Illegality

The word illegality comes from Latin and entered German via French in the 17th century. The adjective illegalis (unlawful) is understood as a negation of the Old Latin 'legalis', but originates from medieval church Latin. In Old Latin, however, a second linguistic root is found, namely 'ilex', which means both 'lawless, living without law, not conforming to laws' and 'alluring, charming, seductive'. The German adjective illizit can also be traced back to it and means clandestine, because morally objectionable, behavior in the gray area of social evolution. In Rome, however, legalis was used only marginally and synonymously with legitimus.

In the Middle Ages, legality then emerged as an inclusive concept of virtue and illegitimacy stood for everything that did not understand itself within the framework of the stratified order established by God, nature and origin. Illegitimacy only became virulent with the transition to a functionally differentiated society as a non-sinful deviation from the moral law and took over the position of illegitimacy, which can be understood as a Preadaptive Advance. And legitimacy advanced to a central concept of politics with the transition to modernity (Luhmann 1983; 2002).

In the context of the differentiation of nation-states, the resulting constitutional debate, and the rapid growth of organizations, illegality rapidly gained in importance. While Kant (1839: 223, note) still described it as an inability to understand, Grotefend (1869: 308), almost 100 years later, placed the distinction between legal/illegal in the context of the emergence and change of constitutions (cf. also Mommsen 1893: 188). With the rise of ideologies and revolutionary movements, the potential of illegality as a strategic concept of struggle and as a medium of political subversion became apparent (cf. Lukácz 1923; Schmitt 1980; 1963).

Thus, illegality was released as a new form of communication in the context of the differentiation of the functional systems of politics and law, their coupling forms of state, constitution and law, and the sudden increase of organizations.

As a word, illegality belongs to the semantics of unlawful deviations and currently seems to displace expressions such as illegality, crime or criminality. At the same time, in the context of everyday communication, but also in legal, political and scientific discourse, it remains unclear how illegality is to be distinguished from other forms of unlawful deviance. Accordingly, it is attributed to the behavior of persons as well as to organizations and states, to functional systems as well as to events, stocks, states or things, and even the attribution itself can be labeled as illegal.

The development of a communication medium begins with the determination of its forms and elements. If one takes the 'violations of formal expectations' as forms of illegality, then the problem arises that these forms are identical with the forms of general illegalities, because these also consist of violations of formal expectations (here: state legal laws). Whether the reference organization is a company or a state makes no difference in this respect.

If one adds the theory piece of Nachträglichkeit (Retroactivity? ; R.B.) (Fuchs 1995: 16f.), then violations of formal expectations (like all communications) cannot be identified as such per se, but only in the communicative postscript. This, too, makes the search for form even more difficult, because violations of formal expectations may not be made known and are normally not addressed: either they succeed or they fail. If they fail, then they are no longer observed in the mode of violation, but in the mode of legal-formal communication. And if they succeed, then possible connections are immediately placed under special conditions of operating and observing, since they are not allowed to be made known.

With this, we still have not gained a formal difference between illegality and illegality, but we have gained further differentiations: Successful violations of formal expectations can first of all only be recognized by the fact that they must not be made known and are in this sense incommunicable – but that at least precisely this must be known so that they do not fail.

Violations of formal expectations can consequently only succeed if they can (paradoxically) set their becoming relevant to irrelevant and at the same time ensure that this becomes relevant. They must operate in the mode of non-observability and at the same time this must become observable in some way. "The search, which is once again erratic, is thus for indications of a 'nevertheless' of the perceptibility and thematizability of the exclusion of any observability, which is itself the effect of an observation technique that marks the right side in the distinction 'observable/non-observable' and, as in the same moment, falls back operatively to the indication of the opposite side" (Fuchs 2014).

The paradoxes just mentioned are unfolded by a doubling of operating and observing, which makes high and at the same time delightful demands on the participants, since they are suddenly confronted with two connection options running quasi side by side: a non-forbidden variant, which must be known, and a forbidden variant, which must not be known. But what problem solution results from this peculiar doubling of reality?

