The term autopoiesis (self-creation) is a neologism coined in 1972 by Varela and Maturana, Chilean cellular biologists and systems theorists, to describe the capacity of living cells to reproduce and organise themselves. The term was picked up and deployed by Niklas Luhmann (1927 – 1998), a German sociologist and philosopher, to capture his conception of society as composed of closed systems of self-referential communication that constantly reproduce and evolve themselves via the repetition of their own operations. When used in reference to social phenomena, autopoiesis is usually deployed as a short-hand reference to Luhmann’s theory of society. This post outlines the concept and its place in systems theory. Its critical potential for law is discussed via two recently published examples, and its limitations are expressed vis a vis the turn to ecological thought.
Luhmann’s systems theory provides a general theory of society intended to replace the epistemic inheritance usually assumed by sociology. Concepts like subject and object, material and ideal, being and non-being – concepts based on ontological substance, derived from philosophy, law, and religion, cannot, for Luhmann, adequately describe contemporary society. The theory is an entirely artificial edifice. Autopoiesis is non-historical, it did not begin one fine day, it has no origin point and does not need one. Logically speaking the whole project is paradoxical: it aims to produce a universal framework for observation that takes account of the fact that universal observation is impossible. It doesn’t claim that this is how society ‘really’ is – the ontological status of the modern world is overwhelming complexity, or noise – but it makes the (modest?) claim that it is the best way of observing it; indeed, that the capacity to describe itself through systems theory is itself an autological achievement of the evolution of science. In modern society, there is no Archimedean point: all observations are open to dispute, all agreements are agreed to be provisional and contingent, time itself is an open horizon running infinitely into the infinitely explorable past and a risky, uncertain future. Nevertheless, sensible communication about the world remains possible. Complexity is reducible into meaningful statements and collective decisions and is generative of stable expectations and structures. That ongoing achievement is what social systems theory can explain.
An autopoietic system produces itself while simultaneously producing its own conditions, both internal and external. Systems thus always exist in an ‘environment’. The environment is not the ontic ‘real’ but rather is produced from within as the result of observing and reducing the complexity of its surroundings. Therefore the ‘environment’ of a system does not pre-exist the system but depends on its capacity for sensing and observing. The boundary between a system and its environment is ultimately decided by the system itself and is potentially open to change with each operation. Hence a system cannot interact directly with its environment and can only observe it via self-reference. Systems have “operational closure”, only operating with their own operative codes, programmes, and memory.
Notoriously, autopoiesis is considered a ‘post-human’ social theory as it is one without people involved. This is not quite true. The theory is indeed anti-Aristotelian, but besides social systems it includes autopoietic living systems (cells, neurological systems, immune systems, etc.) and autopoietic psychic systems (the conscious and unconscious processes of the mind). At any given moment we are composed of elements all three types of system: a living, breathing, self-regenerating body; a conscious mind; and an array of socially-defined subject positions – son, daughter, worker, voter, student, customer, owner, and so forth. The systems are interdependent. Each can affect the others, contingently, and yet they must all be co-ordinated to different degrees to accomplish any task. Yet only communication is social. It is the medium within which social systems produce themselves, define their environment, and establish the conditions for future action. Society is nothing more or less than the communications produced by social systems. Society is communication.
As systems are self-referential and closed, ‘communication’ is never just straightforward information transfer. We are all faced by the problem of ‘double contingency’ – no one can know what the other really thinks or wants, and each must anticipate and modulate their communication accordingly. In simplified terms, systems emerge. Ego A selects ‘information’ from its environment and ‘utters’ it, to Alter-ego B. Communication begins. A cannot know how B will understand (or misunderstand) the selected information; moreover, understanding does not necessarily imply acceptance. If A wants B to accept the information, A will consider, with reference to experience and present perception, how the utterance should be made to be acceptable to B. In considering the information, B may understand it not as A intended, and may choose to reject or accept the communication regardless of any difference in understanding. Strategies for containing the possible horizon of (mis)understanding emerge with repetition in time, and these stabilise into systems of communication.
