[author]Gunther Teubner
[content]
Author: Gunther Teubner
Abstract: This article describes the unique developmental trajectory of the relationship between law and social theory in Germany. Initially, there was a high degree of theoretical affinity between German legal doctrine and various social theories. However, German legal doctrine today exhibits considerable immunity to these social theories. The reasons lie in three theoretical disasters. This article explores the legal issues surrounding the effect of fundamental rights in semi-private networks, using it as an example to develop an alternative approach in jurisprudence that maintains a certain distance from social theories. If legal doctrine successfully navigates the delicate relationship between autonomy and interweaving across three different dimensions—namely, selection, response, and respective normativity—this alternative approach could generate added value for legal doctrine.
Since the time I began writing my doctoral dissertation, I have been studying the relationship between law and social theory, a journey that has spanned forty years. Here, I summarize my experience in the following points:
First, there is no single social theory that serves as the foundation for law. Such a singular social theory neither exists nor should it exist.
Second, in the past eighty years, German jurisprudence has made three attempts to completely submit itself to a particular social theory. Two of these attempts resulted in theoretical disasters. Whether a third disaster will occur for the law remains unknown.
Third, law finds itself in a dilemma. It cannot fully embrace any one social theory, yet it inevitably must be influenced by various social theories. A possible way out might be to respond from a distance. Law does not directly accept social theory "at face value," but instead, through a complex process of translation, creates added value in legal doctrine.
Words instruct, but examples captivate (Verba docent, exempla trahunt). So, let me begin with a case.
1. Publication Bias: A Legal Case and Three Propositions
Publication bias, a troubling yet widespread phenomenon, is discussed in many countries. The typical facts of a publication bias case are as follows: To develop an effective drug for treating a rare and severe disease, various private and public institutions form a public-private partnership network through bilateral contracts. Due to the high development costs, the pharmaceutical industry cannot turn a profit, and thus the development is primarily funded by private foundations and the national health department. Basic research is carried out by a university institution, while clinical research is conducted by a private research institution, i.e., a contract research organization. The production and marketing of the drug are organized by a private pharmaceutical company. A media institution is responsible for disseminating information and publishing results in academic journals or other media.
After the drug is successfully approved based on submitted clinical research results, it is brought to market. However, over time, a large number of reports accumulate regarding serious side effects in patients. Systematic follow-up research reveals that the public-private partnership network is responsible for severe manipulation. Within the network, the drug's side effects were no secret, yet the network managed to prevent the publication of these adverse effects. Experiments with negative results were prohibited from being published. This prohibition was even supported by contracts between the research institution and the pharmaceutical company. While other experiments were published, their results were fabricated to show positive effects. Those involved in the manipulation included not only the pharmaceutical company but also research groups and media institutions, each of whom had their own interests in the fabricated results.
The numerous scandals related to publication bias have also sparked opposition. Empirical research has revealed the widespread nature of this problem. Although there have been initial attempts to counteract this issue through regulation, the problem here is not only one of political regulation but also involves fundamental constitutional issues: Do the basic rights of academic freedom apply with third-party effect in semi-private public-private partnership networks? Can the basic right to health for patients be asserted against the network or its members?
Even from the perspective of social theory, the question of whether and how basic rights can be effectively asserted against private networks is quite significant. The network society theory developed by Manuel Castells identifies the networking of collective actors across society as a hallmark of modern society and uses the concept of network failure to identify serious social risks. Legal scholars are not the only ones addressing the dangers to basic rights in non-state spheres, markets, organizations, and networks; various social theories, such as Chris Sanchirico’s constitutional sociology, are also attempting to deal with this issue, attributing it to the expansionary tendencies of non-state collective actors.
Since both of these issues are uncharted territory for jurisprudence, the findings of various social theories are of great significance. However, when it comes to drawing specific conclusions for legal practice, there are thorny issues:
The first issue is the competition between theories: How should the law choose when competing social theories fail to provide mutually consistent analyses of networks or when they cannot agree on the effectiveness and role of basic rights claimed against non-state collective actors? My general point can be summarized in one word: transversal (Transversalität).
The second issue concerns knowledge transfer: Can the content of various social theories be directly applied in law? In other words, can they be transformed into basic rights standards suitable for networks? Can these social theories help identify effective punitive measures against infringements on basic rights that align with the self-logic of networks? Once again, my argument can be summarized in one word: response.
Finally, the most difficult question is the normativity of social theory: Can normative standards for the effectiveness of basic rights in public-private networks be derived from scientifically-oriented theories? My argument: inherent normativity.
