Ethical communication about dispute resolution reveals law’s embedded violence, the use of coercion, but is unable to hide it from sight or, in Luhmann’s
terms, deparadoxify it, as it provides no criteria for solving polarised arguments.
It follows from this that the justificatory narrative of access to justice alone is
unable to reconcile on the needed generalised level the justificatory crisis that has
emerged as a result of technology-driven private enforcement. Thus, the due
process criteria as a source of justification lead us to the paradox of law, where
violence and the pursuit of justice collide. However, the quest for justification
does not end here, as moral communication does not state that justification
would be irrelevant to the legal system. Instead, moral communication has a
place within society and the legal system. The legal system cannot complete its
need for justification. but neither can it repudiate it. In other words, we have
reached the end of the line, a non liquet.
7.3 The future of access to justice in dispute resolution
Although moral communication does not provide solutions to moral dilemmas, it
is by no means irrelevant to the legal system or to the overall society. As the
example of access to enforcement shows, due process criteria provide the legal
system with a long-lasting programme. This programme is based on moral
communication but applies the code of legal/illegal and plays an important role
as the blueprint for ‘acceptable’ dispute resolution. As such, this moral communication provides us with an established position to evaluate the quality of dispute
resolution and the level of procedural justice. As becomes apparent, justification
cannot be derived from rules, although such rules provide a reflection. These
rules are fundamentally guidelines for providing fairness, not a definition of
fairness. In the Marxist philosopher Walter Benjamin’s terms, they are Richtschnur, a word translating both as a legal principle and as a mason’s plumb line,
used for vertical measurements in construction.
33
However, due process criteria leave us with some comfort, although they do
not provide us with a solution for the never-ending quest of justification. It gives
us a way forward. Concretely, this particular moral communication about dispute
resolution, the case law of ECtHR, relays the message that enforcement matters.
It gives guidelines on how enforcement should be provided for. This particular
moral communication appears also to convey that the cases remaining under the
litigation threshold need to be granted access to dispute resolution, and, as a part
of this, access to enforcement.
7.4 Conclusions
This chapter discussed the possibility of finding justification for private enforcement from the moral communication on dispute resolution, as the sovereignty
narrative was unable to address the privatisation and the consent narrative failed in
justifying coercion. Unlike these constitutive couplings, the access to justice
narrative does not connect the legal system with an external reference but instead
172 Three quests for justification
terms, deparadoxify it, as it provides no criteria for solving polarised arguments.
It follows from this that the justificatory narrative of access to justice alone is
unable to reconcile on the needed generalised level the justificatory crisis that has
emerged as a result of technology-driven private enforcement. Thus, the due
process criteria as a source of justification lead us to the paradox of law, where
violence and the pursuit of justice collide. However, the quest for justification
does not end here, as moral communication does not state that justification
would be irrelevant to the legal system. Instead, moral communication has a
place within society and the legal system. The legal system cannot complete its
need for justification. but neither can it repudiate it. In other words, we have
reached the end of the line, a non liquet.
7.3 The future of access to justice in dispute resolution
Although moral communication does not provide solutions to moral dilemmas, it
is by no means irrelevant to the legal system or to the overall society. As the
example of access to enforcement shows, due process criteria provide the legal
system with a long-lasting programme. This programme is based on moral
communication but applies the code of legal/illegal and plays an important role
as the blueprint for ‘acceptable’ dispute resolution. As such, this moral communication provides us with an established position to evaluate the quality of dispute
resolution and the level of procedural justice. As becomes apparent, justification
cannot be derived from rules, although such rules provide a reflection. These
rules are fundamentally guidelines for providing fairness, not a definition of
fairness. In the Marxist philosopher Walter Benjamin’s terms, they are Richtschnur, a word translating both as a legal principle and as a mason’s plumb line,
used for vertical measurements in construction.
33
However, due process criteria leave us with some comfort, although they do
not provide us with a solution for the never-ending quest of justification. It gives
us a way forward. Concretely, this particular moral communication about dispute
resolution, the case law of ECtHR, relays the message that enforcement matters.
It gives guidelines on how enforcement should be provided for. This particular
moral communication appears also to convey that the cases remaining under the
litigation threshold need to be granted access to dispute resolution, and, as a part
of this, access to enforcement.
7.4 Conclusions
This chapter discussed the possibility of finding justification for private enforcement from the moral communication on dispute resolution, as the sovereignty
narrative was unable to address the privatisation and the consent narrative failed in
justifying coercion. Unlike these constitutive couplings, the access to justice
narrative does not connect the legal system with an external reference but instead
172 Three quests for justification