conforms to the rationalities of several systems simultaneously and it cannot be
reduced simply to its implications within the legal system. Law’s rationality comes
with constraints that do not explain the mandate of private enforcement, which
separates itself from the state. Simply put, the legal system does understand the
crisis yet needs to react to it. Alone, the legal system does not have sufficient data
for this task.
Either law needs to reach beyond its own limits and include external references
to its own operations (after coding them) to provide fuel for its self-production,
or it needs to answer the call for transcendence by engaging in a more longlasting link with other systems. Autopoiesis and structural couplings are both
operational couplings in the sense that they link operations to each other.
Whereas autopoiesis links operations within the system, structural couplings link
operations between different systems.
Dispute resolution technology certainly links operations within the legal
system, but this does not appear to explain why law cannot provide us with a
convincing understanding of private enforcement. There is something else in
addition to law taking place in this equation. As the numerous examples of
globalised world society and emergence of private regimes illustrate, the close
connection between the legal system and the political system of the nation-state
has proved to be problematic. ODR can be understood as a private sector-specific
regime, but it is also a part of the legal system.
In order to explain the complicated relationship between law, the state and
private regimes and to expand the demand for access to justice to this sphere, we
need to go further than law’s internal operations. Hence, considering justification
simply as law’s autopoiesis does not provide convincing arguments in the context
of dispute resolution technology.
4.2.4 Justification as structural couplings?
In the previous sections, it was argued that justification is created through
internal operations of the legal system but these operations also have implications
outside the legal system. Considering justification as law’s programme or as its
autopoiesis, we are unable to explain these external rationalities present in
justificatory narratives.
We have also established that the implementation of ICT to dispute resolution
has meaning within several different fields, which have their own distinct rationalities. We have identified these systems as those of law, politics, economics and
use of ICT. This means that implementing ICT to dispute resolution creates an
operational environment (not in the Luhmannian meaning) to which several
systems participate. For the legal system, private dispute resolution as it is enabled
by the use of ICT is a method for resolving a conflict on contractual expectations,
on legal rights based on these obligations. For the economics, the code of
payment/non-payment is allocated by the decision and following enforcement.
For the political system, it is a question of power that culminates in using force,
particularly in enforcement. In other words, the political system is interested in
100 Three quests for justification
reduced simply to its implications within the legal system. Law’s rationality comes
with constraints that do not explain the mandate of private enforcement, which
separates itself from the state. Simply put, the legal system does understand the
crisis yet needs to react to it. Alone, the legal system does not have sufficient data
for this task.
Either law needs to reach beyond its own limits and include external references
to its own operations (after coding them) to provide fuel for its self-production,
or it needs to answer the call for transcendence by engaging in a more longlasting link with other systems. Autopoiesis and structural couplings are both
operational couplings in the sense that they link operations to each other.
Whereas autopoiesis links operations within the system, structural couplings link
operations between different systems.
Dispute resolution technology certainly links operations within the legal
system, but this does not appear to explain why law cannot provide us with a
convincing understanding of private enforcement. There is something else in
addition to law taking place in this equation. As the numerous examples of
globalised world society and emergence of private regimes illustrate, the close
connection between the legal system and the political system of the nation-state
has proved to be problematic. ODR can be understood as a private sector-specific
regime, but it is also a part of the legal system.
In order to explain the complicated relationship between law, the state and
private regimes and to expand the demand for access to justice to this sphere, we
need to go further than law’s internal operations. Hence, considering justification
simply as law’s autopoiesis does not provide convincing arguments in the context
of dispute resolution technology.
4.2.4 Justification as structural couplings?
In the previous sections, it was argued that justification is created through
internal operations of the legal system but these operations also have implications
outside the legal system. Considering justification as law’s programme or as its
autopoiesis, we are unable to explain these external rationalities present in
justificatory narratives.
We have also established that the implementation of ICT to dispute resolution
has meaning within several different fields, which have their own distinct rationalities. We have identified these systems as those of law, politics, economics and
use of ICT. This means that implementing ICT to dispute resolution creates an
operational environment (not in the Luhmannian meaning) to which several
systems participate. For the legal system, private dispute resolution as it is enabled
by the use of ICT is a method for resolving a conflict on contractual expectations,
on legal rights based on these obligations. For the economics, the code of
payment/non-payment is allocated by the decision and following enforcement.
For the political system, it is a question of power that culminates in using force,
particularly in enforcement. In other words, the political system is interested in
100 Three quests for justification