the argument of access to justice can be employed by proponents of both
litigation and ADR tells us something about the concept. Firstly, as a recently
emerged discourse its role, application and consequences of human rights within
the legal system are still taking shape and arguments on access to justice are used to
advance various ends. Secondly, human rights are seen as universal and thus their
scope of application is not limited to certain geographical areas, certain fields,
contexts, procedures, practices or institutions.
Thirdly and most importantly, this ambiguity demonstrates that it is impossible
to establish criteria for what is better without a reference to the objective used to
evaluate this superiority. Simply put, the claim about something being better calls
for answering the follow-up question of ‘in what respect?’. This means that the
language can also be used to mislead, to offer arguments for a multitude of
contradictory ends. It is, therefore, important to closely inspect human rights
argumentation within the present context of dispute resolution, as such arguments
can be just arguments for ‘better’ instead of claims for concrete human rights
requirements. Also, it demonstrates that justificatory concepts are not distinct from
each other but instead justificatory narratives are often applied simultaneously.
The rhetoric of human rights departs from the moral dimension of law. Thus,
human rights are considered to transcend the limits of national legal systems,
enabling their universal application. It follows from this moral aspect that the
fundamental rights and access to justice reflect a different discourse than is customary
for the legal system. As ethical stipulations, these requirements of access to justice
open up to the fundamental questions of what is law, what is justice, and whether
these two are interchangeable. Access to justice brings us back to the law’s inherent
paradox, the never-ending search for the elusive and unattainable ideal of justice.
7.1.2 The concept of access to justice
The concept of access to justice seems to be somewhat imprecise and unfocused,
making the demands of fairness difficult to decipher within the legal system. This
ambiguity results from the multitude of meanings attributed to the concept; the
interpretative ambiguity also reveals something crucial about the role of ethics,
about law’s quest for justice.
For Luhmann, justice is law’s programme of programmes, its contingency
formula that operates like the conception of god in the religious system, or the
principle of scarcity in the economic system. A system’s contingency formula is its
eigenvalue, the reference point that decides which communication is meaningful
in the system, against which all communication is reflected and possible selections
limited. Justice is the centrepiece around which all communication is organised,
the ‘foundation on which the legal system build up its complexity’.
3 This means
that Luhmann provides no values or criteria for deciding what is justice, no
maxims or ethical codes, as all legal communication is about justice. Justice is an
internal process of the legal system, the system’s self-observation that aims to
provide ‘adequate complexity of consistent decision-making’.
4 This ‘adequate
complexity’ goes beyond the formal consistency of the legal system and responds
Access to justice 161
litigation and ADR tells us something about the concept. Firstly, as a recently
emerged discourse its role, application and consequences of human rights within
the legal system are still taking shape and arguments on access to justice are used to
advance various ends. Secondly, human rights are seen as universal and thus their
scope of application is not limited to certain geographical areas, certain fields,
contexts, procedures, practices or institutions.
Thirdly and most importantly, this ambiguity demonstrates that it is impossible
to establish criteria for what is better without a reference to the objective used to
evaluate this superiority. Simply put, the claim about something being better calls
for answering the follow-up question of ‘in what respect?’. This means that the
language can also be used to mislead, to offer arguments for a multitude of
contradictory ends. It is, therefore, important to closely inspect human rights
argumentation within the present context of dispute resolution, as such arguments
can be just arguments for ‘better’ instead of claims for concrete human rights
requirements. Also, it demonstrates that justificatory concepts are not distinct from
each other but instead justificatory narratives are often applied simultaneously.
The rhetoric of human rights departs from the moral dimension of law. Thus,
human rights are considered to transcend the limits of national legal systems,
enabling their universal application. It follows from this moral aspect that the
fundamental rights and access to justice reflect a different discourse than is customary
for the legal system. As ethical stipulations, these requirements of access to justice
open up to the fundamental questions of what is law, what is justice, and whether
these two are interchangeable. Access to justice brings us back to the law’s inherent
paradox, the never-ending search for the elusive and unattainable ideal of justice.
7.1.2 The concept of access to justice
The concept of access to justice seems to be somewhat imprecise and unfocused,
making the demands of fairness difficult to decipher within the legal system. This
ambiguity results from the multitude of meanings attributed to the concept; the
interpretative ambiguity also reveals something crucial about the role of ethics,
about law’s quest for justice.
For Luhmann, justice is law’s programme of programmes, its contingency
formula that operates like the conception of god in the religious system, or the
principle of scarcity in the economic system. A system’s contingency formula is its
eigenvalue, the reference point that decides which communication is meaningful
in the system, against which all communication is reflected and possible selections
limited. Justice is the centrepiece around which all communication is organised,
the ‘foundation on which the legal system build up its complexity’.
3 This means
that Luhmann provides no values or criteria for deciding what is justice, no
maxims or ethical codes, as all legal communication is about justice. Justice is an
internal process of the legal system, the system’s self-observation that aims to
provide ‘adequate complexity of consistent decision-making’.
4 This ‘adequate
complexity’ goes beyond the formal consistency of the legal system and responds
Access to justice 161