the justificatory narratives out into the open instead of hiding them behind the
façade of doctrinal differences and legal dogmatics. These narratives illustrate that
introducing technology into dispute resolution influences the ways in which the law
functions and the ways in which the law sets its own boundaries. Technology has
implications for the fundamental justification of state intervention in private conflicts
as well as for the argumentative role granted to private autonomy and to access to
justice. It should be noted that in the end, justificatory narratives are argumentation
tools that can be employed to defend or oppose the in casu acceptability of any given
technological innovation, similarly to Professor Martti Koskenniemi’s theory on
ascending and descending arguments in international law.
37
The first justificatory narrative examined more closely in Chapter 6 uses the
concept of sovereignty to explain state interests in dispute resolution and how
justification is created, reinterpreted and grounded in the changing environment
of dispute resolution. As a source of justification, sovereignty renders a decision
enforceable when it is reached in a public trial. This first narrative interconnects
with larger social and legal changes often described through legal pluralism and
increasing legal regulation.
38 In traditional procedural doctrine, state intervention
is executed through adopting a state monopoly on dispute resolution as a
theoretical starting point. Thus, sovereignty plays a significant role as a justificatory principle in this narrative. However, sovereignty, formulated as the state
monopoly on conflict management, brings the political ideal and agenda of the
modern nation-state into dispute resolution.
39
The second narrative is explored in Chapter 7 by asking how consent is seen as
a source of justification in procedural law. Although sovereignty has been the
main justification basis for the state monopoly of dispute resolution since the
formation of the modern nation-state through the Peace Treaty of Westphalia in
1648, state monopoly accepts and gives protection to the parties’ agreement in
litigation. Agreement, i.e. reciprocal consent, became prominent as a justificatory
model after ADR ideology was introduced in the 1970s. An example of consent
as the source of justification can be found in arbitral clauses that transfer
jurisdiction from public courts to private arbitration tribunals. This emphasis on
mutual agreement as a source of justification has partly challenged the old
tradition of founding legitimacy on sovereignty. Current forms of private governance further challenge the state’s monopoly on dispute resolution, and question
the role of sovereignty as a source of justification. Still, the consent of the parties
as a justificatory narrative conveys the rationality of contractual freedom and
classic liberalism to dispute resolution.
The third narrative examined in further detail in Chapter 8, Access to justice,
draws its justificatory force from the quality of the resolution procedure rather
than the external authority of the state or the parties concerned. As a source of
justification, it would imply that a violation of due process renders the procedure
unjust, inexistent and empty. Or, contrastingly, a high level of due process in the
resolution process renders the decision enforceable. Such justificatory conceptualisations would also be compatible with the joint approach of viewing both state
litigation and ODR simultaneously. As a justificatory narrative, access to justice is
Introduction 17
façade of doctrinal differences and legal dogmatics. These narratives illustrate that
introducing technology into dispute resolution influences the ways in which the law
functions and the ways in which the law sets its own boundaries. Technology has
implications for the fundamental justification of state intervention in private conflicts
as well as for the argumentative role granted to private autonomy and to access to
justice. It should be noted that in the end, justificatory narratives are argumentation
tools that can be employed to defend or oppose the in casu acceptability of any given
technological innovation, similarly to Professor Martti Koskenniemi’s theory on
ascending and descending arguments in international law.
37
The first justificatory narrative examined more closely in Chapter 6 uses the
concept of sovereignty to explain state interests in dispute resolution and how
justification is created, reinterpreted and grounded in the changing environment
of dispute resolution. As a source of justification, sovereignty renders a decision
enforceable when it is reached in a public trial. This first narrative interconnects
with larger social and legal changes often described through legal pluralism and
increasing legal regulation.
38 In traditional procedural doctrine, state intervention
is executed through adopting a state monopoly on dispute resolution as a
theoretical starting point. Thus, sovereignty plays a significant role as a justificatory principle in this narrative. However, sovereignty, formulated as the state
monopoly on conflict management, brings the political ideal and agenda of the
modern nation-state into dispute resolution.
39
The second narrative is explored in Chapter 7 by asking how consent is seen as
a source of justification in procedural law. Although sovereignty has been the
main justification basis for the state monopoly of dispute resolution since the
formation of the modern nation-state through the Peace Treaty of Westphalia in
1648, state monopoly accepts and gives protection to the parties’ agreement in
litigation. Agreement, i.e. reciprocal consent, became prominent as a justificatory
model after ADR ideology was introduced in the 1970s. An example of consent
as the source of justification can be found in arbitral clauses that transfer
jurisdiction from public courts to private arbitration tribunals. This emphasis on
mutual agreement as a source of justification has partly challenged the old
tradition of founding legitimacy on sovereignty. Current forms of private governance further challenge the state’s monopoly on dispute resolution, and question
the role of sovereignty as a source of justification. Still, the consent of the parties
as a justificatory narrative conveys the rationality of contractual freedom and
classic liberalism to dispute resolution.
The third narrative examined in further detail in Chapter 8, Access to justice,
draws its justificatory force from the quality of the resolution procedure rather
than the external authority of the state or the parties concerned. As a source of
justification, it would imply that a violation of due process renders the procedure
unjust, inexistent and empty. Or, contrastingly, a high level of due process in the
resolution process renders the decision enforceable. Such justificatory conceptualisations would also be compatible with the joint approach of viewing both state
litigation and ODR simultaneously. As a justificatory narrative, access to justice is
Introduction 17