请将“The demarcation produces a similar problem to that in Althusser’s structuralism, of ‘abstracting the agents, as if there were ... just “place”-holding phantoms’.i26 Elaborate studies of specific conflicts and the differentiation according to forces, factions and alliances become obsolete.
Ultimately, however, the abstraction cannot be consistently sustained. For who programmes the code? Who advances differentiation globally? How are contingency and change (‘evolution’) to be explained? Therefore the justification for the ‘function’ of the legal system also remains contradictory; thus Luhmann certainly notes initially that he does not mean by ‘expectations’ that are to be stabilised the actual state of consciousness of a given individual, but only the temporal aspect of the meaning of communications.127 But his further explanations are orientated towards concrete subjects. ‘One’ could thus live better, ‘one’ would have to adapt, ‘one’ tries to prepare oneself for the future,
etc. At least to establish plausibility he has to briefly set aside the strict separation of society and ‘human subjects’ at this point. Here evidently the thing itself asserts itself - against the author’s intention, similarly to Kant’s attempt to explain, unempirically, the transcendental subject that is relieved of all empiricism.128
3.3	The Grand Narrative‘System’
The unresolved problem of the actors surreptitiously sneaks back into the theory. Thus, there is notably at least one basic postulate of systems theory: ‘There are systems’. The discourse on the system itself is precisely not re-introduced in comparison to other, non-systemic subjects, but singularly occupies the summit of the pyramid of concepts.129 The following constructivist deduction only aims to demonstrate theoretical requirements to be able to speak of such a system, in this way: when operative closedness - then the system has to provide its own reproduction - then the legal operations have to connect with each other. What is demonstrated is ultimately a necessity of thinking. That is, the ‘grand narrative’ of systems theory is called ‘autopoietic system’. Thus, ironically, as Andreas Weber notes, ‘in subjectless systems theory a subject-logical thinking of a new, subtle kind persists..., that is in the absolutism of the autopoietic system’?30 Precisely this system should provide a guarantee for Luhmann against ultimate metaphysical explanations beyond the social. That autopoietic systems produce and reproduce their constitutive elements through their constitutive elements themselves, was precisely meant to cut off the connection to biologistic, ontological or religious premises. Yet this is countered in renouncing a genealogical deduction and implementing the system. Weber assumes that Luhmann intentionally ignores the problem, because he is primarily concerned with excluding the subject from the development of social theory.131
However, one has to assume that this forms his hidden normative premise. Before the autopoietic turn this was still readily apparent: ‘Our existence depends on functionally differentiated large scale systems of information processing’, he states.132 ‘Within them and through them we have to relate to the world’. Certainty only exists as long as they remain operational, and to secure precisely that is the role of law ‘and its order is the just’.133
Interestingly, Habermas and the legal systems theorists share this concept of the system, as will become apparent below. It can however already be shown at this point with Habermas’ critique of Teubner. He objects that the concept is inconsistent within the terms of the theory itself [theorieimmanent], for the common, that is macro-social communication, which all systems use in Teubner, is only objectively identical and precisely not from the perspective of one of the two systems. There is, according to the premises of systems theory, no observer’s position which can identify a communicative event as the same.134 Teubner’s suggestion therefore does not sit well with the conceptualisation of law as an autopoietic system; he is upon closer inspection more of an indication of the necessity of a theory of communicative action, ‘which distinguishes a “lifeworld” bound to the medium of ordinary language from “systems” steered through special codes yet adaptively open to the environment’.^5
Habermas thus believes that he ‘catches’ Teubner in already admitting underhandedly that the necessity of a general language refers to a medium which is not entirely systemic, but encompasses the systems. But this line of reasoning is in turn only necessary for Habermas because he conceives of the functional systems which are differentiated by special codes very similarly (even if for him they are environmentally open) - that is, in such a way that action is also stopped in them. Any possibility of communicative practice therefore has to be transferred into the ‘life world’ and its vernacular (see further details below).
Both theories grant the systems a problematic subject character. For in this manner the reification of social conditions is explained rather plausibly on the operative level. Subsequently, however, those social conditions and their actors, between whom the relations exist, are abstracted. Because finally only the product of human action is ‘observed’, but no longer the practice itself; also the mode of description is reified, the system acts. In this way the impression that the systems are completely remote and impenetrable is created.
