensive legal commitment by all parties to the overall association that is being formed between them? The possibilities include a partnership formed under the Civil Code, a network agreement, a contractual basis [Geschäftsgrundlage], a contract for the protection of third parties, a combination of contracts. Structures based on company law are not satisfactory for networks, since they include the exclusive obligation in regard to the company purpose, and would have to classify the simultaneous orientation to individual purposes, which is a characteristic of networks, as unlawful. The construct of a network agreement concluded between all participants fails to appreciate the legal reality of networks, since it has to invent a multiplicity of legal fictions in regard to representation and authorization of all parties for all parties.Footnote 53 A contractual basis has to be excluded because it is only directed towards execution and cannot generate any legal duties.Footnote 54 A contract with protective effect in favour of third parties does generate binding effects in respect of third parties, but is not suited to multilateral relationships, and in terms of the criterion of proximity of performance and endangerment of legal interests it lacks the orientation towards contractual performance which is necessary in a network.Footnote 55 The legal form of the combination of contracts, developed for the purposes of financed purchase agreements, proves to be the most suitable for networks, since it precisely illustrates the tension between the independent nature of the individual contracts and their reciprocal interlinking, it formulates the network-typical dual orientation towards network nodes and the network as a whole as a legal relationship, and it establishes three precisely delineated factual characteristics for the creation of an association: (i) the interconnecting nature of the contracts; (ii) the common contractual purpose; and (iii) the de facto co-operation, without any complete multilateral conclusion of a contract being necessary.Footnote 56 Network versus connected contracts—this difference between analysis based on social theory and juristic classification holds the potential for generating the doctrinal added value we are seeking.
5. THESIS 3: SELF-NORMATIVITY
Finally, our “publication bias” case raises the most difficult problem of all in the form of the question: Can normative criteria be obtained from social science theories, in our case in regard to the fundamental rights effect in mixed public-private networks? Present-day advocates of the unity of theory and practice see this as their noblest task, i.e. to reveal, in an analysis of society as a whole, normative potentials for social development which provide guideline information for politics and law.Footnote 57 And the normatively low-key sociological systems theory is required first of all to perform a “normative turn” if it wishes to make statements that are relevant to the law.Footnote 58
Yet here too—for the third time—we are forced by the functional differentiation of society to make a correction. This differentiation irrevocably destroys the old European unity of theory and practice, forcing science to operate within the constraints of an exclusive true/false coding which does not allow that social theories can also (instead of mere cognitive statements) make normative statements in the code of politics, morality, or the law. The science system cannot in principle supply other action contexts with normative criteria.Footnote 59 Normative recommendations are always trans-scientific issues.Footnote 60
This self-restriction also—and in a particularly painful way—affects philosophy, from which the law (in spite of what Rawls and Habermas say) cannot expect any import of normativity. Philosophy cannot escape from the Münchhausen trilemma of the establishment of norms—infinite regress, curtailment, circularity. Ultimately, all attempts to establish norms run up against paradoxes. However, deparadoxation cannot be effected by philosophy in a normative guise, but only by social practices in communication and by individuals in their introspection.Footnote 61 The consequence of this failure of theory is: self-normativity. This is achieved in two entirely different processes: the self-normativity of the law is formed in internal processes of the law, and the self-normativity of social practices (to which the law can have recourse) arises in processes outside the law.
The law itself is one of the social practices that generate self-normativity without being dependent on their scientific or philosophical basis. This conclusion is forced upon us by (to name a few important authors) Hans Kelsen’s basic norm, Herbert Hart’s internal view, and Niklas Luhmann’s binary code of the law.Footnote 62 Legal self-normativity functions as self-reproduction of normative standards on the basis of applicable law and as production of deviating norms according to the conditions in which the law operates. And it is only within the framework of this self-normativity of the law that social theory can become normatively relevant (although only in the context of challenge and reconstruction as described above).
However, legal self-reproduction only generates one kind of self-normativity, i.e. the self-normativity that is internal to the law. Externally to the law, the self-normativity of other social practices supplements the internal production of norms, insofar as the law has recourse thereto. Social systems generate not only their own rationality, but also their own normativity. This has been demonstrated most clearly by Lon Fuller, who describes the morality of associations as an emerging phenomenon of social communication. Yet from Wittgenstein to Lyotard this insight has formed part of the acknowledged status of research in linguistic philosophy. The normativity of a large number of language-games is based on their life forms and is not accessible to any ultimate justification. In a very similar way, institutionalism identifies social practices as generators of sets of norms under the control of an idée directrice.Footnote 63
At this point it becomes clear that the driving motive for the search for an interdisciplinary encounter between the law and social theories is certainly not contact with science, but contact with society. Over and above its self-normativity, the law seeks normative orientations in different environments and their norms, and in addition asks social theories to provide help. Yet upon closer inspection it emerges that much of what goes by the name of social theory is not a scientific theory in the strict sense, but a practice of reflection, or perhaps more accurately a doctrine of reflection, similar to theology and legal doctrine, which generates normative orientations in social practices.
Legal normativity also always develops in contact with these reflection doctrines of other part-areas of society. It is therefore important to avoid the scientific misunderstanding which is promoted by the programmes of sociological jurisprudence, political legal theory, or legal economics, which regard themselves as sciences. As important as the structural analyses of the social sciences are for the responsiveness of the law (as has been demonstrated above), nevertheless the focus is elsewhere here, on normative orientations which in principle cannot be provided by the impartial sciences, but only by normatively loaded “doctrines” of social action. Just as legal doctrine itself, or the mother of all doctrines, theology, are not sciences, but reflections of the social practices of law or religion which have been systematized as doctrinal systems, so large areas of business economics, economic science, and political science are also not parts of science, which has to observe the code of truth, but reflection doctrines of sectors of society, appearing in the guise of scientific social theories, i.e. doctrines concerning the right way to act in business, in industry, or in politics, sharing and informing the respective normative basic orientations of their practices. In any event, a clear internal differentiation ought to be made between the academic disciplines (just as a distinction is made in jurisprudence between legal theory as a reflection on practice and legal sociology as scientific observation of the law) into discourses which as reflection doctrines are allocated to the respective part-system of society, and discourses which as social theory in the strict sense are to be allocated to the science system.