2. Argument 1: Transversality (Transversalität)
2.1 The Special Path of Germany
In Germany, the relationship between social theory and law has seen both peaks and valleys, with no comparable extreme deviations observed elsewhere. There was a historical period across Europe when academic jurisprudence and various theories of human coexistence existed in a completely symbiotic relationship. This was true not only for the cosmology of natural law but also during the Enlightenment. During that time, philosophy naturally called for the development of social theories that could provide guidelines to constrain politics and law. The manifestation of this symbiotic relationship was rational law. According to Franz Wieacker, in rational law, “the old Western legal philosophy and social philosophy (‘natural law’) directly influenced the jurisprudence, legislation, and judiciary of most European nations through the forms given to it by early Enlightenment.” Karl von Savigny, through his “Contemporary Roman Law System,” provided feedback to Immanuel Kant’s social theory of individual composition: “The existence of all law is for that ethical freedom inherent in any individual human being.” Thus, this development reached its peak in the German-speaking world. According to Kant’s social theory, citizens have a space for their freedom of choice (Willkürfreiheit), which ideally is delineated in relation to one another, and law is the universally applicable form that delineates this freedom.
However, shortly thereafter, philosophy had to relinquish its role as the leading science of law. The root cause lies in the accelerated functional differentiation of society. In the process of functional differentiation, various rational fields within society became strongly independent, making it impossible to obtain a position that could develop a unified legal concept across these rational fields. As Niklas Luhmann described, modern society is a “society without a top or a center.” In such a society, it is fundamentally impossible to construct a social theory that has general validity and encompasses law. “The social systems themselves become complex under these conditions, and this complexity no longer allows for a single social description to be applicable.” Instead, various independent social theories emerge from the highly disparate perspectives of social rationalities. Furthermore, although these social theories are independent, they are tightly interwoven. The result is not the usual disputes among theories; in typical theoretical disputes, one can ultimately choose to support the most reasonable theory. Instead, a new form of theoretical condition emerges, which the philosopher Gottfried Günther describes as polykontexturality. Different worlds of social meaning draw their respective social theories from their unique rationalities. These social theories can fundamentally coexist side by side without being synthesized into a unified theory. Historically, Max Weber spoke of a “new polytheism,” which makes the possibility of a monotheistic theory unfeasible. There is no single social theory; rather, there are multiple equal subfield theories. The problem is that each subfield theory simultaneously claims to have universal validity as the sole social theory. If law seeks guidance from social theory, it faces the paradox of multiple sub-rationalities all claiming comprehensive validity.
Specifically, economic theory has long transcended its own object domain (the economy) and strives to provide a theory applicable to all social relations, interpreting society (including law) as a large network engaged in profit calculation. Thus, efficiency becomes a legal principle. Similarly, political theory, which breaks down society into power and interest conflicts among groups and political units, also claims to be the leading science of society and law. The core of democratic principles of political rationality is expected to be realized throughout the law. Sociological role theory, developed at the micro level of society, has also been extended to the macro level, elevating the interdependence of social roles to the norm of the entire society. Moral standards manifest typical interactions as a reflection of mutual respect. Additionally, moral-philosophical social theories assert their sovereignty over social issues—especially ecological problems today—and claim enforcement through legal norms. Finally, critical rationalism has also given rise to social theory within scientific systems. It insists on pursuing truth without prejudice as the core of scientific rationality and limits social theory to diagnosis and prognosis. However, it also advocates for the general scientificization of law in the context of technical expert governance.
In the Weimar Republic, this loss of overall orientation in society was also reflected in law. During that era, the diversity of relationships between social theory and law reached its peak. In the face of the various emerging social theories (sociology, economics, political science, moral philosophy), German jurisprudence conducted many bold experiments. Significant controversies among various constitutional theories (Karl Schmitt, Hans Kelsen, Hermann Heller), debates about economic constitution or economic democracy (Franz Böhm, Hugo Sinzheimer), the emergence of legal sociology, liberal law, and interest law, the various competing approaches in sociological jurisprudence, the “economic perspective” in law, and the “political nature of judicial” all demonstrate the substantial impact of the diversity of social theory on the diversity of law, particularly in the independent fields related to autonomy (especially economic law, social law, and labor law).
However, under the high pressure of a singular social theory in authoritarian politics, this complex pluralism of social theory and law was abruptly shattered. In the nadir of German modern legal history, with the support of the political system, totalitarian social theory triumphed, successfully implementing its normative guidelines within the law. Throughout the twentieth century, German law repeatedly succumbed to attempts to subordinate law to a certain social theory's imperialism. Here, not only the structural foundations of law but even its specific provisions were guided by the dominant political theory's directives.
