Polycentricity – Gerhard Guenther (and more)

I tracked down this concept which Bernard Scott (https://stream.syscoi.com/2021/05/23/in-defence-of-pure-cybernetics-scott-2019/ ) considers seminal. It’s exciting.
Guenther is a theorist of law follow Luhmann and (with others) is exploring what is the basis of law when there are multiple loci of legal authority (national, transnational, common law, labour law, human rights etc – all interplaying with each other), which cannot be hierarchically ordered (hence the link to MuCulloch’s Heterarchy – https://stream.syscoi.com/2021/01/24/heterarchy-a-big-concept-with-lots-of-connections-mcculloch-and-onwards/ ). Each is closed in its own system, open to its context, and yet they interact and interrelate, so any ‘trans’ legal contest has to be polycontextural. So finding a way to deal with polycontextural legal dynamics speaks to complexity, ‘warm data’, multi-contextuality and complexity, as well as to the deep roots of cybernetics – many of which were raised in response to my appeal a few weeks ago on LinkedIn: https://www.linkedin.com/feed/update/urn:li:activity:6793051142520762368/ and facebook: https://www.facebook.com/groups/2391509563/permalink/10158912991209564 )
(This always reminds me of Alexander’s ‘beautiful things have many centres’, and our yearning to recreate the beauty, circularity, and flows of nature).
And, as we inescapably propagate more and more contexts (https://stream.syscoi.com/2021/04/24/the-universe-is-greebling/), this becomes all the more important.
The final paper links to other areas beyond international law, worth a look if you don’t read it all!

I have pulled out enough quotes from the pieces I have found, below, to give a flavour. Another one of those big

Strangely, what looks like the ‘classic’ piece – Gunther, Gerhard (1980): “Life as Polycontexturality” – appears not to be available or directly referenced anywhere on the web – even in what I think is the original German.
However another seminal-looking paper is: Regulatory Law, Chronicle of a Death Foretold (1992) at

Click to access Regulatory_Law.pdf

And the book:
Transnational Governance and Constitutionalism (International Studies in the Theory of Private Law) – Joerges, Sand, and Teubner (2004)
Seems to legitimately be available online:
https://ug1lib.org/book/907634/b9a3c1 and http://ndl.ethernet.edu.et/bitstream/123456789/13584/1/16.pdf

Complementary Institutions and Reflexive Governance in Autonomous Social Law – Weiner (2008)
Teubner (1999) – following Luhmann, [McCulloch] and Gunther–refers to this complementarity of fragmented rationales/perspectives as polycontexturality
Amidst the increasing collaborative institutional ecologies in the parallel development of global capitalism, there is a vital undercurrent and sophisticated strategy of labor law. This is an unfolding the Philip Selznick (1969) saw as rooted in the ways contract and association have moving away from the traditional contract of individual prerogative as organizations. This is an unfolding pattern of institutionalized interactions would become central to economic and legal sociology, as John R, Commons, Harold Laski and the Weimar era critical sociologists had noted earlier in the twentieth century. This is an unfolding of self-organizing forms of reflexive law and reflexive governance separate from the logics of market nor hierarchy, and what is referred to as heterarchy — a cybernetic term sociologized over the last two decades by Guenther Teubner and David Stark. (See for example, Stark, 2000 and Teubner, 2003/04).
We are witnessing in our epoch of globalized capitalism the emergence, formulation, codification and monitoring of transnational conventions, standards and rules that come to function as constituted supervening norms. This is a norm elaboration increasingly negotiated by non-state actors. Again, this is a legal subjectivity of codes and protocols linked to a mutuality of being in an on-going concern, and extended by a pluralism of standard-setting procedures that develop conditional relations of trust beyond the traditional two person relationship of contract. Our understanding of contract is extended – from its original transactional sense into a relational sense, metamorphosed into a network of relational contracts intermeshed and operating recursively with its plural contextures and colliding discourses. With the proliferation of normatizing networks, there comes a need for effective interfaces, interoperability and complementarity. These autonomous non-statist associational networks multi-laterally regulate both intra-organizational and inter-organizational conflicts that emerge both within national bounds and which increasingly cross national borders.
We are challenged to represent a polycontextuaral sense of institutional complementarity in the reflexive self-organization of civil society associations. (See for example,Teubner ). This is an institutional framework within which seemingly incommensurable and colliding discourses can be regulated, if not reconciled. ( See also Robert Boyer, ) This is an unfolding institutional assemblage of negotiating social partners in a complex and heterogeneous network, rather than an ordering of holders of sovereign authority within hierarchy

