Whereas sovereignty emphasises the public interest in private disputes, consent
calls attention to the perspective of the parties, to their private interests. It was
asked whether the consent narrative can compensate for the shortcomings of the
sovereignty narrative in justifying private enforcement by providing interpretative
flexibility. The consent narrative has earlier been successfully used to complement
sovereignty-based dispute resolution, as was the case with the ADR movement’s
criticism that resulted in the reconciliation of ADR and litigation through
cooperation demonstrated in the traditional ideal model. However, the consent
narrative does not provide sufficient justification for technology-driven private
enforcement. The problem with the justificatory narrative of consent is
embedded in its over-inclusiveness, which provides too much interpretative
flexibility to the point of ambiguity and not enough means for safeguarding and
monitoring due process. Also, consent becomes fictional when there are no
alternative redress mechanisms, providing only a form without content. This
brings into question how the structures that create the form, the mechanism for
giving this fictional consent, create justificatory structures. It follows from this
that, as the structural coupling between law and economics does not solve the
justificatory crisis, it is necessary to evaluate whether private enforcement could
be justified through the narrative of access to justice.
Notes
1 It should be noted that private autonomy has a connection to the concept of
sovereignty and finding justification may employ such interconnections. For example,
to Bodin the principle of pacta sunt servanda, the binding nature of contracts, was the
most important rule and the sovereign was responsible for safeguarding its use. See,
ibid 29.
2 Andreas Wacke, ‘Freedom of Contract and Restraint of Trade Clauses in Roman and
Modern Law’ (1993) 11 Law and History Review 1.
3 Gralf-Peter Calliess, ‘“Lex Mercatoria” ZenTra Working Paper in Transnational
Studies No. 52/2015’ available at ssrn.com/abstract=2597583 (accessed 25 June
2018).
4 See e.g., Arthur P Monahan, Consent, Coercion, and Limit: The Medieval Origins of
Parliamentary Democracy (McGill-Queen’s University Press 1987) 46–48.
5 Oxford Dictionaries, ‘Consent’ http://www.oxforddictionaries.com/definitioncon
sent (accessed 25 June 2018).
6 On individualism and its effect on freedom of contract see, PS Atiyah, The Rise and
Fall of Contract (Oxford University Press 1979) 256–.
7 Atiyah considers the authenticity of consent a major difference between social contract
theories of Hobbes and Locke. Locke contests that consent derived by force or out of
fear is not ‘true’, whereas such consent is the basis of Hobbes’ theory. See ibid 49.
8 Henry J Sumner Maine, Ancient Law: Its Connection with the Early History of Society,
and Its Relation to Modern Ideas (10th edn, John Murray 1908) 287.
9 ibid 290–294.
10 ibid 294–305.
11 Originally, the wording ‘from status to contract’ is Maine’s. Maine used this terminology to describe the changes of family law, particularly that in the position of married
women. See ibid 151. Maine’s analysis has received its share of criticism. For example,
Graveson considers it necessary to add limitations to the thesis, as it is an
Consent and private autonomy 155
calls attention to the perspective of the parties, to their private interests. It was
asked whether the consent narrative can compensate for the shortcomings of the
sovereignty narrative in justifying private enforcement by providing interpretative
flexibility. The consent narrative has earlier been successfully used to complement
sovereignty-based dispute resolution, as was the case with the ADR movement’s
criticism that resulted in the reconciliation of ADR and litigation through
cooperation demonstrated in the traditional ideal model. However, the consent
narrative does not provide sufficient justification for technology-driven private
enforcement. The problem with the justificatory narrative of consent is
embedded in its over-inclusiveness, which provides too much interpretative
flexibility to the point of ambiguity and not enough means for safeguarding and
monitoring due process. Also, consent becomes fictional when there are no
alternative redress mechanisms, providing only a form without content. This
brings into question how the structures that create the form, the mechanism for
giving this fictional consent, create justificatory structures. It follows from this
that, as the structural coupling between law and economics does not solve the
justificatory crisis, it is necessary to evaluate whether private enforcement could
be justified through the narrative of access to justice.
Notes
1 It should be noted that private autonomy has a connection to the concept of
sovereignty and finding justification may employ such interconnections. For example,
to Bodin the principle of pacta sunt servanda, the binding nature of contracts, was the
most important rule and the sovereign was responsible for safeguarding its use. See,
ibid 29.
2 Andreas Wacke, ‘Freedom of Contract and Restraint of Trade Clauses in Roman and
Modern Law’ (1993) 11 Law and History Review 1.
3 Gralf-Peter Calliess, ‘“Lex Mercatoria” ZenTra Working Paper in Transnational
Studies No. 52/2015’ available at ssrn.com/abstract=2597583 (accessed 25 June
2018).
4 See e.g., Arthur P Monahan, Consent, Coercion, and Limit: The Medieval Origins of
Parliamentary Democracy (McGill-Queen’s University Press 1987) 46–48.
5 Oxford Dictionaries, ‘Consent’ http://www.oxforddictionaries.com/definitioncon
sent (accessed 25 June 2018).
6 On individualism and its effect on freedom of contract see, PS Atiyah, The Rise and
Fall of Contract (Oxford University Press 1979) 256–.
7 Atiyah considers the authenticity of consent a major difference between social contract
theories of Hobbes and Locke. Locke contests that consent derived by force or out of
fear is not ‘true’, whereas such consent is the basis of Hobbes’ theory. See ibid 49.
8 Henry J Sumner Maine, Ancient Law: Its Connection with the Early History of Society,
and Its Relation to Modern Ideas (10th edn, John Murray 1908) 287.
9 ibid 290–294.
10 ibid 294–305.
11 Originally, the wording ‘from status to contract’ is Maine’s. Maine used this terminology to describe the changes of family law, particularly that in the position of married
women. See ibid 151. Maine’s analysis has received its share of criticism. For example,
Graveson considers it necessary to add limitations to the thesis, as it is an
Consent and private autonomy 155