Nazi racial theory represented the first, and simultaneously the most terrifying, domination of political theory over law. After the catastrophe of 1945, the relationship between law and social theory in Germany diverged into two opposing extremes. Under the political pressure of East Germany, another totalitarian social theory—dialectical materialism—achieved dominance in law and the state, leading to fatal consequences for the rule of law. In contrast, West Germany responded to the terrifying coexistence of theory and law in both Nazism and real socialism with another extreme approach: law became immune to any bacterial invasion of social theory. The legal doctrine of the Federal Republic of Germany, believing it had become wiser after experiencing those two horrifying episodes, fiercely resisted the heterogeneous influences of all social theories. Even the brief and intense assault of social theory in 1968 did not succeed against this self-imposed defensive attitude toward the intersections of all disciplines. “Sociology at the door of jurisprudence” was seen as a regression to totalitarian thinking; this, in turn, reinforced the self-immunization tendencies of legal doctrine. In contrast, in comparative law, one could be surprised to see that other legal orders (especially common law) were open to social sciences. Foreign observers were somewhat astonished to find that German jurisprudence, highly respected internationally for its outstanding theoretical contributions in the nineteenth and early twentieth centuries, had now confined itself to doctrine. Ironically, the extremely insecure German law after World War II followed many international influences, particularly welcoming those from the American legal world, while stubbornly resisting the dominant "law and something" movement in the U.S.
The only exception occurred in the 1970s and 1980s, when Germany also witnessed the emergence of a social theory advocating singular validity. This theory, which had already become a leading science in various fields of law in the U.S. due to strong political support and abundant private funding, aimed to replace the weary concept of justice with the notion of economic efficiency in law. The theory of transaction costs, property rights theory, public choice theory, and economic analysis of law are different currents within this economic theory. It seeks to completely remove the old moral-political orientation of law and does not tolerate other social theories in its totalitarian demand for completeness. It openly embraces a kind of theoretical imperialism. While interdisciplinary crossovers are allowed, as in institutional theory, they occur only on its own terms. However, after three decades of extreme expansion of economic theory into all areas of life (even analyzing love relationships and religious beliefs), the third theoretical disaster occurred during the 2008 financial crisis. As a result, economics lost its monopolistic position in many disciplines. Whether this theoretical disaster will end the imperialism of economic thinking in law remains unclear.
2.2 Responding with a Detached Approach
After experiencing such extreme shifts between the peaks and valleys in the relationship between law and social theory, what can be recommended? The answer: a detached approach. Despite the three theoretical disasters, post-war German legal dogmatics with its firm self-immunity may seem inevitable, but an alternative approach is conceivable: extraction. In philosophy, extraction was developed as a response to similar circumstances, a method to deal with postmodern discourse pluralism after the collapse of grand narratives. In law, extraction implies that under conditions of significant social fragmentation, no single social theory's claim to universal validity can be upheld. Instead, various theoretical fields, each equally fundamental, coexist. The legitimacy of extraction lies in the parallel existence of different social rationalities, each of which is highly autonomous yet interdependent. Law resists one-sided economization, as well as politicization, socialization, scientification, or moralization. It rejects any totalizing claims of theory but acknowledges the distinct rights of various coexisting social theories. And—the contemporary challenge—it addresses the new diversity of language games within its conceptual framework and normative discourse. The law will successfully meet this challenge only if it maintains the partiality of different social theories while incorporating their insights within their respective areas of competence.
Yet extraction is not merely about recognizing the autonomy of various social subfields. These subfields are interwoven with one another. Law must navigate through the internal logics of competing subfield theories to address this interconnection. Max Weber was the first to recognize this form of extraction. Weber argued that the new polytheism inevitably leads to "a series of ultimate decisions." These ultimate decisions are the outcomes of continually encountering new situations in the process of navigating through different claims of rationality. This is not arbitrary "picking and choosing," but rather the imposition of a self-obligation by law: to thoroughly scrutinize all theoretical claims and respond appropriately to the pluralization of social rationalities.
Extractive rationality in law would outright reject the totalizing claims of contemporary economic theory but would acknowledge its relative appropriateness as a self-description of the economic system. Only by recognizing the primary relevance of economic knowledge in economic law ("primary" here meaning that other social theories also hold secondary relevance within economic law) can the autonomy of each theoretical field and their interconnections be fully respected. The same applies to political theory in law, such as John Rawls' theory of justice, which holds a primary but not exclusive validity in the realm of constitutional law. The same holds for Jürgen Habermas' discourse theory. Habermas' discourse theory should retreat from its grand ambition as a theory for society as a whole to its proper place as a moral theory of communicative interaction within the lifeworld, where discourse rationality can truly be expected to function. Although I make no secret of my affinity for systems theory, even systems theory should not claim to be a new super-theory leading the field of law. Systems theory is only a partial theory about social communication, differentiation, and interdependence, and to some extent, can be described as a "specialist in the general." Systems theory does not favor any specific rationality in modern society and does not develop a rationality that claims sole representational authority but rather makes the equal validity of different social rationalities its central concern.
