argues that the material standards can provide justificatory power directed to the
structures of dispute resolution. In other words, the ethical communication
about dispute resolution takes the form of due process criteria that reflect the
transcendence of justice, the values behind the concrete stipulations, but simultaneously constrain this transcendence by subsuming it into concrete stipulations.
By examining the values reflected in due process criteria, we are able to perceive
the ethical dimension and tap into its justificatory use.
14
It should be noted that these treaty stipulations, in addition to the national
legislation on fundamental rights, the case law and the doctrine that substantiate
them, are the most authoritative legal sources for concrete due process criteria.
However, they are not the sources of morality but simply applications of moral
communication to dispute resolution that have been positivised through statebound law. In other words, they are operations of the legal system, which include
the application of the code of morality alongside the code of legal/illegal. This
symmetry of moral communication is what distances these stipulations from other
operations and structures of the legal system. Still, continuous application of
these morally encoded legal operations in case law seems to lose some of the
moral emphasis, as they become rule-like routine application in simple cases.
These rule-like criteria of what makes dispute resolution fair, i.e. due process,
become the access point to observing the moral communication on dispute
resolution in the first place.
The criteria for due process is defined in the focal instruments, which reveal in
what concrete instances moral communication about dispute resolution is undertaken. First, the European Convention of Human Rights Article 6(1) on fair trial
stipulates concrete rules for both civil and criminal procedure.
15 Article 6(1)
states that:
In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals, public order
or national security in a democratic society, where the interests of juveniles
or the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
Second, the International Covenant on Civil and Political Rights Article 14(1)
stipulates similarly:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The press
and the public may be excluded from all or part of a trial for reasons of
Access to justice 165
structures of dispute resolution. In other words, the ethical communication
about dispute resolution takes the form of due process criteria that reflect the
transcendence of justice, the values behind the concrete stipulations, but simultaneously constrain this transcendence by subsuming it into concrete stipulations.
By examining the values reflected in due process criteria, we are able to perceive
the ethical dimension and tap into its justificatory use.
14
It should be noted that these treaty stipulations, in addition to the national
legislation on fundamental rights, the case law and the doctrine that substantiate
them, are the most authoritative legal sources for concrete due process criteria.
However, they are not the sources of morality but simply applications of moral
communication to dispute resolution that have been positivised through statebound law. In other words, they are operations of the legal system, which include
the application of the code of morality alongside the code of legal/illegal. This
symmetry of moral communication is what distances these stipulations from other
operations and structures of the legal system. Still, continuous application of
these morally encoded legal operations in case law seems to lose some of the
moral emphasis, as they become rule-like routine application in simple cases.
These rule-like criteria of what makes dispute resolution fair, i.e. due process,
become the access point to observing the moral communication on dispute
resolution in the first place.
The criteria for due process is defined in the focal instruments, which reveal in
what concrete instances moral communication about dispute resolution is undertaken. First, the European Convention of Human Rights Article 6(1) on fair trial
stipulates concrete rules for both civil and criminal procedure.
15 Article 6(1)
states that:
In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals, public order
or national security in a democratic society, where the interests of juveniles
or the protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
Second, the International Covenant on Civil and Political Rights Article 14(1)
stipulates similarly:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a
suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The press
and the public may be excluded from all or part of a trial for reasons of
Access to justice 165