Rechtsgeschichte als Evolutionstheorie

Conflicting Gods

On Manfred Aschkes Reconstruction of a systemsociological Theory of Evolution and it’s Relevance in Legal Theory
The reviewing essay focusses on the new publication of Manfred Aschke. In his book, Aschke promotes the theory, that a question like »what bounds a society together « should basically be answered on a communicative (systemtheoretical) term. But the answer is, he argues, in need of a completion by a theory of action, since system theory alone will not be able to explain the central mechanisms of social integration, which is structural coupling. Based on a »pragmatic evolution concept«, that comes very close to Küppers information concept and Piaget’s equilibration-theory, Aschke tries to explain how structural coupling emerges. Therefore he establishes a theory of »structural coupling through co-evolution«, that is based essentially on the opinion that communication systems and consciousness systems represent evolutionary surroundings of selection for each other. Although Aschke is to be followed therein that the evolutionary theory represents a possible candidate for the further investigation of the emergence of structural coupling, the combination of system opinions and opinions of a theory of action acquired by this author leaves several essential questions unanswered. In this reviewing essay Aschke’s draft is therefore opposed to an evolution model that attaches to modern theories of selforganisation and that can demonstrate structural coupling on a purely communicative basis. In a final example, that of legislation, we will show different implications on legal theory arise either of Aschkes concepts and the proposed alternative model.

Legal Mutation

Genesis and Evolution of Law in the Transnational Sphere
In order to cope with transnational law, we have to abandon hierarchical legal models which, up to the present, have dominated western legal discourse. In the emergence of a new world society, law is undergoing a mutation. This mutation is here understood as a new form of interaction with legal texts. While law has been interpreted until now with regard to auctoritas, i.e. to an external reference (e. g. God, the King, the Pope, the Legislator), this mode of interaction with the legal text can no longer grasp new normative phenomena which in the recent literature have been subsumed under the concept of transnational law. The authors take inspiration from the Jewish model of interpretation of legal texts – as an example of an alternative and more adequate approach to global legal phenomena – and try to elaborate this argument on the basis of European private law.