Polycontexturality combines heterarchy with a need for coordinating the resolution of the colliding autonomous subsystemic regime logics of each network/heterarchy (or sector). (Teubner 2002; 2003/04a.) Teubner uses the concept of polycontexturality to account for the necessary recognition of each organizational node of a network of the related autonomous regimes that affects it or could affect it; as well as to build on the concept of ―institutional guarantees‖ for the autonomy of the complementary institutional nodes of networks. Guenther Teubner poses polycontexturality as the response to the fragmentation of our modern society into a plurality of self-constituting contextures of conflict regulation and self-limitation. Society exists only in the mutual recognition of the blindspot that comes from one‟s own contexture, and that a unified noncontextural perspective (pace Schmittian homogeneity)is unavailable. There are plural modes of discourse, and frames of reference. These contextures emerge as codes and programs of internal governance beyond representative state apparata, transcending the traditional binaries of State/civil society and public law/private law. Polycontexturality enables the overburdened private law subsystem reflecting social differentiation/fragmentation to respond to the particularities of institutional contextures within civil society as well as to the colliding discursive regimes they engender. How can private law regimes calibrate their conflict regulation procedures to the plurality of discourse regimes? Beyond the affirmation of diversity, there is the need to protect the complexity/differentiation of the global network society Manual Castells describes as being constituted by the space of capital and information flows.

Teubner‘s polycontexturality approach conceptualizes an emergent ―heterarchical‖ yet institutionally complementary and interconnected network –type linkage at the level of organizations and professions. Teubner looks to a multiplicity of subsystemic subconstitutions, where private law is constitutionally constrained to take of its diverse social systemic context (hence polycontexturality). Danielo Zolo (1992), adds a new level of social rights–the rights of complexity, the right to preserve practices/processes necessary for social systems to retain pattern maintenance. These can be ethnic of linguistic, community or neighborhood based, craftsman or expert based.

Teubner describes reflexive law as a new evolutionary stage wherein the law of a particular subsystem realizes its limits with respect to the legal culture and bench-marking by another subsystem. Reflexivity is understood as subsystemic self-referentiality. Each subsystem is autonomous in its being operatively closed, but is polycontextural in its being cognitively open

Review of Christian Joerges, Inger-Johanne Sand, and Gunther Teubner, eds., Transnational Governance and Constitutionalism: International Studies in the Theory of Private Law (and others) in International Journal of Constitutional Law – Sajó (2005)
“As Oren Perez argues (p. 234), there is no single constitutional narrative in the debate. Thus, as he sees it, the globalization–legitimacy–democratization triad is based on indeterminate concepts; hence the need for polycentric solutions.”

Gunther Teubner argues that the needs of rationalization in an increasingly compartmentalized, polycentric world justify the “overthrowing of the model of an exclusively political constitution” (“Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?” p. 10).

Between Law and Social Movement Organizations: The Cycle of General Norms in World Society – Hanna (2015, PhD thesis)
“In developing a very bold concept of law and constitutionalism at the global level, Teubner is commonly acknowledged as a ‘leading exponent’,14 presenting ‘one of the most highly evolved positions’ in the field,15 and as someone ‘at the forefront’ in developing an inspiring sociological theory of law that engages the enormous complexity and fragmentation of world society.16 However, what really makes Teubner’s work particularly relevant to the present study is the way in which he has, for decades now, developed a concept of law which has consistently engaged with the ‘dark side’ of functional differentiation and the destructive side-effects of such systemic autonomy which generate highly generalized norms in world society.17 In a sense Teubner is consumed with- and driven by questions about the ‘implacable compulsion for growth’ of self-reproducing social systems,18 the destructive tendencies which result from this, and how law can address these issues in a heterogeneous and polycentric society. Arguably it is his prolonged engagement with these fundamental questions, and the sophisticated theory of law he has built up in answer to them, which makes Teubner such a controversial and exemplary figure in this field. Teubner’s contribution is specifically located in his explicit recognition that the contemporary significance of human rights issues lie, not in the traditional concern for the protection of individuals against the misuse of political power, but in the ‘broader problem of protecting global societal differentiation and offsetting the external, negative consequences of globalised function systems for society at large, the environment and individual persons.’19

Tracking Global Corporate Citizenship: Some Reflections on ‘Lovesick’ Companies. (Thompson), 2006

