preserving its monopoly on violence. For the system of the use of ICT, private
dispute resolution and enforcement is an issue of transmitting information.
Simply put, dispute resolution and the use of ICT observes the rationalities of
several social systems simultaneously.
This plurality of systems reflects on justification. The challenge of private
enforcement becomes particularly pronounced. The challenge it presents to the
legal system reveals that the traditional model has been that of the nation-state.
We notice that the language of law, without reference to the state, is not simply
unable to address the challenge but is also unable to comprehend it.
Instead of asking how we establish due process requirements for private dispute
resolution, we come to ask how we bring due process to private ordering without
reference to the state. This question may very well be a deadlock. As stated, ODR
has never fulfilled its potential by turning into a mainstream solution to online
disputes. There are many reasons for the unpopularity of ODR, but lack of trust is
one that has been acknowledged in the literature. To overcome this, state-issued
trust marks are suggested.
23 Also, ODR applications are more and more often
linked with the public court system, as completely private applications have mostly
failed notwithstanding marketplace integrated models such as eBay. One reason for
this failure and sudden return towards the public system may be the shortcomings
of a legal order functioning without reference to the state. Because private
enforcement shatters the link between law and politics, we are suddenly looking
the structure of the legal system directly in the eye. Whether we will find a way
forward is unclear. It is a question of understanding the source of justification
within the legal system but at the same time being conscious of the connection to
the state as a traditional foundation for it.
It follows from this that the justification of dispute resolution technology
becomes an entangled matter. It should be noted that justification and demand
for due process are claims to the legal system. However, the legal system does not
seem able to answer these questions without external reference. It is suggested
here that law’s quest to find justification could be explained through structural
couplings.
Law creates justification for dispute resolution by enabling its operations to
link with operations of other systems. Through this reference the legal system is
able to hold on to its identity created through the system/environment distinction
and at the same time borrow the rationality of the other system for producing its
self-transcendence. In other words, the legal system concurrently goes beyond law
and remains within its boundaries.
This interpretation is not as far-fetched as one could assume. Structural
couplings between systems are a specific type of operational couplings that also
include the operational coupling known as autopoiesis. The difference between
autopoiesis and structural coupling is in the effect that an operation has outside
its primary system. If justification were primarily an internal operation of autopoiesis, then it could have an external reference, but its effects would be limited
within the legal system. Justification as structural coupling would have effects in
all systems that are linked to it, but these operations would be interpreted
Heading towards justification 101
dispute resolution and enforcement is an issue of transmitting information.
Simply put, dispute resolution and the use of ICT observes the rationalities of
several social systems simultaneously.
This plurality of systems reflects on justification. The challenge of private
enforcement becomes particularly pronounced. The challenge it presents to the
legal system reveals that the traditional model has been that of the nation-state.
We notice that the language of law, without reference to the state, is not simply
unable to address the challenge but is also unable to comprehend it.
Instead of asking how we establish due process requirements for private dispute
resolution, we come to ask how we bring due process to private ordering without
reference to the state. This question may very well be a deadlock. As stated, ODR
has never fulfilled its potential by turning into a mainstream solution to online
disputes. There are many reasons for the unpopularity of ODR, but lack of trust is
one that has been acknowledged in the literature. To overcome this, state-issued
trust marks are suggested.
23 Also, ODR applications are more and more often
linked with the public court system, as completely private applications have mostly
failed notwithstanding marketplace integrated models such as eBay. One reason for
this failure and sudden return towards the public system may be the shortcomings
of a legal order functioning without reference to the state. Because private
enforcement shatters the link between law and politics, we are suddenly looking
the structure of the legal system directly in the eye. Whether we will find a way
forward is unclear. It is a question of understanding the source of justification
within the legal system but at the same time being conscious of the connection to
the state as a traditional foundation for it.
It follows from this that the justification of dispute resolution technology
becomes an entangled matter. It should be noted that justification and demand
for due process are claims to the legal system. However, the legal system does not
seem able to answer these questions without external reference. It is suggested
here that law’s quest to find justification could be explained through structural
couplings.
Law creates justification for dispute resolution by enabling its operations to
link with operations of other systems. Through this reference the legal system is
able to hold on to its identity created through the system/environment distinction
and at the same time borrow the rationality of the other system for producing its
self-transcendence. In other words, the legal system concurrently goes beyond law
and remains within its boundaries.
This interpretation is not as far-fetched as one could assume. Structural
couplings between systems are a specific type of operational couplings that also
include the operational coupling known as autopoiesis. The difference between
autopoiesis and structural coupling is in the effect that an operation has outside
its primary system. If justification were primarily an internal operation of autopoiesis, then it could have an external reference, but its effects would be limited
within the legal system. Justification as structural coupling would have effects in
all systems that are linked to it, but these operations would be interpreted
Heading towards justification 101