Depending on which direction we take, whether we accentuate the significance
of the parties’ perspective and their need to find a quick resolution or whether
we give more weight to the interests of the public, affects the way we perceive
justification. It is precisely this conception of the public function of disputes that
is employed to promote state action in dispute resolution. Conversely, we may
contest the state’s role by emphasising the perspectives of the markets (and the
interests of private providers of resolution). Taking the party perspective would
lead to a claim that the provider of dispute resolution does not matter as long as
the parties are content with the solution.
These positions influence which source of justification we consider decisive.
Still, the justificatory narratives often entwine and are present simultaneously. We
would miss a point if we deny that all these interests of parties, markets, the state
and the public are relevant to dispute resolution at the same and justification is
born through all these. Still, it would be an oversimplification to hold on to the
idea that one group might have a prima nocta sort of principal right to the
ownership of conflicts.
We can claim that all conflict management, through either private or public
dispute resolution models, performs a public function by preventing conflicts
from escalating, and thus protecting peace and order in society.
5 As Hörnle
states, even arbitration, which is often particularly identified as being confidential
and private,
6 is not entirely private; in fact, it fulfils a public function similar to
that of litigation. According to her well-argued position, it is because arbitration
serves the public interest that its legal rules are binding and arbitral awards are
given access to public enforcement.
7 The same statement on the interaction
between private and public dispute resolution has been made even earlier. The
claim that private and public dispute resolution models are distinct can be
questioned by referring to Mnookin and Kornhauser’s assertion that private
dispute resolution is by no means oblivious to litigation; instead, it can be seen
as “bargaining in the shadow of the law”, where the law also creates the context
for out-of-court private settlements.
8 Then again, this view can be criticised by
claiming that, in the end, such an influence of litigation on private dispute
resolution is hard to measure and may, in fact, be non-existent.
To understand how justification is created through interaction between the law
and the state, we need to bear in mind the social function of conflicts. Traditionally,
we accentuate the significance of this social function.
9 In the doctrine of procedural
law, this emphasis has meant linking dispute resolution with the nation-state. This is
done by granting the state the sole right to regulate how conflicts are resolved, in
order to cater to this social function. To this end, the role of sovereign power is
referred to as the state monopoly of dispute resolution.
5.1.2 The concept of sovereignty
The concept of sovereignty is difficult to define, as the concept is loaded with
history and philosophical debate.
10 As Mutanen points out, it is impossible to
give a comprehensive study of the philosophical work on sovereignty or even a
Sovereignty and state agenda 111
of the parties’ perspective and their need to find a quick resolution or whether
we give more weight to the interests of the public, affects the way we perceive
justification. It is precisely this conception of the public function of disputes that
is employed to promote state action in dispute resolution. Conversely, we may
contest the state’s role by emphasising the perspectives of the markets (and the
interests of private providers of resolution). Taking the party perspective would
lead to a claim that the provider of dispute resolution does not matter as long as
the parties are content with the solution.
These positions influence which source of justification we consider decisive.
Still, the justificatory narratives often entwine and are present simultaneously. We
would miss a point if we deny that all these interests of parties, markets, the state
and the public are relevant to dispute resolution at the same and justification is
born through all these. Still, it would be an oversimplification to hold on to the
idea that one group might have a prima nocta sort of principal right to the
ownership of conflicts.
We can claim that all conflict management, through either private or public
dispute resolution models, performs a public function by preventing conflicts
from escalating, and thus protecting peace and order in society.
5 As Hörnle
states, even arbitration, which is often particularly identified as being confidential
and private,
6 is not entirely private; in fact, it fulfils a public function similar to
that of litigation. According to her well-argued position, it is because arbitration
serves the public interest that its legal rules are binding and arbitral awards are
given access to public enforcement.
7 The same statement on the interaction
between private and public dispute resolution has been made even earlier. The
claim that private and public dispute resolution models are distinct can be
questioned by referring to Mnookin and Kornhauser’s assertion that private
dispute resolution is by no means oblivious to litigation; instead, it can be seen
as “bargaining in the shadow of the law”, where the law also creates the context
for out-of-court private settlements.
8 Then again, this view can be criticised by
claiming that, in the end, such an influence of litigation on private dispute
resolution is hard to measure and may, in fact, be non-existent.
To understand how justification is created through interaction between the law
and the state, we need to bear in mind the social function of conflicts. Traditionally,
we accentuate the significance of this social function.
9 In the doctrine of procedural
law, this emphasis has meant linking dispute resolution with the nation-state. This is
done by granting the state the sole right to regulate how conflicts are resolved, in
order to cater to this social function. To this end, the role of sovereign power is
referred to as the state monopoly of dispute resolution.
5.1.2 The concept of sovereignty
The concept of sovereignty is difficult to define, as the concept is loaded with
history and philosophical debate.
10 As Mutanen points out, it is impossible to
give a comprehensive study of the philosophical work on sovereignty or even a
Sovereignty and state agenda 111