Let us return to the issue of biased publications. What does this detached, extractive approach mean for the legal classification of the public-private networks that develop new drugs in collaboration between pharmaceutical companies, academic institutions, and public agencies? The starting point here is that neither contract law nor corporate law can provide satisfactory solutions for these new forms of public-private cooperation. Neither the purposes of contracts nor those of corporations, as legal concepts, can appropriately handle the goals of networks composed of diverse institutions. Rather, as many scholars have argued, the development of an independent legal concept of "network purposes" is necessary. Here, law readily accepts economic analysis of transaction cost theory, acknowledging that rational actors will opt for network forms of enterprises when they provide transactional benefits compared to various modes in contract or corporate law. However, once economic theory moves beyond this analysis, insisting that network purposes must be purely about minimizing transaction costs, and even asserting that the regulation of conflicts should be left entirely to private governance within the network, dismissing state legal intervention as inefficient, law must resist the monopolization of interpretation by economics. Only through extracting insights from other social theories will we see that network purposes, as a legal concept, are not limited to reducing transaction costs; they are far more complex. They should be understood in multiple dimensions: as obligations toward each network participant's individual project and as obligations toward the network’s overall objectives. Through an extractive approach, law successively absorbs economic, political, sociological, ethical, and other subfield theories, allowing law to understand cross-system networks as organizational arrangements that institutionalize conflicts between various social rationalities. Such an understanding of network purposes as a legal concept imposes an obligation on participants to adjust their behavior according to the conflicting logic of action inherent in various rationalities.In the case of public-private research networks, network participants are required to consider, albeit to different extents, four mutually exclusive categorical imperatives: economic profitability, scientific understanding, medical standards, and political welfare-oriented guidance. In fact, as demonstrated by the diverse social theories they reflect, networks themselves, with their hybrid nature, show how they are constructed to accommodate multiple conflicting rationalities. Networks allow interference between different rationalities without any hierarchical order among them.
Can these challenges, then, be responded to by a de jure cyber constitution? In this hybrid public-private configuration, a de jure cyber-constitution must develop the fundamental principles of institutional autonomy, procedural fairness, the rule of law, and political accountability, in addition to promoting transaction cost reduction. The legal paradigm of cyber-purpose should not be monopolized by any one theory, i.e., it should not be limited to transaction cost reduction, but neither should it be merely policy oriented, access to scientific understanding, or ethical codes of conduct, but rather it should attempt to access the multiple dimensions of cyber by shuttling between various different social theories. Here, the law must not accept the dominance of any one other social part of reason.
A similar multidimensional orientation has been developed in the legal concept of Kantzien's interest. This is unsurprising, since, as in the case of the contractual union discussed here, Kantzenen is also a network. But the guarantee of autonomy for the subsidiaries in the law of the Konzern protects only the purely economic interests of the subsidiaries, and vice versa for the Konzern. The situation is different in the case of cross-system networks. Here, the objects of protection are much richer. In the example of this paper, not only profit must be the purpose of the network, but also the systemic integration of research institutions, medical institutions, private foundations, and government administrations must be taken into account in the decentralized structure of the network. In Konzern law, it has always made sense to express, in the form of procedural or substantive law norms, the common, economic Konzern interests that are common to all Konzern members. In public-private cooperation, on the other hand, network purpose can only exist in the search for compatibility between different rationalities.
The legal concretization of the joint purpose of such cross-system networks - which is very similar to the contractual or corporate purpose - exists in particular in the obligation of loyalty of the network participants, which is upheld by penalties. This obligation exists both with respect to the other participants (i.e., the requirement to accommodate the respective interests of the other participants) and with respect to the network as a whole (i.e., the commitment to the success of the project). Manipulation of research results, as in the example of this paper, where media organizations, pharmaceutical companies and scientific institutions responsible for clinical research act in their respective interests, is a clear violation of both facets of the duty of loyalty and should lead to severe legal penalties. Unlike a contractual or corporate purpose, a network purpose has the obligation to promote the different social rationalities involved and at the same time strike a balance between them. In contrast to the traditional approach of weighing individual interests on a case-by-case basis, the result of the interception should be that the legal weighing procedure deals with the autonomy of the different social rationalities and the intertwining of them.
