and critique of statism. Through value critique, the theory is able to perceive how
social conflicts are hidden behind the façades of values and principles and thus
rendered unrecognisable. In turn, a critique of statism allows the theory to
recognise usurpers of societal autonomy other than politics.
41 The politicallyorientated critique of statism is especially useful for examining technology-driven
private enforcement. As Fischer-Lescano puts it, critical systems theory provides
methods for understanding societal struggles from an internal perspective without
losing sight of law’s normativity.
42 By tuning systems theory towards a more
sensitive understanding of political struggles, critical systems theory is able to
answer Habermas’s critique. In other words, attention is redirected towards the
paradoxes that without the critical stance would be hidden in order to preserve
operational continuity.
According to Finnish legal theorist Tuori’s view, immanent critique aims at
introducing an ‘inter-subjectively acceptable substantive criteria’ for the validity
of law. As Tuori points out, fundamental criticism contesting the whole coercive
nature of law and its legitimacy, e.g. on Marxist or anarchist grounds, is possible
only from outside the field of law and thus fundamentalism forms the limits for
internal critique. Immanent criticism holds on to normativity of law, judging
law’s borders and validity based on its own promise of what law is and should
be.
43 This perception of immanent critique comes close to Luhmann’s internal
observation. According to Luhmann, external observers perceive law differently
and internal observation is more limited in what it may say about law. These
limits provide stability and security for the system at the same time as they limit
what can be observed internally.
44 Also, this study strives for immanent normative critique of law, which is to be separated from such fundamental criticism that
aims at the abolition of the legal regime.
Hence, in its critical endeavours this study simultaneously adds to law’s
legitimacy in its totality, renewing its normativity and strengthening its stance as
a societal practice. Discussion on how justificatory structures are engaged in
relation to dispute resolution technology emphasises the significance of justifying
law, and law’s need to perceive itself as coherent. As Finnish legal scholar Thomas
Wilhelmsson states, ‘microcriticism can lead to macrolegitimation’.
45 It follows
from this that the mechanisms of deparadoxification, including justificatory
narratives, which create the impression of control within the legal system,
46 take
on a decisive functional role in the examination of private technology-driven
enforcement. In the spirit of critical systems theory, the examination of deparadoxifying elements of the justificatory narratives becomes a critical project in
which the focus is on revealing the paradoxes instead of hiding them.
2.3 Methodological challenge of private enforcement
This study combines socio-legal studies and particularly social systems theory to
evaluate dispute resolution technology and particularly how the privatisation of
coercion as it is accelerated by technology affects the justification of coercion.
Because of the focus on dispute resolution, this study could be claimed to address
Understanding law and technology 37
social conflicts are hidden behind the façades of values and principles and thus
rendered unrecognisable. In turn, a critique of statism allows the theory to
recognise usurpers of societal autonomy other than politics.
41 The politicallyorientated critique of statism is especially useful for examining technology-driven
private enforcement. As Fischer-Lescano puts it, critical systems theory provides
methods for understanding societal struggles from an internal perspective without
losing sight of law’s normativity.
42 By tuning systems theory towards a more
sensitive understanding of political struggles, critical systems theory is able to
answer Habermas’s critique. In other words, attention is redirected towards the
paradoxes that without the critical stance would be hidden in order to preserve
operational continuity.
According to Finnish legal theorist Tuori’s view, immanent critique aims at
introducing an ‘inter-subjectively acceptable substantive criteria’ for the validity
of law. As Tuori points out, fundamental criticism contesting the whole coercive
nature of law and its legitimacy, e.g. on Marxist or anarchist grounds, is possible
only from outside the field of law and thus fundamentalism forms the limits for
internal critique. Immanent criticism holds on to normativity of law, judging
law’s borders and validity based on its own promise of what law is and should
be.
43 This perception of immanent critique comes close to Luhmann’s internal
observation. According to Luhmann, external observers perceive law differently
and internal observation is more limited in what it may say about law. These
limits provide stability and security for the system at the same time as they limit
what can be observed internally.
44 Also, this study strives for immanent normative critique of law, which is to be separated from such fundamental criticism that
aims at the abolition of the legal regime.
Hence, in its critical endeavours this study simultaneously adds to law’s
legitimacy in its totality, renewing its normativity and strengthening its stance as
a societal practice. Discussion on how justificatory structures are engaged in
relation to dispute resolution technology emphasises the significance of justifying
law, and law’s need to perceive itself as coherent. As Finnish legal scholar Thomas
Wilhelmsson states, ‘microcriticism can lead to macrolegitimation’.
45 It follows
from this that the mechanisms of deparadoxification, including justificatory
narratives, which create the impression of control within the legal system,
46 take
on a decisive functional role in the examination of private technology-driven
enforcement. In the spirit of critical systems theory, the examination of deparadoxifying elements of the justificatory narratives becomes a critical project in
which the focus is on revealing the paradoxes instead of hiding them.
2.3 Methodological challenge of private enforcement
This study combines socio-legal studies and particularly social systems theory to
evaluate dispute resolution technology and particularly how the privatisation of
coercion as it is accelerated by technology affects the justification of coercion.
Because of the focus on dispute resolution, this study could be claimed to address
Understanding law and technology 37