conciliation instead focus on more multi-faceted and individually tailored solutions. If interpreted as per Luhmann, such resolutions would not necessarily be
legal operations but would belong outside the legal system as extra-legal. In this,
Luhmann’s position seems to be coherent. Such procedures have elements that
point in the direction of the legal system and its code, but also include elements
from other systems.
Similarly, several systems meet in ODR, it is the connection point between law
(resolution of legal dispute concerning contractual obligations), economics (the
context of market place and payment for goods), politics (power to enforce), and
technology (automated dispute resolution platform and its operability). In this
context, justification of dispute resolution no longer deals simply within the law
but also has implications outside it.
It would seem that Luhmann supposes justification to be a question of law’s
programmes. Conditional programmes direct which side of the code is applied
and provide a formal legitimacy for the choice.
This leads us to following. Within the legal system, justification may have
implications that resemble the law’s programmes but justification is not limited to
this. The issue of justification of dispute resolution needs to be answered within
the legal system, as dispute resolution is pronouncedly a legal operation. Still, the
answer to the justificatory crisis within law also has implications for other social
systems that come together when ICT is implemented for dispute resolution.
Although justification is internal to the legal system, operations that provide
justification internally must also be able to abide by these other rationalities.
Simply put, justification as law’s programme does not provide a sufficient
explanation for the use of ICT in dispute resolution.
4.2.3 Justification as autopoiesis?
We have discarded the possibility of considering justification as law’s programme,
as this would simply render justification of dispute resolution an internal method
of attributing the code to operations and this would provide an insufficient image
for understanding dispute resolution technology. Next, the logical step would be
to ask, what is the significance of justification for the self-production of the legal
system? Could justification be a question of autopoiesis?
Considering justification’s role in the legal system as autopoiesis follows closely
upon the previous option of justification as law’s programme. In fact, these two
interpretative options both place justification within the legal system. In other
words, interpretation of justification as programme means that justification is
produced by the autopoiesis of the legal system. The difference between justification as law’s programme and justification as autopoiesis is its exact location within
the legal system. The option of justification as programme grants it the role of
directing the application of the code, whereas the interpretation of justification as
autopoiesis would place it more generally within the legal system’s operational
closure. As autopoiesis, justification would be produced as a by-product of the
code’s application, through law’s internal operations.
98 Three quests for justification
legal operations but would belong outside the legal system as extra-legal. In this,
Luhmann’s position seems to be coherent. Such procedures have elements that
point in the direction of the legal system and its code, but also include elements
from other systems.
Similarly, several systems meet in ODR, it is the connection point between law
(resolution of legal dispute concerning contractual obligations), economics (the
context of market place and payment for goods), politics (power to enforce), and
technology (automated dispute resolution platform and its operability). In this
context, justification of dispute resolution no longer deals simply within the law
but also has implications outside it.
It would seem that Luhmann supposes justification to be a question of law’s
programmes. Conditional programmes direct which side of the code is applied
and provide a formal legitimacy for the choice.
This leads us to following. Within the legal system, justification may have
implications that resemble the law’s programmes but justification is not limited to
this. The issue of justification of dispute resolution needs to be answered within
the legal system, as dispute resolution is pronouncedly a legal operation. Still, the
answer to the justificatory crisis within law also has implications for other social
systems that come together when ICT is implemented for dispute resolution.
Although justification is internal to the legal system, operations that provide
justification internally must also be able to abide by these other rationalities.
Simply put, justification as law’s programme does not provide a sufficient
explanation for the use of ICT in dispute resolution.
4.2.3 Justification as autopoiesis?
We have discarded the possibility of considering justification as law’s programme,
as this would simply render justification of dispute resolution an internal method
of attributing the code to operations and this would provide an insufficient image
for understanding dispute resolution technology. Next, the logical step would be
to ask, what is the significance of justification for the self-production of the legal
system? Could justification be a question of autopoiesis?
Considering justification’s role in the legal system as autopoiesis follows closely
upon the previous option of justification as law’s programme. In fact, these two
interpretative options both place justification within the legal system. In other
words, interpretation of justification as programme means that justification is
produced by the autopoiesis of the legal system. The difference between justification as law’s programme and justification as autopoiesis is its exact location within
the legal system. The option of justification as programme grants it the role of
directing the application of the code, whereas the interpretation of justification as
autopoiesis would place it more generally within the legal system’s operational
closure. As autopoiesis, justification would be produced as a by-product of the
code’s application, through law’s internal operations.
98 Three quests for justification