[author]Niklas Luhmann

[content]

Author: Niklas Luhmann

former professor at Bielefeld University

Translator: Li Zhongxia

professor at the Law School of Renmin University of China

Abstract: Traditional constitutions emerged from a historical context characterized by the division between the state and civil society, and both the functions and institutional designs of constitutions revolve around this premise. The principles of separation of powers and the protection of fundamental rights aim to guard against state power and to protect civil society. However, to adapt to the increasing complexity of society, there has been a shift toward constitutional perspectives that go beyond the text of the constitution, such as the inherent distinction between politics and administration within the political system. The altered social reality necessitates a departure from simplified constitutional theories that rest on the dichotomy of state and society, embracing a more complex theory of the entire society. Constitutional theory must reflect the functional differentiation of society as a whole and restate the structural conditions for societal compatibility. Reflection should replace representation as the core category of constitutional theory, and based on this, the principle of rule of law should be rearticulated.

Keywords: Political constitution; social systems theory; reflection; rule of law; civil society

1. Introduction of the Problem

If one follows the legal interpretation of constitutional law (Verfassungsrecht), the conclusion drawn is that the constitution pertains to a set of empirical legal norms with the highest authority, above other legal norms. Technically, this superiority can manifest in conflict resolution rules prioritizing constitutional law; it may also—though rarely mandatorily—be reflected in the difficulty of amending the constitution, or in some respects, that certain aspects cannot be legally amended at all. However, this formal definition does not provide any information regarding the content of the constitution. From the perspective of constitutional politics, this formal definition is of no practical use. It leaves one in the dark about whether a constitution must exist, why it must exist, and what leads us to regard it as "higher law" or "fundamental law" (Grundgesetz). Are we deceiving ourselves in this regard? Could our simplistic recollection of the medieval hierarchy of laws (Legeshierarchie) lead us astray?

This formal definition of constitutional law, which is significant at the technical level of law but fails to satisfy our interests, has been inspired since Georg Jellinek by the distinctly German academic tradition of "state theory," which projects corresponding fundamental concepts of the state onto the constitution. For instance, within these doctrines, the constitution is identified as the order of state will formation (Jellinek) or as a model of integration (Simmel) or as a dialectical unity of will and norms (Heller, Schindler) or as an overall decision on the nature and form of the political unity of the people (Schmitt). These clichés from the early twentieth century continue to exist as hollow definitions in teaching activities, where people either accept one or display them together. Their continued existence seems to be thanks to the current academic situation, where they no longer provoke interest in debate—and social scientists have yet to find suitable alternatives. To date, social science research has scarcely touched upon the constitution itself, meaning that it has failed to address the normative texts viewed as the constitution itself, except when attempting to clarify the gap between constitutional texts and constitutional reality. For this, no constitutional concepts or theories are needed; rather, it is merely necessary to compare existing texts and realities. A constitutional theory aligned with the state of development in sociological and political systemic analysis remains an unfinished endeavor. "Constitutional reality" remains a legal term.

If one accepts the conceptual definitions given by state and constitutional theories within legal scholarship, the constitution concerns the basic order, involving normative concepts of order, which stipulate the basic elements (Grundzüge) of state life, and even of social life, in detailed directives of action, thereby asserting the status of supreme norms. The premise is that various structures "organized" within our society can likewise accept these normative behavioral expectations. Correspondingly, interest in constitutional reality falls into an exploration of whether a given action complies with or deviates from the norm.

This constitutional picture needs reflection. Such reflection may arise because—historical reflection and superficial impressions of political behavior in mainstream states have deepened this doubt—social reality has diverged from this constitutional concept to such an extent that mainstream constitutional theory cannot appropriately understand reality, nor can it be understood as alienation. Konrad Hesse once astutely emphasized that it is through the acknowledgment of a "constitutional reality" that is unconstitutional that the normative demands of the constitution can be established. Furthermore, this reflection may stem from the fact that the existing structures and processes deviate from the constitutional functional positioning in terms of compliance or deviation from norms, and this can be traced back to Max Weber in a manner that presents a subtle form of effectiveness decline.

2. Constitutional Theory Beyond Civil Society

It is generally acknowledged that modern constitutional thought is built upon medieval questions, specifically regarding how to handle the relationship between political power and legal binding force. At the legal level, the content of the constitution exists in what it seeks to exclude, as well as what it aims to exclude through fundamental rights, just as it seeks to exclude the abuse of political power through its organizational law section. Initially, the development of modern society did not alter this problem set but merely changed its context, scope, and perhaps its resolution paths. Although this question has raised the level of abstraction and increased the average standards of limiting rights interventions, thereby forming a constitutional concept distinct from the overall legal order and distancing itself from the rampant growth of legitimately acquired rights (wohlerworbene Rechte), the constitution primarily expresses itself as a mechanism for the protection of rights (Rechtsschutz) against political power. This continuity in problem setting has led to a lack of an adequate constitutional theory in modern society, even though one can envision a need for a constitution in a sense that is completely different from (and not merely more abstract than) old social types.

The modern form of the constitution, fixed in text, established in empirical law, and distinguished from other laws, originates from a time when a new social type became widely accepted and solidified, commonly referred to as "civil society." The entire society has taken on a new form in which the economy, as a subsystem of society, occupies a dominant position. This development is evidently linked to the emergence of modern constitutional states. The characteristics of this nascent period in the 18th and 19th centuries can be identified through the constitution; this was followed by expansion, refinement, and somewhat less systematic textual incorporations (such as social state clauses) that responded to evident operational failures. The constitutional situation and understanding of constitutional institutions (Verfassungseinrichtung) corresponding to the constitutionalization processes of civil constitutional states have not undergone any radical transformations in terms of mechanisms and operations.

The civil constitutional state made groundbreaking progress, fundamentally severing ties with the old tradition of ethical-political society (societas civilis), thereby systematically and convincingly altering all core positions in the political-social realm: the internally balanced and straightforward relationship of law (ius) transformed into asymmetrically abstract subjective rights; the politically wise and reasonably balanced mixed government (regimen commixtum) was reconfigured into the principle of separation of powers, and certain forms of state (Staatsform) were discarded and replaced by the mandatory norms of political democracy. The interconnections between these reconstructions should be defined as a process of abstraction and reduction, stimulated by the contemporary theory's distinction between the state and society. This distinction elucidates the real paradigms (Realitätmodell) upon which the constitution as a text is conceived and interpreted. Even today, the critical issue remains whether and how this distinction between state and society is contested.

The distinction between state and society is a response to the evolution of social systems, in which the traditional superiority of politics has been replaced by the superiority of economics. Here, the entirety of society itself, the whole of human relationships, remains defined by its dominant subsystems, as it once was by political dominance, now defined by economic foundations and purposeful actions. As the concept of society shifts from politics to economics, it becomes apparent that society has lost its attributes as a moral "entity," as a collective with agency (Handlungsfähigkeit). Moreover, precisely through the various connections of economic processes, civil society, while still retaining its identity as a social system, no longer functions as a society that sets a common goal and acts upon it. Agency seems to need reconstruction beyond itself, that is, as the state. The appropriate manner of operating and reintegrating the state and society can only be "dialectical"—whatever that means.

If there exists a dominant aspect here, the distinction between state and society cannot be defined as a boundary between systems—or more accurately, it cannot be defined as such, nor can it be critiqued or refuted in this manner. The prevailing notion that the "separation" of state and society has become outdated due to increasing interdependence is therefore erroneous. The opposition between state and society is based on a very direct understanding of the issue, namely, the impression of incompleteness in the new civil-economic societal concept. The state, as the opposite and compensator of society, possesses its own unity (Einheit). Its identity (Identität) does not require further reflection. If necessary, one could trace back to the ethical-political tradition—until the 19th century.

