Introduction

It is a widespread assertion in sociology and social theory that systems theory is uncritical. This belief is articulated by theories that call upon society to change (itself, its structure, its inner logics). We want to argue that these assertions conceal the critical potentials which are inherent in Luhmann’s social systems theory. Admittedly, Luhmann was critical about critical theory and embarked on a controversy with Jürgen Habermas and others about the state of critical theory in the 1960s and 1970s. His point of departure was that critical theory was still indebted to ‘old-European assumptions’ about how societies are evolving. He sought to demonstrate that critical theory reproduced distinctions – such as between the ‘part’ and the ‘whole’ or ‘below’ and ‘above’ – which were already melting under an increased functional differentiation of social systems in modern society. Drawing upon Talcott Parson’s sociology and evolution theory, he argued that modern society emerged from a rather anarchic social evolution and, thereby, established a plurality of self-referential social systems that are not reducible to a unitary mode of domination. Based on these insights, Luhmann formulates a critique of society which may be deemed less appealing, less self-assured and void of gestures that support a sociologist’s self-image of an impressive public intellectual, but – as we argue in the following – it takes up motifs of social critique in the tradition of Hegel, Marx and Adorno and classical sociology such as Simmel and Weber. Not the least, a whole strand of critical systems theory from the 2000s onwards investigated into this potential of Luhmann’s theory – be it through clarifying the notion of critique in his work, through combining it with Marxism, post-structural thinking or the legacy of the early Frankfurt School – arguing that modern society calls for different forms of sociological critique.

In this chapter, we focus on a reconstruction of three characteristic dimensions of critical systems theory in order to demonstrate how these resources can contribute to a critique of modern society that operates immanently from within the social. Most importantly, we emphasise how social critique remains connected to a robust social theory instead of collapsing into a free-standing gesture.

The contribution provides a reconstruction of Wolfgang Abendroth’s approach to the constitution as ‘social compromise’. It clarifies the historical background and asks for its potential with regard to current challenges of constitutionalisation. In the initial part, it is demonstrated how the concept of ‘balance of social forces’ was used in the context of the labour movement in Austria and Germany in order to approach constitutional issues. Then, it is argued that this approach can make sense of the subsequent evolution of constitutionalism and international law after the second-world war. It is argued, however, that its main weakness consists in the focus on the central role of industrial labour within social conflicts: The constitutional compromises were often affected or even shifted by unforeseen agents of change which exceeded the sphere of blue-collar workers. Finally, the contribution addresses how Abendroth’s approach can be used in order to refine current attempts to re-establish a ‘balance of social forces’ through either hybrid constitutionalisation (sociological constitutionalism) or counter-institutions (plebian constitutionalism).

THE TRANSNATIONAL SOCIAL QUESTION

Financial crises, food crises, environmental crises, migration crises: world society is facing dramatic challenges. These crises are both interconnected and rife with contradictions. While the Euro zone bailout fund is leveraged with roughly a trillion euro, nobody seems willing to put up the 13 billion dollars which, according to UN calculations, would be necessary to relieve world hunger. Deutsche Bank, a German high-street bank, generated a benefit of 4 billion euro in 2014; meanwhile more than 1.3 billion people around the world live in poverty, on less than 1.25 US dollars per day. Refugees find themselves in a particularly precarious situation. In 2014, there were more than 50 million displaced persons, a situation the UN High Commissioner for Refugees attributes to urbanisation, food and water insecurity, as well as shortages of raw materials. These global problems, he says, “are increasingly inter-related, exacerbating conflict and combining in other ways that oblige people to flee their homes”.

These trends point to one conclusion: the “social question” is now firmly a transnational social question. Societal conflict lines no longer run primarily along national borders. The global economy, global politics, transnational law, and global scholarship and science all contribute, in their own way, to the formation of zones of social exclusion. The axes of disadvantage can intersect and be exacerbated. The existing transnational power structures are both complex and merciless. Those worst affected do not even have – or are denied – access to the very means for sheer survival. Nation states no longer possess adequate solutions to these problems. Nor do they remain the only important players in this field. Sociologists and political scientists accept that the state is just “one of the actors” when it comes to global social policy, and acknowledge that non-state actors such as international organisations and global social movements have now firmly gained entrance to the “contested terrain” of emerging global governance. It is on this contested terrain that the debates on the crises facing world society are played out. It is here, for instance, that political scientists are making the link between climate change and global social policy. The interdisciplinary research group FLOOR (Financial Assistance, Land Policy, and Global Social Rights) explores the possibility of securing a global system of guaranteed basic income.

The transnationalisation of law and of social rights challenges our understanding of law, society and the state. Facing the recent social and economic crisis in world society, this volume scrutinises both the potentials and the boundaries of de-coupling the notion of “social rights” from the nation-state and of transferring it to the transnational sphere. “Transnationalisation” is an encompassing process which affects national, supranational, international and global law. The seminal works by Boaventura de Sousa Santos, Gunther Teubner, Sally Falk Moore and others provide profound insights into the emerging global legal pluralism and the inter-legality of fragmented clusters of law. The best example for this stems directly from the juridical sphere: courts at different levels increasingly engage in a dialogue across borders. Or think of recent conflicts about austerity programmes and investment protection. Th e countries affected oft en invoke international law – such as the UN Covenant on Economic, Social and Cultural Rights or the European Social Charter – when they resist the attempts of multinational companies or creditors to implement measures which serve their interests. In this situation, we need to establish a more process-oriented notion of the transnational in order to grasp the multiple and oft en transversal chains of legal communication which cannot be slavishly tied to a distinct level of juridical and political decision-making.

However, there is another reason for drawing on the notion of transnationalisation. The legal dynamics that we are facing are part of a historical shift to world society. The evolution of social communication does not stop at national borders. Social systems, such as the economy, the sciences and politics, all tend to transcend territorial boundaries. The economic system, in particular, with its cognitive expectation structure and strong pressures to adapt, plays the role of a forerunner. Echoing this line of thought, we contend that it is absolutely necessary to scrutinise how legal communication interacts with other social systems and – most notably – with the colonising tendencies of the economic system and the struggles that try to re-embed it. Accordingly, we follow an agenda that integrates legal, sociological and political perspectives. Transnational law may not be a matter of legal discourse alone, but – as the sociological backgrounding of the contributions to the volume show – amounts to an interdisciplinary research field.