As Luhmann puts it, “(c)ommunications are not ‘living’ units, they are not ‘conscious’ units, they are not ‘actions’. Their unity requires a synthesis of three selections: namely, information, utterance and understanding (including misunderstanding). This synthesis is produced by a network of communication, not by inherent power of consciousness, or by the inherent quality of the information.” The tripartite synthesis of information, utterance and understanding must be “recreated from situation to situation by referring to previous communications and to possibilities of further communications which are to be restricted by the actual event”. The selections of further communication are “either an acceptance or rejection of previous communication or a visible avoidance or adjournment of the issue.” It follows that, first, neither ego nor alter has control of communication. Communication is not linear information transfer, but an emergent phenomenon premised on the capacity of observers to make observations. We can thus make sense of an otherwise tautological statement: only communication communicates. Second, observation always inscribes a difference in the world and that difference functions by reducing complexity, narrowing the horizon of possible future observations. Third, communication is premised on observation as the marking of one side of a distinction and not the other. Understanding (or misunderstanding) decides the asymmetric difference between what is ‘marked’ in an observation and what goes unmarked – for instance, being and not non-being, having a property and not not-having a property, the human and non-human, and so on.
The marked side is where the problem of the next observation proceeds from. The unmarked side remains unspoken, but always leaves open the potential for what went unsaid in the structure of the situation to later be recuperated in further observation. This, mirroring the insights of deconstruction, implies that all observation is founded on a paradox. The unity of the difference of the positive and the negative sides of a distinction cannot be observed at once. The ‘whole’ as such is unspeakable. One must split the whole into parts – the marked and the unmarked side – to make any observation at all, at which point the unity of the whole becomes unobservable. This paradox makes the unobservability of the world observable via an operation of observation which itself is unobservable as it occurs. Only later, through second-order observation, can any past observation be observed as such – and then, only contingently, partially, and paradoxically. This is by no means a dialectical point. Paradoxes must simply be unfolded in time, there is no alternative. This is what Luhmann playfully calls the ‘reconstruction of deconstruction’. Yet that too is a paradox because each exposition of a paradoxical operation requires a further paradoxical operation, a further event that disappears in the moment of its appearance, an inherently unstable operation that paradoxically gives a system its stability. Systems can only continue to use their operations in order to continue to use their operations in order to continue to use their operations… and this is autopoiesis.
Much like psychoanalysis, then, systems theory recognises that contingency, misunderstanding, misrecognition, conflict, and disappointment are inherent elements of society, which is founded on observation of the same (understanding) via the production of irreducible differences. It cannot be otherwise, “if the system were set up to produce consensus, it would come to an end”. Differences are not problems for society so much as its precondition: they provide the opportunity for ever-more communication, the autopoietic animus that prompts systems to constantly adapt and thus to continue communication. Indeed, society has evolved function systems that handle these paradoxes of knowing the unknowable, dealing with a reality that is always a construction of worlds that are never quite ‘there’. One finds ways of managing these problems in religion, philosophy, anthropology literature, and modern art. Even mathematics is aware of its own contingency, and today it is primarily left to science to address the ontological status of the world via its own recursive self-referential operations. Systems are ‘non-trivial machines’: a cybernetic term for a conceptual device that uses its previous output as its input and is therefore analytically unpredictable.
The more that a system recursively develops, the more complex its interactions with its environment can become; the more it can perceive and communicate about, and the more specific and intensive in its operations it can be. Through constant selection and dissolution of their own elements and boundaries, systems differentiate themselves from their own past and from one another. Yet what counts here is not the fragmentation of experience but the ways in which correlation between meaning and experience is maintained. Despite the differences in modes of understanding the world, society nonetheless manages to coordinate itself. The differentiated unity of society has, in Luhmann’s account, taken on different forms in the past, moving from segmentary societies, to stratified societies, to our contemporary functionally differentiated society. Much of Luhmann’s analyses of society’s functional systems – law, politics, science, religion, ecology, economics, art, and so on – is rooted in an evolutionary re-reading of the intellectual transformations of Euroamerican rationality that culminates in the realisation of systems theory itself.
Autopoiesis and functional differentiation are often associated with a certain conservativism. This often involves a caricature of systems theory as prescriptive: as an argument for a society composed of reified, rational, function systems which can only evolve, cannot be steered, and must simply be accepted. Whether or not Luhmann is correct when he claimed his theory had no normative aims and prescribed nothing about the future – except that tomorrow will be different from today – there is somewhat more to say in favour of the theory’s critical potential, illustrated briefly here by reference to two recent examples of critical legal thinking that creatively deploy systems theory.
