insurmountable to the code of politics. Here lies the strength, as well as the
weakness, of private autonomy as a source of justification.
The limits of consent are dictated by the binary codes it operates with. Private
autonomy conforms to the legal/illegal code of the legal system and to the
paying/not-paying code of the economic system. Naturally, the consent narrative
is oblivious to the power/opposition coding of the political system, which means
that power relations remain outside the narrative’s perception. The rhetoric of
consent tends to bypass issues of unequal power dynamics between disputing
parties, as discussed by the American historian John Auerbach, who analyses the
rise of arbitration in low-value consumer cases. Auerbach notes that, historically,
arbitration proved to be detrimental for the consumer, because of unequal
economic power, unilaterally drafted standard contracts with arbitral clauses,
and binding arbitral awards. Consumers might also waive their rights through
uninformed consent to arbitration, with no redress mechanisms available, as the
public courts have rejected such claims outright.
39 The issue of unequal power
distribution has received extensive attention in both ADR and ODR literature.
The repeat player effect, i.e. inherent bias in favour of economically stronger
parties who repeatedly use the same mechanism, has been widely discussed and
the debate mostly culminates in demands for the professional competence of
dispute resolution providers. The code of economics becomes visible particularly
in the ADR context, where discussion has focused on portraying ADR methods
as more cost-effective than litigation.
Through private autonomy and the emphasis placed on consent we can describe
the use of dispute resolution technology, also including the stumbling block of
private enforcement. All enforcement mechanisms can be understood contractually: from the perspective of private autonomy, enforcement is simply an
extension of the contract. From the perspective of the economic system, private
enforcement can easily be portrayed through contract, as it conforms to the code
of the economic system.
Nevertheless, this description is not entirely convincing. As with explaining the
state through social construct theories, describing enforcement through the
consent narrative appears somewhat artificial. As consent derives its justificatory
power from the meeting of the minds, from voluntariness of performance,
coercion and consent are more or less incompatible. The legal system, however,
finds itself wanting: from its perspective, mere description is too open-ended. The
focus on private autonomy loses sight of law as coercion; it hides the inherent
violence visible particularly in enforcement, and although it explains private
regimes, it fails to provide a nuanced account of privatised coercion. This, in
turn, demonstrates the mostly complementary nature of the consent narrative,
which in dispute resolution has often been used alongside the sovereignty
narrative to counterpoint the latter’s shortcomings. In other words, consent
provides a model for examining conflict management outside the courts while
simultaneously presupposing their role as the ultimate gatekeepers of enforcement. Currently, the consent narrative is not comprehensive enough to function
without its close connection with the sovereign nation-state.
152 Three quests for justification
weakness, of private autonomy as a source of justification.
The limits of consent are dictated by the binary codes it operates with. Private
autonomy conforms to the legal/illegal code of the legal system and to the
paying/not-paying code of the economic system. Naturally, the consent narrative
is oblivious to the power/opposition coding of the political system, which means
that power relations remain outside the narrative’s perception. The rhetoric of
consent tends to bypass issues of unequal power dynamics between disputing
parties, as discussed by the American historian John Auerbach, who analyses the
rise of arbitration in low-value consumer cases. Auerbach notes that, historically,
arbitration proved to be detrimental for the consumer, because of unequal
economic power, unilaterally drafted standard contracts with arbitral clauses,
and binding arbitral awards. Consumers might also waive their rights through
uninformed consent to arbitration, with no redress mechanisms available, as the
public courts have rejected such claims outright.
39 The issue of unequal power
distribution has received extensive attention in both ADR and ODR literature.
The repeat player effect, i.e. inherent bias in favour of economically stronger
parties who repeatedly use the same mechanism, has been widely discussed and
the debate mostly culminates in demands for the professional competence of
dispute resolution providers. The code of economics becomes visible particularly
in the ADR context, where discussion has focused on portraying ADR methods
as more cost-effective than litigation.
Through private autonomy and the emphasis placed on consent we can describe
the use of dispute resolution technology, also including the stumbling block of
private enforcement. All enforcement mechanisms can be understood contractually: from the perspective of private autonomy, enforcement is simply an
extension of the contract. From the perspective of the economic system, private
enforcement can easily be portrayed through contract, as it conforms to the code
of the economic system.
Nevertheless, this description is not entirely convincing. As with explaining the
state through social construct theories, describing enforcement through the
consent narrative appears somewhat artificial. As consent derives its justificatory
power from the meeting of the minds, from voluntariness of performance,
coercion and consent are more or less incompatible. The legal system, however,
finds itself wanting: from its perspective, mere description is too open-ended. The
focus on private autonomy loses sight of law as coercion; it hides the inherent
violence visible particularly in enforcement, and although it explains private
regimes, it fails to provide a nuanced account of privatised coercion. This, in
turn, demonstrates the mostly complementary nature of the consent narrative,
which in dispute resolution has often been used alongside the sovereignty
narrative to counterpoint the latter’s shortcomings. In other words, consent
provides a model for examining conflict management outside the courts while
simultaneously presupposing their role as the ultimate gatekeepers of enforcement. Currently, the consent narrative is not comprehensive enough to function
without its close connection with the sovereign nation-state.
152 Three quests for justification