Any effort to connect with the recent developments in sociological theory, as well as attempts to think of the distinction between the state and society as a systemic boundary, must necessarily abandon traditional understandings; for the distinction between state and society lacks a concept for the unity of what is being distinguished. This line of thought compels us to return to a broad theory of the total societal system, where the state is not external to it, but internalized within it. This total societal system can be divided into subsystems such as the economy, politics, science, family functions, and religion. Consequently, the relationship between the political system and the economy is entirely different from its relationship with the entire societal system of which it is a part; the two are not on the same level. Beyond the political system exists not the entire society, but merely other societal subsystems (and, under the conditions of today’s world society, also other political systems within the total society). The interrelations among these subsystems and their relationship with the political system constitute the total society. Accordingly, the systemic relationship of the constitution must be assessed from multiple perspectives.

Returning to a comprehensive theory of the total societal system does not inherently imply a renewed acceptance of a self-sufficient, action-capable view of the total societal system rooted in European tradition. The concept of a social system (a system composed of actions) and an action-capable system (able to act as a unified entity) cannot be entirely equated. Therefore, one can develop a conceptual expression for a state of the total society that does not act within the theory of the total society, even though the comprehensive social system has already predetermined the structural compatibility conditions for its subsystems. A functionally differentiated total society, despite having various different and diverse subsystems, does not exist in an arbitrary state. For example, there are more but not arbitrary possibilities to develop an industrial economy influenced by political decisions. Thus, belonging to the total society itself establishes its own unique functions for all subsystems and the capacity for change under structurally compatible conditions. For the political system, the constitution has the following function: to reshape the conditions of societal compatibility for internal use—meaning: it can be decided!—which we need to reflect upon.

A historical review first demonstrates that the connection between social differentiation and constitutional development has indeed been confirmed; although not in a sense of continuous covariance, it generally aligns with a development status and constitutional achievements. This relationship exists in both the relatively advanced period of ancient Greece in the Mediterranean basin and within modern civil society. In both contexts, the political system has responded in constitutional form to innovations brought about by evolution, particularly in the economic realm. Thus, in both, it is necessary to define the formula and conditions for the political system's societal compatibility. For the city-state of ancient Greece, this formula is justice. For the constitutional state of civil society, the formula is representation.

Currently, the total society is rapidly evolving toward an unparalleled world society of the highest complexity, open to the future, and normatively no longer integrative. This raises questions: Can such a society be just? Can it be represented? Or must alternative formulas be found for the societal compatibility of the political system?

3. A Change in Constitutional Perspective: Four Examples

Reality can be observed from various (and contradictory) analytical perspectives. From another angle, interpretations of constitutional law provisions and their doctrinal concepts can manifest as simplifications, reductions, or fabrications, serving to establish preconditions for decisions. The following reflections are based on the notion of the political system as a subsystem of the total society, thus using the theory of systemic differentiation as an analytical tool. From this starting point, we can derive and should first demonstrate a perspective that has changed due to changes in constitutional reality (Sichtweise). Through this sociological theory, one can undermine and relativize the self-evidence (Selbstverständnis) of the constitution that can be continually updated at the interpretative level, without denying the inherent significance of constitutional interpretation (Verfassungsexegese) itself or outright denying its existence. We aim to illustrate this through brief analyses with selected examples: (1) separation of powers; (2) the temporal style (Duktus) of the political-administrative process; (3) protection of property rights; (4) the relationship between law and planning (Planung).

3.1 If we focus on the separation and balance of powers as stipulated in the constitution, we find that for a long time, many countries have seen a clear shift in focus, regarded as a disruption of the stipulated balance. Firstly, this involves a shift from legislative power to executive power in terms of function and power exercise; occasionally, as the expanding court system deals with public law disputes, there are complaints about the legislative and executive branches shifting towards the judiciary. This transfer of function and power is projected onto the screen of constitutional law, manifesting as a deviation from the constitutionally prescribed plan (Plan), which cannot be fully grasped within constitutional doctrine. These are the derived consequences of many far-reaching changes, namely the emergence of two large subsystems within the political system—politics and administration—which are not accounted for in the model of separation of powers.

On one hand, within certain actions of “state organs” (Staatsorgan) that can be grasped by legal scholarship, and partly outside of this, a network of political processes is formed, which aggregates through political parties and interest groups into a system with its own inherent functional attributes, where the characteristics of politics are determined by the corresponding contexts and conditions of political possibilities. On the other hand, there exists a subsystem focused solely on administration (Verwaltung), where decisions are prepared and made under pre-assumed conditions of correctness or practicality. There are significant differences in detail among different countries. However, it must be continuously emphasized that the complexity of the political system has rapidly increased in terms of scale, diversity, and interdependence, such that the level reached in the conception of separation of powers has become fragmented. Firstly, this type of growth process triggered at the level of total society necessitates the emergence of other types of internal differentiation, leading to different types of structures. The distinction between politics and administration can be said to possess a “higher concentration” than the separation of powers model, thereby being compatible with greater complexity. It should not be defined by determining different stages of the legal process, but rather appropriately defined by different stages of planning, that is, aimed at an open future. 

The primary internal distinction of the political system that is universally recognized is the distinction between politics and administration, meaning that these two functional perspectives systematically exert their influence and determine different conditions and limitations for possibilities. Therefore, the performance and development potential of a political system primarily depend on how structures and processes, possibilities, and choices are organized and how the forms invented for this are compatible with each other—such as how continuous chains of choices can be made possible. At the same time, these fields that are gradually opening to sociological research are becoming increasingly self-determined. For example, politics operates under conditions of very high environmental sensitivity. It can change everything and therefore should reject almost indefensible reasons and demands. Additionally, due to the countless agendas necessary for consensus formation, it operates under tremendous time pressure. Under this premise, the decision-making process largely operates on informal behavioral codes, preferring relatively specific decision prerequisites that can quickly be linked to various smooth phrases. Power primarily forms within personnel ruling bodies, which are only tentatively concentrated towards the responsibility of state power integration under special conditions. Administration, on the other hand, is more strongly fragmented through established organizational structures and decision-making processes. For instance, such a system tends to plan innovations from the particular perspective of its departments and agendas, while rejecting them based on perspectives from other departments and agendas. Inter-departmental conflicts (Positionskämpfe)—the micro-politics of Tom Burns—are thus strongly intertwined with formalized structures, utilizing the layer of “meta-information communication” (Metakommunikation), which, at this level, cannot be judicialized and bears no responsibility. One can only speculate that through this departmental strategy, considerations, and conflicts, its output encounters bottlenecks at a far lower level of potential motivations and cognitive complexity.

In this sense, politics and administration become vast systems with their own inherent laws, and this fact is complexly related to the organizational norms of the constitution, which cannot be fully examined solely through them (the constitutional organizational norms). Initially, the separation of powers maintained within the organization acquires a new functional role in regulating the relationship between politics and administration, meaning that in the true establishment of binding decisions, it justifies the influence of the political communication networks on administration to varying degrees. The politicization of legislation is fully accepted. The politicization of administration is partially recognized, while also being impeded by the legitimacy requirements of administration; therefore, the politicization of administration is variable and depends on how the subject matter of the decision-making process is handled and the hierarchy involved. In contrast, the politicization of the judiciary is blocked by the constitution even when handling public law disputes, thereby making the judiciary appear as the pillar opposing politics and becoming an indispensable element within this distinction model due to this function.

