coercion changes the role law plays in the society. Secondly, a framework for
explaining the interaction between law and technology is called for: how does
technology enter the legal system’s operations? Thirdly, we need to know the
justification for the legal system and how it is created for dispute resolution.
Choices regarding these definitions pave the way to providing well-grounded
answers to whether privatisation of coercion is problematic from the perspective
of the legal system. In other words, an ontology is needed, a way to ask and
answer these questions.
What makes enforcement interesting for theoretical analysis is justification. As
taking matters in one’s own hands is harmful for society overall and therefore
forbidden, legally regulated enforcement is necessary for the stability of society.
In enforcement law reveals itself as a legitimised form of violence. It should be
noted that law’s coercive nature should be read not as a normative but as a
descriptive claim. One could go even further and claim that dispute resolution
and the threat of enforcement are the tools for fulfilling law’s function in society.
A point of interest is that the doctrine of procedural law seldom touches upon
these theoretical dimensions of dispute resolution. Instead, justification is an
elusive and dormant structure rarely discussed and can be deduced only by close
readings of procedural texts. It appears as hidden assumptions and values that are
considered to be self-evident. Demanding to know how coercion is made
acceptable by the legal system quickly opens up another set of questions about
the extent and methods of these justification-creating moves.
In other words, the question of law’s inherent violence is a formulation of its
ontological foundation: what is at the bottom of law, on what grounds are its
foundations built? Is there a normative foundation which separates the acceptable, recognisable force of law from coercion by force? How is such a distinction
made in the legal system? Suddenly this enquiry into private enforcement
becomes a question about law’s boundaries, which procedural doctrine is unable
to address. This study endeavours to remedy this lack of doctrinal self-reflection
through a theoretical analysis of technology-driven change in justifying
enforcement.
Law’s paradox is that, in the end, it can be construed simply as legitimised
violence. In order to provide societal stability, however, this paradoxical nature of
law needs to be hidden from sight. To really understand the nature of increasing
privatisation of coercion enabled by technology, it is necessary to momentarily
reveal the paradox and to ask what strategies we have for hiding it yet again. This
study makes use of social systems theory to accomplish this objective. Making
law’s paradoxical nature as legitimised violence visible is a deconstructive move of
sorts that enables the evaluation of possibilities for reconstruction, to borrow
German legal scholar Günther Teubner’s thoughts on the surprising connection
points between German sociologist Niklas Luhmann’s systems theory and the
French philosopher Jacques Derrida’s deconstruction.
1
Why would a systems theory approach provide insight into the shifting forms
of private enforcement? There are several reasons for the choice. Firstly, the idea
of law as a historical continuum seems to provide one possible explanation to
28 Theoretical implications of dispute resolution technology
explaining the interaction between law and technology is called for: how does
technology enter the legal system’s operations? Thirdly, we need to know the
justification for the legal system and how it is created for dispute resolution.
Choices regarding these definitions pave the way to providing well-grounded
answers to whether privatisation of coercion is problematic from the perspective
of the legal system. In other words, an ontology is needed, a way to ask and
answer these questions.
What makes enforcement interesting for theoretical analysis is justification. As
taking matters in one’s own hands is harmful for society overall and therefore
forbidden, legally regulated enforcement is necessary for the stability of society.
In enforcement law reveals itself as a legitimised form of violence. It should be
noted that law’s coercive nature should be read not as a normative but as a
descriptive claim. One could go even further and claim that dispute resolution
and the threat of enforcement are the tools for fulfilling law’s function in society.
A point of interest is that the doctrine of procedural law seldom touches upon
these theoretical dimensions of dispute resolution. Instead, justification is an
elusive and dormant structure rarely discussed and can be deduced only by close
readings of procedural texts. It appears as hidden assumptions and values that are
considered to be self-evident. Demanding to know how coercion is made
acceptable by the legal system quickly opens up another set of questions about
the extent and methods of these justification-creating moves.
In other words, the question of law’s inherent violence is a formulation of its
ontological foundation: what is at the bottom of law, on what grounds are its
foundations built? Is there a normative foundation which separates the acceptable, recognisable force of law from coercion by force? How is such a distinction
made in the legal system? Suddenly this enquiry into private enforcement
becomes a question about law’s boundaries, which procedural doctrine is unable
to address. This study endeavours to remedy this lack of doctrinal self-reflection
through a theoretical analysis of technology-driven change in justifying
enforcement.
Law’s paradox is that, in the end, it can be construed simply as legitimised
violence. In order to provide societal stability, however, this paradoxical nature of
law needs to be hidden from sight. To really understand the nature of increasing
privatisation of coercion enabled by technology, it is necessary to momentarily
reveal the paradox and to ask what strategies we have for hiding it yet again. This
study makes use of social systems theory to accomplish this objective. Making
law’s paradoxical nature as legitimised violence visible is a deconstructive move of
sorts that enables the evaluation of possibilities for reconstruction, to borrow
German legal scholar Günther Teubner’s thoughts on the surprising connection
points between German sociologist Niklas Luhmann’s systems theory and the
French philosopher Jacques Derrida’s deconstruction.
1
Why would a systems theory approach provide insight into the shifting forms
of private enforcement? There are several reasons for the choice. Firstly, the idea
of law as a historical continuum seems to provide one possible explanation to
28 Theoretical implications of dispute resolution technology