5.4 Conclusions
This chapter discussed sovereignty, which in dispute resolution is presented as a
fictional state monopoly on dispute resolution, as a source of justification for private
enforcement. Deriving its current conceptualisation from the social contract theories
of Hobbes and Locke, sovereignty is understood as a mandate to provide protection
for the people, an idea also present in the role of public courts as gatekeepers of
enforcement. The shortcomings of sovereignty in justifying private enforcement
become apparent in the insurmountable-looking difficulties faced in trying to preserve
the state monopoly by creating state-oriented transnational mechanisms for regulating
ODR. In short, sovereignty only provides a model for justifying the state’s monopoly
on violence. Thus, the quest for finding justification for private enforcement cannot
be solved with reinterpretation of the connection between law and the state but
instead we need to assess the possibility of finding justification from other narratives.
These narratives, private autonomy and access to justice, both compensate for the
deficiencies of the sovereignty narrative and provide flexibility in dispute resolution.
Notes
1 This chapter is loosely based on a previously published article. See Riikka Koulu,
‘Disintegration of the State Monopoly on Dispute Resolution: How Should We
Perceive State Sovereignty in the ODR Era?’ (2014) 1 International Journal of
Online Dispute Resolution 125.
2 See e.g. The Finnish Criminal Code, chapter 17, section 9, which defines vigilantism
as an offence against public order, which also includes such crimes as participating in
criminal organisations, rioting, illegal immigration and territorial violations. ‘A person
who in order to protect or enforce his or her rights undertakes measures that are
unlawful without resorting to the authorities shall be sentenced, unless a more severe
penalty for the act is laid down elsewhere in the law, for unlawful self-help to a fine or
to imprisonment for at most six months.’ [unofficial translation by the Ministry of
Justice, available at: https://www.finlex.fi/en/laki/kaannokset/1889/en18890039.
pdf/ (accessed 20 June 2018)].
3 As Gélinas et al. point out, ‘. . . civil procedure has developed in response to historical
dependencies. For instance, the allocation of power between the court and parties to a
suit appears to be grounded in tradition rather than in a logical principle of necessity
or the pursuit of specific, well-defined goals.” They accentuate that the lack of
empirical data on these court practices poses issues for court reforms. See Gélinas and
others, Foundations of Civil Justice: Toward a Value-Based Framework for Reform.
(Springer International Publishing 2015) 40.
4 For example, see the Finnish Constitution, section 18 on the right to work and the
right to engage in commercial activity of his or for her choice. The right is also
guaranteed by Article 15 of the Charter of Fundamental Rights of the European
Union and Article 6 of the International Covenant on Economic, Social and Cultural
Rights, among others.
5 Discussion on the social functions of dispute resolution is a classic in Scandinavian
procedural law, although it is sometimes criticised for its unscientific character. On
functions of litigation in the Finnish context, see Kaijus Ervasti, ‘Lainkäytön Funktiot’
(2002) 100 Lakimies 47. On criticism see e.g., Tatu Leppänen, Riita-Asian valmistelu
todistusaineiston osalta: prosessioikeudellinen tutkimus (Suomalainen lakimiesyhdistys
1998) 37–40.
Sovereignty and state agenda 135
This chapter discussed sovereignty, which in dispute resolution is presented as a
fictional state monopoly on dispute resolution, as a source of justification for private
enforcement. Deriving its current conceptualisation from the social contract theories
of Hobbes and Locke, sovereignty is understood as a mandate to provide protection
for the people, an idea also present in the role of public courts as gatekeepers of
enforcement. The shortcomings of sovereignty in justifying private enforcement
become apparent in the insurmountable-looking difficulties faced in trying to preserve
the state monopoly by creating state-oriented transnational mechanisms for regulating
ODR. In short, sovereignty only provides a model for justifying the state’s monopoly
on violence. Thus, the quest for finding justification for private enforcement cannot
be solved with reinterpretation of the connection between law and the state but
instead we need to assess the possibility of finding justification from other narratives.
These narratives, private autonomy and access to justice, both compensate for the
deficiencies of the sovereignty narrative and provide flexibility in dispute resolution.
Notes
1 This chapter is loosely based on a previously published article. See Riikka Koulu,
‘Disintegration of the State Monopoly on Dispute Resolution: How Should We
Perceive State Sovereignty in the ODR Era?’ (2014) 1 International Journal of
Online Dispute Resolution 125.
2 See e.g. The Finnish Criminal Code, chapter 17, section 9, which defines vigilantism
as an offence against public order, which also includes such crimes as participating in
criminal organisations, rioting, illegal immigration and territorial violations. ‘A person
who in order to protect or enforce his or her rights undertakes measures that are
unlawful without resorting to the authorities shall be sentenced, unless a more severe
penalty for the act is laid down elsewhere in the law, for unlawful self-help to a fine or
to imprisonment for at most six months.’ [unofficial translation by the Ministry of
Justice, available at: https://www.finlex.fi/en/laki/kaannokset/1889/en18890039.
pdf/ (accessed 20 June 2018)].
3 As Gélinas et al. point out, ‘. . . civil procedure has developed in response to historical
dependencies. For instance, the allocation of power between the court and parties to a
suit appears to be grounded in tradition rather than in a logical principle of necessity
or the pursuit of specific, well-defined goals.” They accentuate that the lack of
empirical data on these court practices poses issues for court reforms. See Gélinas and
others, Foundations of Civil Justice: Toward a Value-Based Framework for Reform.
(Springer International Publishing 2015) 40.
4 For example, see the Finnish Constitution, section 18 on the right to work and the
right to engage in commercial activity of his or for her choice. The right is also
guaranteed by Article 15 of the Charter of Fundamental Rights of the European
Union and Article 6 of the International Covenant on Economic, Social and Cultural
Rights, among others.
5 Discussion on the social functions of dispute resolution is a classic in Scandinavian
procedural law, although it is sometimes criticised for its unscientific character. On
functions of litigation in the Finnish context, see Kaijus Ervasti, ‘Lainkäytön Funktiot’
(2002) 100 Lakimies 47. On criticism see e.g., Tatu Leppänen, Riita-Asian valmistelu
todistusaineiston osalta: prosessioikeudellinen tutkimus (Suomalainen lakimiesyhdistys
1998) 37–40.
Sovereignty and state agenda 135