Keynote
Professor Dr. Dr. Udo Di Fabio
At the German Institute for Japanese Studies, Tokyo
28 November 2019
Introducing the research approach of the FnG1

A.

How does modern society work?

1. Images of man and society between norm and reality
How does modern society work? This question is not trivial. Where does society
exist? What is the central reference? The old national society, which 100 or 150
years ago was still the natural frame of reference: it has opened up andinterlocked internationally. But the global society is complex.2
Another problem is that every description of social reality is a social
phenomenon, a product of society. Where should the neutral position be fromwhich it can be observed? Self-images are more difficult to obtain than images ofobjects that can be perceived from a distance. Every image of society becomespart of a network of preconceptions and interests – be they economic, politicalor ideological. Normative ideas of what the world should be like are one thing.
Descriptive analyses of social reality, i.e. statements on how the world is andhow something works, are something else. But both classes of statements, thenormative and the descriptive, are inextricably linked. It is not possible toanalyze the world society completely descriptively, sociologically oreconomically, without being guided by fundamental, paradigmatic images. Such
preprints possess a decisionist or normative core. There are normative
foundations of our thinking that secretly influence and subcutaneously guide
every sober description, every data analysis. We measure social inequality.3 But
1

The research approach is developed further in Udo Di Fabio, Herrschaft und Gesellschaft (Ruleand Society), Studienausgabe 2019.
2Ronnie D. Lipschutz, Reconstructing World Politics: The Emergence of Global Civil Society,Journal of International Studies, Vol. 21, 389-420; Peter Kivisto Multiculturalism in a GlobalSociety, 2002; John Keane, Global Civil Society?, 2010; Niklas Luhmann, The World Society as a
Social System, International Journal of General Systems, 1982 131-138.
3

Kathryn Neckerman, (Ed.), Social Inequality, 2004; Aage B. Sørensen, The Structural Basis ofSocial Inequality, American Journal of Sociology 101 (5) 1996, 1333-1365.

1why do we think this is negative and why do we see a need for action? Why is
the convergence of living conditions or growing conformity not a problem?
People need images. We all work with images of people or of society. Oftenthese are political or moral models, beacons and order grids of the discussion.
Every form of political rule is interested in such images. But even a dictator
cannot produce or control self-images of a society at will. Since the beginning of
the modern era, typical images of people and the world have developed thatwere tailored to the functional conditions of the new type of society. Normativemodels may be stubborn, but in the long run they must also be compatible withsocial reality. Otherwise either the models will fade or reality will be forced toadapt. In the Christian Middle Ages and in Islam there was a ban on interest.
Unlike today in the phase of negative interest rates – although here too a ban
has recently been demanded – a modern economy with its hunger for capital
could not have developed had risky loans not been profitable. One can observe
how the ban on interest was undermined or circumvented because the pressureof a dynamically developing monetary economy brought about this. But one canalso find evidence that religiously motivated adherence to the ban on interest orother practices of religious ethics hinders economic development.4
In modern times, images of society have developed that are still influential
today.
••- A society can design itself as a sum of self-determined persons. Each
person pursues his or her own plans, but must perceive the other person
at least as an object, but regularly also as a subject. Even with a strong
methodical individualism, this requires a social order (such was theargument of political philosophy since Thomas Hobbes). In this view, theindividual person knows best what is good for him or her. Everyone is
responsible for their actions and for their free development as a person.
Each individual with conscience and self-confidence is ultimately also thereference for every greater order. This is regarded as the liberal view ofthe world.
Society can also be viewed from the perspective of any kind of collective
and can be measured from there. History experienced the strong nation,
the holy nation, or the state which in its absolute reason was superior toeverything else. We know the reference of religious or culturalcommunities, the rule of a theocracy. It is always revolving around some4This is the repeatedly discussed thesis in Max Weber, Die Protestantische Ethik und der Geist
des Kapitalismus, 3rd edition, reviewed. 2010; see also Thomas Ruster, Der Kampf um das
kanonische Zinsverbot in der frühen Neuzeit, in: Richard Faber (ed.), Katholizismus in Geschichte
und Gegenwart, 2005, pp. 97-108; Justinus C. Pech, Bedeutung der Wirtschaftsethik für die
marktorientierte Unternehmensführung, 2008.

