morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires,
or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but
any judgement rendered in a criminal case or in a suit at law shall be made
public except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.
When we compare these two formulations of due process criteria we discover
several common denominators. Both of the most influential Conventions define
due process as fair or equal public hearing in an independent and impartial
tribunal, which is established by law, although this publicity may be reduced
under certain acceptable conditions. It seems that the decisive core of due process
is equality; the wording functions as a description of elements that are relevant
for providing for equality. Equality is mentioned both as itself and as linked with
the other stipulations, the constitution of the court, which has to be independent
and impartial – to ascertain equality and fairness – and established by legislative
order from the political system. Thus, one instance of moral communication
about dispute resolution is question of the constitution of the court, which the
provisions solve through reference to the democratic system that establishes
courts by law. This criterion reduces equality back to the democratic principle,
which then links with the political system and sovereignty. Such reduction would
make it futile to discuss due process in global regimes without reference to the
state, or would otherwise deem due process solely as belonging to state control,
thus nullifying the question of how we impose due process on ODR without
referencing to sovereignty-based transnational law. It seems that equality forms
the core of the justificatory force of access to justice narrative. Within the legal
system equality is often rephrased as the demand for treating similar cases alike
and different cases differently, although this formulation hides the inherent
arbitrary violence present in decisions on which cases are alike and which are not.
7.2 Access to justice in dispute resolution
7.2.1 Where can we find access to justice in dispute resolution?
Moral communication about dispute resolution takes its form in the rule-like
criteria for due process and in the general principle of equality. This due process
criteria and the underlying principle may be employed to take the place of
justification. Using due process criteria as a source of justification means that a
decision loses its formal validity if the procedure in which it was reached had
incorporated some procedural shortcomings.
It should be noted that ECtHR’s case law on Article 6 is an extensive body of
moral communication about dispute resolution. As such, these interpretations
of the Convention Articles are applications of both codes of law and that of
morality. They are individual operations that become guidelines for future cases.
166 Three quests for justification
society, or when the interest of the private lives of the parties so requires,
or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but
any judgement rendered in a criminal case or in a suit at law shall be made
public except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.
When we compare these two formulations of due process criteria we discover
several common denominators. Both of the most influential Conventions define
due process as fair or equal public hearing in an independent and impartial
tribunal, which is established by law, although this publicity may be reduced
under certain acceptable conditions. It seems that the decisive core of due process
is equality; the wording functions as a description of elements that are relevant
for providing for equality. Equality is mentioned both as itself and as linked with
the other stipulations, the constitution of the court, which has to be independent
and impartial – to ascertain equality and fairness – and established by legislative
order from the political system. Thus, one instance of moral communication
about dispute resolution is question of the constitution of the court, which the
provisions solve through reference to the democratic system that establishes
courts by law. This criterion reduces equality back to the democratic principle,
which then links with the political system and sovereignty. Such reduction would
make it futile to discuss due process in global regimes without reference to the
state, or would otherwise deem due process solely as belonging to state control,
thus nullifying the question of how we impose due process on ODR without
referencing to sovereignty-based transnational law. It seems that equality forms
the core of the justificatory force of access to justice narrative. Within the legal
system equality is often rephrased as the demand for treating similar cases alike
and different cases differently, although this formulation hides the inherent
arbitrary violence present in decisions on which cases are alike and which are not.
7.2 Access to justice in dispute resolution
7.2.1 Where can we find access to justice in dispute resolution?
Moral communication about dispute resolution takes its form in the rule-like
criteria for due process and in the general principle of equality. This due process
criteria and the underlying principle may be employed to take the place of
justification. Using due process criteria as a source of justification means that a
decision loses its formal validity if the procedure in which it was reached had
incorporated some procedural shortcomings.
It should be noted that ECtHR’s case law on Article 6 is an extensive body of
moral communication about dispute resolution. As such, these interpretations
of the Convention Articles are applications of both codes of law and that of
morality. They are individual operations that become guidelines for future cases.
166 Three quests for justification