Sovereignty may provide justification based on the authority of the democratic
principle, private autonomy based on the fundamental importance of self-determination. Hence, we can justify the public courts by saying that in the end they are the
institutions of the nation-state, safeguarding the interests of the state and our
interests, which overlap. We can justify consent-based dispute resolution by referring
to self-determination. Access to justice provides justification for dispute resolution
by saying that the fairness of the procedure justifies the use of force within that
procedure. It leaves the question open on a theoretical level, to be solved – or more
suitably, to be justified – in casu, thus making justification dependent on the decision
whether the case at hand is the same as or different from the previous cases. This
open-endedness is descriptive of human rights discourse.
1
Justificatory narratives often become entwined, as is the case with the interplay
of all narratives portrayed in the traditional ideal model outlined in Chapter 5,
and with the access to justice narrative that consists of positivised due process
criteria. This interaction results from the temporal sedimentation of these justificatory constructs that demonstrates the reactionary nature of law. Through new
structural couplings the legal system has strengthened its immune system against
irritants emerging in the broader society, thus enabling increasing complexity.
The sedimentation process, where fundamental principles of law become a
definitive part of law’s self-understanding,
2 happens gradually over time and
each narrative acknowledged here is at a different stage. Also, the emergence of
new sources of justification does not undo the importance of previous sources or
shatter the existing structural couplings. Nor is it clear-cut which methods of
justification are used in a given context. Outside the theoretical pursuit of this
study, justificatory concepts interact, become entwined, overlap and are applied
together, separately, and incongruently, if at all, deliberately. The examination of
justificatory narratives has the objective of dissecting the self-understanding of the
doctrine of dispute resolution, and this deconstructive analysis has shown that no
unambiguous starting points for reconstruction can be found. This being said, a
part of this quest has been to depict the interrelationship between these incommensurate sources of justification.
The problems in finding justification for private enforcement emphasise the
increasing tension between private and public that result from the close connection between law and state. Although this division between private and public has
existed before, dispute resolution technology is further intensifying the tension
that seems to be deeply embedded in the doctrine of procedural law. One
possible interpretation that follows from this unresolvedness of the justificatory
crisis is that the tension itself is necessary for dispute resolution. This interpretation would suggest that the different justificatory narratives have been able to
balance each other out, and, by doing so, have managed to leave law’s paradox
unravelled up until the justificatory challenge of private enforcement.
As none of the existing justificatory narratives provides an answer to the justificatory crisis caused by technology-enabled private enforcement, what does this mean
for the acceptance of private enforcement and for the underlying problem that
private enforcement aims to solve, namely the need for fair and low-threshold redress
180 New ways forward?
principle, private autonomy based on the fundamental importance of self-determination. Hence, we can justify the public courts by saying that in the end they are the
institutions of the nation-state, safeguarding the interests of the state and our
interests, which overlap. We can justify consent-based dispute resolution by referring
to self-determination. Access to justice provides justification for dispute resolution
by saying that the fairness of the procedure justifies the use of force within that
procedure. It leaves the question open on a theoretical level, to be solved – or more
suitably, to be justified – in casu, thus making justification dependent on the decision
whether the case at hand is the same as or different from the previous cases. This
open-endedness is descriptive of human rights discourse.
1
Justificatory narratives often become entwined, as is the case with the interplay
of all narratives portrayed in the traditional ideal model outlined in Chapter 5,
and with the access to justice narrative that consists of positivised due process
criteria. This interaction results from the temporal sedimentation of these justificatory constructs that demonstrates the reactionary nature of law. Through new
structural couplings the legal system has strengthened its immune system against
irritants emerging in the broader society, thus enabling increasing complexity.
The sedimentation process, where fundamental principles of law become a
definitive part of law’s self-understanding,
2 happens gradually over time and
each narrative acknowledged here is at a different stage. Also, the emergence of
new sources of justification does not undo the importance of previous sources or
shatter the existing structural couplings. Nor is it clear-cut which methods of
justification are used in a given context. Outside the theoretical pursuit of this
study, justificatory concepts interact, become entwined, overlap and are applied
together, separately, and incongruently, if at all, deliberately. The examination of
justificatory narratives has the objective of dissecting the self-understanding of the
doctrine of dispute resolution, and this deconstructive analysis has shown that no
unambiguous starting points for reconstruction can be found. This being said, a
part of this quest has been to depict the interrelationship between these incommensurate sources of justification.
The problems in finding justification for private enforcement emphasise the
increasing tension between private and public that result from the close connection between law and state. Although this division between private and public has
existed before, dispute resolution technology is further intensifying the tension
that seems to be deeply embedded in the doctrine of procedural law. One
possible interpretation that follows from this unresolvedness of the justificatory
crisis is that the tension itself is necessary for dispute resolution. This interpretation would suggest that the different justificatory narratives have been able to
balance each other out, and, by doing so, have managed to leave law’s paradox
unravelled up until the justificatory challenge of private enforcement.
As none of the existing justificatory narratives provides an answer to the justificatory crisis caused by technology-enabled private enforcement, what does this mean
for the acceptance of private enforcement and for the underlying problem that
private enforcement aims to solve, namely the need for fair and low-threshold redress
180 New ways forward?