2••grown or constructed collective order whose preservation and selfassertion are crucial. This order, its harmony, its power, is then placed in
the centre, its value highly priced. For in the collectivist perspective it is
this order that makes the individual human being what it is, because heor she existentially or ideally depends on it. Old conservative or
theocratic worldviews, autocratic regimes, but also democratically
legitimized state or international technocracies draw their argumentsfrom this collectivist pool.
A society can also be understood as an essentially economicallydetermined association, as a class society based on private property that
submits to the anonymous laws of the market, of capital and of its
economic utility. And this reference can be linked to a moral argument ofinequality if this economic order exists only for the benefit of the richprivate owners and to the detriment of the dispossessed. Marxism draws
its arguments for accusations against the existing conditions from thisidea and creates a utopian picture of classless society. Politicalcollectivism, which stands behind the critique of economic power
relations, is concealed by the distant goal of free association - which
would actually be liberal society again only without private property. For
the decisive collective, until the distant ideal state is reached, it is theoppressed and disenfranchised class in whose name one acts.
Through the current concentrated perception of global warming, the oldcontrast between mankind and nature becomes topical again for the selfdescription and self-design of society. Nature can be understood as an
inviolable order of creation, its preservation and care as a moral
reference for human action. This is the ecological, the "green" position
that tells of a society that has subdued the earth, destroyed it over andover again and endangered all natural foundations, for which reason it
must finally be transformed into a nature-compatible society.

All these positions are politically shaped or exploited models that tell how asociety actually (in fact) functions and how it should (normatively) function.
Actual functioning is often a discussion led by economists, sociologists or politicalscientists. The normative questions are the responsibility of theories of justice.
Such theories are linked to a politically or religiously founded morality or to thebasic normative models of constitutional law. Constitutional law is sometimes –in the USA or Germany – understood as a theory of society in itself, when thevalues of fundamental rights or the rules of a democratic society are discussed.
Of course, no constitution is a theory of society, but the rules of the constitution
reflect a certain image of man and of society.

32. The self-referential play of systems and structural coupling throughinstitutional patterns
The Research College for Normative Social Foundations in Bonn wants to build abridge between the description of the functioning of society and the discussionof how a society should be constituted. The description of the functioning ofmodern society is based on modern social science findings, above all on thesystems theory approach of German sociologist Niklas Luhmann.5
Society can be perceived and analyzed from different perspectives. Action
theory, for example, starts with the intentions and actions of individuals who canbe observed. This is the micro level of society. In systems theory, on the otherhand, it is observed how the major functional systems such as economy, politics,law, science or religion "behave". These large social systems follow their own
specific operational logic. They organize themselves according to their own laws.
They are self-referential. Which relationships arise to each other, how are theyinterconnected or coupled: These are topics of a description on the macro level.
The Research College assumes that there is a connection between theseperspectives, that institutions enable rule-guided behavior adaptively between
the will and the needs of the individual on the one hand and the functional
requirements of large systems on the other.

Action/actor level→ Institutions ←Functional social system

For this sociological approach, actors (people) are personal systems that findtheir decisive place in their own consciousness. Communication between apersonal system and a functional system (e.g. the law) is only possible throughinstitutions, i.e. rule systems and behavioral guidelines that have at least twosides. Institutions are accepted normative orders that are connected with a life
practice. Institutions are necessary for the structural coupling between
otherwise very independent functional systems of society, but also between
functional systems and personal systems (individuals/personal consciousness).65

Niklas Luhmann, Theory of Society, Stanford 2012. The original was published in German as
Niklas Luhmann, Die Gesellschaft der Gesellschaft, 1997.
6If, for example, private autonomy assumes that people are legal subjects whose declarations ofintent are decisive for bringing about legal consequences, then this is not only a topic of law, but
it also establishes connections to economic operations that make the functioning of markets
possible in the first place, especially in connection with the institution of private property. But4

Such an institution, on a very abstract level in the relationship between socialsystems and personal systems (individual consciousness), is language, whichforms with its grammar its own order and in its field of application its own
practice, which makes communication both possible and limited, but which also
structures thinking, i.e. individual consciousness.7 Lawyers are not linguists,
which is why they are familiar with far more concrete structural couplings which
are called institutions in law. Private autonomy or contractual freedom havesomething to do with human self-perception. At the same time, they are decisive
focal points for the economy and for the law. Private autonomy and contractual
freedom also make the political system connectable via the institution ofcitizenship. Marriage, too, is perhaps a somewhat faded fundamental
institution8, which in the past has fulfilled much more clearly economic, culturaland political functional needs and which, with a certain semantics in bourgeois
society, has been deeply anchored emotionally in people's everyday lives.
Legal institutions such as private autonomy or democracy are linked to anormative image of man (that of a self-determined subject). Anyone who makes
a declaration of intent, such as the acceptance of an installment credit
agreement offered, can regard him- or herself as sovereign and learn to bearconsequences. For its part, the legal system operates with a dogmatism thatconsiders it decisive what legal subjects have declared. Consistent statements
about legal consequences are then derived from this. The awareness of one's
own decision-making power and the legal consequence of a binding effect are
not the same, but they are structurally coupled in the institute of private
autonomy. The modern understanding of democracy follows this model andconsiders the majority's decision to vote not only for functional reasons(decisions have to be made some way), but normatively indispensable, because
it is the starting point of all political legitimation: all state power emanates fromthe people.9
Institutions can be differently developed and function differently. They are often
surprisingly resistant to processes of change, but they can of course change
themselves, be replaced by something else or even be destroyed without
private autonomy must also be able to connect institutionally to people's mental states ofconsciousness, i.e. people must also see themselves as privately autonomous actors and connect
the whole with a certain image of man. Otherwise, the necessary coupling functions will be lost.
7

Niklas Luhmann, Die Gesellschaft der Gesellschaft, 1997, S. 108 f.

