Introduction: Constitutional Blind Spots and Theories of Differentiation

This chapter examines ways in which Luhmann’s sociology can be used to enrich empirical understanding of institutional structures in contemporary global society. In particular, it discusses how the formation of the institutions that typify modern societal order, both at the national and the transnational level, can be illuminated by his theory of functional differentiation. To achieve this, it proposes a counter-intuitive way of reading Luhmann. It argues that his sociology provides the most adequate construction of the institutional determinants of world society, not if it is simply employed a literal sociological lens, but if it is observed through a method that probes critically at its conceptual adequacy. Centrally, this chapter advances a dialectical engagement with Luhmann’s theory of functional differentiation: it accepts his account of differentiation as a matrix for examining modern society, yet it argues that institutional organs with a central position in society have resulted from historical trajectories of differentiation that deviate from those imputed to society by Luhmann. It claims that Luhmann’s theory has utility as a framework for distilling many social phenomena in broad terms, but many institutional phenomena come most sharply into focus as they jar against the terms of his systemic observation. As a result, his theory frequently illuminates social institutions in a rather unintended fashion. On this basis, this chapter claims that, more than any direct application of Luhmann’s thought, it is through engagement with the aporia, blind spots and oversights in his work that we obtain the most accurate perspective for describing the underlying institutional form of society. In promoting this approach, this chapter aims to show, using a broadly Luhmannian method, how explanatory simplifications in systems theory hold clues for the comprehension of society, challenging us to think through the given categories of systems theory to generate more complex descriptions of empirical realities.

As its primary object, this chapter discusses Luhmann’s understanding of the legal system and the political system and his interpretation of the processes by which contemporary society structures legal and political communications to produce and preserve its essential differentiated form.

Introduction

China’s increasing role in the world is one of the dominant themes of the twenty-first century. Rising from a per capita income similar to those of the poorest African nations in the 1950s, the World Bank now classifies China as an upper-middle-income country and the country has lifted some 800 million people out of poverty. The growth in aggregate income level is even more dramatic: China now has the largest economy in the world in purchasing power parity (PPP) terms and is expected to overtake the United States in current dollar terms later in the 2020s. Militarily, China has vastly expanded the capacity of the People’s Liberation Army (PLA) and increased its role in outer space. Institutionally, it has established powerful new development banks and invited the world to join its massive infrastructure program—the Belt and Road Initiative (BRI).

While the main thrust of China’s expansion thus far has been in Asia, Latin America and the Caribbean (LAC) have also been incorporated, mainly in economic terms. China–LAC relations have burgeoned through trade and finance since the early 2000s. While not all aspects of the encounters have been positive, and many in the region remain skeptical of their new partner’s intentions, the Chinese presence has enabled a diversification of Latin America’s international relations that can only be seen as beneficial. Certainly, relations with the US continue to dominate in the northern half of the region and Europe is a significant partner for South America, but China’s new presence provides important new opportunities.

A major problem that Latin America must face in this new context is the growing conflicts between the United States and China and the expectations that Latin America should “take sides” in this struggle. Although the tensions reached an apex during the presidency of Donald Trump in the United States, no one expects them to disappear under the new Biden administration there. Indeed, although the tone may moderate, the conflicts may even increase as Biden officials try to enlist European and Asian allies to contain China’s power. Keeping its distance from such power struggles should be a major foreign policy goal for the LAC region in the coming years.

The word “crisis” is inherent to Latin America. Throughout two centuries of independent history, the region has gone through many crises. Some triggered from abroad and others self-induced, the majority generated in the interface between domestic and international affairs. According to the Economic Commission for Latin America (ECLAC), however, the crisis of 2020–2021, caused by the COVID-19 pandemic, has been the worst in 120 years. In 2020, the region’s economy contracted by 7.7 percent (versus 3.5 percent for the world economy), per capita income fell to 2010 levels, and poverty levels to those of 2006. As a result, in 2021, 33.7 percent of the region’s population, one in three Latin Americans, lives below poverty levels (ECLAC 2021). Data indicate that the region faces another lost decade, this time between 2015 and 2025, since the 2015–2019 five-year period was already one of slow growth. Although the pandemic has affected the entire world, there have been regions that have emerged as winners (such as East Asia) and others that have done so as losers (such as Latin America) in the wake of this humanitarian catastrophe. The outlook of a stagnant region, one that is caught in the middle-income trap in that every 30 or 40 years it goes through a “lost decade” in which everything achieved in the previous 10 years fades away and demands a new start, is nothing less than overwhelming, to put it mildly.

What hope for the future can the 660 million Latin Americans have in these circumstances?

