element of protection, one-sidedly. The consent narrative is flexible and inclusive
enough, to the point of losing its descriptive force, becoming inapplicable as a
source of justification.
6.3 The future of consent in dispute resolution
As demonstrated above, the difficulty with consent-based models of justification is
that they hide the justificatory crisis at hand. The concept of consent does not
provide us with a mechanism for conceptualising private enforcement: from
the perspective of consent, private enforcement does not constitute a crisis. Both
the traditional coexistence of litigation and ADR, and the new interpretative
challenge of private enforcement can be understood through the concept of consent
as the focal starting point for legitimacy. In other words, the markets are not picky:
there is no distinction between different models of enforcement, because the
economic system does not require the system of state enforcement, it simply needs
a system of enforcement.
43 However, this distorts the overall image, downplaying
the importance of the irritant for the evolution of both the legal system and society.
As stated, consent alone does not provide us with sufficient means of tackling private
enforcement and bypassing the state monopoly on violence. Hence, grounding
justification on the principle of private autonomy is not a feasible option.
Consent has not lost its significance in connection to the use of information and
communications technology (ICT), despite all of this. Contractual instruments are
gaining ground and function as the legal foundation for private enforcement. The
validity of these contractual models is difficult to contradict in terms of contract
law, although they have consequences for our comprehension of procedural law.
On a broader scale, it is difficult to imagine that the role of consent would
significantly decrease. It is also probable that contractual instruments will gain
more ground in the online context and that they will be applied to understand the
legal nature of future technological applications.
44 Still, this debate detaches from
the question of justifying dispute resolution technology. Sovereignty fails at
justifying private enforcement, because privatised use of force cannot be explained
in the political system, which emphasises the political claim on use of power. Thus,
private enforcement is incomprehensible from the perspective of sovereignty.
From the perspective of consent the situation is different. Through the
structural coupling of consent both the legal system and the economic system
can understand private enforcement but this line of thought meets a different
type of resistance, the external requirement for fairness. Although there are
methods in contract law for providing fairness and protection for the weaker
party on a micro level, these cannot fulfil their function accordingly on a macro
level, in justifying private enforcement.
6.4 Conclusions
This chapter discussed the structural coupling between the legal system and the
system of economics as the source of justification for private enforcement.
154 Three quests for justification
enough, to the point of losing its descriptive force, becoming inapplicable as a
source of justification.
6.3 The future of consent in dispute resolution
As demonstrated above, the difficulty with consent-based models of justification is
that they hide the justificatory crisis at hand. The concept of consent does not
provide us with a mechanism for conceptualising private enforcement: from
the perspective of consent, private enforcement does not constitute a crisis. Both
the traditional coexistence of litigation and ADR, and the new interpretative
challenge of private enforcement can be understood through the concept of consent
as the focal starting point for legitimacy. In other words, the markets are not picky:
there is no distinction between different models of enforcement, because the
economic system does not require the system of state enforcement, it simply needs
a system of enforcement.
43 However, this distorts the overall image, downplaying
the importance of the irritant for the evolution of both the legal system and society.
As stated, consent alone does not provide us with sufficient means of tackling private
enforcement and bypassing the state monopoly on violence. Hence, grounding
justification on the principle of private autonomy is not a feasible option.
Consent has not lost its significance in connection to the use of information and
communications technology (ICT), despite all of this. Contractual instruments are
gaining ground and function as the legal foundation for private enforcement. The
validity of these contractual models is difficult to contradict in terms of contract
law, although they have consequences for our comprehension of procedural law.
On a broader scale, it is difficult to imagine that the role of consent would
significantly decrease. It is also probable that contractual instruments will gain
more ground in the online context and that they will be applied to understand the
legal nature of future technological applications.
44 Still, this debate detaches from
the question of justifying dispute resolution technology. Sovereignty fails at
justifying private enforcement, because privatised use of force cannot be explained
in the political system, which emphasises the political claim on use of power. Thus,
private enforcement is incomprehensible from the perspective of sovereignty.
From the perspective of consent the situation is different. Through the
structural coupling of consent both the legal system and the economic system
can understand private enforcement but this line of thought meets a different
type of resistance, the external requirement for fairness. Although there are
methods in contract law for providing fairness and protection for the weaker
party on a micro level, these cannot fulfil their function accordingly on a macro
level, in justifying private enforcement.
6.4 Conclusions
This chapter discussed the structural coupling between the legal system and the
system of economics as the source of justification for private enforcement.
154 Three quests for justification