This functional variation of the separation of powers model requires a more refined analysis. It shows that the traditional institutional-distinctions in the governmental sphere have not simply been replaced by other principles, but have become embedded in them and function in accordance with their provisions. The basic notion of power-control, of maintaining the system by filtering out illegitimate abuses of power on the legal track, has been retained and continues to be valid. However, in an already complex system, its functioning is altered. In the internal workings of government and governance, the attrition of power is already so high that - paradoxically - in its regular state, the system is inherently underpowered with respect to its powers, because in its choices, its effectiveness for society as a whole is not internally possible. be controlled by a sufficiently long and complex chain of choices. The separation of powers model solved the problem of the distribution of power according to its intent and effectiveness, but increasingly revealed bottlenecks in the generation of power.

Today there seems to be a similar functional shift in this area. The distinction between government and governance has made possible new types of power growth, i.e. the emergence of longer, heterogeneous chains of application of power to power under conditions of minimized shared values and rationality standards. The risks associated with this - not only the risk of “misuse” of power, but also the risk of additional chain breaks, operational blockages in subsystems, the emergence of opposition at the level of meta-information communication, etc. - have to be addressed through the use of power symbols in the power code. -These must be controlled by precautions in the power code. Nowadays, through the separation of powers, the power code is, in principle, linked to the law. The decision-making process is directed onto the path of law. Illegal uses of power, while not really excluded, remain as context-dependent. The longer chain of decisions that are effectively binding on the distal situation - which is under specific conditions that are still unknown and does not exercise direct authority over its collaborators - must be subject to the form of law, and in this way ensure the security of transmission. This occurs in the model of separation of powers by means of the fact that the communication of the separate state bodies is based on law. In this sense, the separation of powers acquires a function that generates power and the growth of power; the acceptance of a form that is appropriate for long chains of power is more or less inevitable as a condition for integration between state institutions.

These two newly added functions of the separation of powers - the filtering function between government and rule and the lengthening function of the chain of power - now depend on taking root in the constitution. The reconciliation of the distinction between government and rule must be divested of its own ongoing politicization, which is underpinned by constitutional law. The prolongation of the chain of power in the form of law requires constitutional law support because it presupposes variable law and because it is concerned with symbols, i.e. with the conditions under which power is possible, and not only with the perspective of the use of power in an ongoing process. The result is that the constitutional hierarchy of the principle of the separation of powers cannot be denied and needs to be reasserted - however, by means of an orientation towards the dominant structures and fundamental issues that are not themselves provided for in the constitution.

3.2 It is also part of the critique of the Constitution to recognize that the scope of influence of the constitutional system does not necessarily correspond to its supremacy. With the help of the separation of powers, we have created an image that is head and shoulders above the rest for constitutional law. The inquiry into the temporal style of the political-administrative process leads us to the realm of national life, which has less theoretical and doctrinal presence, but a higher practical importance. Today, one would start with great certainty from the premise that political elections must be repeated over and over again within periodic, pre-determined time intervals. The duration of the positions created through elections serves to regularize the change of power in the political system and to enforce accountability before the electorate as a whole. The fact that this time period also concerns the highest positions in the legislature and the executive deserves the highest evaluation as an evolutionary achievement. Internally, it has forced the emergence of a distinction between politics and governance (occupied by a permanent and stable civil service), and externally, it has forced the realization of a high degree of separation of the political system.

Due to the incredible nature of such achievements and the linkage of opposite requirements, such as openness to other possibilities and the binding of decisions, or, for example, the stabilization of change, only one solution has been developed which fits into the political system and which is difficult to reconcile with the social context of the system. This difference is precisely characterized. It relies on the fact that the political system must uniformly determine its own inherently short cyclical time rhythm, without regard to the corresponding subject matter of the decisions involved; and, therefore, without regard to the social demands and interests hidden behind many details; and without regard to the urgency of the society, to its preparation time and adaptation time, and without regard to the time requirements of the planning process and the decision process itself. The electoral cycle prevents (or at least makes difficult) the periodicity of elections set according to the criteria of the time horizon of society and the different durations of social processes. In order to maintain the possibility of a change of power at the top, which can only take place uniformly, the duration must be set in such a way that it can be arbitrary with respect to the environment of the system and to the decision process oriented to the specific subject of the matter in the system itself.

The arbitrariness avoids - and this is the point of interest - structural decisions in favor of or against particular interests. That is to say, the deadline is here not out of nature (Natur) but a socio-technical one. It serves, neutralizing the problem of affairs and the problem of society, shifting the burden to the time dimension. Thus, the “costs” of this solution exist in the time dimension, or are dissolved through it. They (the costs) appear in fact in abundance, on the one hand, as “meaningless” time pressures, and on the other hand, as the temporal equalization of different demands with different time-duration needs, in terms of people and subjects with a large radius in a uniform time rhythm. The real problem is shifted to the structure and is thus pushed behind the thematizable and determinable conflicts around needs and interests; it can only accept the irreconcilability between the temporal dimension and the transactional dimension, between deadlines and themes. Legislative deadlines interrupt and decadentize long-term planning and decision processes; this is not a preconceived bias - hope exists only when deadlines are absent.

So, of course, it cannot be ruled out that the deadlines of the political system are structured to be selective, that is to say, that the subject matter, the interests and the needs are given different opportunities according to the rhythm of the process of consensus formation and decision-making, according to the competitive dynamics with the other applicants around the urgency of the need to gain attention, according to the manageability in the ongoing chain of appointments and procedures. However, this type of selectivity is arguably necessarily constitutional in origin and politically unaccountable even if it is used strategically, so that the constitutional relinquishment of its own temporal elasticity reduces the burden on the political system and frees it from many planning and decision-making requirements, but at the same time results in an artificially created mismatch between the temporal horizon of the political system and that of other social subsystems. The time horizon of the political system does not coincide with that of other social subsystems, with potentially unforeseen consequences.

3.3 Our third example is the security of property rights. This illustration allows us to delve into the realm of fundamental rights and at the same time to choose an example that belongs to the external relations of the political system, i.e., the relations between politics and the economy. The intention of the Constitution is to place individual, acquired and therefore unequally distributed subjective rights in a special recent understanding, as already mentioned above. This corresponds to the dichotomy between state and society and allows constitutional doctrine to incorporate property into a society that is external to the state; in this way, it is also able to relieve itself of the burden of property by treating it as a constant dimension in the realm of the state. However, from other analytical perspectives, this is undoubtedly an illusion.

Through this illusion, the structural consequences of artificially designed asymmetrical legal status and unequal distribution are hidden. At best, the Constitution reacts to some of these consequences by means of its guarantees, such as the freedom of association or the right to strike. Beyond that, the question of these consequences is left to politics and legislation. Thus, the risk of highly abstract subjective rights is not completely resolved at the level of constitutional law (Verfassungsgesetz), although it is discussed. On the contrary, as long as one can rely on an adequate political sensitivity when it comes to the question of consequences, there is no excuse.

