structural coupling the legal system presumes it has with a system of ethics. As a
justificatory narrative access to justice derives its force from fairness as a prerequisite for a decision’s validity. Its shortcomings follow from this high level of
abstraction, as the law’s difficult relationship with justice starts to unravel one of
law’s paradoxes. As a contingency formula, justice provides contingency for the
legal system, and hides the indeterminacy of the possibility of arbitrary decisions
while simultaneously upholding it to enable law’s renewal.
29
However, the point remains that law is unable to hide from the paradoxical
nature of adopting justice as its necessary formula of formulas, as the superprogramme, which surpasses all other programmes within the legal system. The
paradox remains. And the question of justice reveals it. This is the inherent
tension always present in law. Re-entry of transcendence is mandatory for law
but at the same time its rationality goes beyond law. As Teubner describes it:
The cause for the internal revolt, for the subversion from within the law in
the very name of justice, lies in the glaring failure of law to live up to its
own promise – to supply convincing reasons for its decisions, to produce a
legitimate basis of rational argumentation that people accept as just. Legal
reasoning does not and cannot justify legal decisions – anyone who has had
to decide a legal case has been exposed to this disturbing experience. In
other words: law cannot stop in principle the intrusion of irrationality into
its rational world of norm-oriented decision making and reason-based
argument.
30
According to Teubner, law’s desire for justice cannot be fulfilled within the
framework of modern law. As such, ‘juridical justice as societal justice continues
to offer the false promise of salvation’.
31 As moral communication tends to
polarise moral positions owing to its symmetry, it does not provide a solution to
the question of the source of morality or to specific moral dilemmas. This means
that we can access only the individual operations of moral communication on law
but we have no external constitutive reference to another subsystem. This is the
dilemma of moral dilemmas: we cannot solve them but only observe them.
However, this does not mean that moral communication about law is without
effect. Instead, moral communication may form long-lasting structures such as
programmes within the legal system, which is the case with due process.
The case law on Article 6 is a prominent example moral communication about
dispute resolution. It gives us a well-defined rule-like system of instances, in
which moral communication about dispute resolution needs to be taken into
consideration. In line with Luhmann’s view on moral communication, the due
process criteria that arise from the case law serve a purpose within the legal
system and are necessary for its identity. Still, these individual decisions on due
process do not solve the deadlock at the abstract macro level of justification, it
simply transmits the issue of justification to the micro level, where the fairness of
individual dispute resolution procedure justifies the authority bestowed to it.
Access to justice works well on the micro level of individual processes but on the
170 Three quests for justification
justificatory narrative access to justice derives its force from fairness as a prerequisite for a decision’s validity. Its shortcomings follow from this high level of
abstraction, as the law’s difficult relationship with justice starts to unravel one of
law’s paradoxes. As a contingency formula, justice provides contingency for the
legal system, and hides the indeterminacy of the possibility of arbitrary decisions
while simultaneously upholding it to enable law’s renewal.
29
However, the point remains that law is unable to hide from the paradoxical
nature of adopting justice as its necessary formula of formulas, as the superprogramme, which surpasses all other programmes within the legal system. The
paradox remains. And the question of justice reveals it. This is the inherent
tension always present in law. Re-entry of transcendence is mandatory for law
but at the same time its rationality goes beyond law. As Teubner describes it:
The cause for the internal revolt, for the subversion from within the law in
the very name of justice, lies in the glaring failure of law to live up to its
own promise – to supply convincing reasons for its decisions, to produce a
legitimate basis of rational argumentation that people accept as just. Legal
reasoning does not and cannot justify legal decisions – anyone who has had
to decide a legal case has been exposed to this disturbing experience. In
other words: law cannot stop in principle the intrusion of irrationality into
its rational world of norm-oriented decision making and reason-based
argument.
30
According to Teubner, law’s desire for justice cannot be fulfilled within the
framework of modern law. As such, ‘juridical justice as societal justice continues
to offer the false promise of salvation’.
31 As moral communication tends to
polarise moral positions owing to its symmetry, it does not provide a solution to
the question of the source of morality or to specific moral dilemmas. This means
that we can access only the individual operations of moral communication on law
but we have no external constitutive reference to another subsystem. This is the
dilemma of moral dilemmas: we cannot solve them but only observe them.
However, this does not mean that moral communication about law is without
effect. Instead, moral communication may form long-lasting structures such as
programmes within the legal system, which is the case with due process.
The case law on Article 6 is a prominent example moral communication about
dispute resolution. It gives us a well-defined rule-like system of instances, in
which moral communication about dispute resolution needs to be taken into
consideration. In line with Luhmann’s view on moral communication, the due
process criteria that arise from the case law serve a purpose within the legal
system and are necessary for its identity. Still, these individual decisions on due
process do not solve the deadlock at the abstract macro level of justification, it
simply transmits the issue of justification to the micro level, where the fairness of
individual dispute resolution procedure justifies the authority bestowed to it.
Access to justice works well on the micro level of individual processes but on the
170 Three quests for justification