This means that the overview of dispute resolution technology consists of two
complementary perspectives. Firstly, a holistic approach helps us to perceive the
long-term trends and the overall impact of technological change on the society.
Secondly, a nuanced and contextual approach to individual applications complements this overarching perspective and allows us to evaluate the normative
consequences of individual use cases of dispute resolution technology. The
combination of societal overview and contextual approach to applications
makes it possible to find common denominators between different applications
of dispute resolution technology such as direct enforcement on e-commerce
sites and smart contracts despite differences in their scope, motivation and
functionalities. Thus, we can perceive a more general trend towards increasing
privatisation of coercion.
Because of their generalised scope and the lack of actual alternatives, the
private enforcement mechanisms discussed here differ from other forms of private
governance but, ultimately, they present yet another example of the demise of
our modern conceptualisation of law in connection with state. These new forms
of technology-enabled private enforcement challenge the fiction of the state’s
monopoly on dispute resolution, in which enforcement is the epitome of its
monopoly on violence.
Owing to the particular role attributed to enforcement, its increasing privatisation reveals something about law. From the theoretical perspective, private
enforcement renders visible law’s inherent nature as coercion; compliance with
law can be coerced by use of force. As long as the criteria established by law are
followed, such coercion is acceptable, justified, its legitimacy preserved. Simply
put, law is a mechanism for justifying coercion. Traditionally, we have disguised
law’s inherent violence by restricting its use discursively to established legal
structures, to public courts and legal professionals, who contribute to making
the decision on who has the right to access the state’s enforcement mechanism.
Thus, the use of coercion has become institutionalised in order to provide
coherence, predictability and authority to the operations of the legal system.
However, the privatisation of coercion exposes law as a legitimised form of
violence and forces us to reinterpret who is entitled to use this force, against
whom, and on what grounds. Privatisation of coercion embodies the disruptive
properties of technology for demarcating the boundary between acceptable
coercion and arbitrary violence. In other words, implementing technology to
core areas of law, to dispute resolution and enforcement, brings the need to
justify coercion to the fore.
The need for justifying private enforcement is one of the challenges caused by
the fast-paced technological development, to which increasing automation contributes significantly. Interestingly, the tensions behind increasing privatisation of
coercion are not simply technological but also societal. Private enforcement
mechanisms have emerged to provide binding conflict management in situations
where the existing state-governed mechanisms fail to do so, most prominently
online. The changes in enforcement and the need to justify coercion become
questions of law’s ability to address the justificatory challenge posed by private
Conclusions 193
complementary perspectives. Firstly, a holistic approach helps us to perceive the
long-term trends and the overall impact of technological change on the society.
Secondly, a nuanced and contextual approach to individual applications complements this overarching perspective and allows us to evaluate the normative
consequences of individual use cases of dispute resolution technology. The
combination of societal overview and contextual approach to applications
makes it possible to find common denominators between different applications
of dispute resolution technology such as direct enforcement on e-commerce
sites and smart contracts despite differences in their scope, motivation and
functionalities. Thus, we can perceive a more general trend towards increasing
privatisation of coercion.
Because of their generalised scope and the lack of actual alternatives, the
private enforcement mechanisms discussed here differ from other forms of private
governance but, ultimately, they present yet another example of the demise of
our modern conceptualisation of law in connection with state. These new forms
of technology-enabled private enforcement challenge the fiction of the state’s
monopoly on dispute resolution, in which enforcement is the epitome of its
monopoly on violence.
Owing to the particular role attributed to enforcement, its increasing privatisation reveals something about law. From the theoretical perspective, private
enforcement renders visible law’s inherent nature as coercion; compliance with
law can be coerced by use of force. As long as the criteria established by law are
followed, such coercion is acceptable, justified, its legitimacy preserved. Simply
put, law is a mechanism for justifying coercion. Traditionally, we have disguised
law’s inherent violence by restricting its use discursively to established legal
structures, to public courts and legal professionals, who contribute to making
the decision on who has the right to access the state’s enforcement mechanism.
Thus, the use of coercion has become institutionalised in order to provide
coherence, predictability and authority to the operations of the legal system.
However, the privatisation of coercion exposes law as a legitimised form of
violence and forces us to reinterpret who is entitled to use this force, against
whom, and on what grounds. Privatisation of coercion embodies the disruptive
properties of technology for demarcating the boundary between acceptable
coercion and arbitrary violence. In other words, implementing technology to
core areas of law, to dispute resolution and enforcement, brings the need to
justify coercion to the fore.
The need for justifying private enforcement is one of the challenges caused by
the fast-paced technological development, to which increasing automation contributes significantly. Interestingly, the tensions behind increasing privatisation of
coercion are not simply technological but also societal. Private enforcement
mechanisms have emerged to provide binding conflict management in situations
where the existing state-governed mechanisms fail to do so, most prominently
online. The changes in enforcement and the need to justify coercion become
questions of law’s ability to address the justificatory challenge posed by private
Conclusions 193