More important is the second perspective, which is not clear to the Constitution. That is to say, by means of the category of property, the Constitution does not fully grasp the relationship between the political system and the economic system, which necessitates regulation. The structural peculiarities of the economic system of modern civil society do not lie in the property, but in the separation and self-regulation of the economic system by means of the monetary mechanism. For the first time in the history of the world it has been possible, with the help of a single medium of communication, money, to complete in fact all the stages of production and consumption, i.e., to selectively describe the economy and to be able to rationalize it; to monetize not only goods, but also real estate and labor, and thus to make the monetary mechanism disposable, comparable, circulating, and systematically manipulable. In this respect, there is a fundamental difference with the money economy, which was already highly developed in ancient Greece. As a result, only those who earn money can own property, and on this basis the controversy arose as to whether and to what extent people should be allowed to earn money by means of property. Following these structural displacements, the security of property covers the entire binary formulaic opportunity for participation in the ownership/non-ownership division, i.e., the opportunity to participate in a discrete economy regulated through the monetary mechanism, and thus covers only the opportunity for participation that operates in accordance with the economic system's own laws. Property “is” money, just as labor “is” money. --Under the symbol of money, not only the corresponding cash or transfer money available for payment should be included, but also the entire general participation in the communication opportunities inspired by the symbolic symbols of evaluation and settlement, which are exclusively economically oriented. “Property” has always been the buzzword through which the self-critique of civil society has created and continues to create political divisions on the basis of the discussions of the previous century; it opens up the possibility of taking positions for or against the ‘system’ and thus becomes a substitute for reflection. It offers the possibility of taking a position for or against the “system”, and thus becomes a substitute for reflection. But property is not an element of the economic system, and therefore, through it, the future cannot be chosen.

In fact, the key point for the economy and economic development is not property, but money, and the structural conditions that make possible an economy oriented towards and rationalized through money. The constitutional guarantee of property, in its monetary orientation, has always been neglected. Social change, changes in property relations and opportunities for earning money, devaluation of money and surprising increases in wealth are realized outside the regulation of constitutional law and, precisely, this phenomenon is co-guaranteed by constitutional law.

It is clear that the constitution of civil society - from the beginning to the present day - cannot be defined as a stabilizing mechanism of states and distributions, such as it cannot be regarded exclusively as a distributive mechanism representing the interests of the ruling class. One is kept from being blinded by the institutionally constructed and functionally necessary mechanism of wealth tolerance: the principle is not distribution, but the possibility of raising the efficiency of production. The principle, in its path to realization, drives social development and, as a result, transforms its own inherent conditions. It raises the level of integration that is still possible to the level of abstraction in the process of development of the increasing complexity of civil society. In order to remain in the field of our example, the increase in productive efficiency in the economy is no longer to be taken for granted as the result of the coordination of decentralized decisions in line with the market; rather, the self-regulation of the economy has to be complemented by an intervening regulation, which is concerned with the conditions and results of self-regulation. The prohibition of uncompensated expropriation thus serves the function of distinguishing such intervening regulation from the specific use of goods or labor and relating it not to objects or production, but to the system of the economy and the symbolic-question of its medium. The security of property rights, seen as safeguarding the sphere of freedom of individual roles in the economy, now covers the political freedom to change the monetary parameters of that individual freedom.

In the meantime, reality has moved beyond this “neo-liberal” conception of regulation. Where the full range of regulatory measures of the monetary mechanism could not adequately guarantee quantitative consequences, as in the case of sectoral or regional reorganization of assets, a policy of intervention at a specific level was perfectly feasible. But it is compelled by the prohibition of give-and-take, which takes the form of funds acquired by means of a fixed surtax. It should also be seen here that this form of fixed surtax is based on the monetary mechanism before it crystallizes into “property”, since it presupposes generalized and constantly changing economic events. Elaborating on giving, rather than on taking, is a strategy that can be better integrated with the conditions of both economic and political success in highly complex societies than the opposite process. When a fixed surtax on access to funds is regarded as a tax rather than a levy, then it is constitutionally necessary to control the public good correlates of spending to the extent that it grows. It is clear that such a requirement cannot be adequately secured through the budget laws of Parliament. The counterpart of the technical legal limitation of expropriation (the Public Interest Clause) is perhaps a sociological or political control of effect which is not merely a publicly declared wishful thinking, but a result, and not merely a determination of the political effect, but which renders legible many errors of illuminating detail. The methodological difficulties of such control, which exists first and foremost in the problem of attribution, cannot be ignored and do not allow for the direct judicialization of particular techniques.

Moreover, the control cannot justify what has not yet happened; after all, the share of subsidies for clearly known errors is presumably already surprisingly high.

When self-regulation of the economy and interventionist regulation become simultaneously necessary and mutually conditional, it is impossible to oppose the other in one form. The relationship between economy and politics has to be defined more abstractly, but at the same time less precisely, than by thinking in terms of the boundaries of constitutional law. The supreme norm of constitutional law prohibits concrete interventions. The most abstract, and in this sense the highest, inter-systemic relations must therefore be developed under constitutional law - in part as a continuous consideration of simple, ongoing politics. At the level of stable (equal to socially structured) inter-systemic relations in the general sense, it is only the condition of mutual accommodation between self-regulation and intervention-regulation that is involved - in other words, the condition of mutual accommodation between the mechanisms of money and those of power. This condition can be paradigmatically conceived as the boundary of values acceptable to the system variables. In practice, it can be taken for granted in the form of strategically imposed prohibitions and preemptive preparations for the problem of regulability of unanticipated consequences.

Insofar as economics and politics use different media of communication and, with their help, differentiate special functions as subsystems of society as a whole, the question of regulation arises from this differentiation. The distinction between the media of money and power, for example, makes possible the conversion of money into power and of power into money, and at the same time requires the exclusion of those conversions that are incompatible with the independence of the differentiated symbols, such as bribery of politicians and civil servants or uncompensated expropriation. The differentiation of the system requires the maintenance of autonomous self-regulation as a condition for the intervention of rational decisions from the outside: if the economy no longer possesses its own inherent order of monetary oriented selectivity, then politics no longer possesses any decidable issues concerning the economy; politics will no longer be able to configure the use of its power in the economic sphere (e.g., in the raising and measurement of tax revenues, in measures of monetary policy, in the determination of budgets in line with the trends of the economy, in the determination of budgets in line with the trends of the economy, etc.), in raising and measuring taxes, in monetary policy measures, in determining budgets in line with economic trends).

When this analysis is correct - when convertibility presupposes non-convertibility, and when the growth of dependence presupposes the growth of independence in a dependent system - the question arises as to whether a model of regulation appropriate to such a situation can still be rendered in the definition of an interrelationship of rights and obligations. The question arises whether a model of regulation appropriate to such a situation can still be presented in the definition of a reciprocal relationship of rights and obligations. Similar to what we see in the separation of powers, such regulation emerges in a higher order model. For example, at the level of inter-systemic relations it is presented that the monetary system's own dynamics itself undermines the political system's ability to plan. For a theory of constitutional law, it depends, at this point, no longer on defining order as consisting of rights and duties, but rather on asking more precisely what function the form of constitutional law, and the specific provisions of constitutional law, performs for the establishment and maintenance of an order whose requirements are raised to such a high degree.

3.4 We will illustrate one aspect of the question of the value of legitimacy (Rechtlichkeit) in a final example: the exploration of the relationship between law and plans. No program can operate in an “extra-legal” space - neither in terms of its object, nor in terms of its decision-making process and its means of implementation. All plans should be related to a legally structured reality. This cannot be concealed by the impression of a distinctive “extrajudiciality” (Rechtsfremdheit) of politico-administrative programs. This impression has to be located more precisely in theory and defined more precisely. It depends on the differentiation of the question posed.

