5 Sovereignty and state agenda
In the previous chapters we established the emergence of a new social system, the
use of ICT, and examined how it disrupts the operations of the legal system by
increasing privatisation of coercion. The legal system is seen as facing the
challenge of immunising itself against the new irritant of dispute resolution
technology that takes the form of technology-driven private enforcement. The
impact of privatised coercion affects the justification of dispute resolution, which
in this study is interpreted as resulting from structural couplings with other
societal subsystems. These structural couplings reflect rationalities external to
the legal system.
Chapter 6 is first of the three chapters that apply the theoretical model
developed in earlier chapters. All of the following three chapters are structured
in the same way and the examination proceeds from the origins of the structural
coupling to locating its reflections in dispute resolution and further to evaluating
the shortcomings of the coupling in answering the justificatory challenge posed
by private enforcement. In this chapter the structural coupling between law and
politics, i.e. constitution or sovereignty, is discussed as a source of justification for
dispute resolution. After establishing the close link that has existed between law
and the state ever since the birth of sovereignty in the Westphalian Peace Treaty of
1648, it is asked whether sovereignty could be used to justify private enforcement.
This question is answered in the negative, as the possibilities of creating multilateral
Convention instruments to regulate private enforcement are scarce and any instrument would face significant problems in its application. The chapter concludes with
remarks on the future role of sovereignty in dispute resolution.
1
5.1 Finding sovereignty
5.1.1 Whose conflicts are they anyway?
To whom do conflicts belong? They emerge between people, both natural and
legal, grow into disputes and are then resolved, with the help of either a judge or
some other neutral third. It is evident that they do not belong to the disputing
parties themselves, as vigilantism is often criminalised.
2 The parties have no
options for accessing their legal rights other than to agree between themselves
In the previous chapters we established the emergence of a new social system, the
use of ICT, and examined how it disrupts the operations of the legal system by
increasing privatisation of coercion. The legal system is seen as facing the
challenge of immunising itself against the new irritant of dispute resolution
technology that takes the form of technology-driven private enforcement. The
impact of privatised coercion affects the justification of dispute resolution, which
in this study is interpreted as resulting from structural couplings with other
societal subsystems. These structural couplings reflect rationalities external to
the legal system.
Chapter 6 is first of the three chapters that apply the theoretical model
developed in earlier chapters. All of the following three chapters are structured
in the same way and the examination proceeds from the origins of the structural
coupling to locating its reflections in dispute resolution and further to evaluating
the shortcomings of the coupling in answering the justificatory challenge posed
by private enforcement. In this chapter the structural coupling between law and
politics, i.e. constitution or sovereignty, is discussed as a source of justification for
dispute resolution. After establishing the close link that has existed between law
and the state ever since the birth of sovereignty in the Westphalian Peace Treaty of
1648, it is asked whether sovereignty could be used to justify private enforcement.
This question is answered in the negative, as the possibilities of creating multilateral
Convention instruments to regulate private enforcement are scarce and any instrument would face significant problems in its application. The chapter concludes with
remarks on the future role of sovereignty in dispute resolution.
1
5.1 Finding sovereignty
5.1.1 Whose conflicts are they anyway?
To whom do conflicts belong? They emerge between people, both natural and
legal, grow into disputes and are then resolved, with the help of either a judge or
some other neutral third. It is evident that they do not belong to the disputing
parties themselves, as vigilantism is often criminalised.
2 The parties have no
options for accessing their legal rights other than to agree between themselves