3. Argument 2: Response
There should be a distanced response in other respects as well. When, in the interceptive shuttle, the law decides to establish links with social theories, the latter demand that their understanding be accepted in law as it is. In particular, the doctrine of law, whose scientific attributes are often doubted, will be questioned here as obscure. Accordingly, inspired by Yellin's critique of conceptual jurisprudence, American legal realism derided traditional legal doctrine as “transcendental nonsense” and replaced traditional legal doctrine with a conception of law guided by political theory, i.e., law as consequence-oriented social policy. replace traditional legal doctrine with a conception of law guided by political theory, namely law as consequence-oriented social policy. The critical school of law has more aggressively “trashed” doctrine by applying critical social theory and advocating the overt politicization of legal conflict. Richard Posner, a leading figure in the economic analysis of law, also denied the independent contribution of legal doctrine to the rational construction of norms and argued for the replacement of outmoded moral-political orientations with economic standards of efficiency. Other scholars have called for the unification of the various social science disciplines, denying the independence of jurisprudence by treating it as a “factual science (Realwissenschaft)” and as part of the social sciences.
All this should be rejected. The transmission of knowledge from social theory to law in its original form (authentisch) is impossible. It would undermine the unyielding autonomy of the legal system. This point is not only emphasized by traditional legal doctrine, but also supported by advanced systems theory. The functional differentiation of society as a whole, mentioned above, involves law in addition to other social systems. Within the framework of the exclusive validity of the binary rune law/non-law, law develops a complex conceptual edifice, i.e., a doctrine that is indeed not comparable to scientific theory. The legal code, unlike other social codes, establishes the indelible autonomy of the doctrine of law. This autonomy absolutely excludes the one-to-one acceptance of social theories.
Nonetheless, given the interdependence of the rationalities of different parts of society, the intertwining of social theory and legal doctrine is inevitable. However, this intertwining can only occur on the basis of the autonomy of both. Thus, the idea of the relative independence of law is misleading. Rather, there is a reinforcing relationship (Steigerungsverhältnis) between the high degree of autonomy of law and the high degree of dependence between law and other social systems. First and foremost, there is a strict division of labor between two independent processes of inquiry: social theory provides a structural analysis of social phenomena, identifies the social problems that social phenomena generate in their environment, is able to show the direction of possible solutions to the problems, and makes a functional comparison of these solutions. Further, legal doctrine is articulated here. That is to say, in the longitudinal dimension (diachronisch) of history, legal doctrine follows the path of dependence on historically developed legal concepts, and in the present dimension (synchronisch), in the vein of legal symbols and legal outlines of existing law, legal doctrine develops independent norms.
Once legal doctrine begins to scrutinize the normative logics inherent in each legal system (what legal scholars would like to refer to as its “inner grounds”), and whether these “inner grounds” are able to respond sensitively to the structure and problems of the social phenomena that the law scrutinizes, then the law and society will have a better chance of being able to respond to them. By scrutinizing these “inner grounds” to see if they are sensitive to the structure and problems of the social phenomena that the law scrutinizes, the intertwining of the law and the social sciences is no longer a mere crossing of the boundaries of their respective fields. This delicate operation of inquiry through the doctrinal concept of perception (Fühlbegriffe) is expressed in this paper as responsiveness. The responsiveness of law is realized neither in front of the tribunal of the social sciences, which guards the use of concepts in their original form, nor through the third-party higher tribunal that serves as a medium between law and social theory, but rather by the law itself through the law's forum internum. The law, in its complex process of examination, is stimulated by the analysis of problems from the outside by social theories, but only when these problematic analyses are available according to the law's self-selecting criteria. It is then that the law reconstructs these problematic analyses in its own language, and corrects the problem and its solution in its own language with respect to each other. It is only when this reconstruction enables legal arguments to distinguish within the law between norms and facts, between legal concepts and social interests, that the moment arrives when the law is able to respond to the question of social appropriateness. The question of social appropriateness, in other words, is whether legal decisions are appropriate to those aspects of the external world that are dealt with through internal reconstruction.
This requires a further step, namely the anticipation of how the social world will accept changes in legal norms. Through subsequent monitoring of the effects of the law on the social world, this prediction is corrected when similar social conflicts reappear before the law and change is sought in a longer chain of judicial practice. In this way, the law is able to compensate for the alienating effect that results from the fact that the law reconstructs the social conflict in its own autonomous language and creates only intra-legal solutions to it. It is worth re-emphasizing that even this monitoring is only the internal workings of the law observing the environment. The analysis of the effects produced by the social sciences on the law serves here as a stimulus to the law, which modifies the monitoring of the chain of judicial practice. In short, the response of law to social science is not limited to the reconstruction of conflicts in the face of legal decisions, but also encompasses the observation of the consequences of legal decisions in society.
