In my approach, law has to be tentatively reconstructed from its understanding in Lacanian psychoanalysis as the universal rule of Debt under which desire as such is constituted. Social communication, the other fundamental concept, corresponds to the systems theoretical understanding of social intersubjectivity as a self-organizing poiesis of meaning originating from the matrix of double contingency which generates all possible modes of structuring expectations and actions.

My chapter proposes a recasting of both concepts and in so doing reveals the crucial link existing between them. They then appear in a sense as complementary, social communication being enlightened by the Lacanian conception of a ‘reciprocity of feelings’. At stake is a structural reciprocity in which ego and alter are involved in a process of mutual actuation. It is a process of subjectivation where no subject pre-exists the other, but both are produced by the mirrorings and entanglements of their demands and desires.¹

The structuring of the space of their reciprocal constitution rests on an all-supporting axis which establishes and applies the rule of Debt. It supplies the ground for symbolic exchange as such. This axis is the Father-Instance as the Authorising principle of law and the binding principle of social communication as such. The crisis of modernity is the process of decline of that instance. It culminates in its utter failure.

Much like Luhmann, Jacques Lacan situates the problem of normativity, that is of the symbolic order as such, less in the possible subsistence of law and of a functioning legal system, than in the vanishing of an instance which could generate and legitimize it. It is not Law as the demanding Other that imposes, in normative inflexibility, the rule of Owing (a price) for any actuation of desire which is imperilled or losing presence and concretion. It is the emergence of an acute consciousness of a paradoxity of law which is at stake: it leaves law uninhibited in its function and efficiency, but inscribes everywhere in it the sense of paradox and of incomplete and ungrounded meaning. This has to be directly linked to the fading of the figure of an Other in the Other (of Law) as the arbitrary and violent instance, out of which Law itself is born.

There is a need to de-spatialize such figures of thought in order to free the perspective for a vision in which law and society may appear in their co-originarity. Law is not only fundamental in society because social communication would come to a halt without a minimal congruence within the expectations of those who take part in it. A breakdown of law is always conceivable and has often occurred in the history of more or less large and strictly organized societies. Such breakdowns have, in all cases, utterly dysfunctional consequences and make all sorts of transactions profoundly insecure. However the reference of society to law is not only functional.

The social function of law is like all other functions around which social communication is operatively crystallized in modern (that is: functionally differentiated) societies necessary and non-substitutable. Our insistence on the originarity of law must be distinguished from that which systemist theory puts upon the necessity and non-substitutability of functions with which modern communication is differentiated. That means that the originarity of law is more than that self-substitutability (that is, non-substitutability except by itself²), characteristic of all functional subsystems. In effect, it would be easy to develop a similar argument as the one I am unfolding for law and to claim that, let us say, politics or economics are cardinal subsystems without which society would not be able to sustain itself in being. Without power, without means and relations of production, without collectively binding decisions or goal attaining co-operations, a collective action system cannot subsist. Marxist theorists would argue that ‘material life’ is the universal and constant foundation for the formation of collective entities. That is why one should beware of replacing a claim of materialism by one of legalism. Originarity has, in our understanding, nothing to do with a criterial indispensability. Human societies have lots of components and contexts without which they would not be able to exist. However, law is at the root of that which makes human societies something else than simply social constructs – which are thinkable as mere organizations of congruent communication involving a multitude of individuals and functioning in a variety of ways, like those of certain animal species which share with human ones the basic necessities of an organization of material life and a crystallization of power.

The legal theory of Niklas Luhmann tries to come along with the originarity of law without transcending the horizon of function and functionalist thought. But it re-encounters the co-originarity of law and society at the other end of its descriptions and theoretizations of legal facts as operations of a self-referential legal system, fundamentally autopoietic and closed on its own specific logic. It is the emergence of paradox which leads back to the problematics of the simultaneous advent of law and communication. In previous essays on Luhmann’s legal theory,³ I have had the opportunity to show the regressive-fundamental nature of the paradox of law and its embranchments into subparadoxes or constituting structural moments in which it unfolds itself. At this level the theory re-encounters the originary dimension of law without spelling however the equivalence of meaningfulness and legality. Luhmann does not ‘cross’ to that dimension in which meaning and ‘justness’ (justesse), significance and measure, being and right (themis) are equivalent.

