This being said, both interpretations provide a perspective into the implications
that justification has within the legal system. These implications cannot be
ignored; justifying use of coercion is without doubt an operation within the
legal system. However, the question is whether or not justification is limited to
these internal implications.
Legal theorist Emilios Christodoulidis touches upon this interpretation of
justification as autopoiesis in his article on sedition.
20 He examines the fundamentalist critique of the Red Brigade members during their trial in the 1970s, in
which the revolutionaries contested the court’s power to rule. Instead of pleading
guilty or not guilty to the charges, the defendants contested the meaning of the
words and use of official language, which in turn met with frustration and
demands for a straight answer from the prosecutor and the judge. The activists
referred to the court as a form of class justice, violence of the fascist state machine
towards people. As Christodoulidis states, such a discursive act remained unintelligible for the legal system, as much as the language of the courtroom did not
make sense to the discourse of revolutionary action.
Christodoulidis examines how the exclusion of sedition is justified within the
legal system. He suggests that such silencing acts can be justified only through
the inclusion of the silenced in the norm-creation through democratic process.
Christodoulidis argues that sedition ‘marks the threshold beyond which law
cannot accept speech as political’. This means that after this point the legal
system is no longer able to mark the speech act as political speech and it is
excluded from the self-reference. According to Christodoulidis, external sources
of justification, such as authority, bring uncertainty in their wake.
21 His argument
maintains that justification is created internally through the legal system’s selfproduction. What the legal system does not include in its autopoiesis remains
outside, like the objection that cannot be heard.
22
Christodoulidis’ examination of justifying silencing acts is convincing. However, the context in which he makes his claim differs significantly from the one at
hand. Private enforcement, ODR, or implementation of ICT to dispute resolution do not stand for fundamental critique of the legal system as is the case with
Christodoulidis’ sedition. However, his argument about the uncertainty that the
external references entail carries weight in this context. Whether the argument
holds true in this context needs to be discussed further in connection with
individual justificatory narratives. At this point it suffices to point out that
Christodoulidis’ inclusion in the norm-creation could be understood through
the legal system’s connection with the political system in legislation.
As interpretations of justification as law’s programme and as autopoiesis
illustrate, justification is a question of the legal system. However, implementing
the use of ICT to dispute resolution raises the question whether justification of
these new procedures is limited to the legal system.
Another option is to admit that the rationalities of other social subsystems
come together in these new forms of dispute resolution. This would explain how
the discrepancies between public and private dispute resolution have not escalated into a conflict before the implementation of ICT. Private enforcement
Heading towards justification 99
that justification has within the legal system. These implications cannot be
ignored; justifying use of coercion is without doubt an operation within the
legal system. However, the question is whether or not justification is limited to
these internal implications.
Legal theorist Emilios Christodoulidis touches upon this interpretation of
justification as autopoiesis in his article on sedition.
20 He examines the fundamentalist critique of the Red Brigade members during their trial in the 1970s, in
which the revolutionaries contested the court’s power to rule. Instead of pleading
guilty or not guilty to the charges, the defendants contested the meaning of the
words and use of official language, which in turn met with frustration and
demands for a straight answer from the prosecutor and the judge. The activists
referred to the court as a form of class justice, violence of the fascist state machine
towards people. As Christodoulidis states, such a discursive act remained unintelligible for the legal system, as much as the language of the courtroom did not
make sense to the discourse of revolutionary action.
Christodoulidis examines how the exclusion of sedition is justified within the
legal system. He suggests that such silencing acts can be justified only through
the inclusion of the silenced in the norm-creation through democratic process.
Christodoulidis argues that sedition ‘marks the threshold beyond which law
cannot accept speech as political’. This means that after this point the legal
system is no longer able to mark the speech act as political speech and it is
excluded from the self-reference. According to Christodoulidis, external sources
of justification, such as authority, bring uncertainty in their wake.
21 His argument
maintains that justification is created internally through the legal system’s selfproduction. What the legal system does not include in its autopoiesis remains
outside, like the objection that cannot be heard.
22
Christodoulidis’ examination of justifying silencing acts is convincing. However, the context in which he makes his claim differs significantly from the one at
hand. Private enforcement, ODR, or implementation of ICT to dispute resolution do not stand for fundamental critique of the legal system as is the case with
Christodoulidis’ sedition. However, his argument about the uncertainty that the
external references entail carries weight in this context. Whether the argument
holds true in this context needs to be discussed further in connection with
individual justificatory narratives. At this point it suffices to point out that
Christodoulidis’ inclusion in the norm-creation could be understood through
the legal system’s connection with the political system in legislation.
As interpretations of justification as law’s programme and as autopoiesis
illustrate, justification is a question of the legal system. However, implementing
the use of ICT to dispute resolution raises the question whether justification of
these new procedures is limited to the legal system.
Another option is to admit that the rationalities of other social subsystems
come together in these new forms of dispute resolution. This would explain how
the discrepancies between public and private dispute resolution have not escalated into a conflict before the implementation of ICT. Private enforcement
Heading towards justification 99