developmental Uumping) component, because reason cannot succeed in
breaking out of the closed system.
While an autopoietic comprehension of the law has a positive function,
at least as it highlights the great importance of systemized positive law
and as it intensifies the questionable nature of man’s objective capacity to
appeal to transcendental values and other extra-legal conditions of
lawfulness, it merits repeating that the law cannot, by its very nature, be
an entirely independent whole. This is because the mediating role is one
of its basic functions. Grasping the autonomy of the law as a relative and
limited category also reflects man’s deep awareness of the allencompassing mutual connectivity of individual phenomena in the
world. So the rational remodeling of this deep intuitive awareness,
which links the law with extra-legal spheres, much more accurately
reflects the authentic nature of the law than does the autopoietic or some
similar rationalization of the legal phenomenon, such as Kelsen’s “pure
theory of law.”14
Returning now to lawyers and other subjects who contribute by their
activities to the high level of autonomy of the modem legal system, we
can see that these subjects belong to professional groups that establish a
high degree of monopoly on the understanding and implementation of
law. Lawyers and officials established this monopoly primarily from two
perspectives: firstly, through their specific manner of organization and
formalized (rigid) rules of operation; secondly, through the formation of
a specific language of the law. Naturally, there is an essential difference
between lawyers and officials. The position of lawyers and judges is
much more independent. Accordingly, they can, to a relatively large
degree, co-create the law. Meanwhile, public administration officials are
much more hierarchically subordinated in their functioning and can
within their competences only minimally co-create the law.
Max Weber was amongst the first to more broadly point out the
characteristics and peculiarities of the modem bureaucratic state
apparatus.15 Among these characteristics, there are many that lead to the
monopolization of administrative activities by bureaucracy. These
characteristics include the realization that administrative-legal
regulations are extremely and specifically formalized, which lowers the
- See Kelsen, 1934.
- These characteristics are above all strict rationality, fonnalism, the hierarchical nature and
connectedness of functioning, inner discipline, professionalization, the separation of the
administrative apparatus from the means of administration, careerism, the business routine – i.e. an
impersonal approach to dealing with matters (the operation of sine ira et studio), etc. For more detail
on this, see Weber, 1956, pp. \25-130; cf. Tadic, 1988, pp. 272-284.