In a completely general sense, one could say that in today's society the problem exists not so much in the guarantee of the effectiveness of the means as in the complexity of the consequences. Thus, the problem of the decision-making process, whether in planning or in law, does not only take the form of an objective, i.e., the setting of a goal and the selection of the appropriate methods and means for it. It should cover, in the broadest sense, all horizons of feasibility, the direction of choice, and the difficulties, criteria, techniques, and tolerance of error in the various choices. Here, the process of legal decision-making remains at the level of normative application. It does not make any independent contribution to the politics of law - except as an anticipation of the process of norm application. It lacks the feasibility of direct access to standards of justice for the process of legal decision, and it lacks the feasibility of direct justification of justice in comparison with the argument from economy. Lacking the feasibility of operationalizing justice independently of lex lata, lawmakers lack their own inherent basis for argumentation in discussions about plans; before lawmakers can answer whether it is feasible or not, it must be clear to them what should happen. It seems that justice - formerly a value-neutral criterion for evaluating all value judgments - has been replaced by other types of “objective” criteria for calculating decisions that deal with multidimensional preference structures. replaced by other types of “objective” criteria for calculating decisions dealing with multidimensional preference structures. After the political transformation in the economy and society, justice has at best been reconstructed as a special value, e.g. as an expression of the level of request within the legal system when it comes to consistent decisions. At present, however, it also lacks an applicable jurisprudential basis in practice. Moreover, it lacks a category-based foundation that has the capacity to transfer social connections into legally formed decisions. Central to all planning is the question of a modest - if simplified - grasp of society-wide interdependence in the decision-making vein. In addressing this issue, both program theory and program technology attempt to improve their capabilities. Legal thinking leads to an entirely different kind of problematization, starting from the question of who is entitled to claim rights in cases of conflict and, by asking this question, achieves an effective control of the high degree of interdependence.

A good example of this can be found in constitutional law, i.e. the constitutional model of fundamental rights. The different fundamental rights are not shaped as a “system”, but are merely divided according to the problematic areas of society, such as the personality of the individual, the family, cultural life, science, economics, politics, etc. Between these social fields, there are in fact many interdependencies of high degree and diversity. These interdependencies, when expressed in terms of fundamental rights, are merely “conflicts of fundamental rights” and “weighing of interests” requirements, that is to say, in a form that is not conducive to planning, with the mission of discovering the law in individual cases. One relies on the concrete presentation of controversial cases as a source of inspiration and decision-making. This does not preclude the formation of abstract rules, but determines their generalized style and makes for a protracted process in any given case in order to control a high degree of interdependence, and therefore susceptibility to rapid change. Programs may similarly require strategies capable of limiting high levels of environmental complexity, but place a high premium on rationally choosing those strategies and forgoing constant comparison with better viable options.

Constitutional law is not a program, let alone a normative scheme of how society should develop. It contains the premises of legally regulated decisions and has an outline function that needs to be implemented, but it is not a conception of a good society, of a future that should be chosen. This conclusion confirms the general impression of all our specific analyses. If one takes the observation of reality not as the basis for a dominant view of jurisprudence, which is doctrinally bound by constitutional law, but as the basis for a theory of the whole of society, set up in the abstract, then the conception of a “fundamental law” is in doubt. A conjecture derived from the Bonn impression can be confirmed, namely, that constitutional norms are not conceived at all on the basis of a coherent socio-political reality (although they are supposed to be), and that one cannot therefore define the difference between the constitution and the constitutional reality by investigating and enumerating alienating behaviors. The difference has a more principled, and thus presumably functional, character. Our analysis is in no way intended to call into question the meaning of the constitution; rather, it is precisely the opposite, for the historical situation of an autonomously formed economy - giving rise to a constitutional state of civil society - continues to exist as a differentiation of society, and in practice becomes irreversible. reversible. The institutions associated with it, including the constitution, are therefore not irreplaceably weakened, but can only continue to evolve. At the same time, the awareness of the need for change that has emerged makes it necessary to present more accurately the particular function of the political constitution in its interaction with other prescriptive grounds for social action. This calls for further analysis at a more abstract level.

4. Advantages of the use of the negation approach in constitutional law: towards a comprehensive social theory

The result of our reflections in Part I is that the analysis of the social science of constitutional law cannot be set under the perspective of normative and alienating behavior alone. Many important issues cannot be covered by this schema. Instead, the analysis of specific issues leads to the inference that the constitution should be sociologically defined as a regulator (Regulativ) of systemic/environmental relations between the political system and society as a whole. The constitutional state of civil society reaches a higher level of abstraction among these relations than in earlier societies. This is its most generalized manifestation.

If one tries to find a comprehensive formula for such an achievement, which can be translated into the thinking of constitutional politics and constitutional law, one finds a collection of Negationsleistung. In the state, the effective centralization of political decision-making is achieved both by making the list of decisions effective (Spezifikation) and by excluding those that should not be decided by politics (Reduktion). In the self-issuing of the political system, the formula of negation is established, which at the same time has the advantage of being compatible with a wider range of possible situations in society - for example, with arbitrary changes in clothing fashions. The meaning and function of the constitution is signaled through the use of clearer negation, negation of negation, delimitation, blocking, etc.; the constitution itself, according to the formal understanding, is a negation of unrestricted amendment. This constitutive use of the pair of negations can be made legible through the two pillars of the constitution of the rule of law state - the system of fundamental rights and the principle of separation of rights. It simmers in institutionalized form over the theoretical formulation of the liberal state doctrine. There are many enduring reasons for the dominance of such a negative discourse, partly obvious reasons and partly reasons that have to be articulated in its unique functionality.

The obvious reason is that the dichotomy between State and society makes possible a negative specification of the goals of the State, since the State can be referred to as “non-social” and society as “non-State”. For the State, in particular, as a group with the capacity to act, it has the freedom to negate and, by virtue of that freedom, to deal selectively with societies to which it is not itself subordinate. Translated into a language with strong systemic overtones, these are the most abstract conditions under which the differentiation of the political system and the social environment makes immunity (the maladaptation of the system) possible, as well as the conditions that make it possible for the system to intervene into the environment by means of negativity. The Constitution makes these conditions real by outlining a behavior that corresponds to them. The choice of all positive states proceeds from the basic condition that presupposes the negation of the possibility of other states. Thus, it accepts a form of decision in which power and justification are claimed.

Judgments in this manner are easily made, yet they suffer from obvious censure. For us, the negative often serves as the logical opposite of the affirmative judgment, transmuted into the affirmative through the negation of the negative. When affirmative and negative formulations are transformed into each other, are we then saying something special through this dominant negative strategy of the Constitution?

We must clarify this further. The use of negative discourse is linked to the advantages of its operationalization. It is dealing with highly complex and, as a result, difficult-to-recognize factual compositions. When causal connections are not cognizable in detail, when they are lost, interfered with, and compromised, one can still negate and eliminate the details. In this way, an article-by-article cognition without further consideration is possible, if and only if the negation is sufficiently conspicuous. For the negation of negation thus manifests itself as a process that is certain and justified in any case. The technical advantages of thinking in such a curved path of negation have long been known. In numerous practical philosophies or practice-oriented disciplines, the process is recommended as a paradigm of action or progress. Psychological research also recognizes that through this curved path of information processing, relatively little of the inherent burden of a system is retained, although it can be measured.

