and abstract conceptualisations. This can be exemplified by sovereignty and
contract, both of which I will discuss more fully in the following chapters.
Luhmann uses a constitution created in the democratic legislative process as an
example of structural coupling between the political and legal systems. When
discussing sovereignty as a structural coupling between these same systems, I am
referring not to the legislative act or the document, but to the concept of
sovereignty, the value, the abstraction. Similarly, I refer to contract as a structural
coupling, but rather than the concrete simple legal/economic act of selling or
buying I am alluding to the principle of private autonomy, the abstraction.
This said, the reciprocity of the structural coupling takes place on this level of
values, constitutive principles and fundamental conceptualisations. When the
legal system seeks justification from the political system, the principle of
sovereignty is understood by both systems, although through their own codes.
The political system acknowledges the importance of the principle through its
language of power, and sovereignty becomes a question of maximising political
power, the state agenda. Similarly, the economic system understands the meaning of private autonomy, of contractuality and consent, as a question of
establishing markets and maximising resource-allocation efficiency. For the
legal system, private autonomy and the importance of consent play different
roles in different contexts, but it is also a source of justification in the context of
dispute resolution. In other words, the principles form long-lasting connection
points between the systems but their exact meaning depends on the perspective,
the context, time and place. However, the most seminal element of reciprocity
remains.
4.3 The quest for justification
We have established that dispute resolution technology challenges the modern
concept of law connected with the nation-state and thus creates the need for new
bases of justification. This need for justification becomes visible in privatisation of
coercion simultaneously with the difficulties of going beyond the connection of
law and state for finding it. In turn, the difficulties relate to the broader
developments of globalisation and emergence of private regimes that bring the
concept of state-bound law into question. As Luhmann puts it, the difficulties in
finding justification result from excessive differentiations in situations where the
need for interdependencies is not met.
24
For the purposes of examining potential ways of building legitimacy for private
enforcement, we should understand justification as a structural coupling, a
conceptualisation which turns our attention to other systems connected with
dispute resolution technology. Within the legal system, these justificatory
couplings to other systems take the form of argumentation tools that explain
the foundations of law internally. Thus, the structural couplings that function as
sources of justification within the legal system are justificatory narratives. In the
following chapters, different justificatory narratives are examined further, but
before this it is necessary to recognise which couplings have emerged within the
Heading towards justification 103
contract, both of which I will discuss more fully in the following chapters.
Luhmann uses a constitution created in the democratic legislative process as an
example of structural coupling between the political and legal systems. When
discussing sovereignty as a structural coupling between these same systems, I am
referring not to the legislative act or the document, but to the concept of
sovereignty, the value, the abstraction. Similarly, I refer to contract as a structural
coupling, but rather than the concrete simple legal/economic act of selling or
buying I am alluding to the principle of private autonomy, the abstraction.
This said, the reciprocity of the structural coupling takes place on this level of
values, constitutive principles and fundamental conceptualisations. When the
legal system seeks justification from the political system, the principle of
sovereignty is understood by both systems, although through their own codes.
The political system acknowledges the importance of the principle through its
language of power, and sovereignty becomes a question of maximising political
power, the state agenda. Similarly, the economic system understands the meaning of private autonomy, of contractuality and consent, as a question of
establishing markets and maximising resource-allocation efficiency. For the
legal system, private autonomy and the importance of consent play different
roles in different contexts, but it is also a source of justification in the context of
dispute resolution. In other words, the principles form long-lasting connection
points between the systems but their exact meaning depends on the perspective,
the context, time and place. However, the most seminal element of reciprocity
remains.
4.3 The quest for justification
We have established that dispute resolution technology challenges the modern
concept of law connected with the nation-state and thus creates the need for new
bases of justification. This need for justification becomes visible in privatisation of
coercion simultaneously with the difficulties of going beyond the connection of
law and state for finding it. In turn, the difficulties relate to the broader
developments of globalisation and emergence of private regimes that bring the
concept of state-bound law into question. As Luhmann puts it, the difficulties in
finding justification result from excessive differentiations in situations where the
need for interdependencies is not met.
24
For the purposes of examining potential ways of building legitimacy for private
enforcement, we should understand justification as a structural coupling, a
conceptualisation which turns our attention to other systems connected with
dispute resolution technology. Within the legal system, these justificatory
couplings to other systems take the form of argumentation tools that explain
the foundations of law internally. Thus, the structural couplings that function as
sources of justification within the legal system are justificatory narratives. In the
following chapters, different justificatory narratives are examined further, but
before this it is necessary to recognise which couplings have emerged within the
Heading towards justification 103