In this respect, law's acceptance of social theories is never an intact absorption of social scientific observations, but always a re-entry into the distinction between system and environment, which creates an imaginary space in law for the repeated reconstruction within law of the external requirements of society, human beings and nature. Responsiveness, as law's stimulating possibility from social theory, is by no means - as Luhmann describes it - 'a floodgate for the massive and simultaneously unimpeded flow of social knowledge into law.' Rather: the focus is (if one may so express it) on the subjectivity of the system, and thus on the inevitable systemic relativity that all perspectives have.” The conflict between autonomous law and autonomous social theory cannot, in principle, be overcome. It should even be welcomed.It is an exaggeration to say that such conflicts can only be overcome by productive misunderstandings within the law. Such misunderstandings are unavoidable. And the productivity of misunderstanding can only be realized if legal doctrine treats social theory as an external stimulus, so that it is not rejected in glorious isolation, but reconstructed within the law through its own conceptual constructions and fed back into it through the autonomous formation of norms.
If social theory is 'translated' into legal doctrine in this way, it has the potential to add value to legal doctrine. This process is not merely the translation of the same meaning into another language, but rather the internal concepts of law are stimulated by social theoretical constructions according to the conditions of their internal logic of development, and are revealed to be a completely different and new construction. It is the sequence of stimulus-reconstruction-normative change-observation of effect that occurs within law that produces the doctrinal value-added. Such value-added cannot be realized either in the self-immunization of legal doctrine or through the direct translation of social theoretical constructions into law.
Where, then, is the doctrinal value-added to the legal issues in the networks of public-private cooperation raised at the beginning of this paper? Networks are not legal concepts. The principle of efficiency, which is used to analyze economic networks as hybrids of market and hierarchical order, cannot be the dominant principle of law, let alone as a legal norm directly applicable to networks. Equally inappropriate is the principle of the “social implantation” of economic transactions, which sociologists consider to be an essential feature of networks. On the contrary, a strict division of labor is necessary here. Network theory identifies the unique logic of action of networks, detects the opportunities and risks of network-dominated behavioral patterns, and provides options for structural solutions that are different from the market and hierarchical order. Stimulated by network theory, contract law has used the law's own conceptual reconstruction of network problems and has developed separate norms and principles for networks from the tradition of legal thought, which can take effect as legal solutions to new types of coordination and liability problems.
The fundamental challenge for responsive operations now lies in identifying the private law regime with the greatest normative potential for constructing rules appropriate to the constitutive elements and legal consequences of networks, among the different private law regimes that have developed historically. Which legal system, then, is capable of generating a comprehensive legal binding effect on all participants in the entire association, beyond the contract between the parties? The options are: civil partnership, cyber contract, transactional basis, third-party protection contract, and contractual union. The corporate law construction is not suitable for networks, as it covers obligations that are exclusively directed to corporate purposes, and thus the orientation of taking care of individual interests at the same time, which is typical of networks, must be recognized as illegal. The construction that there is a network contract between all participants is also lame for the realities of the network, because it necessarily requires the legal framing of a great deal of agency and authorization of agency from owner to owner. The transactional basis theory is also unhelpful because it is devoted to cleaning up transactions and cannot create legal obligations. Contracts with third-party protection, while binding on third parties, are not suitable for multilateral relationships, and the proximity of payment and jeopardy of legal interests standards of the system do not create the necessary contractual performance in a network. The most suitable regime for networks proved to be the contractual union regime developed for the financing of sale contracts (finanzierte Kaufverträge), as it accurately demonstrates the tension between the independence of the individual contracts and their interconnectedness, and expresses the dual orientation typical of networks, pointing both to the nodes of the network and to the network as a whole. The Contractual bonding accurately outlines three constitutive elements for the emergence of a consortium: (1) interconnectedness of the individual contracts, (2) a common contractual purpose, and (3) de facto cooperation without the need for a full multi-party contract. Pitting networks and contractual unions against each other, and separating social theoretical analysis from jurisprudential characterization, obscures the potential for jurisprudential value-added. However, the final decision as to whether contractual unions can provide appropriate legal solutions to the conflicts that arise in networks can be made only after the law observes the effects of legal decisions in the social world.
4. Argument 3: Norms in themselves (Eigennormativität)
Finally, the most difficult question raised by the tendency to publish this example in this paper is: can normative standards be taken from social science theory? That is, can the effectiveness of fundamental rights in mixed public-private networks be taken from social science theory in our example? Today's representatives of the unity of theory and practice see as their most important task precisely the discovery from the analysis of society as a whole of the normative potential of social development that points to political and legal directions. A normatively indifferent systems theory must undergo a “normative turn” if it wants to give relevant directions to law.
