macro level of abstract justification its justificatory power falls short of that
provided by sovereignty or private autonomy.
Access to justice as a source of justification brings us to the core of law’s own
paradox of its inherent violence, and in moral communication it cannot be
hidden. This is problematic, as the legal system needs to understand its entirety,
its identity as a system and continuation of the system/environment difference as
coherent. It leads us to the following conclusion. Moral communication about
law does not provide an answer to the justificatory crisis brought on by dispute
resolution technology. It provides us with an internal programme of the legal
system, i.e. the due process criteria that can be employed as a source of justification and is starting to claim ground as such.
32 However, the criteria have no
constitutive foundation other than the morality of communication. It is internal
to law and brings the issue of justification back within the law. But, here we face
the limits of law, as the legal system strives for justice that remains unreachable.
Although institutional formulations provide concrete criteria, these derive their
authority from other sources, from the state or from private autonomy, and
without their support the access to justice narrative loses most of its justificatory
force, its meaning within the legal system. The justificatory narrative of access to
justice acknowledges the need for a more comprehensive in casu analysis and an
analysis of the reality of the current conflict management environment, where the
protection of due process is provided by a miscellaneous and fragmented combination of material legislation, soft law, institutional practices and multilateral
Conventions. However, the shortcomings of the access to justice narrative
follow from its unique nature: there is no ‘other’ side of the structural coupling,
but only ethical communication about law. Still, when the legal system uses
access to justice for justification, it presumes that another subsystem exists on the
other side of the structural coupling, which explains why access to justice can
adopt the role of justification in the first place.
The fact that ethical communication is located in the overall society also explains
why there is no constitutive rationality, such as those of the state or private
autonomy, behind access to justice. This special characteristic also explains why
the possibilities of access to justice in justifying private enforcement without
reference to other justificatory narratives is difficult. In theory, access to justice
could provide justification for private enforcement if there is a method for verifying
that what is provided is of sufficient quality. The problem is that there are few
concrete applications that can be derived from this outcome. Similar questions arise
as with relation to consent: who decides the sufficient level of access, by which
authority should such a decision be made, how is monitoring provided, and so on.
It seems that access to justice as a justificatory narrative would require a body that
produces precedents for the protection of predictability and the stability of the
system – in other words, a mechanism for upholding expectations regardless of
disappointment. As a source of justification, access to justice provides few answers
but instead leads to a deadlock of contrasting argumentation.
This means that the possibilities of access to justice in justifying private
enforcement without the support from other justificatory narratives are limited.
Access to justice 171
provided by sovereignty or private autonomy.
Access to justice as a source of justification brings us to the core of law’s own
paradox of its inherent violence, and in moral communication it cannot be
hidden. This is problematic, as the legal system needs to understand its entirety,
its identity as a system and continuation of the system/environment difference as
coherent. It leads us to the following conclusion. Moral communication about
law does not provide an answer to the justificatory crisis brought on by dispute
resolution technology. It provides us with an internal programme of the legal
system, i.e. the due process criteria that can be employed as a source of justification and is starting to claim ground as such.
32 However, the criteria have no
constitutive foundation other than the morality of communication. It is internal
to law and brings the issue of justification back within the law. But, here we face
the limits of law, as the legal system strives for justice that remains unreachable.
Although institutional formulations provide concrete criteria, these derive their
authority from other sources, from the state or from private autonomy, and
without their support the access to justice narrative loses most of its justificatory
force, its meaning within the legal system. The justificatory narrative of access to
justice acknowledges the need for a more comprehensive in casu analysis and an
analysis of the reality of the current conflict management environment, where the
protection of due process is provided by a miscellaneous and fragmented combination of material legislation, soft law, institutional practices and multilateral
Conventions. However, the shortcomings of the access to justice narrative
follow from its unique nature: there is no ‘other’ side of the structural coupling,
but only ethical communication about law. Still, when the legal system uses
access to justice for justification, it presumes that another subsystem exists on the
other side of the structural coupling, which explains why access to justice can
adopt the role of justification in the first place.
The fact that ethical communication is located in the overall society also explains
why there is no constitutive rationality, such as those of the state or private
autonomy, behind access to justice. This special characteristic also explains why
the possibilities of access to justice in justifying private enforcement without
reference to other justificatory narratives is difficult. In theory, access to justice
could provide justification for private enforcement if there is a method for verifying
that what is provided is of sufficient quality. The problem is that there are few
concrete applications that can be derived from this outcome. Similar questions arise
as with relation to consent: who decides the sufficient level of access, by which
authority should such a decision be made, how is monitoring provided, and so on.
It seems that access to justice as a justificatory narrative would require a body that
produces precedents for the protection of predictability and the stability of the
system – in other words, a mechanism for upholding expectations regardless of
disappointment. As a source of justification, access to justice provides few answers
but instead leads to a deadlock of contrasting argumentation.
This means that the possibilities of access to justice in justifying private
enforcement without the support from other justificatory narratives are limited.
Access to justice 171