The previous lost decade in the region, in the eighties, was triggered by an event beyond its borders—the rise of interest rates in the United States in 1982, which led to the so-called “debt crisis.” The same is true for the current crisis, triggered by the Covid-19 pandemic, which arose in 2020 from a virus that emerged in Wuhan, China. Once again, the crisis surprised a fragmented Latin America, making a coordinated response that could have lessened its effects (González et al. 2021), difficult, if not impossible. Far from being a mere addendum to its condition, the region’s location in and interaction with the international political economy is central to its development and progress.

Introduction

The chapter asks what kind of biography in writing about Niklas Luhmann as a person is compatible with Luhmann’s own theory. In contrast to most other canonical authors in social science, with whom Luhmann was well acquainted, his biographical writings are characterised by an ‘ambitious modesty’ (to use Michael King’s and Anton Schütz’ label and reveal a sceptical distance to information on the non-scholarly person. By adopting a Luhmannian perspective and using his theoretical distinctions the chapter introduces Luhmann as a divided person. A central concern of the chapter resumes in an effort to reconstruct a Luhmannian perspective on biography and to use his view on methodology and empirical research. In the last part, the chapter debunks allegations of Luhmann’s involvement in Nazi Germany and demonstrates instead the usefulness of Luhmann’s theories for studies of Nazi violence.

Niklas Luhmann Individualised and Divided

We need both names, Luhmann and Niklas, to refer to the phenomenon that has become recognised in the discipline of sociology. Luhmann insists throughout his work that sociology should not speak of ‘the’ individual, but refer to addresses (billions) when conceiving individuals: Which individual? Sometimes it is necessary to use bureaucratic data, like ‘born in 1927 in Lüneburg, died 1998 in Oerlinghausen’ in order to identify and address him, because there are fake Niklas Luhmann (not only on Facebook) and other Niklas Luhmann (real, named after him?).

Not only the rise of individuality in the Western world is a topic in Niklas Luhmann’s work, but we also find a theory of ‘personal division’, dividuality. Luhmann’s distinction between social communication and psychic processes, which he derived in part from US role theory, suggests the distinction between social and psychic Luhmann. The latter is visible for a sociologist only by observing the psyche in its communicative academic and lay versions. In Christian faith the soul, and in sociology the psyche (in Luhmannian parlance: consciousness), can be conceived of as individual, that is: indivisible. Non-sociological academic analysis does not think in this way: the psyche (observed by psychology) and the body (observed by biology) must be seen as divided as Luhmannian sociology conceives the person in communication as being divided.

The chapter engages with Niklas Luhmann’s understanding of the concept of culture, from his critical examination of Talcott Parsons’ concept of a normative culture to ideas about a specifically modern notion of culture. It includes discussions of his ideas about culture forms of different media epochs of human society and about culture as memory of society. Luhmann’s sociology of culture remains a fragment, but it can provide inspiration for a media-theoretical derivation of culture forms of society, as well as for a social theory of values. Luhmann remained sceptical about the concept of culture throughout his life, since any attempt to ‘register’ a social phenomenon, for example, religion or art, ‘as culture’ runs the risk of infringing upon the necessary protection of its latency.

Introduction

Niklas Luhmann tried to get rid of the concept of culture. His relationship to this concept was not only sceptical but also polemical. In the 1980s, he had succeeded in neutralising Talcott Parsons’ use of culture as a set of values able to normatively solve problems of double contingency. He pointed out that mere coincidences, that is, time, would do the same. But in the 1990s, he experienced a rebirth of so-called cultural studies, which did not seem inclined to draw their lessons from the failure of cultural studies in the 1920s; when culture was thought to possibly provide the a priori values, by then lacking, ever since ontological metaphysics had lost its grip (Max Scheler, Nicolai Hartmann). Luhmann tried to limit the concept of culture as merely ‘historical’, as the product of a specific constellation of modern society – belonging to the past more than to any present, let alone future – but in the process of his examination began to conceive of culture as a memory function of society, to which he devoted ever greater attention. Luhmann’s description of so-called ‘culture forms’ of ancient, modern and postmodern society does not lack irony in being highly speculative, but could nevertheless develop into a fruitful paradigm of future research and teaching in cultural sociology.

Culture versus System

Niklas Luhmann had a not-entirely tension-free relationship with both culture and the concept of culture. Culture is ‘what one finds in the soil not belonging there’.

The concept of Active Non-Alignment (ANA) was initially proposed by Carlos Ominami in a text published in August 2019. The specific reference was to the Chilean case, but the call of “our only option is that of an active non-alignment that puts politics at the center of international action […]. We must defend multilateralism and international law with all our might” (Ominami 2019) was to Latin America as a whole—and even beyond.

