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Pfersmann, Otto --- "Ontological and Epistemological Complexity in Comparative Constitutional Law" [2010] ELECD 117; in Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim (eds), "New Directions in Comparative Law" (Edward Elgar Publishing, 2010)

Book Title: New Directions in Comparative Law

Editor(s): Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443181

Section: Chapter 6

Section Title: Ontological and Epistemological Complexity in Comparative Constitutional Law

Author(s): Pfersmann, Otto

Number of pages: 18

Extract:

6. Ontological and epistemological
complexity in comparative
constitutional law
Otto Pfersmann
To state that law is complex seems not to make a very contentious claim. But,
what does the claim mean? According to Niklas Luhmann's famous thesis, law
has as one of its main functions to reduce complexity by stabilising expecta-
tions.1 Luhmann (1987: 6) defines complexity as `the totality of possibilities
of experience and action the actualisation of which a context of meaning
admits of'. He distinguishes an unstructured, amorphous, from a structured
mode `to the extent to which possibilities exclude or limit each other'. Law
especially through positivity and variability (Luhmann, 1987: 210) can thus,
according to him, increase both complexity and `possibilities for a meaningful
selection'. Thus, though highlighting the ambiguous nature of law, this
account remains fundamentally optimistic.
To this view, I shall oppose a slightly different concept of complexity (I)
which I shall try to apply to the domain of comparative and more specifically
of comparative constitutional law. This discipline may contribute to reduce
complexity and hence to resolve problems (III). It may often add artificial
complexity. It does so through conceptual confusion (II) and misrepresenta-
tions of its object (IV).


I. COMPLEXITY AND THE PRINCIPLE OF
AMPHIBOLOGY
Law can equally reduce and increase complexity and it can do this both at the
ontological and at the epistemological level. However, the concept of
`complexity' has to be reformulated in a different way.
First, the concept introduced by Luhmann is misleading. Instead of indi-
...