What we are searching for here is therefore contact with the self-normativity of social practices, which are refined in the reflection doctrines of economic and social practice.Footnote 64 As compared with the scientific misunderstanding referred to above, the gain is thus twofold. The orientation to social reflection doctrines provides a wealth of normative perspectives, from the idées directrices of social institutions, to social expectations, claims, entitlement to basic rights, and hopes of persons involved, to decentrally obtained insights of the social systems concerning their performance capability, to definitions of their overall social function.Footnote 65 This could never be generated by “presupposition-free” and “prejudice-free” social theories, but neither could it ever be devised by legal doctrine on its own terms. At the same time, however, there are once again indications of distancing possibilities for the law, if it has to enforce its own “particular-universal” orientations by means of legal controls. The vessel that sails under the flag of the scientific approach as sociological jurisprudence, legal economics, legal politics, and legal ethics ought in reality to change its colours to reflect its legal handling of the conflict between different reflection doctrines.
To return once more to the subject of moral philosophy: Is it possible, then, to use Rawls or Habermas for the justification of legal norms? It depends. No, to the extent that they claim to produce a scientific social theory, since (contrary to their self-understanding) they are incapable of establishing any norms in the truth code of science. Yes, to the extent that they can be understood as participants in moral practice or political practice and are working on the reflection doctrines thereof. Even as such they are still not directly juristically relevant, but must first go through the legal filter of legal theory, doctrine, and judicial decision-making practice.
Let us return one final time to publication bias. What does the interplay between the self-normativity of the law and the self-normativity of social institutions mean as far as the third-party effect of fundamental rights in private networks is concerned? In short, what is required is for norms to be established for the institutional protection of expertise, on the one hand, and for the integrity of the health system, on the other hand, against the expansionary tendencies of economic rationality.
The normative content of the horizontal effect of fundamental rights cannot be established on the basis of social theory, but is initially a product of operations taking place inside the law. The principle of equality, as the fundamental principle of the self-normativity of the law, requires that the protection of fundamental rights be guaranteed not only vis-à-vis governmental instances, but also vis-à-vis private networks, if fundamental rights are similarly put at risk in situations involving private power.Footnote 66 The manipulations in the network which trigger publication bias—the bans on publication and the falsification of research results—violate not only the fundamental right of academic freedom, but also the fundamental right to health. However, as is demonstrated by the vehement protests of those who uphold the sanctity of private law against any such kind of third-party effect, it is problematic whether any effective protection of fundamental rights can be achieved through a balancing of individual fundamental rights positions as envisaged by prevailing doctrine.Footnote 67 One way out of this dilemma is to shift the task of protecting fundamental rights against private power from the individual level to the institutional level. The horizontal effect of fundamental rights (in our case, the right to academic freedom and the right to health) is then guaranteed not by individual rights positions on the basis of which legal action can be brought, but by organization and process.Footnote 68
The question of what organization and what processes can be used to protect the institutions of science and the health-care system is then no longer answerable from inside the law. The normative content of institutional guarantees of fundamental rights can only be obtained from outside the law, from the self-normativity of social practice. Science and the health-care system, in their separate codes and programmes, give rise to normative orientations which are not the same as the conventional opinions of individuals, but have an institutional character.Footnote 69 An institutional normativity of this kind is embedded in historically developed structures, reactivated in the reflection doctrines of science and the health-care system, and re-formed in “political” deliberative decisions, before they are absorbed by the law.
As far as publication bias manipulations are concerned, the reflective discourses of science and health care have in fact devised an institutional alternative to individual protection, the legal formulation of which is to be recommended: trial registration as a third-party effect of fundamental rights through organization and process.Footnote 70 Public registers of studies and results are being set up, which cover all aspects of studies from their very beginning in order to facilitate transparency and control.Footnote 71 At the same time, specialist journals are making the registration of all studies carried out a precondition for publication.Footnote 72 Clinical studies in respect of products that are intended for distribution on the market must first have been registered on the clinical trials register with all study results.
What we have attempted to show here in a general way, using the example of the horizontal effect of fundamental rights in semi-private networks, is that at the point where social theory meets law an added value can be generated in terms of legal doctrine if the precarious relationship between autonomy and interconnectedness in three different dimensions is respected.
1. Transversality draws conclusions from the autonomy of different incommensurable social theories and their mutual interconnectedness. The law denies any monopoly claim and selects points of contact in a transversal exploration.
2. Responsiveness insists on the autonomy of legal doctrine vis-à-vis social theory and takes account of their mutual interconnectedness, with the law opening itself up to the challenges posed by social theories and drawing inspiration from this for normative innovation.
3. Self-normativity: the law achieves normative orientation not from social theory, but solely from internal processes of the law and at the same time from the self-normativity developed by the reflection doctrines of other social systems.
Specifically: in the circumstances of our case, different doctrinal constructs—a network purpose which is distinct from the contractual purpose and the company purpose, connected contracts as a legal concept for social networks, and an institutional guarantee of the horizontal effect of fundamental rights through organization and process in the form of trial registration—can be regarded as socially adequate developments of the law which arise in the distanced approach to network theories adopted by the law.