The notion resonated. The Puebla Group, made up of former Latin American and European presidents and leaders, declared in its November 2019 Manifesto: “Our Latin America can only assume a position of active non-alignment putting the interests of our peoples first and ensuring uncompromising respect for our sovereignty” (Grupo de Puebla 2019, emphasis in original).

An article by the present authors with an initial approach to the subject was published in Spanish in Foreign Affairs Latinoamérica in July 2020 (Fortin, Heine and Ominami 2020a) and later reproduced in English (Global Policy, 2020), French (IRIS, 2020), and Mandarin (IISS 2020). A subsequent article was published in two international outlets (NUSO 2020; WSI 2020).

In August 2020, Chile’s Foro Permanente de Política Exterior, a think tank, organized a webinar on the subject, with the participation of six former Latin American foreign ministers from Argentina, Brazil, Chile, Colombia, Mexico, and Peru to analyze its viability and scope (FPPE 2020). The stimulating discussion that took place there confirmed not only that the proposal had struck a chord but also that there was the need to explore its content in more detail, both conceptually and in terms of its policy implications.

Thus, this book. Its central objective is to bring together a group of Latin American analysts, practitioners, and Latin Americanists to reflect on the scope and implications of the ANA option to further elaborate its meaning and relevance for the contemporary conjuncture.

The selection of authors and topics was made on the basis of three criteria:

• 1. A wide thematic coverage: The ANA option arises as a response to the conflict between the United States and China, which was triggered by essentially economic (trade, investment) and technological issues (5G, artificial intelligence, semiconductors), but has gone further, to include ideological and military dimensions. It is a hegemonic struggle with a wide scope. The ANA option aims to encompass the full range of foreign policy dimensions and their interrelationships with national development policies.

Throughout its history, Argentina has developed an international position defined by two traditions: on the one hand, autonomy from the great powers and, on the other, a desire to deepen regional integration with the sister countries of the region. Both are relevant for Latin America’s ability to find its own space in a world in transition, something in which Argentina can and should play a central role. Active Non-Alignment (ANA) represents a path that opens numerous opportunities. And although it was not present at the Bandung Conference in 1955 nor at the Belgrade conference in 1961, when the Non-Aligned Movement (NAM) was launched, Argentina played a pioneering role in the development of the ideas that would inspire Indian prime minister Jawaharlal Nehru, Egyptian president Gamal Abdel Nasser and Indonesian president Sukarno, among other leaders of what would be called the Third World in that endeavor.

Juan Domingo Perón’s rise to the presidency in 1946 coincided with the end of World War II and the subsequent start of the Cold War. It was in this setting that Perón drew up the guidelines for his foreign policy under the doctrine known as the Third Position. In a divided world, in which countries aligned with the United States in the North Atlantic Treaty Organization (NATO) or with the United Socialist Soviet Republic (USSR) in the Warsaw Pact, Perón did not understand the Third Position as an equidistant or intermediate policy between two poles of power but as a proposal to overcome two antagonistic ideologies.

On July 6, 1947, Perón delivered a speech that went down in history as the birth of the Third Position. As Fermín Chávez writes: “[…] the Argentine president sent a message to all the peoples of the world, through more than 1,000 radio stations (including the BBC in London), in which he set out objectives of economic cooperation and world peace, discarding capitalist and totalitarian extremisms, whether they were from the right or the left” (Chávez 1985).

The core of this non-alignment or Third Position, as its name implies, is the rejection of bloc politics. It is not a question of denying the existence of these blocs. The problem is that this policy responds to the interests of the great powers.

The year of 1968 in Latin America was marked by upsurges of both hope and violence. From Mexico to Argentina, students and workers united to demand university reforms, higher wages, better working conditions and improved accessibility to public services. These movements would later come to be defined as the ‘New Left’ of Latin America, a generation that mobilised Che Guevara as a symbol of Latin American unity and liberation, emerging in tension with the traditional Left and its reformist and populist predecessors. This New Left cut across traditional class lines to unite around specific political and economic objectives; they shared the goals of ‘anti-authoritarianism, direct democracy, social equality, and opposition to the Vietnam War’ with parallel movements in Europe and North America. But there were crucial, unique dimensions to Latin America’s New Left, which drew inspiration from a range of regional currents and was by no means homogenous: Che Guevara and Fidel Castro’s Cuban Revolution; Tricontinentalism, Third Worldism, anti-imperialism and anti-colonialism; political exile; liberation theology; armed urban guerrilla action; and Salvador Allende’s ‘democratic road to socialism’, to name a few.

