ABSTRACT
How is it possible that deeply opposed though reasonably comprehensive doctrines may live together and all affirm the political conception of a constitutional regime? What is the structure and content of the political conception that can gain the support of such an overlapping consensus? (Rawls, 1996, p. xx)
The question both relates to order and to system. The order part refers to the legal structure that attempts to create some coherence in society. The system part is about how to combine dynamic development with structure. Liberal society has to balance pluralism with order and structure. As Jürgen Habermas argues:
The social structures of early modernity are dominated by a process in which an economic system steered through the medium of money differentiates itself from an order of political domination, which for its part takes the shape of a system steered through administrative power. At the same time, the formation of these two subsystems stimulates the separation of civil society from economy and state. Traditional forms of community are modernized into a ‘civil society’ that, under the banner of religious pluralism, also differentiates itself from cultural systems. The need for integration arises in a new way with these processes of differentiation, a need to which positivized law responds in three ways. The steering media of money and administrative power are anchored in the lifeworld through the legal institutionalization of markets and bureaucratic organizations. Simultaneously, interaction contexts are juridically structured – that is, formally reorganised in such a way that the participants can refer to legal claims in the case of conflict – where previously the conflicts arising in them had been managed on the basis of habits, loyalty, or trust. Finally, as the necessary complement to judification of potentially all social relationships, democratic citizenship is universalised. (Habermas, 1998, p. 75)
Following Habermas’s reasoning, there is a close relation between social structure and social law. Law takes a new meaning in modern society as a response to structural changes. Understanding the constitution of society is therefore a question of the relation between social structure, of social system and of the constitution and the administrative system of society. Reference to social system implies a holistic perspective on society. Systems theory was an attempt to disclose the natural order of things, forces and processes that
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operate independently of our individual actions: one should avoid metaphysics and making value judgements. In social science this inspired different theories, some of them close to systems theory, such as functionalism and structuralism.