The advantage of reducing the burden of high complexity, which belongs to the basic configuration of human selective capacity and is in any case unrenounceable, is further realized when the following possibility is derived from the growing systemic differentiation - the simultaneous operative application of the boundaries of the differentiated system as negation - and the possibility of the simultaneous operative application of the boundaries of the differentiated system as negation. -when the advantage is further reinforced. This step of negation as a strategy for separating out the boundaries of the system and as a way of limiting them is linked to the constitutional state of civil society. In this way, the state cuts the burden from complex plans and limits itself to eliminating - predictable, pre-conditionable types of - errors, obstacles or differences of opinion that arise in individual cases. This achievement is symbolized by the widely circulated metaphor of “balance”, which maintains normality by reacting only exceptionally or only to obstacles. In a compatible theory of law, the requirement of justice as equality is dissolved by a moderate conception of the middle way (e.g., also here: the mixed system of government) and transformed into the rule that inequality symbolizes a problem that either must be discarded or requires a justification. The establishment of a just society is thus - insofar as it is not expected by “progress” - entrusted to the operation of a subsystemic decision rule that aims at the negation of its environment. Negation is the goal. The Constitution expresses and constructs this principle. Among other things, the Constitution has its systemic unity. This precisely corresponds to a state of the whole society, which is no longer positively presented as just, i.e., no longer founded on a concept in the first place.

For the problem of translating a higher degree of social complexity into the feasibility of political and legal decisions, a solution that is in principle alien, but clearly better, has not been found for the time being. Partitioning and boundary formation, insofar as they are fundamentally stabilizable, must simultaneously function as techniques for limiting higher degrees of complexity. Presumably, this involves a condition of persistence in evolving progressive societies that are structurally organized to create more selectivity, and thus more negation than affirmation. In this respect, the widely publicized observation that the solution of any problem disproportionately increases the number of unsolved problems bears this out. A technique of selection that energizes itself by negating experience may thus become more and more inevitable. The socialist state, which integrates politics and economics into the national production plan, is largely at the mercy of the specific dimensions of the choice process mix: its plan is the conception of matters that are no longer unattainable.

The rules of negative application of the constitution, such as the limitations on absolute competence, the obligation to argue against the intervention of the right to liberty, and the obligation to argue against the rule of inequality, are relatively simple and easy to work with as prerequisites for decision. When such notions of system boundaries become operational - which means that problems arising from discontinuities between the system and the environment arise - then, according to the assumptions of systems theory in general, the construction of complex systems arises from this. By opposing environmental complexity, system complexity is created on the basis of simple rules. One can also formulate this as follows: under these premises, coupled complexity is created.Moreover, as a result, we can find a highly complex collection of norms of empirical law, and an equally complex collection of social claims, aspirations and expectations of mutual accommodation in relation to the State. However, that originating relationship between simplicity and complexity in no way guarantees the controllability of complex systems; translated into academic terms, it guarantees more than rationality in diversity. A good example of this problem can be found in constitutional law: it guarantees the decisional capacity of a detached political system, and therefore an operational function in the ongoing exchange between the system and its environment - it does not guarantee the predictability and controllability of the resulting state of affairs.

With these reflections, we deal with the self-evident rationale for the constitutional state of civil society. To criticize such a dynamic principle of a dynamic society in the way that is popular today would be to say that it is “conservative” and, again, meaningless and impractical. Such a critique, still based on a static/dynamic or pre-existing/changing opposition, reproduces the self-criticism of civil society that was so significant in the nineteenth century, but which today rings hollow. Moreover, negation is still far from being adequately defined as necessary and productive. Insofar as one says that a system relates to its environment by means of negation, one describes this relation on a level (analytical or real) that has the possibility of describing the negation as an affirmation, e.g. as having a function or an effect. In this way, one solves the problem at that level under the conditions of a more precise positive evaluation. Negation can assume the function of an affirmation, or it does not have to. The abstract functionality realized through the detour of negation expresses a mere possibility, at best the necessity of such a possibility at a given stage of social development. Its use is in the limited condition of being additionally identified. Within the type of regulation expressed through negation in this general sense, there are different forms of processing the experience of negation, either dynamic and developmental or lacking such attributes. In order to be able to make a distinction in this direction, one would need a more “rich” (structurally specific and historically relativized) theoretical figure, one that incorporates the theoretical dimension of a comprehensive social system. Such a theory does not exist today. The feasibility of a precise politico-constitutionalization as a sociological concept depends on the development of the theory.

As mentioned above, the traditional distinction between (political) state and (economic) society lacks a conceptualization of the dimension of a comprehensive social system. It is not possible to “discard” the negative relationship between the system and the social environment, or to analyze its positive functions. Negation, therefore, is ultimate and corresponds not to the consciousness of controllability, but to the error of that consciousness - the pure, undeniable facticity of society. The idea, when associated with a historical situation, has a distinctive rightness that reconstructs itself after the fact and makes it intelligible. As a system gradually breaks up, there is less of a discourse that can fit both the system as a whole and all of its components; at the same time, there is less of a structure that can be relevant and binding to both the system as a whole and its components in all contexts. One can draw on Ackerman and Parsons to formulate this law as universalizing and re-specializing coercion. In the context of the transition from early politics to early economy and society, the problem is translated into the dualism of state and society, and thus rendered insoluble.

5. “Rethinking” as a Constitutional Function: A Restatement of the Conditions of Social Compatibility

In the light of these inquiries, which have been distanced through abstraction and which have been carried out with a view to determining what should be retained, it is possible to return to the question of the function of the constitution. In this regard, we discussed at the beginning of the second chapter that the constitution should be formulated as a condition of social compatibility of the political system of the society. Let us continue this topic.

A need to restate the condition of compatibility arises from the need for re-specialization (Respezifikation), which is to be expected as a result of an extremely high degree of generalization (Generalisierung) of the overall social structure.The system-forming dimension of society as a whole and its subsystems is more strongly separated today than ever before. The same applies to the relationship between social systems and their specific organizations, or to systems of interaction that are simply situated between those present. As a result, the corresponding higher level of system formation loses its direct persuasive and orientation value for the actions of lower level systems. Its particular systemic conditions must be specified in a hierarchical manner. Society is no longer suddenly illuminating. The need for a constitution and a written constitution is a response to this situation. The response exists first and foremost in the assumption of a form that should be articulated, rather than in the prescription of the political, religious, and moral content of a given society. These contents, in their social immediacy, unclear in terms of the properties of things (sachlich), variable in time and socially contested, are precisely the reason why it is necessary to restate them at the level of the political system; they are simply the demand to limit the possibilities of choice. As constitutional states, the political systems of modern societies recognize the selectivity of their self-identification. That selectivity is itself inevitable in the given historical context. It is categorized as the “will” of a Framer and the determination of a lawmaker, or it is registered purely as a historically developed institutional form. Whether one agrees with it or not, the people of England also have a constitution.

Accordingly, if the constitution is to be defined as an optional self-affirmation of the Identity of the political system within the framework of social possibilities, there are two issues to be clarified, namely, (1) the procedure by which the choice is to be made, and (2) the conditions of the social framework within which it is to be qualified. Only after these former questions have been clarified can we return to the question of whether and in what sense the constitutional state is a state of law.

(1) Walter Bagehot began his best-known study of the British Constitution with a less than favorable comment on that respectable and not very appropriate term. The term has been passed down from generation to generation in order to characterize the Constitution. Not only does the notion of separation of powers dealt with by Paige Ho fall into this category, but so do the central categories by virtue of which the constitutional state in civil society describes its self-selection to this day, namely, the categories of representation and participation. By contrast, the proper category would be: reflection.

