7 Access to justice
In the previous chapters, structural couplings between the legal system and the
systems of politics and economics were evaluated as possible sources of justification
for private enforcement. Inability of sovereignty narrative to explain privatisation
and the shift of focus to the structures that follow from the fictional consent call
attention to the rituals of dispute resolution, to the idea that how the process is
organised caters to its acceptance, produces justification.
The justificatory force of structures, the link between law and ethics, points to
ethical discourse on dispute resolution and the growing importance of fundamental right to fair trial since the end of World War II. Here, this justificatory
narrative is called access to justice. Although aspects of access to justice have been
positivised into due process criteria, access to justice as a justificatory narrative
refers to the moral dimension of such procedural rights. Because of this elusive
character of access to justice, conceptualising the justificatory narrative connects
with the transcendent element of law, namely justice itself. As with private
autonomy, the narrative is discussed only in relation to the shortcomings of the
other narratives to evaluate how it is used to compensate their limitations.
7.1 Finding access to justice
7.1.1 From constitutive couplings to fundamental rights
The access to justice narrative is different from the more constitutive sovereignty
and consent narratives that are produced through structural couplings between
the legal system and systems of politics and economics. Unlike these narratives,
access to justice is not produced through a coupling to another system, as since
the differentiation of ethics and religion, ethical discourse does not belong to any
given system. Instead, ethical discourse can be located in all subsystems in secular
Western societies. There is no constitutive principle that provides authority for
the narrative, but its foundation lies in the intrinsic value of fairness that has been
gaining momentum as a part of the human rights discourse. It is argued here that
these special characteristics explain the limits of access to justice as a source of
justification. Ethical communication about dispute resolution does not provide
generalised standards that could be applied as such to provide justification for
In the previous chapters, structural couplings between the legal system and the
systems of politics and economics were evaluated as possible sources of justification
for private enforcement. Inability of sovereignty narrative to explain privatisation
and the shift of focus to the structures that follow from the fictional consent call
attention to the rituals of dispute resolution, to the idea that how the process is
organised caters to its acceptance, produces justification.
The justificatory force of structures, the link between law and ethics, points to
ethical discourse on dispute resolution and the growing importance of fundamental right to fair trial since the end of World War II. Here, this justificatory
narrative is called access to justice. Although aspects of access to justice have been
positivised into due process criteria, access to justice as a justificatory narrative
refers to the moral dimension of such procedural rights. Because of this elusive
character of access to justice, conceptualising the justificatory narrative connects
with the transcendent element of law, namely justice itself. As with private
autonomy, the narrative is discussed only in relation to the shortcomings of the
other narratives to evaluate how it is used to compensate their limitations.
7.1 Finding access to justice
7.1.1 From constitutive couplings to fundamental rights
The access to justice narrative is different from the more constitutive sovereignty
and consent narratives that are produced through structural couplings between
the legal system and systems of politics and economics. Unlike these narratives,
access to justice is not produced through a coupling to another system, as since
the differentiation of ethics and religion, ethical discourse does not belong to any
given system. Instead, ethical discourse can be located in all subsystems in secular
Western societies. There is no constitutive principle that provides authority for
the narrative, but its foundation lies in the intrinsic value of fairness that has been
gaining momentum as a part of the human rights discourse. It is argued here that
these special characteristics explain the limits of access to justice as a source of
justification. Ethical communication about dispute resolution does not provide
generalised standards that could be applied as such to provide justification for