Compared to their Western European counterparts, Latin Americans were met with much more severe repression. An often cited example is the student massacre of Tlatelolco, where, on the 2nd October, hundreds of students were shot dead by police during a peaceful protest in the heart of Mexico City. In Uruguay, a breakthrough in Left-wing student militancy was met with severe police brutality. In Brazil, 1968 marked the installation of Institutional Act Number Five (AI-5), setting in motion what would become known as the ‘years of lead’ – os anos de chumbo. AI-5 legitimised the use of extra-legal repression against political crimes, allowing the regime to clamp down on suspected opposition by suspending political rights and employing torture and execution. In 1970, AI-5 was reinforced with the creation of the Internal Defence Operations Centre–Operation and Information Detachment (DOI–CODI) which spread across the country, acting as one of the regime’s core mechanisms for systematic torture and assassinations.

It is worth emphasising just how broad the remit of supposed political opposition and subversion was for the Brazilian and neighbouring Latin American regimes.

Trade and Navigation between Spain and Its Colonies

Trade rivalry between the Dutch Republic and the Spanish Habsburg regime during the Eighty Years’ War was fierce and concerns expressed by Spanish officials with respect to illegitimate trade in which English, French and Dutch privateers participated and Portuguese merchants assisted in trade between Spain and its colonies were omnipresent in reports sent from Tierra Firme and Hispaniola. In the Preface to The Dutch in the Caribbean and on the Wild Coast, 1580–1680, Goslinga (1971) notes that the documentation on the role the Dutch played in the Caribbean region and along the coast of Tierra Firme during the seventeenth century derived mostly from accounts of their foes. To explore the extent and nature of the tobacco contraband trade in the late sixteenth century and early seventeenth century we will therefore depend to a large extent on Spanish and Portuguese accounts and records most of which are found in the Archives of Seville and Lisbon. Besides a discussion of the Engel Sluiter Historical Documents Collection as a source of information for the study of the tobacco contraband trade in the early seventeenth century, this chapter will thus present a brief discussion about the early history of trade and navigation between Spain and its colonies which was subjected to a strict set of rules and for the most part excluded foreigners. The records of the Casa de Contratacion in Seville reveal the extent of illegitimate trade as documented by Spanish officials responsible for reporting on trade and navigation to and from the colonies. In addition, in the reports sent by the Audiencias to the Crown and Council, there is frequent mention of interlopers and foreigners interfering in Spanish maritime interests and about efforts made by the officials to control colonial trade in particular as it involved Dutch merchants and mariners during the Eighty Years’ War.

Trade and navigation between Spain and its colonial possessions was dominated by the Seville monopoly; the Casa de Contratacion. The first Royal ordinances for the Casa de Contratacion were issued in 1503 and officials were appointed by the Crown to administer the possessions and issue licenses to trade but it was soon clear that strict schedules and regulations did not work.

Jacobite pamphleteers, spies, citizens in eighteenth-century coffee houses and ideologues such as Cobbett, all in their separate ways, sought to influence public opinion formation long before the self-appointed instruments and individuals of Trollope's Barsetshire.1 What is new, however, is a level of self-consciousness by “spokesmen” who claim to represent and influence public opinion, rather than merely criticize or subvert a preexisting order. As a wealthy surgeon, John Bold has no identifiable material selfinterest or ideological commitment to the causes he champions early in The Warden, only attempting to recover excessive tolls on a turnpike which he seldom uses. His is an ideologically disinterested pro bono advocacy, with only marginal interest in an issue of abstract injustice to which he calls public attention: a crucial distinction.

The infirm pensioners at Hiram's Hospital, socially invisible in their dotage, until awakened to an abstraction by an advocate who lacks even the unanimous support of his plaintiffs. They remain divided about endorsing his effort:

For some impoverished pensioners, apparently, going to law is a rich man's game; for others, possession is already established by historical deed as an inalienable gift.

The intriguing legal case advanced in The Warden hinges on a material revaluation— and hence possible redistribution—of the proceeds from a charitable bequest. The annual return now far exceeds the initial principal of the gift, willed four centuries previously by John Hiram: a bequest now in surplus. At issue is who should benefit from an unforeseeable surplus—an as-yet unrealized inflation in the value of rents. Should it be part of the “living” of the relatively impecunious and aging Warden Harding or to be used to increase the daily welfare allowance of the truly impoverished men in his custodial care? Although the bequest stems from a death contract (Hiram's will), the donor's original intention is no more recoverable than is Madame Neroni's marital status or familial entitlement. The contractual has lost all but historical relevance.