shared language, canon law being an example of this. At this point, the system of
religion might have provided law with an external reference that could have
adopted the role of justification, as was the case with canon law. However,
functional differentiation led to the decreasing importance of religion and to the
detachment of moral communication from this subsystem. The doctrine of natural
law was later utilised to provide similar constitutive argument, and the external
reference, for the purposes of justification.
13 This would mean that the source of
morality could be found embedded in reason, in the human mind itself, or in the
emerging system of ethics that transcends connection to religion. So, moral
communication about law has come to mean something other than moral communication about law based on religion. This also means that both subsystems of
law and religion have evolved beyond the historic point of shared language and
thus religion can no longer provide a similar source of justification (through
external reference to another system) as once was possible.
However, in access to justice we see a concept that is employed to take the
place of the justification of dispute resolution. How is this possible, if moral
communication has no home other than in the environment of subsystems? The
answer is simple. There is no longer a structural coupling between law and
another subsystem, but the legal system still presupposes the existence of a
structural coupling that once was there. Law operates as if the structural coupling
still provides information from outside the legal system’s boundaries, when in fact
the reference attained by the coupling is only a reflection of law’s own operations:
there is no information transfer between two systems. Still, law operates as if the
information transfer takes place, as if the operations shared by itself and the ghost
system conform to two types of coding, that of morality and that of law. This
interpretation also explains why moral communication about law lacks a constitutive principle like sovereignty or private autonomy. Simply put, there is none
except the reflection of the legal system itself. Although ethics does not relate to
any specific subsystem but is located in the environment of these systems, access
to justice functions in a similar way to sovereignty and consent narratives. Moral
communication about law attributes the code of morality to the application of
the legal system’s code. Thus, moral communication about law in the context of
dispute resolution technology functions in more or less the same way as the more
constitutive narratives. This said, access to justice materialises as an unsolvable
paradox of ethics, as a one-sided structural coupling that provides no clear-cut
answers to moral dilemmas.
Despite this transcendence of ethics, the access to justice narrative gains
justificatory force through its positivisation into due process criteria. Communication about fairness of dispute resolution carries an ethical undertone while its
legal plausibility stems from the constitutive power it lends from the connection
between law and the state. Thus, access to justice narrative is able to complement
the sovereignty narrative, and vice versa, by providing material standards for
evaluating how dispute resolution should be organised. By continuous reinterpretation, the access to justice narrative has become a programme within the legal
system that directs the application of the code. Its use as a justificatory narrative
164 Three quests for justification
religion might have provided law with an external reference that could have
adopted the role of justification, as was the case with canon law. However,
functional differentiation led to the decreasing importance of religion and to the
detachment of moral communication from this subsystem. The doctrine of natural
law was later utilised to provide similar constitutive argument, and the external
reference, for the purposes of justification.
13 This would mean that the source of
morality could be found embedded in reason, in the human mind itself, or in the
emerging system of ethics that transcends connection to religion. So, moral
communication about law has come to mean something other than moral communication about law based on religion. This also means that both subsystems of
law and religion have evolved beyond the historic point of shared language and
thus religion can no longer provide a similar source of justification (through
external reference to another system) as once was possible.
However, in access to justice we see a concept that is employed to take the
place of the justification of dispute resolution. How is this possible, if moral
communication has no home other than in the environment of subsystems? The
answer is simple. There is no longer a structural coupling between law and
another subsystem, but the legal system still presupposes the existence of a
structural coupling that once was there. Law operates as if the structural coupling
still provides information from outside the legal system’s boundaries, when in fact
the reference attained by the coupling is only a reflection of law’s own operations:
there is no information transfer between two systems. Still, law operates as if the
information transfer takes place, as if the operations shared by itself and the ghost
system conform to two types of coding, that of morality and that of law. This
interpretation also explains why moral communication about law lacks a constitutive principle like sovereignty or private autonomy. Simply put, there is none
except the reflection of the legal system itself. Although ethics does not relate to
any specific subsystem but is located in the environment of these systems, access
to justice functions in a similar way to sovereignty and consent narratives. Moral
communication about law attributes the code of morality to the application of
the legal system’s code. Thus, moral communication about law in the context of
dispute resolution technology functions in more or less the same way as the more
constitutive narratives. This said, access to justice materialises as an unsolvable
paradox of ethics, as a one-sided structural coupling that provides no clear-cut
answers to moral dilemmas.
Despite this transcendence of ethics, the access to justice narrative gains
justificatory force through its positivisation into due process criteria. Communication about fairness of dispute resolution carries an ethical undertone while its
legal plausibility stems from the constitutive power it lends from the connection
between law and the state. Thus, access to justice narrative is able to complement
the sovereignty narrative, and vice versa, by providing material standards for
evaluating how dispute resolution should be organised. By continuous reinterpretation, the access to justice narrative has become a programme within the legal
system that directs the application of the code. Its use as a justificatory narrative
164 Three quests for justification