enforcement mechanisms. Can the challenge be addressed by our existing legal
frameworks? Can we find justification for private enforcement by tweaking law,
by making use of its established justification mechanisms, by reinterpreting
existing legal concepts in new ways through interpretative flexibility?
The need to justify increasingly privatised coercion – together with the
uncertainty of how this can be done – leads to a justificatory crisis. In this
study, remedies for the lack of justification are sought from existing legal
concepts used to provide legitimacy for coercion. These concepts are called
justificatory narratives. The analysis identified three different narratives: 1) sovereignty, the structural coupling between law and politics; 2) consent, the coupling
between law and economics; and 3) access to justice, moral communication
about dispute resolution. Recognition of these narratives requires two theoretical
moves. Firstly, it is necessary to perceive how the legal system produces justification through external references, by relaying the rationalities of other subsystems
to law through shared structural couplings. Secondly, we need to evaluate which
sources were used to provide justification by exploring how the doctrine has
previously reconciled similar justificatory crises.
It should be noted that the state’s monopoly on dispute resolution has
previously been challenged by the critique of the access to justice movement
which, among other things, advocated for out-of-court dispute resolution. Interestingly, the justificatory challenge was then reconciled through a collaborative
model, which rendered private dispute resolution acceptable as long as the
courts’ ultimate power over enforcement was maintained. However, the challenge we are currently facing appears to be of more fundamental nature. Instead
of advocating for plurality of dispute resolution, the demand is for plurality of
enforcement, as in certain online contexts public enforcement has become
redundant. This means that it is not possible to reconcile the justificatory crisis
of private enforcement through a solution similar to the one achieved through
the collaborative model and, due to the limitations of state-bound law, similar
balance is difficult to achieve.
Private enforcement poses a justificatory challenge that cannot be resolved
with the existing justificatory narratives. The sovereignty narrative mainly provides justification for state monopoly on violence, which private enforcement
contradicts, and the narrative cannot explain coercion without connection to
state. Private autonomy, in turn, presupposes voluntariness and is thus unable
to address the coercive element. In addition, lack of actual alternatives to
private enforcement make consent given to their use fictional, refuting its
validity and thus its justificatory force. Ethical discourse, or the access to justice
narrative, points towards the structures and rituals present in dispute resolution,
but does not provide any overarching guidelines or standards on which justification could be based.
As the earlier narratives falter, some seek answers elsewhere and advocate for
the regulatory dimension of code, the connection between law and the emerging
social system, the use of ICT. The ‘code is law’ narrative suggests that technological design could assume regulatory qualities and produce both justification and
194 New ways forward?
frameworks? Can we find justification for private enforcement by tweaking law,
by making use of its established justification mechanisms, by reinterpreting
existing legal concepts in new ways through interpretative flexibility?
The need to justify increasingly privatised coercion – together with the
uncertainty of how this can be done – leads to a justificatory crisis. In this
study, remedies for the lack of justification are sought from existing legal
concepts used to provide legitimacy for coercion. These concepts are called
justificatory narratives. The analysis identified three different narratives: 1) sovereignty, the structural coupling between law and politics; 2) consent, the coupling
between law and economics; and 3) access to justice, moral communication
about dispute resolution. Recognition of these narratives requires two theoretical
moves. Firstly, it is necessary to perceive how the legal system produces justification through external references, by relaying the rationalities of other subsystems
to law through shared structural couplings. Secondly, we need to evaluate which
sources were used to provide justification by exploring how the doctrine has
previously reconciled similar justificatory crises.
It should be noted that the state’s monopoly on dispute resolution has
previously been challenged by the critique of the access to justice movement
which, among other things, advocated for out-of-court dispute resolution. Interestingly, the justificatory challenge was then reconciled through a collaborative
model, which rendered private dispute resolution acceptable as long as the
courts’ ultimate power over enforcement was maintained. However, the challenge we are currently facing appears to be of more fundamental nature. Instead
of advocating for plurality of dispute resolution, the demand is for plurality of
enforcement, as in certain online contexts public enforcement has become
redundant. This means that it is not possible to reconcile the justificatory crisis
of private enforcement through a solution similar to the one achieved through
the collaborative model and, due to the limitations of state-bound law, similar
balance is difficult to achieve.
Private enforcement poses a justificatory challenge that cannot be resolved
with the existing justificatory narratives. The sovereignty narrative mainly provides justification for state monopoly on violence, which private enforcement
contradicts, and the narrative cannot explain coercion without connection to
state. Private autonomy, in turn, presupposes voluntariness and is thus unable
to address the coercive element. In addition, lack of actual alternatives to
private enforcement make consent given to their use fictional, refuting its
validity and thus its justificatory force. Ethical discourse, or the access to justice
narrative, points towards the structures and rituals present in dispute resolution,
but does not provide any overarching guidelines or standards on which justification could be based.
As the earlier narratives falter, some seek answers elsewhere and advocate for
the regulatory dimension of code, the connection between law and the emerging
social system, the use of ICT. The ‘code is law’ narrative suggests that technological design could assume regulatory qualities and produce both justification and
194 New ways forward?