Of course, the compatibility formula cannot simply be replaced in the following sense: when representation is introduced, justice disappears; when reflection is introduced, representation disappears. Neither creation nor evolution is on the road to extinction. In evolution, the possibility of substitution relies rather on the fact that extinction is not necessary, but rather a structural reorganization that allows evolutionary feats to be preserved and unsolvable problems to be crossed. In this sense, the principle of representation needs to be defended and criticized according to the standards of justice, but is structurally independent of it, justice being detected as well as justice being done; reflection depends on the articulation of needs, interests, conflicts, ambitions, etc., through representation, but is not structurally dependent on the successful conversion of the representation of interests into a common will.

The category of representation cannot be developed from the theory of civil society; it has much older roots in terms of the premises of thought and the meaning given to it. Representation is the presentation of unity in diversity, symbolized by the inability to be present in the present as diversity. It presupposes the perfection and rationalization of the reality of that unity. Therefore, the category of representation cannot be justified. The critique of this category cannot be mistaken for a critique of the modern parliamentary system. The aim is to develop successor concepts that are more practical on the analytical level and that, moreover, can better substantiate parliamentarism - such as the mechanism of “open reservations” (offenhalten) as a possibility.

In the civil society revolution, people stuck to the proven terms of representation and participation and did not want to go back to the new category of reflection. The justification for this is first and foremost the historically enforced articulation of the new forms, but specifically there are also partly directly political and partly complex conceptual-historical justifications, which it is not appropriate to develop here. Surprisingly, there is even a lack of exploration of the relationship between the relevant categories. One sees a hidden problem here first in the articulation of the notion of reflection, and that articulation presupposes that one distinguishes most of the systemic references in the sense suggested in Part I above.

The political system, as a social subsystem, is related to other social subsystems and to the system as a whole itself, which, despite their interdependence, must be carefully differentiated at the level of analysis. In relation to other social subsystems, mediated (in this case: power-manipulated) processes of intervention and adaptation come into play. In order to identify subsystems in relation to the broader system of society as a whole, one needs additional categories. The concepts of representation and participation in the relationship between the part and the whole have been retained in traditional language. The distinction depended on the premise of a social hierarchy that allowed all members to participate, but only the “dominant part” could be represented. From the outset, civil society rejects this distinction, homogenizing participation and representation; moreover, it rejects the very basis of the distinction and thus forces a transformation of thinking from political participation/representation to political reflection.What becomes language in the category of reflection is a subsystemic self-determined, process-dependent contingency, which we have already recapitulated above. Reflexion is by no means limited to the particular case of reflexivity in which it is found; it is not merely thinking about thinking, nor can it be identified exclusively as the thinking of the “subject”. the self-consciousness of the “subject”, i.e., the subject is compelled to think about its sameness, when he thinks about his thinking. Rather, within such a paradigm there emerges a more general situation, applicable to social systems, in which reflective self-regulation alters the sense of sameness along the lines of contingency, the possibility of structural choices, and functional and/or historical specificity, because neither the space nor the boundaries of self-regulation are certain. In this sense, reflection seems to be an internal perspective of forced self-selection at the social level, a response to the situation in which society can no longer be represented in the sameness of its subsystems, but retains many other possibilities, and in which both psychological and social systems have to develop processes of structurally selective reflection - processes of reflection on the the process of thinking about thinking or the process of loving, of researching about researching, of normatizing norm-setting, of financializing monetary consumption, or of empowering those in power.

Inherent in the systemic condition of reflection is an adequate decision space in which decisions stand out as choices from other possibilities. The problem, however, is that the conditions for the construction of such a decision space do not at the same time prevent reflection. For the political system, the decision space is constitutionally based and constructs itself through the establishment of procedures in which the outcome of a decision is not immediately solidified. Procedures intercept the direct imprint of the social environment on the political system, transforming it into driving motives and mechanisms for absorbing disappointments that are compatible with more than one decision. Thus, the structural conditions that make a decision possible can be separated from the structural conditions that make the decision right. Decisions are programmable. Procedures bring the decision process itself into a form that is rarely conducive to reflection. The political system identifies itself more by the accumulation of the results of the procedure than by reflection on the results of the procedure. In any case, political reflection has so far not functioned effectively in the particular systemic conditions of procedure and in a differentiated style constrained by the separation of powers, which means that it has not yet been transformed into organized action and a basic level of interaction.

However, the bottleneck probably lies more in the category conditions of reflection, on which the development of the system depends.

The transition from a society that presupposes the known to one that presupposes the unknown is associated with a shift from representation to reflection. Decisions of the political system are no longer taken on the basis of complete information about the society, or more precisely, not only on the basis of sweatshop details, but also for three principled reasons: from the factual dimension, because the society as a whole is in its entirety far more complex than the political system; from the social dimension, because the political system interacts with other systems in the society as a whole, under the condition of double coupling, and is in a position of double coupling with the other systems. In the social dimension, because the political system interacts with other systems in the society as a whole under the condition of double coupling and is in a doubly variable relationship, the element of unpredictability should not be excluded; in the temporal dimension, because the political system no longer orientates itself to the past, but to the future of the society. Under the principle of reflection, the question of social cognition is thus a question of the full complexity of the cognizer in relation to the object; under the principle of representation/participation, it is a question of the cognition of equals through equals in a fully traditional sense.

In the practice of politico-administrative planning and decision-making, rational techniques for the precise description of unknown states of affairs, self-conditioning through the configuration of open-ended conditions of application, the internal protection against risk, the incorporation of the possibility of error, and cybernetic rules into the plan have in fact (even if they may be of insufficient legitimacy) developed, making it possible to rationally deal with the unknown relationship. In this way, negation was able to be utilized in practice; it is just that this implementation no longer corresponds to the original conception of the citizen-constitutional state under conditions that have changed. In the light of such developments, constitutional theory is confronted with the problem of the conditions of its possibility (and not only of its acceptability), as well as the problem of the conditions of its social compatibility.

(2) For reflection in social subsystems, the framework conditions of society as a whole can be summarized under three perspectives, namely, the determining function involving contingent possibilities, the formative function of the medium of communication, and the function of systemic differentiation.

The question of contingency is transformed through the constitution into a question of the certifiability of binding decisions. In this respect, it receives a legal form that dichotomizes the event into the category of lawful/unlawful in a completely discrete sense. The structuring of the question is uniquely premised and has far-reaching implications for the types of questions posed and resolved in a political context. When one simply raises the question of the correctness of the testimonial and refers it back via the chain of testimonials to values or to rules of testimonials that stand up in the discussion, it is no longer appropriate for it to appear as a structural choice that is contingent from its side. Furthermore, it should be examined how such a one-sided choice of formula can be maintained and practiced in a highly complex society.

The conditions for this would be that it is compatible with a specialized functional load-shedding, and that in other areas of society, other coupled formulas are able to function at socially appropriate levels and be transformed into operative consciousness. This can be set as a prerequisite, at least for the economy and its (non-dichotomous) coupled formulas of scarcity. In civil society, the calculus of scarcity compensates for the structural weaknesses of law, and vice versa, just as law can compensate for the structural weaknesses of the calculus of scarcity.

In contrast to the starting situation of civil society, which assigns law to the state and scarcity to society, changes have occurred in the meantime that cannot be grasped through coupling formulas and systematic dichotomies. As you can see, the economy's need for political regulation and modification has increased dramatically. Moreover, in a highly complex society full of possibilities, the pressure to disappoint has shifted from normatively institutionalized expectations to purely planned expectations. People are not disappointed simply because they do not get good laws, but also because they do not get good laws fast enough. Thus, the function of overcoming contingency and the function of intercepting disappointment are transferred from the normative rules and procedures of decision to politics as process through states and events that may also have other possibilities. Its contingency is no longer through pre-specified normative systems or the law of sum totalization (Summenkonstanz) or natural presuppositions, but rather - in the sense of the rise of possibilities - through the most abstract perspective of value and through the structural conditions of compatibility, which are examined in detail, and through the possibility of the possibility of the possibility of the possibility of the possibility of the possibility of a new state of affairs. The social is lived through - in the sense of a rise of possibilities - the most abstract value perspectives and through the structurally compatible conditions that are examined in detail. Thus, we are going to explore situations in which politics has access to formulas developed for structured, non-arbitrary contingencies, of course with the help of academic research.

