Hence, the justificatory narratives examined in relation to private enforcement
are sovereignty, consent and access to justice, as these can be found in the
background theory of dispute resolution. As structures within the legal system,
these narratives are formed through the course of time by the continuous selfproduction of law’s operations. This means that justification is produced internally in the legal system. Still, the operations that form justificatory narratives are
shared operations between several subsystems of society. This interpretation
explains the complexity of justification, as the structures reflect the rationalities
of interconnected systems. However, such justificatory structures are a freezeframe that depicts the mechanism of justifying the use of force within enforcement. In legal practice, they seldom make appearance in such a pure form as
theoretical examination but instead are often entwined with each other or just
presupposed. As is often the case with principles that are used for justification,
they are rarely voiced. For the sake of argument, they are depicted here as distinct
and separate categories.
In the following, justification is referred to as justificatory structures that take
the form of narratives within the legal system, emphasising both the historical
sedimentation and the temporal stability of structural couplings as a source for
justification. Historical sedimentation in this sense refers to the empirical and
historical process where different foundations have become the foundational
values and fundamental principles of law’s structure. They tell us something
axiomatic about modern law. Temporal stability means that justification is
renewed and reinterpreted time and time again through the structural couplings.
Through time, operations that belong to several systems have been repeated to
the extent that they have created structures which have a more long-lasting
nature than would the individual operations. In order to provide a source of
justification for the legal system, a single unrepeated event (operation that forms
a non-recurring structural coupling between two systems) is not enough. Instead,
repeated operations that have become stabilised as structures provide the necessary reflexivity and stability for the needs of the legal system.
It should be noted that justification is seldom perceivable ‘in pure form’. This
means that different justificatory structures may be engaged simultaneously and
in association with one another. For example, state litigation may be justified
both by reference to state sovereignty and by agreement of the parties. However,
distinguishing between justificatory narratives is necessary for evaluating their
capability in addressing privatised coercion. This simplification of justification
connects with Luhmann’s perception of observing communication. As communication is continuous, observation of an individual communicative element
requires its simplification. This means that we can only perceive and conceptualise
communication as asymmetrical (who communicates what to whom) if we freezeframe them as actions. Such asymmetry is necessary for the system’s self-description, as only then is it possible to steer its self-production and connect the
system’s elements with consequences. Through this process of turning symmetry
of communication into asymmetry, an individual communication becomes simplified and more easily comprehensible. This freeze-frame of asymmetrical action
Heading towards justification 105
are sovereignty, consent and access to justice, as these can be found in the
background theory of dispute resolution. As structures within the legal system,
these narratives are formed through the course of time by the continuous selfproduction of law’s operations. This means that justification is produced internally in the legal system. Still, the operations that form justificatory narratives are
shared operations between several subsystems of society. This interpretation
explains the complexity of justification, as the structures reflect the rationalities
of interconnected systems. However, such justificatory structures are a freezeframe that depicts the mechanism of justifying the use of force within enforcement. In legal practice, they seldom make appearance in such a pure form as
theoretical examination but instead are often entwined with each other or just
presupposed. As is often the case with principles that are used for justification,
they are rarely voiced. For the sake of argument, they are depicted here as distinct
and separate categories.
In the following, justification is referred to as justificatory structures that take
the form of narratives within the legal system, emphasising both the historical
sedimentation and the temporal stability of structural couplings as a source for
justification. Historical sedimentation in this sense refers to the empirical and
historical process where different foundations have become the foundational
values and fundamental principles of law’s structure. They tell us something
axiomatic about modern law. Temporal stability means that justification is
renewed and reinterpreted time and time again through the structural couplings.
Through time, operations that belong to several systems have been repeated to
the extent that they have created structures which have a more long-lasting
nature than would the individual operations. In order to provide a source of
justification for the legal system, a single unrepeated event (operation that forms
a non-recurring structural coupling between two systems) is not enough. Instead,
repeated operations that have become stabilised as structures provide the necessary reflexivity and stability for the needs of the legal system.
It should be noted that justification is seldom perceivable ‘in pure form’. This
means that different justificatory structures may be engaged simultaneously and
in association with one another. For example, state litigation may be justified
both by reference to state sovereignty and by agreement of the parties. However,
distinguishing between justificatory narratives is necessary for evaluating their
capability in addressing privatised coercion. This simplification of justification
connects with Luhmann’s perception of observing communication. As communication is continuous, observation of an individual communicative element
requires its simplification. This means that we can only perceive and conceptualise
communication as asymmetrical (who communicates what to whom) if we freezeframe them as actions. Such asymmetry is necessary for the system’s self-description, as only then is it possible to steer its self-production and connect the
system’s elements with consequences. Through this process of turning symmetry
of communication into asymmetry, an individual communication becomes simplified and more easily comprehensible. This freeze-frame of asymmetrical action
Heading towards justification 105