6 Consent and private autonomy
Chapter 5 addressed the shortcomings of sovereignty, the structural coupling
between systems of law and politics, as a justificatory narrative for private
enforcement. This chapter examines the structural coupling between law and
economics, contract and the private autonomy it reflects, as a possible source of
justification for private enforcement. As the emphasis is on evaluating how the
consent narrative is, and could be, used to overcome the shortcomings of
sovereignty, this treatment is more cursory than in the previous chapter.
The origins of private autonomy as a source of justification for dispute resolution can be traced back to Roman law and to the rekindled interest in contract in
the eighteenth century. However, the importance of consent in justifying dispute
resolution started to increase in the 1960s, as the ADR movement advocated the
use of the parties’ agreement as a basis of jurisdiction in order to enable out-ofcourt dispute resolution models. As with sovereignty, the possibilities of private
autonomy in justifying private enforcement are evaluated and its shortcomings
are found in its lack of awareness of power imbalances and in the challenges of
creating sufficient redress mechanisms. However, the potential of private autonomy is discussed only in relation to the shortcomings of the sovereignty narrative;
the attention is directed to asking whether the consent narrative can compensate
for the limitations that follow from the connection between law and state and fill
the justificatory void of private enforcement.
6.1 Finding consent
6.1.1 The perspective of the parties
Whereas sovereignty is focused on the connection between law and state, consent
calls attention to the relationship between individuals. Although dispute resolution is about interpersonal communication, the need to sustain the fiction of state
monopoly on dispute resolution has downplayed the importance of consent. This
does not mean that consensual models are of recent origin even if the current
formulation of consent as an alternative jurisdiction is. Often consent has not
been considered as a sole source of legitimacy, but instead coupled with state
control. As technology offers alternative ways of enforcement without state
Chapter 5 addressed the shortcomings of sovereignty, the structural coupling
between systems of law and politics, as a justificatory narrative for private
enforcement. This chapter examines the structural coupling between law and
economics, contract and the private autonomy it reflects, as a possible source of
justification for private enforcement. As the emphasis is on evaluating how the
consent narrative is, and could be, used to overcome the shortcomings of
sovereignty, this treatment is more cursory than in the previous chapter.
The origins of private autonomy as a source of justification for dispute resolution can be traced back to Roman law and to the rekindled interest in contract in
the eighteenth century. However, the importance of consent in justifying dispute
resolution started to increase in the 1960s, as the ADR movement advocated the
use of the parties’ agreement as a basis of jurisdiction in order to enable out-ofcourt dispute resolution models. As with sovereignty, the possibilities of private
autonomy in justifying private enforcement are evaluated and its shortcomings
are found in its lack of awareness of power imbalances and in the challenges of
creating sufficient redress mechanisms. However, the potential of private autonomy is discussed only in relation to the shortcomings of the sovereignty narrative;
the attention is directed to asking whether the consent narrative can compensate
for the limitations that follow from the connection between law and state and fill
the justificatory void of private enforcement.
6.1 Finding consent
6.1.1 The perspective of the parties
Whereas sovereignty is focused on the connection between law and state, consent
calls attention to the relationship between individuals. Although dispute resolution is about interpersonal communication, the need to sustain the fiction of state
monopoly on dispute resolution has downplayed the importance of consent. This
does not mean that consensual models are of recent origin even if the current
formulation of consent as an alternative jurisdiction is. Often consent has not
been considered as a sole source of legitimacy, but instead coupled with state
control. As technology offers alternative ways of enforcement without state