reflexively to external demands from its environment.
5 However, justice is closed
within the legal system by operative closure, rendering justice as law’s necessary
but impossible self-transcendence. Justice as law’s contingency formula provides
the necessary uncertainty for law’s operations, provides fuel for the application of
the code, which makes distinctions between legal/illegal while leaving their
attribution open.
6 Simply put, justice is the unreachable objective of legal
communication that ensures the continual of law’s operations by regulating
uncertainty within the legal system.
How does this law’s contingency formula relate to the principle of access to
justice? The unattainability of justice demonstrates the contradictory nature
inherent in calls for improved access to justice. As justice in unreachable, we
need to focus on what can be perceived: the temporalised ethical communication
that has formed structures within the legal system, the due process criteria. This
being said, it is important to keep in mind the overarching ideal of access to
justice beyond treaty stipulations and the comprehensiveness and scope of it that
affects courts and private dispute resolution alike. On the concrete level of due
process, demands for access to justice entail individuals’ procedural rights starting
from the equality of arms, i.e. that both parties in a dispute should have the same
informational and procedural resources at their disposal, to legal aid schemes and
the impartiality of the tribunal. The European Court of Human Rights (ECtHR)
has a central role in substantiating the exact content of these criteria.
As the demand for access to justice is often too abstract and complex to analyse
on a generalised level, due process criteria form the essential core of the whole
rhetoric. This means that treaty stipulations, the argumentative structure incorporated in them and the dynamic interpretation in case law become decisive for
evaluating the content of access to justice. It should be noted that access to justice
is a broader concept than due process, as the latter refers to how a proceeding
should be organised. Access to justice, however, enables us to ask more farreaching questions on how access to proceedings is provided for, what about the
cases left outside the litigation threshold, and what the bigger picture is. In other
words, access to justice cannot be reduced to positivised due process criteria but
instead its value is in its ability to express the ethical dimension of law in relation to
law’s contingency formula of justice. Access to justice opens law towards ethics.
However, ethics do not interact with the legal system as do the systems of
politics and economics: references to access to justice are often ambiguous and
may be employed in pursuit of contrasting ends. Part of this ambiguity can be
explained by the role of justice as law’s contingency formula, another part by the
unusual nature of ethics. Unlike sovereignty or private autonomy, access to
justice does not provide us with an external reference point outside law, which
raises the question of the narrative’s potential in providing justification for private
enforcement without the support from the other narratives. Like the other
narratives, the access to justice narrative needs to conform to two sets of
coding, the legal/illegal of law and the code of ethics, which Luhmann pinpoints
as allocation of regard/disregard.
7 According to Luhmann, the code of morality
does not refer to good or bad performances of individuals (e.g. as scientists or
162 Three quests for justification
5 However, justice is closed
within the legal system by operative closure, rendering justice as law’s necessary
but impossible self-transcendence. Justice as law’s contingency formula provides
the necessary uncertainty for law’s operations, provides fuel for the application of
the code, which makes distinctions between legal/illegal while leaving their
attribution open.
6 Simply put, justice is the unreachable objective of legal
communication that ensures the continual of law’s operations by regulating
uncertainty within the legal system.
How does this law’s contingency formula relate to the principle of access to
justice? The unattainability of justice demonstrates the contradictory nature
inherent in calls for improved access to justice. As justice in unreachable, we
need to focus on what can be perceived: the temporalised ethical communication
that has formed structures within the legal system, the due process criteria. This
being said, it is important to keep in mind the overarching ideal of access to
justice beyond treaty stipulations and the comprehensiveness and scope of it that
affects courts and private dispute resolution alike. On the concrete level of due
process, demands for access to justice entail individuals’ procedural rights starting
from the equality of arms, i.e. that both parties in a dispute should have the same
informational and procedural resources at their disposal, to legal aid schemes and
the impartiality of the tribunal. The European Court of Human Rights (ECtHR)
has a central role in substantiating the exact content of these criteria.
As the demand for access to justice is often too abstract and complex to analyse
on a generalised level, due process criteria form the essential core of the whole
rhetoric. This means that treaty stipulations, the argumentative structure incorporated in them and the dynamic interpretation in case law become decisive for
evaluating the content of access to justice. It should be noted that access to justice
is a broader concept than due process, as the latter refers to how a proceeding
should be organised. Access to justice, however, enables us to ask more farreaching questions on how access to proceedings is provided for, what about the
cases left outside the litigation threshold, and what the bigger picture is. In other
words, access to justice cannot be reduced to positivised due process criteria but
instead its value is in its ability to express the ethical dimension of law in relation to
law’s contingency formula of justice. Access to justice opens law towards ethics.
However, ethics do not interact with the legal system as do the systems of
politics and economics: references to access to justice are often ambiguous and
may be employed in pursuit of contrasting ends. Part of this ambiguity can be
explained by the role of justice as law’s contingency formula, another part by the
unusual nature of ethics. Unlike sovereignty or private autonomy, access to
justice does not provide us with an external reference point outside law, which
raises the question of the narrative’s potential in providing justification for private
enforcement without the support from the other narratives. Like the other
narratives, the access to justice narrative needs to conform to two sets of
coding, the legal/illegal of law and the code of ethics, which Luhmann pinpoints
as allocation of regard/disregard.
7 According to Luhmann, the code of morality
does not refer to good or bad performances of individuals (e.g. as scientists or
162 Three quests for justification