Click to access 7032968.pdf

“For the likes of Gunter Teubner (1997a, 1997b, 2002) these developments are a key indicator of a wider radical transformation of the international system wrought by the forces of ‘globalization’. In Teubner’s new world globalization finally breaks the link connecting the law to democratically constituted political discourses and practices. It produces a double fragmentation; cultural polycentrism and functional differentiation. New ‘linkage institutions’, like those mentioned immediately above, create a new law directly by transjurisdictional operations without being translated into formal political issues. They escape and evade regulatory claims of both national and international law and practice, and form a legal sovereignty of their own. This global law has no legislation, no political constitution, no politically ordered hierarchy of norms. It is a ‘polycontextual’ law; law with multiple sources displaying no unifying perspective, produced by different mutually exclusive discourses of society. Such a system of recursive legal operations works in terms of more than one code, combining conjunctural and disjunctural operations, connected through transjurisdictional operational networks. It displays a heterarchical multitude of legal orders rather than a clear and traditional differentiation into legislation and adjudication; a plurality of law production comprising a patchwork of ethnic and religious minority laws, rules of standardization, variable professional disciplines, contracting, intra- and intergovernmental rule making, etc. Curbing the abuses of power – by the rule of law in the traditional sense – will not help in civilizing this many headed hydra. Indeed, we must face the impossibility of constitutionalizing this legal multiplicity in the language of legal restraint or the arbitrariness of the sovereign. In the final analysis, there is no sovereign power left.”

The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders (Backer), 2016
“Gunther Teubner once asked: “after deconstruction, what is left of law as a hierarchy of rules, founded on a political constitution, endowed with an institutional identity, based on the distinction between legislation and adjudication and legitimated through democratic representation and constitutional rights?”34 He suggested that “should we search for it in the direction of a ‘polycontextual’ law that would not be hierarchical, but heterarchical, a law with multiple sources, a law without a unifying perspective, a law that is produced by different mutually exclusive discourses in society?”35 Yet that poly-contextualism remains hidden under the veils of the presumptions of the ideologies that support the state system of political organization. But more important than the presumptions of state ideology are the methodological techniques used to support them in a way that hides both their presence and the organizational priorities they represent. One of the great perversions of the 21st century is the merger of ideology and social scientism.36 This perversion arises in the way in which each hides its effects on the other, and that they together seek to present something that is both neutral and natural.37”

Finally, this looks interesting from the Abstract – but is in Portuguese:
Autopoietic Systems, Transconstitutionalism and Polycontexts: a theoretical look – Souza, (2016)
This text aims to contribute to the use of new theories for the observation of post-modern society. It is important to emphasize, this is not the only theory which we have available, but, clearly, in our point of view, the only one that allows a wider and deeper observation of society’s complexity. Starting from this observation, is is assumed society is highly complex as it has multiple ways of showing itself. Because of the supercomplexity of nowadays societies and of the large possibilities, it is brought a way to handle complexity, the systems. These systems sort this complexity from a certain kind of perspective on the kind of functional differentiation. This way, because of the wide range of situations that can be observed, imagined, and that can happen, we seek aid in theories of Policontexturality, from Gunther Teubner and Transconstitucionalism from Marcelo Neves, in order to understand the supercomplex postmodern panorama, taking us to a somehow clearer understanding of the society we live on.

Toward Polycontextually Sensitive Research Methods – Shapiro, Von Glinow, Xiao (2007)
“In this paper we introduce the concept of ‘polycontextuality,’ which refers to multiple and qualitatively different contexts embedded within one another. We distinguish polycontextuality from the singularly contextual types of description typically provided by social scientists, and use the case of China to elucidate polycontextual phenomena. Polycontextuality can include verbal- and non-verbal nuances whose understanding is rooted in local, cognitive, emotional and even spiritual references – most of which cannot be easily observed or historically studied. For this reason we recommend the polycontexual sensitive research method to supplement the scientific deductive research typically designed to study observable phenomena based on a singular context (e.g. verbal) that are controllable by the researcher’s stimuli and/or measures. Actions for increasing scholars’ polycontextual sensitivity are suggested, and guidelines for the scholar interested in doing high quality indigenous research are offered, using the case of China for illustrative purposes.”
This also suggested a link to Keekok Lee’s contextual dyadic thinking: https://stream.syscoi.com/2019/03/02/contextual-dyadic-thinking-lee-2017/