is the final element of the system.
28 Like all communication within the legal
system, establishing justification consists of multifaceted interlinked operations.
In order to function as a source of justification, the legal system’s operations need
to reproduce justification continuously. As we cannot access the continuous flow
of communication, we are limited to observation of actions. In other words, we
may only observe justification through such oversimplifications.
4.4 Conclusions
This chapter began with an examination of how the interplay between public and
private dispute resolution has been organised through a division of labour
dependent on state control over public enforcement. This preservation of the
state’s monopoly on violence is apparent in the traditional ideal model, that does
not necessarily reflect the reality but the theoretical aspiration instead. Following
this, it was argued that this model no longer provides a feasible explanation of the
tension between private and public, as there is no state control when it comes to
private enforcement. The question about alternative ways of justifying privatised
use of coercion led to asking what is justification. Justification was located within
the legal system but as the traditional ideal model depicted, use of coercion and the
authority of law are often explained by external references, as is the case with state
control over enforcement. It was argued that justification should be interpreted as
structural couplings that take the form of narratives within the legal system. The
existing, historically sedimented narratives used in the context of dispute resolution
were recognised as sovereignty, private autonomy and human rights.
Notes
1 The lack of precedents has received much critical attention in the debate on privatisation of dispute resolution. For an early seminal article on this critique see, Owen Fiss,
‘Against Settlement’ (1984) 93 Yale Law Journal 1073. For a recent re-evaluation of
Fiss’ argument see, Michael Moffit, ‘Three Things to Be Against (“Settlement” Not
Included)’ (2009) 78 Fordham Law Review 1203.
2 Kaufmann-Kohler discusses the practice of referring to earlier cases in arbitration
practice, although no official doctrine of precedents exists. She considers the concept
of “arbitral precedent” necessary for rule of law in the future. See Gabrielle KaufmannKohler, ‘Arbitral Precedent: Dream, Necessity or Excuse? The 2006 Freshfields
Lecture’ (2007) 23 Arbitration International 357. Kurkela and Turunen examine the
established due process standards in arbitration and suggest that this common core of
arbitration could be called lex proceduralia. See Matti Kurkela and Santtu Turunen,
Due Process in International Commercial Arbitration (2nd edn, Oxford University
Press 2010) 201–206.
3 Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law:
The Case of Divorce Dispute Resolution’ (1979) 88 Yale Law Journal 950.
4 On the debate on vanishing trials see, Marc Galanter, ‘The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts’ (2004) 1 Journal of
Empirical Legal Studies 459; Marc Galanter, ‘A World without Trials?’ [2006] Journal of
Dispute Resolution 7; Stephan Landsman, ‘So What? Possible Implications of the
Vanishing Trial Phenomenon’ [2004] Journal of Empirical Legal Studies 973.
106 Three quests for justification
28 Like all communication within the legal
system, establishing justification consists of multifaceted interlinked operations.
In order to function as a source of justification, the legal system’s operations need
to reproduce justification continuously. As we cannot access the continuous flow
of communication, we are limited to observation of actions. In other words, we
may only observe justification through such oversimplifications.
4.4 Conclusions
This chapter began with an examination of how the interplay between public and
private dispute resolution has been organised through a division of labour
dependent on state control over public enforcement. This preservation of the
state’s monopoly on violence is apparent in the traditional ideal model, that does
not necessarily reflect the reality but the theoretical aspiration instead. Following
this, it was argued that this model no longer provides a feasible explanation of the
tension between private and public, as there is no state control when it comes to
private enforcement. The question about alternative ways of justifying privatised
use of coercion led to asking what is justification. Justification was located within
the legal system but as the traditional ideal model depicted, use of coercion and the
authority of law are often explained by external references, as is the case with state
control over enforcement. It was argued that justification should be interpreted as
structural couplings that take the form of narratives within the legal system. The
existing, historically sedimented narratives used in the context of dispute resolution
were recognised as sovereignty, private autonomy and human rights.
Notes
1 The lack of precedents has received much critical attention in the debate on privatisation of dispute resolution. For an early seminal article on this critique see, Owen Fiss,
‘Against Settlement’ (1984) 93 Yale Law Journal 1073. For a recent re-evaluation of
Fiss’ argument see, Michael Moffit, ‘Three Things to Be Against (“Settlement” Not
Included)’ (2009) 78 Fordham Law Review 1203.
2 Kaufmann-Kohler discusses the practice of referring to earlier cases in arbitration
practice, although no official doctrine of precedents exists. She considers the concept
of “arbitral precedent” necessary for rule of law in the future. See Gabrielle KaufmannKohler, ‘Arbitral Precedent: Dream, Necessity or Excuse? The 2006 Freshfields
Lecture’ (2007) 23 Arbitration International 357. Kurkela and Turunen examine the
established due process standards in arbitration and suggest that this common core of
arbitration could be called lex proceduralia. See Matti Kurkela and Santtu Turunen,
Due Process in International Commercial Arbitration (2nd edn, Oxford University
Press 2010) 201–206.
3 Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law:
The Case of Divorce Dispute Resolution’ (1979) 88 Yale Law Journal 950.
4 On the debate on vanishing trials see, Marc Galanter, ‘The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts’ (2004) 1 Journal of
Empirical Legal Studies 459; Marc Galanter, ‘A World without Trials?’ [2006] Journal of
Dispute Resolution 7; Stephan Landsman, ‘So What? Possible Implications of the
Vanishing Trial Phenomenon’ [2004] Journal of Empirical Legal Studies 973.
106 Three quests for justification