acknowledged and private enforcement is not absorbed into the legal system, the
justificatory crisis deepens. In order to answer this challenge imposed by private
enforcement, we first need to understand how public coercion is rendered
acceptable, in other words how it is justified, and then evaluate whether the
same applies to private coercion. The starting point is that law shows itself as
violence in enforcement and this violence needs to be justified. The overarching
objective of this study is to describe how the implementation of digital technologies
into dispute resolution encourages privatisation of enforcement and thus challenges
the justification of law as a legitimised mode of violence.
To this end, it is necessary to examine how we should understand digital
technologies in the context of dispute resolution. Answers are sought from
Marshall McLuhan’s technological determinism, which highlights the disruptiveness of technology, and Raymond Williams’s social construction of technology,
which places emphasis on the social element of using technology. In addition to
these, I discuss the agency of technology in the spirit of Friedrich Kittler’s work
on media theory.
Also, it should be noted that the procedural law doctrine operates based on a
distinction between courtroom technology and ODR. However, this book
evaluates the disruptive qualities of dispute resolution technology without
making such differentiations. Based on this emphasis it is suggested that the
doctrinal distinction between different resolution processes, i.e. court procedures
and alternative dispute resolution, is no longer solid. As the use of technology in
these processes is changing the ways in which they are organised, courtroom
technology and ODR applications are slowly converging, even more so than their
counterparts, adjudication and ADR. In addition to this convergence, new
applications of dispute resolution technology, coined legal tech, escape these
previous categorisations. Hence, this study adopts a joint approach to examine
both publicly and privately funded applications of dispute resolution technology.
When we look at the implications of digital technology in privatisation of
coercion, we look at the mechanisms for justifying use of force in the society.
Justification of coercion is not straightforward. To address the issue, it is
necessary to recognise the argumentation used within the legal system to justify
different forms of dispute resolution and enforcement, and after these structures
of argumentation have been rendered visible, compare them to the challenge of
technology and that of private enforcement. I presuppose that private dispute
resolution and enforcement needs to be justified based on the same criteria as
public use of force due to the previously mentioned growing convergence caused
by technology.
I approach the issue of justification by recognising three narratives that are
employed to justify the use of force in dispute resolution: sovereignty, private
autonomy and access to justice. These justificatory explanations are not exclusionary but instead overlap and are interconnected in several ways. In addition,
the preferred justificatory model has varied in different times, societies and
circumstances. It follows from this that the picture I am painting is a freezeframe of workings of justification, a theoretical simplification aimed at bringing
16 Theoretical implications of dispute resolution technology
justificatory crisis deepens. In order to answer this challenge imposed by private
enforcement, we first need to understand how public coercion is rendered
acceptable, in other words how it is justified, and then evaluate whether the
same applies to private coercion. The starting point is that law shows itself as
violence in enforcement and this violence needs to be justified. The overarching
objective of this study is to describe how the implementation of digital technologies
into dispute resolution encourages privatisation of enforcement and thus challenges
the justification of law as a legitimised mode of violence.
To this end, it is necessary to examine how we should understand digital
technologies in the context of dispute resolution. Answers are sought from
Marshall McLuhan’s technological determinism, which highlights the disruptiveness of technology, and Raymond Williams’s social construction of technology,
which places emphasis on the social element of using technology. In addition to
these, I discuss the agency of technology in the spirit of Friedrich Kittler’s work
on media theory.
Also, it should be noted that the procedural law doctrine operates based on a
distinction between courtroom technology and ODR. However, this book
evaluates the disruptive qualities of dispute resolution technology without
making such differentiations. Based on this emphasis it is suggested that the
doctrinal distinction between different resolution processes, i.e. court procedures
and alternative dispute resolution, is no longer solid. As the use of technology in
these processes is changing the ways in which they are organised, courtroom
technology and ODR applications are slowly converging, even more so than their
counterparts, adjudication and ADR. In addition to this convergence, new
applications of dispute resolution technology, coined legal tech, escape these
previous categorisations. Hence, this study adopts a joint approach to examine
both publicly and privately funded applications of dispute resolution technology.
When we look at the implications of digital technology in privatisation of
coercion, we look at the mechanisms for justifying use of force in the society.
Justification of coercion is not straightforward. To address the issue, it is
necessary to recognise the argumentation used within the legal system to justify
different forms of dispute resolution and enforcement, and after these structures
of argumentation have been rendered visible, compare them to the challenge of
technology and that of private enforcement. I presuppose that private dispute
resolution and enforcement needs to be justified based on the same criteria as
public use of force due to the previously mentioned growing convergence caused
by technology.
I approach the issue of justification by recognising three narratives that are
employed to justify the use of force in dispute resolution: sovereignty, private
autonomy and access to justice. These justificatory explanations are not exclusionary but instead overlap and are interconnected in several ways. In addition,
the preferred justificatory model has varied in different times, societies and
circumstances. It follows from this that the picture I am painting is a freezeframe of workings of justification, a theoretical simplification aimed at bringing
16 Theoretical implications of dispute resolution technology