8

Nicholas Bala, The Debates about Same-Sex Marriage in Canada and the United States:
Controversy over the Evolution of a Fundamental Social Institution, Brigham Young University
Journal of Public Law (2005-2006), 195 ff.
9Art. 20 para. 2 sentence 1 of the Basic Law of the Federal Republic of Germany.

5replacement, with considerable consequences which are not always immediatelyapparent. Coupling services for the political system of authority can be provided
by institutional ideas of democracy, but also by the institution of the state as arational body of authority, which does not necessarily have to be democratic orconstitutional.
It is always characteristic of fundamental institutions that they ultimately makesmooth interaction and cohesion of society possible. Western society, forexample, can only function if private autonomy is anchored as an institution
jointly with private property. An institution is always normatively defined as asocial pattern of behavior, whether through moral concepts or legal or religious
safeguards. But every institution also needs everyday practice; it must beaccepted and practiced by people, possibly "believed" in in a transcendental,
civil-religious sense.
Many people in Germany lose the view of private property as a prerequisite forself-determined life if their savings do not earn interest and the inflation rate
slowly but steadily destroys their monetary property. They experience that asowners of real estate they become nominally rich through rising prices, but that
their freedom of action does not increase as a result. Nobody gives up real estate
ownership if they only receive book money in return which does not earninterest in traditional forms of investment. So far, Germans have not only
traditionally liked to save money, they also like to be tenants. The state has
accommodated them with a tenancy law that has considerably limited theownership powers over living space (social tenancy law). Today, some even wantto nationalize the housing industry so that rents in urban areas remain low.
Another example is pensions, which have always been dependent on the amountof one's own contributions, qualified by the German Federal Constitutional Court
as a property position.10 Today, the connection between this property position(entitlement) is increasingly being broken, because even without the equivalentof corresponding contributions, a basic pension is financed with tax revenues inthe existing social security system. This in turn weakens the link between
property positions and the standard of living. If we do not pay attention here, theconnection between individual performance, savings and subsequent gain in
freedom resulting from a self-created basis of existence will disappear frompeople's minds. The idea that the state is the source of prosperity and of a goodlife then takes the place of this institution of private law society. Sociologically,
this only shifts the normative system from the individual to the collective focus,
but with considerable, unpredictable consequences for the functioning andcohesion of modern Western society and for the practical foundation ofdemocracy.
10

BVerfGE 64, 87 (97 f.); 100, 1 (44).

63. Constitutional law and interdisciplinary analysis of institutions
Constitutional law can be understood as a legal mirror of the fundamental
normative matrix of Western societies, but also as a compass that points the way
with fundamental institutional models. The aim of an interdisciplinary, betterinformed and reflexive jurisprudence is to make a contribution to socialenlightenment. Major social issues such as the digital transformation of theworld, the hasty development of artificial intelligence, ecological transformation,
new geopolitical power relations, erosion processes of democracy andstatehood, changes in the creation of economic value and everyday social
practice are no longer understood to an appropriate degree in science andsociety and are no longer described in such a way that strategic, well-considereddecisions are possible. Today, more than a few decades ago, it remains unclear
what a fair World Trade Organization should look like in the system of unilateralthinking. What will be the future of central bank policy? What are the normativerequirements of fundamental rights and democratic values, and what are thefunctional and economic consequences of the current policies of large Western
central banks? Does Western individualism with its idea of man need an
institution such as cash? Is it right that the salvation of the world climate should
no longer be based on individual ethics because there is not enough time? Howmuch freedom of decision is to be left to artificial intelligence? Will it be possible
in the future to grant AI its own legal subjectivity, or should such a thing beconsidered for higher animals as well? Is the introduction or strengthening ofcorporate criminal law compatible with the personality of our legal system? Is
the introduction of an unconditional basic income institutionally meaningful or
dangerous?
All these questions cannot be answered by law alone, nor by sociology or
economics or social psychology on their own. Ultimately, we need a better ability
to recognize institutions as fundamental, to discuss them and to critically analyzechange processes affecting them. Only then can the danger be counteracted that
Western societies, driven by their high efficiency, lose sight of their own
institutional foundations and thus endanger themselves.

7