But here again - and now for the third time - socio-functional differentiation makes a strong appearance to correct this. Sociofunctional differentiation has forever undermined the unity of theory and practice in the old Europe, shutting science into the closed symbolic fence of right/wrong, and thus preventing social theories from providing cognitive statements in addition to normative statements in the political, ethical, and legal symbology. Scientific systems do not in principle supply normative criteria for other veins of action. Normative advice is always a trans-scientific issue.
What is particularly distressing is that this self-limitation also involves philosophy, and that law-despite the laborious promises of Rawls and Habermas-cannot hope to import normativity from philosophy. Philosophy cannot escape from the Münchhaus dilemma - infinite recursion, interruption, circularity of argument. Ultimately all attempts to argue against norms lead to paradoxes. The resolution of the paradoxes, however, cannot be achieved by philosophy with its normative appearance, but only by the operation of social practice in communication and by the individual through introspection. The consequence of this theoretical breakdown is: normativity in itself. Normativity per se is produced in two quite different processes: in the internal process of law the normativity of law itself is formed, and in the external process of law the normativity of the social-practical operation through which law can operate itself is produced.
Law is an inherently social operation of practice, and this social operation of practice produces the normativity of law itself without recourse to scientific or philosophical grounds. In order to produce this result, it is necessary - to mention only a few important figures here - Hans Kelsen's foundational norms, Herbert Hart's internal perspective, and Nicholas Luhmann's binary runes of law. The normativity of law per se operates as a directive for the self-production of normativity from existing law, and as a norm for the production of deviations on the terms of the legal enterprise. Social theory is normatively relevant only within the framework of law's own normativity, and at the same time within the framework of stimulation and reconfiguration described above.
But the self-production of the legal system produces only one kind of normativity, the normativity within the law. Outside the law, other social practices operate with normativity of their own, supplementing the normative production within the law as it reaches out to them. The social systems not only produce their own rationality (in the Max Weberian sense), but also their own normativity. Ron Fuller clearly exemplifies this when he describes the morality of associations as a presentational phenomenon of social communication. But after Wittgenstein and up to Lyotard, such insights are recognized as belonging to the field of study of the philosophy of language. The normativity of diverse language games is based on their forms of life and cannot be conclusively argued for. In exactly the same way, institutionalism recognizes the operation of social practices as the producer of normative aggregates under the command of an “idée directrice”.
In this regard, it is clear that the driving motivation for finding an interdisciplinary meeting between law and social theory lies not so much in the connection between law and science, but rather in the connection between law and society. Beyond law's own normativity, law seeks normative orientation in different life-worlds and their norms, asking for assistance from social theory. Indeed, if one looks closely, one can see that much of what is here under the title of social theory is not strictly scientific theory at all, but a reflective practice. This is better expressed in terms of reflective doctrines in various social worlds, similar to theology and legal doctrine, which create normative orientations in the operation of various social practices.
The normativity of law has been developed in contact with the reflective doctrines of other social subfields. It is therefore desirable to avoid the kind of misunderstanding of scientificity that comes with sociological jurisprudence, political legal theory or legal economics. The more important the structural analysis of the social sciences is for the responsiveness of the law discussed above (as shown here), the more there is something different at stake, namely, a normative orientation that cannot in principle be provided by unbiased science, but rather by the normative “doctrines” of social behavior. Juridical doctrine, or even theology, the mother of all doctrines, is not a science, but a system of doctrines for the systematic reflection on the social practice of law or religion. Much like legal doctrine or theology, most fields of business management, economics, or political science are not sciences that follow a code of truth, but rather are doctrines of reflection on the world of social meanings clothed in the social theories of science, i.e., teachings about right behavior in business, economics, or politics that share and transmit the basic normative orientations of each of these practices. Similar to the distinction one makes in jurisprudence between legal theory as reflection on practice and sociology of law as scientific observation of law, one must make a clear distinction within academic disciplines between the negotiation of reflective doctrines belonging to their respective social subfields and the negotiation of strictly social theories belonging to scientific systems.
