control, the acceptability of consent as a justificatory narrative transforms into a
question about the limits of consent. Can we give consent to renouncing the
state’s role as the gatekeeper of enforcement? Can we renounce Montesquieu’s
separation of powers? Can we consent to the democratisation of violence, to
private enforcement? What criteria do we place on consent to ascertain that it is
acceptable and ‘true’, from which perspective are these limits imposed, or is this
truthfulness of consent a fiction to begin with?
Private autonomy, i.e. the significance of consent, or freedom of contract is the
structural coupling between the systems of law and economy. Contracts employ
the binary codes of both systems simultaneously, the legal/illegal of law and
paying/not paying of economy. However, the definition, boundaries and application of consent are not clear-cut. As stated in Chapter 5, voluntary compliance
with a decision is understood as a contract, the consent of the parties, and there is
no use of force. Whereas sovereignty as justification draws attention to the
interests of the state in dispute resolution, the perspective embedded in private
autonomy turns the focus to the disputing parties. From the perspective of
sovereignty, the use of force, the binary code of power/opposition, is a deciding
factor in allocating voluntary compliance to the sphere of freedom of contract.
But from the perspective of private autonomy, can we expand its sphere to
include the use of coercion? Is this not contradictory?
As discussed in relation to sovereignty, the ownership of conflicts is an elusive
concept. Legal conflicts have a public function in providing stability and predictability, but the direct consequences of conflicts impact the disputing parties first
and foremost. The demarcation between the public function and the interests of
the parties is further supplemented with the perspective of the markets. Both the
e-commerce market and the dispute resolution market affect the success of
different conflict management methods. However, the conflict starts and ends
with the parties, their disagreement is the basic element of all dispute resolution,
the fuel for reinterpretation and development of law, the discrepancy of business
transactions, a valuable asset for the dispute resolution market.
The ownership of conflicts is a question that cannot be answered as such;
however, different perspectives reveal different facets of dispute resolution. The
examination of sovereignty as a source justification gives insight into the interests
of nation-states in conflict management. Through the structural coupling of law
and politics we perceive dispute resolution in terms of power in addition to the
internal framework of the legal system. Looking at dispute resolution through
the lens of private autonomy sheds light on the interests of the parties and the
markets. The structural coupling between the legal system and the economy
brings attention to resource allocation in dispute resolution. By emphasising the
importance of private autonomy, sometimes at the expense of sovereignty, the
focus shifts to the needs, motives, resources and rights of the parties themselves.
1
Freedom of contract is often connected with laissez-faire liberalism, highlighting the importance of minimum state control in contractual relations between
two competent and consenting parties. However, freedom of contract has roots
in Roman private law,
2 and was well established as one of the basic principles of
142 Three quests for justification
question about the limits of consent. Can we give consent to renouncing the
state’s role as the gatekeeper of enforcement? Can we renounce Montesquieu’s
separation of powers? Can we consent to the democratisation of violence, to
private enforcement? What criteria do we place on consent to ascertain that it is
acceptable and ‘true’, from which perspective are these limits imposed, or is this
truthfulness of consent a fiction to begin with?
Private autonomy, i.e. the significance of consent, or freedom of contract is the
structural coupling between the systems of law and economy. Contracts employ
the binary codes of both systems simultaneously, the legal/illegal of law and
paying/not paying of economy. However, the definition, boundaries and application of consent are not clear-cut. As stated in Chapter 5, voluntary compliance
with a decision is understood as a contract, the consent of the parties, and there is
no use of force. Whereas sovereignty as justification draws attention to the
interests of the state in dispute resolution, the perspective embedded in private
autonomy turns the focus to the disputing parties. From the perspective of
sovereignty, the use of force, the binary code of power/opposition, is a deciding
factor in allocating voluntary compliance to the sphere of freedom of contract.
But from the perspective of private autonomy, can we expand its sphere to
include the use of coercion? Is this not contradictory?
As discussed in relation to sovereignty, the ownership of conflicts is an elusive
concept. Legal conflicts have a public function in providing stability and predictability, but the direct consequences of conflicts impact the disputing parties first
and foremost. The demarcation between the public function and the interests of
the parties is further supplemented with the perspective of the markets. Both the
e-commerce market and the dispute resolution market affect the success of
different conflict management methods. However, the conflict starts and ends
with the parties, their disagreement is the basic element of all dispute resolution,
the fuel for reinterpretation and development of law, the discrepancy of business
transactions, a valuable asset for the dispute resolution market.
The ownership of conflicts is a question that cannot be answered as such;
however, different perspectives reveal different facets of dispute resolution. The
examination of sovereignty as a source justification gives insight into the interests
of nation-states in conflict management. Through the structural coupling of law
and politics we perceive dispute resolution in terms of power in addition to the
internal framework of the legal system. Looking at dispute resolution through
the lens of private autonomy sheds light on the interests of the parties and the
markets. The structural coupling between the legal system and the economy
brings attention to resource allocation in dispute resolution. By emphasising the
importance of private autonomy, sometimes at the expense of sovereignty, the
focus shifts to the needs, motives, resources and rights of the parties themselves.
1
Freedom of contract is often connected with laissez-faire liberalism, highlighting the importance of minimum state control in contractual relations between
two competent and consenting parties. However, freedom of contract has roots
in Roman private law,
2 and was well established as one of the basic principles of
142 Three quests for justification