However, we cannot avoid this question, as the source and authority of due
process needs to be established before asking what are the criteria. Instead, we
face the issue of what is justification, and whether or not these implications of
privatisation can be justified within the legal system.
4.2 What is justification for the legal system?
4.2.1 Three options of interpretation
The challenges imposed by the privatisation of justice in general and accelerated
by the implementation of ICT do not comply with the doctrinal understanding
of cooperation between the courts and providers of private dispute resolution
services. It seems that the development of private enforcement has the potential
to further escalate the existing tensions between private and public governance.
In other words, private enforcement has meaning for justifying dispute resolution.
What, then, is the justification for the legal system?
As discussed, justification is produced by the operations of the legal system,
which form long-lasting structures through continuous repetition and renewal.
Hence, justification should be interpreted as internal to the legal system.
8
Because justification is formed slowly and over time, we are looking at established
networked operations.
This directs the focus of our examination towards different structures within
the legal system. Should justification, the fundamental basis for coercion, be
understood as law’s programme, which guides the application of the code legal/
illegal? As law’s programme, justification would govern the allocation of the code
by defining the grounds and bases for operations. For example, Luhmann
describes legislation or the doctrine of precedents as programming. Without
programming, the application of the code could not be determined.
9 In other
words, justification as a programme would demarcate the boundary between the
legal system and its environment.
Another option similar to considering justification as law’s programme would
be to interpret it as law’s autopoiesis. Is the rationality behind dispute resolution
a question of self-production? This choice would mean considering justification
as an internal continuous process of the legal system for its self-production. The
self-production may include irritations from outside the legal system to its own
operations. Nevertheless, openness through autopoiesis has connective value
solely within the legal system; it fortifies the system/environment difference as
the constitutional element of law. As autopoiesis, justification would then be left
the role of internal reference. However, there would be no external effects of
justification, which would influence other societal subsystems. Still, justification as
autopoiesis could include external information to the legal system.
Both interpretations, justification as a programme and as autopoiesis, locate
justification within the legal system. Other interpretative options, however, would
emphasise law’s interaction with its environment. If justification is produced by
law’s structural couplings with other systems, the operations that renew
Heading towards justification 95
process needs to be established before asking what are the criteria. Instead, we
face the issue of what is justification, and whether or not these implications of
privatisation can be justified within the legal system.
4.2 What is justification for the legal system?
4.2.1 Three options of interpretation
The challenges imposed by the privatisation of justice in general and accelerated
by the implementation of ICT do not comply with the doctrinal understanding
of cooperation between the courts and providers of private dispute resolution
services. It seems that the development of private enforcement has the potential
to further escalate the existing tensions between private and public governance.
In other words, private enforcement has meaning for justifying dispute resolution.
What, then, is the justification for the legal system?
As discussed, justification is produced by the operations of the legal system,
which form long-lasting structures through continuous repetition and renewal.
Hence, justification should be interpreted as internal to the legal system.
8
Because justification is formed slowly and over time, we are looking at established
networked operations.
This directs the focus of our examination towards different structures within
the legal system. Should justification, the fundamental basis for coercion, be
understood as law’s programme, which guides the application of the code legal/
illegal? As law’s programme, justification would govern the allocation of the code
by defining the grounds and bases for operations. For example, Luhmann
describes legislation or the doctrine of precedents as programming. Without
programming, the application of the code could not be determined.
9 In other
words, justification as a programme would demarcate the boundary between the
legal system and its environment.
Another option similar to considering justification as law’s programme would
be to interpret it as law’s autopoiesis. Is the rationality behind dispute resolution
a question of self-production? This choice would mean considering justification
as an internal continuous process of the legal system for its self-production. The
self-production may include irritations from outside the legal system to its own
operations. Nevertheless, openness through autopoiesis has connective value
solely within the legal system; it fortifies the system/environment difference as
the constitutional element of law. As autopoiesis, justification would then be left
the role of internal reference. However, there would be no external effects of
justification, which would influence other societal subsystems. Still, justification as
autopoiesis could include external information to the legal system.
Both interpretations, justification as a programme and as autopoiesis, locate
justification within the legal system. Other interpretative options, however, would
emphasise law’s interaction with its environment. If justification is produced by
law’s structural couplings with other systems, the operations that renew
Heading towards justification 95