legal system to justify the use of coercion and what limitations follow from their
theoretical examination.
As structural couplings are temporally long-lasting structures, their creation
requires repeated operations over the course of time. Hence, most justificatory
narratives come with history, which is the reason why the close association with
the legal system and the system of politics of the nation-state provides us with a
self-evident starting point. Binding the legal system to the state machine has its
historical roots in early conceptualisations of sovereignty and the establishment of
territorial jurisdiction in the Westphalian Peace Treaties of 1648 that ended the
Thirty Years’ War in Europe. Sovereignty still forms the basis of international,
Convention-orientated procedural law.
25 Luhmann considers the constitution a
perfect example of the structural coupling between the systems of law and
politics, where the political system recognises the operation through its coding
of power/opposition and the legal system through its own.
26 In dispute resolution the justificatory narrative corresponds with primacy of the state-governed
litigation, which also explains its shortcomings in justifying privatised coercion
that cannot be located geographically. In the following chapters, the justificatory
coupling between law and politics is referred to as sovereignty.
As the limitations of state-orientated law led to the justificatory crisis of private
enforcement in the first place, the next logical step is to evaluate whether the
alternative structures used to justify the interplay between private and private
forms of dispute resolution might provide ways forward. The emergence of ADR
in the 1980s has provided procedural law with a new structure for finding
justification in private autonomy, although the division of labour between state
litigation and out-of-court dispute resolution has relied on state control of
enforcement.
27 In ADR, the source of jurisdiction is the parties’ contract, e.g.
arbitral clauses. The meeting of the minds to agree upon something, the logic of
agreement, of contract, puts emphasis on the consent of a legally competent,
rational individual who takes her best interests into calculation before entering
into a contract. This rationality follows that of commerce, the system of economics. Here, the systems of law and economics both understand the structural
coupling between them, the contract, through their own codes.
Another contestant to provide justification in the context of dispute resolution
is the discourse of human rights, that gained significant momentum during the
twentieth century. As a source of justification, this discourse, worded here as
access to justice, can be reduced to the idea that the fairness of the procedure
justifies itself. This third justificatory structure seems to be of a newer origin and
is not yet totally formed. It can be located in the aftermath of the Second World
War when the European renaissance of human rights took up the form of the
Charter of Fundamental Rights of the European Union and the rapidly increasing
body of case law of the ECtHR. Human rights discourse seems to reflect another
type of rationality than the constitutive structures of sovereignty and contract.
This discourse is very much unlike the constitutive narratives of sovereignty and
private autonomy. Instead of naming an authoritative source, this structure seems
to be calling for a more qualitative definition, suggesting an ethical connection.
104 Three quests for justification
theoretical examination.
As structural couplings are temporally long-lasting structures, their creation
requires repeated operations over the course of time. Hence, most justificatory
narratives come with history, which is the reason why the close association with
the legal system and the system of politics of the nation-state provides us with a
self-evident starting point. Binding the legal system to the state machine has its
historical roots in early conceptualisations of sovereignty and the establishment of
territorial jurisdiction in the Westphalian Peace Treaties of 1648 that ended the
Thirty Years’ War in Europe. Sovereignty still forms the basis of international,
Convention-orientated procedural law.
25 Luhmann considers the constitution a
perfect example of the structural coupling between the systems of law and
politics, where the political system recognises the operation through its coding
of power/opposition and the legal system through its own.
26 In dispute resolution the justificatory narrative corresponds with primacy of the state-governed
litigation, which also explains its shortcomings in justifying privatised coercion
that cannot be located geographically. In the following chapters, the justificatory
coupling between law and politics is referred to as sovereignty.
As the limitations of state-orientated law led to the justificatory crisis of private
enforcement in the first place, the next logical step is to evaluate whether the
alternative structures used to justify the interplay between private and private
forms of dispute resolution might provide ways forward. The emergence of ADR
in the 1980s has provided procedural law with a new structure for finding
justification in private autonomy, although the division of labour between state
litigation and out-of-court dispute resolution has relied on state control of
enforcement.
27 In ADR, the source of jurisdiction is the parties’ contract, e.g.
arbitral clauses. The meeting of the minds to agree upon something, the logic of
agreement, of contract, puts emphasis on the consent of a legally competent,
rational individual who takes her best interests into calculation before entering
into a contract. This rationality follows that of commerce, the system of economics. Here, the systems of law and economics both understand the structural
coupling between them, the contract, through their own codes.
Another contestant to provide justification in the context of dispute resolution
is the discourse of human rights, that gained significant momentum during the
twentieth century. As a source of justification, this discourse, worded here as
access to justice, can be reduced to the idea that the fairness of the procedure
justifies itself. This third justificatory structure seems to be of a newer origin and
is not yet totally formed. It can be located in the aftermath of the Second World
War when the European renaissance of human rights took up the form of the
Charter of Fundamental Rights of the European Union and the rapidly increasing
body of case law of the ECtHR. Human rights discourse seems to reflect another
type of rationality than the constitutive structures of sovereignty and contract.
This discourse is very much unlike the constitutive narratives of sovereignty and
private autonomy. Instead of naming an authoritative source, this structure seems
to be calling for a more qualitative definition, suggesting an ethical connection.
104 Three quests for justification