8 New bases for justification
As the analysis in the previous chapters has shown, private enforcement cannot be
justified by reference to delegation of sovereign (state) power, private autonomy
of the parties or the moral communication of access to justice. If private
enforcement cannot be justified by reference to axiomatic principles, does this
mean that we should simply discard the quest and announce this model of
enforcement unacceptable without further inquiry, and, if so, what would be
the implications of such a ban that is next to impossible to enforce?
This chapter offers a summary of the results by discussing the interrelationship
between the existing justificatory narratives. It is then asked whether a new
justificatory narrative could be found from the structural coupling between the
legal system and the system of use of information and communications technology (ICT). This possibility is demonstrated by an excursion to blockchain-based
smart contracts that are claimed to be self-enforcing. As a decentralised system,
blockchain infrastructure is often considered regulation-averse, encouraging its
proponents to declare the code itself as law and disregarding the need for other
governance models. The chapter concludes with a brief discussion of the possibilities and challenges of regulating private enforcement.
8.1 Justification as interrelationship
Through the analysis undertaken in this study, we have identified three justificatory narratives – sovereignty, consent and access to justice narratives – which have
been applied to provide justification for dispute resolution. The sovereignty
narrative results from the close connection between law and state and forms
the self-evident starting point for assessing the justification of coercion but is not
able to explain the privatised use of force, whereas consent and access to justice
narratives have developed as complementary mechanisms that aim to remedy
these shortcomings. Although none of these narratives can single-handedly justify
technology-enabled private enforcement, this does not mean that their importance can be overlooked. The narratives reflect different ideologies and interests
present in dispute resolution and thus explain the complexity of the justificatory
crisis that emerges as a result of the disruptive qualities of dispute resolution
technology.
As the analysis in the previous chapters has shown, private enforcement cannot be
justified by reference to delegation of sovereign (state) power, private autonomy
of the parties or the moral communication of access to justice. If private
enforcement cannot be justified by reference to axiomatic principles, does this
mean that we should simply discard the quest and announce this model of
enforcement unacceptable without further inquiry, and, if so, what would be
the implications of such a ban that is next to impossible to enforce?
This chapter offers a summary of the results by discussing the interrelationship
between the existing justificatory narratives. It is then asked whether a new
justificatory narrative could be found from the structural coupling between the
legal system and the system of use of information and communications technology (ICT). This possibility is demonstrated by an excursion to blockchain-based
smart contracts that are claimed to be self-enforcing. As a decentralised system,
blockchain infrastructure is often considered regulation-averse, encouraging its
proponents to declare the code itself as law and disregarding the need for other
governance models. The chapter concludes with a brief discussion of the possibilities and challenges of regulating private enforcement.
8.1 Justification as interrelationship
Through the analysis undertaken in this study, we have identified three justificatory narratives – sovereignty, consent and access to justice narratives – which have
been applied to provide justification for dispute resolution. The sovereignty
narrative results from the close connection between law and state and forms
the self-evident starting point for assessing the justification of coercion but is not
able to explain the privatised use of force, whereas consent and access to justice
narratives have developed as complementary mechanisms that aim to remedy
these shortcomings. Although none of these narratives can single-handedly justify
technology-enabled private enforcement, this does not mean that their importance can be overlooked. The narratives reflect different ideologies and interests
present in dispute resolution and thus explain the complexity of the justificatory
crisis that emerges as a result of the disruptive qualities of dispute resolution
technology.