Amstutz, Marc --- "The Genesis of Law: On the Paradox of Law’s Origin and its Supplément" [2011] ELECD 246; in Zumbansen, Peer; Calliess, Gralf-Peter (eds), "Law, Economics and Evolutionary Theory" (Edward Elgar Publishing, 2011)

Book Title: Law, Economics and Evolutionary Theory

Editor(s): Zumbansen, Peer; Calliess, Gralf-Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448230

Section: Chapter 10

Section Title: The Genesis of Law: On the Paradox of Law’s Origin and its Supplément

Author(s): Amstutz, Marc

Number of pages: 22

Extract:

10. The genesis of law: on the paradox of law's
origin and its supplément
Marc Amstutz

How did law originate? Was it by distinguishing itself from that which was not lawful?
But then, which came first, lawfulness or unlawfulness? Or is there another possibility?
Ex facto ius oritur? As so often the case, it is Luhmann who takes the most radical stance:
law has no beginning, it starts from the middle. `Legal practice,' he writes, `always oper-
ates in situations where the law is an historical given, since otherwise the idea that it is
distinguishable as legal practice would never even occur to it. Thus, from an historical
point of view, law does not have any beginning; there are only situations in which it is suf-
ficiently plausible to assume that the practice of observing legal norms also existed prior
to that time.'1 Law begins, in other words, with an act of differentiation, perhaps no more
than the creation of a before and an after, a construct that, like all such distinctions, is
possible only in hindsight.
In systems theory, every social system requires a primary distinction on the basis of
which it operates. The political system distinguishes between power and the lack thereof;
the economy between what represents value and what does not; art between what fits
certain aesthetic criteria and what fails to do so. For the legal system, the primary distinc-
tion upon which it operates is that between the lawful and the unlawful. ...