3.4	‘Queer Observations’ - Society without Gender'
As the theory spirits subjective practice away from society, it cannot conceive of gendering as a process that structures society. Thus, it is hardly surprising that gender relations are irrelevant in the great works of legal systems theory. The relationship of systems theory and gender studies is according to Ulrike Teubner one of mutual exclusion.137 A modest number of more recent approaches in gender studies shows that it is considered as a possible subject of discussion, and even relatively parallel to current discourse theory or interactionist feminist theoretical approaches8 - making the fact that it is blocked out in legal systems theory all the more conspicuous.

But the blind spot is no accident; it rather has ‘system’. In a 1988 essay Luhmann directs a polemical lesson at ‘women’s studies’, where he explicitly addresses gender relations: only premodern societies, in particular the stratified ones, had oriented themselves in their character according to differences such as age, social class, or indeed gender, while those distinctions no longer made any ‘functional sense’ after the shift to functional subsystems:^9
Modern society presents a completely changed image, and for precisely this reason the distinction between men and women, provided that it does not have specific relevance for the functional system, that is allows for the creation of families, is now only suited to stimulate social movements.140
Luhmann does not deny the empirical effectiveness of the differences, but those are now only ‘queer observations’, which the functional systems can use on the level of the programme when this ‘makes sense’, for example in the economic system in the form of (sexist) advertising.141 The gender category suffers a serious loss of function, when social systems form solely based upon the principle of functional differentiation.^2 Individuals are now situated in the social environment ‘and only from moment to moment, only at the moment of their participation in a function specific communication ... included in the various social sectors’.143 This means then that from the instant that ‘no longer hierarchy, but heterarchy, no longer a vertical, but a horizontal order determines the social structure of society’, the differences of women and men ‘are sooner or later no longer needed’.144 The functional differentiation thus creates ‘effects 
of symmetry’, so that the determinism of the gender stereotypes is made ‘lastingly irritated and relativised’ by the function systems of modern society. Those cover the stereotypes and are orientated in a more open manner, so that they ‘promise in the long run the better adaptive capacity and are therefore more successful’.145
The attempt to integrate gender relations into systems theory produced a surprising historical teleology, because of the transfer of a question which can only be clarified empirically into a temporal-diagnostic historical dimen- sion;146 ‘in the long run’, countered Keynes ironically, ‘we all are dead’. This teleology is produced by a short circuit, in which, based on the logic of the socially constructed and contingent nature of a hierarchical relationship, its disappearance is deduced as not only possible but necessary. All social artefacts, the function systems included, are contingent. Why then are they considered stable by the systems theorists, whereas gender relations disappear? This stems quite clearly from Luhmann’s androcentric perspective. Indeed, he shares this perspective at this point with the Marxist theoreticians whose works were written prior to the ‘crisis of Marxism’, for there this type of argument became known as the problem of the ‘side contradiction’. Thinking in terms of side contradictions is obviously not limited to the Marxian tradition. While they had to realise that patriarchy is not derived from capitalism, but that it is merely articulated with it, systems theorists still believed in the year 2004 that it could not be elaborated based on functional differentiation either. At least the former consider this mode of description to be, by now, at best problematic and at worst downright Old European. As systems theory catches up with the gender discussion internally, it asks instead why it is possible to maintain the gender distinction stably, that is asymmetrically, under conditions where it has become dysfunctional with regards to the primary form of differentiation,^7 or if there are ‘“secret” criteria for inclusion’.^8 Here the answer remains rooted in thinking in terms of side contradictions; the loss in function takes place on the ‘macro-level’ of modern society, while the gender difference remains a ‘secondary effect’ on the level of organisation and in particular that of interaction:^9
On the level of social structures, the gender difference has lost its structuring function. It remains, however, conspicuously operative in interactions 
... The pivotal point of gender inequality is to be found in the production and reproduction of those stereotyped persona.150
And with this the circle is closed. For, if gender relations are irrelevant on the social level, then their exclusion, for example in Luhmann’s legal theory, is entirely justified. Hellmann also explains Luhmann’s lack of interest in gender studies in this way: ‘If Luhmann does not accord any greater significance to the problem of gender in social theory, the reasons for this might also be based in social theory’.151 Gender is only one category besides many others, while Luh- mann’s research interest was primarily related to social theory, so that ‘a lot, which is not directly connected to it, could be disregarded’.^2 Thus he succinctly sums up the gender-specific scientific division of labour and tendency for exclusion, which Gudrun-Axeli Knapp and AngelikaWetterer aptly describe in this way:”翻译为中文