Social systems regulate with the help of programs how the assignment of events to their code values is to take place. Each program distinguishes correct from incorrect assignments with respect to its respective program area and "both occur and reactions are kept ready for both. To the correct one reacts with positive reinforcement, to the wrong one with negative rejection. Both change reality, so that one is constantly confronted with new occasions for programmatic reactions" (Baecker 2008; cf. Baecker 2001: 122-123). By doubling reality into a forbidden and a non-forbidden variant, the possibility arises for society that it can distinguish the right from the wrong in a double way. It can then observe - and both reject and reinforce - the same thing in opposite ways, not only as right but also as wrong, through both non-prohibited and prohibited procedures, opening up additional evolutionary options.

As soon as forbidden structures stabilize and refer to themselves, they generate expected communicative returns, so that in the case of organizations we are ultimately dealing with a three-way structure: Besides formal and informal communication, forbidden communication is also connectable and connectable. And it is only within the framework of this triplet that the self-generated resource of not being allowed to become known comes into its own, because now it can motivate behavior with regard to all three structural forms through promises and threats that would otherwise not be possible (cf. expl. Kühl 2007).

The triplet only becomes explosive, however, when it succeeds in feeding informal and forbidden yields back into the formal structures, a process that also requires clandestine, forbidden operations and therefore further enriches our search for the forms of illegality with difficulties. And aggravating this is the fact that secrecy and publicity do not necessarily have to exclude each other.

According to everything we have gathered so far, illegality does not seem to be something one can do or not do, nor does it seem to be a state of affairs that has any counterpart outside society. And it always refers to primary ordering and coupling performances of at least two functional systems (law and politics, cf. Wagner 2006) and of organizations, and would thus be a typical form of second (or even third) order observation. This means that in our search for the forms of illegality we should focus on observing those observers who register that structures at the intersection of law, politics and organization problematize themselves in the direction of indifference and therefore call them illegal.

Were the thousands of armed men who secretly and publicly occupied Crimea in 2014 members of Ukrainian but Russian-oriented citizen militias who acted illegally, but possibly legitimately, without identifying marks? Or were they soldiers of the Russian military who violated international law by removing insignia from uniforms and vehicles? Or were we dealing with unidentifiable forms of unlawfully linked military and paramilitary organizations and networks? Was there a border shift in violation of international law, a separation movement that was illegal under Ukrainian law but could be legitimized, or a hybrid form whose mode of operation could not be identified and whose operations could not be addressed?

To all appearances, illegality is about the way in which border issues are processed and thus about the structural couplings between operatively closed systems of meaning. More precisely, the starting point of illegality and legality could be the question of the legal and political constitution of the systems' being separated from and related to each other. If then, as in the example just mentioned, distinctness is expected, but it is no longer possible to distinguish whether the legal and political constitution of the inner and outer being separate from and related to each other of the systems involved is legal or illegal, a problem of indifference arises.

Then the observers, who have been violated in their legal-political expectations, can switch the mode of their observing by providing the observation of this situation, in which they can no longer distinguish, decide and attribute as usual, with an additional form, namely with illegal/legal.

If we now go back to the Luhmann quote from 1964, the question arises as to how it comes about that systems (now organizations including nation-states are meant) increasingly rely, and apparently must rely, internally and externally on the violation of formal expectations and thus on the problem-solving of illegal communication.

The answer sounds simple, but has complex consequences. As a problem of reference, exclusionary and at the same time unavoidable, formal expectations can be tapped, which are generated by law, politics and their couplings, and by the multiple internal and external demarcations of organizations and their structural couplings. The problem-solving feedback effect of illegality can then be seen in the fact that the fulfillment of mutually exclusive formal expectations is only possible through their violation – and that this, while unavoidable, can be quite useful.

The mode of observation of illegality, moreover, does not resolve its problem of reference, but decides and designates it situationally and in this way pushes it renewably ahead of itself, so that on the one hand time is gained, but on the other hand also the impression can arise that it does not matter which side of the distinction illegal/legal is the connection value and which the reflection value.