A further framing condition relates to the social relevance of power as a medium of communication. The point is that the dominance of power in all social interactions is preserved, even if social differentiation is increasing and a particular political system has been carved out for the creation and provision of more effective power. Decisive political centralization through power resources that are in any case dominant (especially such power resources that rely on the application of violence) must not lead to a structure in which political power functions only as a medium of communication within the political system - just as truth is seldom limited to being only a research language. as truth is seldom limited to being merely a research language. Rather, political power remains active in any form of nonpolitical interaction, even in transportation and in marital disputes. Here emerges a union between the runes of power and the law. Law articulates the conditions for the application of politically constructed power, which can be applied when the parties themselves do not hold power and cannot or do not want to act politically. In this way, the direct politicization of all social action is avoided.

In the specific, detailed study of the conditions, which we will conclude with the concept of the State of law, it seems feasible to strengthen the application of law in social situations without thereby placing those social situations directly under the communicative rubric of power. It is feasible to conclude a contract in the context of social interaction, trusting in the other party's willingness to perform, while at the same time requiring a justiciable mechanism. The legally guaranteed possibility of divorce does not prevent, but rather facilitates, communication between the parties to a marriage that is stimulated by love and respect and does not develop into a systematically specific relationship of power and exploitation. A similar situation can be applied to the organization of academic research, in which communication is oriented towards truth as a talisman when dependency relationships are legally clarified - through conditional associations with political power that exists at the far end of the spectrum.

These illustrations simultaneously articulate a theme of political reflection that is situated in the conditions of compatibility between the political system and the structure of the social environment. They show that the decisive precondition for the separation and reunion of the symbols and processes of the different media of communication as situations of possibility (Möglichkeitskonstellation) is that the level of integration must not be too specific and “localized” to be selected. This presupposes an adequate systemic differentiation.

Through system differentiation, the process of system formation is reflexive, i.e. it is applied to itself, i.e. it is repeated in the system. Within the system, the subsystems operate as ordered environments for each other and are thus able to reduce their load. Associated with system differentiation, reflection (as distinct from adaptation) can thus be defined as the ability of subsystems to take into account their capacity to act as environments for other systems in the course of their self-determination. As subsystems of a system, they must be environments for each other. The condition of compatibility changes with the structure of the overall system. Today, at the level of the whole social system, these conditions of compatibility can no longer be found in a minimum of values and beliefs. Rather, they exist in the form of efficacious growth and self-limitation, with other systems acting as environmental presuppositions that offer the possibility of a high degree of structural specialization and a sufficiently reduced load on their information-processing processes. In the case of the political system, this function is placed in the constitution and realized through the constitution and the other processes of the political system (Prozess), but for these processes reflection cannot be decisive to the same extent, because they exist in direct relation to the environment in terms of influence and application.

Conclusion

Let us conclude by reviewing an earlier work and articulating some conclusions about State of Law thinking. The principle of the rule of law state should not be understood as a constitutional provision. Attempts at a corresponding limitation - such as limiting it to administrative legality - are today seen as anachronistic and outdated. Similarly, the opposition of the rule of law to the social State does not contribute to its precision; for the rule of law mindset cannot be defined as the antithesis of, or distinct from, the idea of the social State, which is at best viewed as a dynamic principle of the rule of law pointing to the direction of revision. Finally, the prevailing practice of assembling a number of specific norms that are part and parcel of the idea of the rule of law State is hardly satisfactory either, since such an assemblage would itself be mired in lack of clarity.

If the rule of law state is not a constitutional norm in the usual sense of the term, then it may be constitutional legitimacy (Rechtlichkeit) itself. We have already justified in previous chapters that the divisive and transformative function of the constitution is to be realized in legal form: the diachronic formula of the political system exists in the distinction between law and lawlessness, and the medium of communication, the power of the political system, has to acquire a formal legal code out of the need to increase the power of transmission. The rule of law state should be understood to mean that the efficacy of law (Leistung) should not be acquired in a politically arbitrary manner. (In this respect, the following statement is not true. (In this respect, it is not wrong to say that, in the first formulation of the idea of the rule of law, it is necessary to start from the concept of reason; only this concept can point to the knowledge of the conditions and limits of compatibility and, in this knowledge, at the same time see the conditions of realization; moreover, one must today be skeptical in this respect and should therefore be more willing to define compatibility as a rule of law in its own right.)

On this basis, the definition of the rule of law as the limitation of “sovereign” (separated) State power by law, while correct, is not sufficient. The formula has a historically variable content, which becomes analyzable when it is interpreted sociologically. This is facilitated by the perspective that, by virtue of the link to law, the coupling formula and the power-symbol of the political system can be related to the whole of society as a whole (without thereby losing its functional specificity). This connection with society as a whole is most commonly demonstrated in the universal institutionalization of the efficacy and functioning of law. According to sociological language, “universalization” means that the functions of law are realized independently of the specific characterization and situation definition of the law at issue. The principle must be expanded through the empiricization of law and extended to the enactment of law itself. The perfection of legal universalism is realized through the premise that everyone is bound by the corresponding enactment valid for all - even the legislator himself, if he does not modify the enactment by a legally prescribed procedure. The contemporaneous focus on the subject and the evidence of law obscures the possibility of a very broad premise: that any action can be examined and decided upon at any time in the light of legality/illegality.

Universalizing the efficacy of law presupposes the existence of a sufficiently differentiated and decisive political system far removed from everyday interactions, but universally situated legal practices cannot be particular, self-associated practices of that political system. From this, Parsons infers the necessity of separating the legal and political systems. Thus, the fact of legislation is not taken into account. The mission of the constitution of the rule of law state is to regulate the transition from a localized to a universalized orientation. This is made more efficient by the internal distinction of the political system, which allows for a parallel local (“political” in the narrow sense) and universalized orientation.

Many specific functions can be realized on the basis of the guaranteed legitimacy of universalization. Today, the interplay between these functions, and not just any normative consensus, takes over the functions of the structure of society as a whole - i.e., (1) the function of the regulability of social conflicts arising from the undeniable dimension of interaction, and (2) the possibility of sustaining disagreement up to the point of moral disagreement as a prerequisite for the independence of choices distributed in society as a whole, as well as for the development of a system for the protection of human rights. (3) the formation of long chains of choices that guarantee a high degree of articulated selectivity for specific events, but do not imply that the relations of choice are per se predictable, realizable, consensus-capable, and therefore coherent for the participants; (4) for the indeterminate, still-unknown, and still-undefinable situations — i.e., for open futures. -that is, for the open future-, the universalizing guarantee of legal justiciability is achieved. The universalization of the force of law is not a realistic solution to these problems of diversity; it is the common condition under which they can be solved, from which the requirements for the formulation of law and for the construction of doctrine develop. From the opposite perspective, it must be equally obvious that society as a whole, with its depoliticized subsystems, generates its own inherent prerequisites for the regulability of conflict, the possibility of disagreement, and the formation of long chains of choices, in which the whole-of-society conditions for the rule of law to be possible are present.