In effect, law is at the foundation of meaning as such. In its paradox, law regresses to the foundation of the social validity of meaning and has to be identified as that foundation. Meaning and the world it brings to significance cannot come to minimal firmness and univocity if some selection of meaningful, meaning-endowing projection is not accomplished and socially authorized. Law is not an institution nor is it instituted. It is the instituting instance of meaning beyond the imaginary compossibilities of anything with anything, beyond the hallucinatory satisfactions through the arousal of soft images of fluid, interpenetrating and fusing entities. It is the origin and the advent of the real world one encounters as the harsh reality within which there can be no satisfaction whatsoever which does not take on itself the hardship of symbolic roundabouts, which does not turn around its objects without attaining them – or only to find them as missing. Law gives birth to the real by imposing the elusion of any direct satisfaction of any need or desire, by making such a satisfaction impossible. Law and the real are concomitant in their advent, the real being the sharpness of law itself and the wall of exteriority against which man runs in his blind attempts to overcome it, not aware that the hardness of reality is nothing else than the toughness of the knots of law. Law is the hardening of the edges of being and the advent of non-compossibilities breaking the fluidity of the realm of imaginary interpenetrations of beings and satisfactions of needs. The very intuitive experience of ‘hitting on’ the real makes oblivious of the radical co-originarity of world harshness and legal sharpness: the real has no intrinsic harshness, but only one derived from the severances and the deferments inflicted by law on desire.

As to the social dimension of these facts, we can say that there can be no social incorporation without symbolic distanciations from direct satisfaction of social needs. The functional correlation between social needs, social ends and social means – fundamental for the understanding of social practices and institutions as making some sense by overtaking a role in the coordination of action – appears in such a context as delusive. It is a fallacy which hinders social theory from integrating more complex, paradoxical and paradoxological ways of thought. The disruption of the functionalist strain opens up social theory to what Luhmann calls a ‘Goedelisierung’ of its fundamental figures – an opening up similar to that accomplished by Lacan in psychoanalytical theory. To ‘goedelize’ the main figures of legal thought means, in my view, to restore the earnestness of the idea of a co-originarity of law and society. Such a ‘goedelization’ allows us to grasp the consequences on both (law and society) of a beginning of the social bond with the symbolic deferments of the satisfaction of social needs by a law that reveals their abyssal nature and makes them props of a playful elusion and tragic recurrence of traits of collective, reciprocal desire.

The idea of contingency as the most pregnant characteristic of social ordering emerges out of the breakdown of the ontological paradigm governing the classical ways of thought in the old-European tradition⁵. It is an essential component of the post-ontological paradigm whose most thorough theoretical implementation has been given by the theory-venture of Niklas Luhmann. Contingency could be understood as a title for an object structure which cannot be thought by means of the traditional figures of substance (ousia), essence (eidos), goal (telos), accomplishment / perfection (entelecheia). In classical ontological terms contingency denotes something like privation, lack or deficit in a being incapable of the self-sustaining, illuminating coherence of a worldly essence. In the theory of Luhmann, contingency denotes, quite contrary to such an understanding, a positive characteristic possessing its own dynamics within the reproduction of reality.

As soon as social contingency becomes observable, the way is free for a post-ontological theory of society. With social contingency something like the grounding of the firm on the fluid becomes thinkable.⁶ A new type of considerations becomes also thinkable, namely those pertaining to the appreciation of the measure of contingency society can afford under given circumstances.

Societies that are grounded on contingency are societies whose opening to the irruption of the future must be maintained at a maximal level. This level of opening is not unlimited. Everything cannot change simultaneously and in any direction in a given modern society. Contingency has its advent in a society as the possibility for such a society of not being grounded on a firm foundation, but on the flux of operations of communication connecting with each other at a certain level of internal consistency. Such a society remains open for any changes that could enhance fluidity and optionality of communication, those means that could enhance the entering of communication by new ranges of possible, non-familiar, unknown, unsuspected meaning.