We can then call the observation results of this coupling by feedback illegalities, i.e. forms in the medium of illegality. The loosely coupled elements of illegalizing observation would then be mutually exclusive formal expectations and illegal coupling possibilities. The self-exclusion of these expectations, however, only becomes observable in such a way that they are coupled to illegal forms and thereby re-enclosed - under the structure-protecting condition that this must not become known.

The modalization effect of the medium can then be seen in the fact that illegality enables the coupleability of otherwise non-coupleable (because formally mutually exclusive) elements into forms, and makes illegality available to society by fulfilling formal expectations through its violation. Accordingly, in illegality we are dealing with two degrees of order of violating: with the violation of expectations by an observer who, contrary to expectations, encounters legal-political indifferences and from there concludes that the structures he observes have been violated and, thus, that there is a medium of illegality.

Forms are considered complete in system theory only if it is also determined what they have to exclude and at the same time keep available so that they can make a difference. In the case of illegal/legal, this negative condition (the zero of the medium) could be lawlessness: as soon as lawlessness prevails, the distinction legal/illegal makes no difference and therefore lawlessness must be excluded and at the same time available as a negative contrast foil, i.e. re-enclosed. The latter is done in two ways: Legality threatens with lawlessness and thereby legitimizes itself – and illegality flirts with lawlessness and thereby motivates.

In both cases, the re-inclusion of the excluded leads to disappointments that have to be dimmed or explained. For while legality can exclude lawlessness through legalization, it does not succeed in simultaneously excluding illegality and its relation to lawlessness. This disappointment is cushioned by the promise that things will get better and better with more and more legalization.

Illegality, on the other hand, uses lawlessness not as a threat but as a seductive, anarchic promise. But illegality also creates problems for itself through this re-inclusion, because the confrontation of those motivated by the lure of lawlessness with the blackmailing inherent lawfulness of illegality turns out to be all the harsher. This is cushioned by ever more promises of egalitarianism and complicitly generated profits.

Switching the mode of observation to illegal/legal entails yet another modal change, and that is a switch in reflexivity: from the mode of normative non-learning, which stabilizes unstable structures by adhering to expectations, to the mode of cognitive learning under aggravated conditions, which simultaneously stabilizes and destabilizes unstable structures by surreptitiously forcing changes in expectation premises – to confusingly nested and equalizing arrangements.

Only two possibilities of equivalent problem solutions for illegality will be mentioned here, namely the hybridization of organizations and networks (Teubner n.d.; Fischer-Lescano/Teubner 2006; Teubner 2011) into network organizations and organizational networks and the communication mode double bind (Bateson et al. 1987) in the context of family communication. The aforementioned form of hybridization also responds to mutually exclusive formal expectations by coupling the legal inaccessibility and identity and control performances of networks with the power-based resources of formal, informal, and forbidden decision-making. Double bind and schizophrenia, on the other hand, enable the violative fulfillment of likewise mutually exclusive but non-formalizable expectations within the diffusivity of family communication (cf. Luhmann 1964: 43-44).

Finally: Illegality thus offers the paradoxical option of rewriting formal rules and the likewise formalized rewriting of these rules without rewriting it. By coupling otherwise non-couplable, because mutually exclusive, formal expectations, the modal medium makes observational alternatives available and testable under the special condition of not being allowed to become known. And thus also points to the question of whether the fulfillment of formal inclusion expectations becomes more and more dependent on their vulnerability and thus on the manifold forms of illegality and their functional equivalents.

Thus illegality would be only one of several basic but polycontextually oriented modes of observation. After all, the unity of society, according to Peter Fuchs (n.d. a), is only "communication itself, i.e. its mode of operation, but not an idea, a cosmology, a theology, a somehow context-guaranteeing legal super-observer".

REITER, Uli, 2015. Illegalität: die Verletzung der Vorschrift der Umschrift. In: Umschrift. Grenzgänge der Systemtheorie. Velbrück Wissenschaft. p. 273–290. ISBN 978-3-95832-066-6.