invisible. In short, private enforcement is changing our understanding of who is
entitled to use force, against whom, on what grounds, and how this coercion is
made visible, monitored and justified.
1.4 Towards a crisis of justificatory narratives
The examples demonstrate that enforcement is changing as a result of digital
technologies but the question remains, what are the implications of privatised
coercion for law, for society and for dispute resolution? Needless to say, the
effects are multifaceted. Adding alternatives to court-based enforcement both
empowers disputants and transfers responsibility for dispute resolution outside
the public court system. Whereas arbitration still relies on the public system
to enforce arbitral awards, other solutions are adopted to serve the needs of
private dispute resolution and enforcement online. In contrast with arbitration,
private enforcement often remains hidden from established legal structures. Yet we
define enforcement through the connection between law and state, the epitome of
which are the public courts, although this model no longer sufficiently explains the
diversity of enforcement.
This development brings about a crisis of justifying coercion in a nation-state.
By this I mean that the new irritant of technology has brought new phenomena
such as private enforcement to the legal system, and the traditional justificatory
narratives do not sufficiently explain these phenomena. The result of this is that
the narratives are losing part of their credibility and adaptability. This means that
the crisis has a negative connotation. The justificatory crisis refers to uncertainty
about how private enforcement should be conceptualised, which then causes
disruptions in the normal functioning of the legal system. If the legal system does
not find a way to react to the privatised coercion, the law’s renewal comes under
threat. However, a crisis should not be reduced only to its negative aspects.
Instead, a crisis may also bring forward necessary changes and development that
might have a positive impact.
36 Hence, the claim I make on the emergence of
justificatory crisis is descriptive by nature. Instead of claiming that we should
change the existing justificatory narratives because of digital technology, I understand the narratives to be changing as a result of new technology. However, there
is a prescriptive element: it is necessary for the future coherence of the legal system
that the disruption be resolved, the irritant neutralised, and the justification of
coercion restored.
Although there is nothing new about the tension between private and public
conflict, the emergence of digital technologies has escalated this tension into a
discrepancy. Technology has transformative power, and, if left unaddressed, the
implementation of technology in dispute resolution could have serious implications, as the invisible use of force would not be predictable for the legal system.
The changes in enforcement brought on by digital technologies call for a
reaction within the legal system. The legal community should take a decisive
stance whether or not private use of coercion is acceptable and whether or not it
should be regulated in more detail. If the transformation of enforcement is not
Introduction 15
entitled to use force, against whom, on what grounds, and how this coercion is
made visible, monitored and justified.
1.4 Towards a crisis of justificatory narratives
The examples demonstrate that enforcement is changing as a result of digital
technologies but the question remains, what are the implications of privatised
coercion for law, for society and for dispute resolution? Needless to say, the
effects are multifaceted. Adding alternatives to court-based enforcement both
empowers disputants and transfers responsibility for dispute resolution outside
the public court system. Whereas arbitration still relies on the public system
to enforce arbitral awards, other solutions are adopted to serve the needs of
private dispute resolution and enforcement online. In contrast with arbitration,
private enforcement often remains hidden from established legal structures. Yet we
define enforcement through the connection between law and state, the epitome of
which are the public courts, although this model no longer sufficiently explains the
diversity of enforcement.
This development brings about a crisis of justifying coercion in a nation-state.
By this I mean that the new irritant of technology has brought new phenomena
such as private enforcement to the legal system, and the traditional justificatory
narratives do not sufficiently explain these phenomena. The result of this is that
the narratives are losing part of their credibility and adaptability. This means that
the crisis has a negative connotation. The justificatory crisis refers to uncertainty
about how private enforcement should be conceptualised, which then causes
disruptions in the normal functioning of the legal system. If the legal system does
not find a way to react to the privatised coercion, the law’s renewal comes under
threat. However, a crisis should not be reduced only to its negative aspects.
Instead, a crisis may also bring forward necessary changes and development that
might have a positive impact.
36 Hence, the claim I make on the emergence of
justificatory crisis is descriptive by nature. Instead of claiming that we should
change the existing justificatory narratives because of digital technology, I understand the narratives to be changing as a result of new technology. However, there
is a prescriptive element: it is necessary for the future coherence of the legal system
that the disruption be resolved, the irritant neutralised, and the justification of
coercion restored.
Although there is nothing new about the tension between private and public
conflict, the emergence of digital technologies has escalated this tension into a
discrepancy. Technology has transformative power, and, if left unaddressed, the
implementation of technology in dispute resolution could have serious implications, as the invisible use of force would not be predictable for the legal system.
The changes in enforcement brought on by digital technologies call for a
reaction within the legal system. The legal community should take a decisive
stance whether or not private use of coercion is acceptable and whether or not it
should be regulated in more detail. If the transformation of enforcement is not
Introduction 15