calls attention to the content of the dispute resolution process as a condition of its
validity. Although the narrative’s focus on the organisation of dispute resolution
seems to avoid the shortcomings of the other narratives, it fails in providing
justification for private enforcement. Due to its nature, ethical communication
does not provide solutions for moral dilemmas on a general level but only enables
their observation. Despite the narrative’s concretisation in due process criteria, the
narrative derives its justificatory force from the other narratives, from sovereigntybased stipulations or consensual models, without being able to address the
justificatory crisis without this support.
Notes
1 See United Nations Human Rights Office of High Commissioner, ‘Human Rights
Treaty Bodies – Individual Communications. 23 FAQ about Treaty Body Complaints
Procedures’, available at http://www.ohchr.org/EN/HRBodies/TBPetitions/
Pages/IndividualCommunications.aspx (accessed 26 June 2018).
2 See e.g. Miia Halme, Human Rights in Action (Helsinki University Printing House
2008) 218 ‘If the premise that the human rights discourse forms one conception of a
possible truth among many is not accepted, and common conceptions – particularly of
young urban adults – insist that the discourse forms the truth, trumping all other
conceptualizations, the peril emerges that the former religious hegemony will be
replaced by the liberal fundamentalism of human rights.’
3 On justice as a contingency formula, see Richard Nobles and David Schiff, ‘Luhmann:
Law, Justice, and Time’ (2014) 27 International Journal for the Semiotics of Law 325.
4 N Luhmann, Law as a Social System (Fatima Kastner and others eds, Klaus A Ziegert tr,
Oxford University Press 2004) 214–219; Teubner formulates this as follows: ‘Justice’s
intention is not to maximize doctrinal consistency but to respond sensitively to extremely
divergent external demands and to strive at the same time for high consistency. Justice as
contingency formula is not justice immanent to the law but a justice that transcends the
law. Internal consistency plus responsiveness to ecological demands – this is the double
requirement of juridical justice.’ Günther Teubner, ‘Self-Subversive Justice: Contingency
or Transcendence Formula of Law?’ (2009) 72 Modern Law Review 1, 9–10.
5 As Teubner puts it, ‘justice redirects law’s attention to the problematic question of its
adequacy to the outside world’. Teubner, ‘Self-Subversive Justice: Contingency or
Transcendence Formula of Law?’ (n 4) 10.
6 Luhmann, Law as a Social System (n 4) 211.
7 Niklas Luhmann, Paradigm Lost: Über Die Ethische Reflexion Der Moral. Rede von
Niklas Luhmann Anlässlich Der Verleihung Des Hegel-Preises 1989 (Suhrkamp 1990)
17–18; Dallmann has aptly translated the German terms Achtung/Misachtung as
regard/ disregard. See Hans-Ulrich Dallman, ‘Niklas Luhmann’s Systems Theory as a
Challenge for Ethics’ (1998) 1 Ethical Theory and Moral Practice 85, 89.
8 Luhmann examines morals instead of ethics and defines morality as a specific type of
communication and ethics as a reflexive theory interpreting the code of morals. This
follows the general line of thought of moral philosophy. The etymology of ethics is in
the Greek ‘ethike’ meaning the science of morals. As Ransome and Sampford point
out, the terms are often used interchangeably especially in normative theories. For an
overview of the definition and philosophical debate, see William Ransome and Charles
Sampford, Ethics and Socially Responsible Investment: A Philosophical Approach (Ashgate
2010) 48–50.
9 Hans-Georg Moeller, ‘Chapter Four. Morality and Pathology: A Comparative
Approach’ in Marietta T Stepanyants (ed), Comparative Ethics in a Global Age, The
Access to justice 173
validity. Although the narrative’s focus on the organisation of dispute resolution
seems to avoid the shortcomings of the other narratives, it fails in providing
justification for private enforcement. Due to its nature, ethical communication
does not provide solutions for moral dilemmas on a general level but only enables
their observation. Despite the narrative’s concretisation in due process criteria, the
narrative derives its justificatory force from the other narratives, from sovereigntybased stipulations or consensual models, without being able to address the
justificatory crisis without this support.
Notes
1 See United Nations Human Rights Office of High Commissioner, ‘Human Rights
Treaty Bodies – Individual Communications. 23 FAQ about Treaty Body Complaints
Procedures’, available at http://www.ohchr.org/EN/HRBodies/TBPetitions/
Pages/IndividualCommunications.aspx (accessed 26 June 2018).
2 See e.g. Miia Halme, Human Rights in Action (Helsinki University Printing House
2008) 218 ‘If the premise that the human rights discourse forms one conception of a
possible truth among many is not accepted, and common conceptions – particularly of
young urban adults – insist that the discourse forms the truth, trumping all other
conceptualizations, the peril emerges that the former religious hegemony will be
replaced by the liberal fundamentalism of human rights.’
3 On justice as a contingency formula, see Richard Nobles and David Schiff, ‘Luhmann:
Law, Justice, and Time’ (2014) 27 International Journal for the Semiotics of Law 325.
4 N Luhmann, Law as a Social System (Fatima Kastner and others eds, Klaus A Ziegert tr,
Oxford University Press 2004) 214–219; Teubner formulates this as follows: ‘Justice’s
intention is not to maximize doctrinal consistency but to respond sensitively to extremely
divergent external demands and to strive at the same time for high consistency. Justice as
contingency formula is not justice immanent to the law but a justice that transcends the
law. Internal consistency plus responsiveness to ecological demands – this is the double
requirement of juridical justice.’ Günther Teubner, ‘Self-Subversive Justice: Contingency
or Transcendence Formula of Law?’ (2009) 72 Modern Law Review 1, 9–10.
5 As Teubner puts it, ‘justice redirects law’s attention to the problematic question of its
adequacy to the outside world’. Teubner, ‘Self-Subversive Justice: Contingency or
Transcendence Formula of Law?’ (n 4) 10.
6 Luhmann, Law as a Social System (n 4) 211.
7 Niklas Luhmann, Paradigm Lost: Über Die Ethische Reflexion Der Moral. Rede von
Niklas Luhmann Anlässlich Der Verleihung Des Hegel-Preises 1989 (Suhrkamp 1990)
17–18; Dallmann has aptly translated the German terms Achtung/Misachtung as
regard/ disregard. See Hans-Ulrich Dallman, ‘Niklas Luhmann’s Systems Theory as a
Challenge for Ethics’ (1998) 1 Ethical Theory and Moral Practice 85, 89.
8 Luhmann examines morals instead of ethics and defines morality as a specific type of
communication and ethics as a reflexive theory interpreting the code of morals. This
follows the general line of thought of moral philosophy. The etymology of ethics is in
the Greek ‘ethike’ meaning the science of morals. As Ransome and Sampford point
out, the terms are often used interchangeably especially in normative theories. For an
overview of the definition and philosophical debate, see William Ransome and Charles
Sampford, Ethics and Socially Responsible Investment: A Philosophical Approach (Ashgate
2010) 48–50.
9 Hans-Georg Moeller, ‘Chapter Four. Morality and Pathology: A Comparative
Approach’ in Marietta T Stepanyants (ed), Comparative Ethics in a Global Age, The
Access to justice 173