A Research On Teubner's Theory Of Reflexive Law

It has been nearly 40 years since Teubner put forward the theory of reflexive law,which has been interpreted and applied differently in relevant domestic and foreign literatures.This paper tries to show the connotation of reflexive law from the aspects of its concept,origin,nature,theoretical changes,theoretical operation,theoretical value and defects.Weber,a sociologist,once classified law according to its formal or substantive,rational or irrational.He believed that modern law is a formal rational law.But since the middle of the last century,the law has the tendency of "rematerialization",which has been discussed by the academic circles.Nonet and Selznick think that law has developed to the stage of responsive law,law needs to respond to the changes of social environment.Teubner dug out the reflexive rationality from the responsive law.He thinks that modern law should change to reflexive law.Since then,Teubner has combined the reflexive law with the theory of autopoiesis theory,and expanded the connotation of the reflexive law.In the first chapter,I analyze the concept of reflection,reflexive and reflexivity,and discusses the differences between reflexivity in the context of modernization and system theory of law,and makes a further judgment on the relationship between reflexivity and other similar concepts.The point of this paper is that reflexivity of reflexive law has the double meanings of reflection and reflexivity operation.In the aspect of reflexivity operation,Luhmann and Teubner's understanding of reflexivity issimilar to Bourdieu's.In the aspect of subject,the former mainly refers to the reflexivity of system,while the latter mainly refers to the reflective ability of human beings.The second half of the first chapter discusses several theoretical sources of reflexive law,including Weber's concept of formal rationality,the legal development models of Nonet and Selznick,Habermas' s concept of social organization principle,and Luhmann's concept of social full complexity.In the process of constructing the theory of reflexive law,Teubner drew on the above ideas.The second chapter of this paper outlines the theoretical change process of reflexive law from the time dimension.At first,the theory of reflexive law appeared as a model of law development,and it also has the nature of "proceduralism".Since then,Teubner has made significant amendments to reflexive law by relying on Luhmann's system theory,combining autopoiesis theory with reflexive law,so that its connotation can be enriched and extended.This paper points out that the change of theory has its positive significance,for example,autopoiesis theory has injected a new interpretation into the reflexive law.The revised theory of reflexive law pays more attention to the relationship between the autonomy of legal system and the autonomy of other social subsystems,and also rises from the internal level of law to the level of intersection of law and sociology.However,it can not be ignored that theoretical changes also bring adverse consequences.For example,on the one hand,Teubner's introduction of autopoiesis theory increases the complexity of the concept of reflexive law,and also makes the defects and limitations of system theory inherited.On the other hand,Teubner's acceptance of the theory of system and autopoiesis theory deviated from the original research purpose,which strictly restricted the theoretical environment of reflexive law.The third chapter of this paper mainly shows the operation process of reflexive law in the field of constitution and administrative law.In the aspect of global social constitutionalism and administrative law,reflexive law shows its theoretical value.In the field of constitution,through the combination of the reflexivity of legal system and other social subsystems,the constitutionalization within each subsystem can be realized.In the field of administrative law,by improving the reflective ability ofspecific administrative subjects and private subjects,we can make up for the deficiency of traditional administrative regulations by using their self-regulation.The fourth chapter discusses the positive significance and theoretical defects of reflexive law from the perspective of methodology.This paper holds that reflexive law has methodological guiding significance for our understanding of the two concepts: form and substance,public law and private law.However,there are still some theoretical defects in reflexive law,for example,due to the limitation of system theory,the theory of reflexive law does not care enough for the individual;it may cause inequality in the status of legal system and other social subsystems;in the domestic application of reflexive law,it will be censured by "modern paradigm" and restricted by "post-modern" factors.In addition to summarizing the whole paper,the conclusion of this paper attempts to review the process of Chinese legal sociology research,and puts forward some divergent conclusions,that is,legal sociology research also needs to develop its own reflexive rationality,and different forms of legal sociology research need to reflect on its own discourse system and interact with other research fields.