Thus, the connection with the normativity of social practice itself should be pursued here. This per se normativity of social practice is refined in the doctrines of reflection on economic or social practice. In contrast to the misunderstanding of scientificity mentioned above, two conclusions can be drawn from this. A socially oriented reflective catechetics offers a wide range of normative perspectives, from the guiding ideology of the social system, through social expectations, social demands, fundamental rights requirements, participant expectations, to the views collectively gained by the social system in terms of its capacity to produce, up to the determination of the function of the social system in the society as a whole. None of these can be derived from an “unconditional” and “unbiased” social theory; but even legal doctrine cannot derive them from itself. At the same time, the possibility of distancing oneself from the law is once again presented when the law has to carry out its own individual, universal orientation through legal regulation. That is to say, sociological jurisprudence, legal economics, legal policy, and legal ethics, which sail under the banner of scientificity, must indeed change its banner to the legal treatment of the conflict between different reflective doctrines.
Let us in again return to moral philosophy. Can one apply Rawls' or Habermas' [theories] to argue for legal norms? It depends on the situation. If they argue for the production of social theories that are scientific in nature, the answer is no. For they - unlike their self-understanding - do not justify any norms under the scientific runes of truth. The answer is yes if they are understood as participants in moral or political practice who operate on a reflexive doctrinaire of moral or political practice. Even so, they are not directly legally relevant, but must also pass through the legal filters of legal theory, doctrines, and judges' adjudicative practices.
We return to the example of propensity to publish one last time. What does the interplay between the per se normativity of the law and the per se normativity of the social system imply for the third-party validity of fundamental rights in private networks? Briefly, norms should be established to resist the expansionist tendencies of economic rationality, in order to provide institutional protection for expert technology on the one hand, and for the integrality of health systems on the other.
The normative content of the horizontal validity of fundamental rights cannot be established through social theory, but is first and foremost a product of the internal workings of law. The principle of equality, which is the normative basis of the law itself, requires that the protection of fundamental rights is not only against state institutions but also against private networks in situations where private power also seriously jeopardizes fundamental rights. Manipulative behavior in networks resulting from tendentious publication - prohibiting or fictionalizing the publication of research results - violates not only the fundamental right to academic freedom, but also the fundamental right to health. However, as the fierce attacks by private law scholars on such third-party effectiveness have shown, the approach advocated by the general doctrine, which seeks to achieve fundamental rights protection by weighing the fundamental rights of individuals, is problematic. One way out of this dilemma is to shift the protection of fundamental rights against private power from the private to the institutional level. Rather than guaranteeing the horizontal effectiveness of fundamental rights (in our case academic freedom and the fundamental right to health) by means of justiciable individual entitlements, the protection of the institutional dimension of fundamental rights is provided by means of organizations and procedures.
The answer to the question of what organization and what procedure can achieve the protection of scientific and health institutions is not available within the law. The normative content of the institutional guarantee of fundamental rights can only be obtained outside the law, from the very normativity of social practice. Scientific and health institutions use their own symbols and outlines to form their normative approach, which, unlike traditional individual opinions, is institutional in nature. This institutional normativity is deposited in the structures of historical growth, resurrected in the reflective doctrines of scientific and health institutions, and continues to be shaped in “political”, negotiated decisions. Only then can it be succeeded by law.
The reflective negotiation of scientific and health institutions does in fact develop an institutional model of individual protection against manipulation in tendentious publication, which deserves to be stereotyped by the law: try to register the third-party validity of scientific freedom and the right to health as an organizational and procedural realization. A public register of research and research results should be established, with full coverage of the research from its inception, in order to achieve transparency and control. Professional journals should also register the research conducted in the register as a prerequisite for publication. All results of clinical studies on the product must be registered in the clinical trials registry in advance before the product is placed on the market.
5. Conclusion
Using the example of the horizontal effectiveness of fundamental rights in a semi-private network, this paper has tried to show in general terms that when social theory and law encounter each other, the value-added of legal doctrine can only be realized if the delicate relationship between autonomy and intertwining is taken care of in the following three ways:
First, the autonomy and intertwining of the various social theories, which are not comparable to each other, is obtained through interception. Law rejects any kind of monopolistic claim and instead chooses points of contact in an interceptive shuttle.
Second, responsiveness insists on the autonomy of legal doctrine with respect to social theories and responds appropriately to the intertwining of law and social theories by opening the law to the stimuli of social theories, by drawing inspiration from social theories for normative new constructions, and by observing the effects of these new constructions in the social world.
Finally, normativity itself. Law does not take its normative orientation from social theory, but from processes within law and from the normativity of other social systems themselves (i.e., the reflective doctrines of other systems).
For tendentious publication, specifically: doctrinal constructions - separate network purposes from contractual and corporate purposes, contractual bonding as a legal conception of social networks, and institutional guarantees of the level of effectiveness of fundamental rights through organization and procedures in the form of test registrations --can serve, in our case, as socially appropriate legal continuations that emerge through the law's distanced response to network theory.