First, the caricature misses the crucial point that systems are primarily concerned with observations of their environment. In other words, the legal system is primarily concerned by, and must, give ‘anxious scrutiny’ to communication articulated in other systems: did a money transfer occur? Was violence used? Is there a risk of persecution? Have correct procedures been followed? These questions of other-reference can only be addressed via self-reference to legal standards. First and second-order observation of the environment and system itself are constantly in play, and the way problems are framed, resolved, and critiqued can all be observed as the observations of observers – including, but not privileging, the observations of the critical systems theorist. This opens the way to a kind of social anthropology of modernity that is sensitive to the way in which the law contributes to the ‘stabilisation’ of other structures. As technology, ecology, bodies, and minds are in the environment of communication, they have a materiality that is never fully accessible to communication but can only be described by way of paradoxical distinctions. Legal articulations remain central to the self-descriptions of society, so an immanent reading of legal technique can be productively framed using the theory. Alain Pottage frequently deploys this insight in his work, recently drawing on it to elucidate how the legal recognition of ‘innovation’ in the patenting of the steam engine – ‘An Apocalyptic Patent’ – established the temporal structure of the Anthropocene.
Second, and switching the lens from micro-practice to macro-theory, the caricature misses the theory’s capacity to absorb and stabilise paradoxical problems. In Emilios Christodoulidis’s recent book The Redress of Law, an analysis of law as an autopoietic system is deployed as a means of addressing the question, ‘what is the Constitution?’ via the concept of self-reference. Christodoulidis thereby suspends the interminability of debates around the substance of ‘the Constitution’ (political/legal, adjudicative/governmental, democratic/anti-democratic, and so on) – definitions that are contingent, valid, but never definitional. Placed alongside critical political theory, autopoiesis provides an anchoring framework for a radical intervention in contemporary legal theory that seeks to interrogate the value of an ‘adequate’ political constitutional law in the face of capitalism’s turbo-charged, rapacious ‘market constitutionalism’. This delicate theoretical work seems to prove Luhmann’s hypothesis that the theory can both acknowledge its own blindness and endure it, accepting (at least for the time being) ‘that what has been realized as society gives cause for the worst fears, but cannot be rejected.’
A more interesting critique of autopoiesis than the conservative caricature accepts that the theory is the purest expression of the rationality of the cybernetic age, but questions whether that age is now over. By insisting that the history of western ontological rationality, with all its philosophical baggage and trivial observations, was a precursor to the realisation of non-trivial autopoietic rationality, Luhmann gave a lucid account of the ‘neocybernetic regime of truth’. That regime, as defined by Erich Hörl, was marked by techno-optimism, a disavowed fantasy of knowledge as a perpetually recurrent machine, and a refusal of non-technological forms of knowledge. That regime seems quite unsustainable. If so, if an ‘ecological’ thought is required to replace neocybernetic thought, then something more is required – though whether that represents a displacement of a techno-machinic media epoch by an ecological media epoch or is to have been a further evolution in the history of Euroamerican epistemology remains undecided. Perhaps the critical question to ask now, though, is ‘what was autopoiesis’?
 Niklas Luhmann, “The Autopoiesis of Social Systems,” in Sociocybernetic Paradoxes: Observation, Control and Evolution of Self-Steering Systems (F. Geyer, J. van der Zouwen, eds., Sage Publications, 1986), 174.
 Luhmann, “The Autopoiesis of Social Systems,” 183.
 Luhmann, “The Autopoiesis of Social Systems,” 183-85.
 Luhmann, “Deconstruction as Second-Order Observing”, in Theories of Distinction: Redescribing the Descriptions of Modernity (William Rasch, ed., Stanford, 2002), 101.
 Luhmann, “The Autopoiesis of Social Systems,” 185.
 Alain Pottage, “An Apocalyptic Patent” (2020) Law and Critique 31 239-252.
 Emilios Christodoulidis, The Redress of Law: Globalisation, Constitutionalism and Market Capture (Cambridge, 2021).
 Luhmann, “Deconstruction as Second-Order Observing”, 193.
 Erich Hörl, “Luhmann, the Non-trivial Machine and the Neocybernetic Regime of Truth” (2012) Theory, Culture and Society 29(3) 94-121.