procedural law. However, this study does not take advantage of legal dogmatics,
as the research objective takes place on a more abstract level, in the structures of
doctrine formation. In other words, this study participates in the doctrinal
discussion of procedural law but approaches its subject from the somewhat
unconventional angle of applied legal theory.
Here, the challenge of digital technologies is understood both as an external
irritant and through disruptive qualities, which call for a reaction from the legal
system. In other words, the question of justifying private enforcement leads us to
question the relationship between law and technology and law’s ability to
accommodate technological change. As the challenge of technology cannot be
understood only internally within the legal system, influences from communication
theory and history of technology are welcomed to provide a more comprehensive
picture of technology. Thus, this study could be labelled ‘legal technology studies’.
Owing to the relative newness of dispute resolution technology, the amount of
case law and legislation on different applications is scarce. Due to both the lack of
interpretative materials and the objectives of this study, this work focuses on
identifying different justificatory narratives in the procedural doctrine and evaluating them critically against the challenge of technology-enabled private enforcement. These narratives have been formulated and slowly sedimented into law’s
self-description over time, for which social systems theory provides a functional
vantage point. From social systems theory’s perspective, structures are formulated
over time by repetitive operations, and although they are necessary for law’s
operations, they do not define law’s identity.
47 This means that the examination
of these timeless and context-transcending elements of dispute resolution
becomes the centre of attention. Such analysis resembles Norwegian sociologist
Vilhelm Aubert’s studies of legal anthropology on the historical development of
conflict management in different tribal communities and the commonalities
between these practices. For example, Aubert identifies the inclusion of the
external third party to resolution processes as a decisive element which transforms
the dyad of conflicting parties into a triad.
48
We identify justificatory narratives by observing how law’s self-understanding
changes as a response to the challenge of technology. Instead of evaluating these
changes directly, we evaluate how doctrinal self-understanding is capable of
reacting to these changes, which tools are engaged to systematise technology,
and how different rationalities from other subsystems direct these reactions. This
means that there is a deconstructive element in my analysis, although I do not
use deconstruction as a methodological tool. Instead, we employ influences from
systems theory, from the critical and political stance of critical systems theory,
social constructivism and the sociology of technology to examine how justificatory
narratives can be engaged for systemising multifaceted social reality.
Defining technology for the needs of the legal system necessarily participates in
social meaning construction. American physicist and philosopher of science
Thomas Kuhn claims that the emergence of technology has often played a
significant part in creating new sciences.
49 Kuhn’s initiative towards epistemological
change of scientific practices has also paved the way for the sociology of scientific
38 Theoretical implications of dispute resolution technology
as the research objective takes place on a more abstract level, in the structures of
doctrine formation. In other words, this study participates in the doctrinal
discussion of procedural law but approaches its subject from the somewhat
unconventional angle of applied legal theory.
Here, the challenge of digital technologies is understood both as an external
irritant and through disruptive qualities, which call for a reaction from the legal
system. In other words, the question of justifying private enforcement leads us to
question the relationship between law and technology and law’s ability to
accommodate technological change. As the challenge of technology cannot be
understood only internally within the legal system, influences from communication
theory and history of technology are welcomed to provide a more comprehensive
picture of technology. Thus, this study could be labelled ‘legal technology studies’.
Owing to the relative newness of dispute resolution technology, the amount of
case law and legislation on different applications is scarce. Due to both the lack of
interpretative materials and the objectives of this study, this work focuses on
identifying different justificatory narratives in the procedural doctrine and evaluating them critically against the challenge of technology-enabled private enforcement. These narratives have been formulated and slowly sedimented into law’s
self-description over time, for which social systems theory provides a functional
vantage point. From social systems theory’s perspective, structures are formulated
over time by repetitive operations, and although they are necessary for law’s
operations, they do not define law’s identity.
47 This means that the examination
of these timeless and context-transcending elements of dispute resolution
becomes the centre of attention. Such analysis resembles Norwegian sociologist
Vilhelm Aubert’s studies of legal anthropology on the historical development of
conflict management in different tribal communities and the commonalities
between these practices. For example, Aubert identifies the inclusion of the
external third party to resolution processes as a decisive element which transforms
the dyad of conflicting parties into a triad.
48
We identify justificatory narratives by observing how law’s self-understanding
changes as a response to the challenge of technology. Instead of evaluating these
changes directly, we evaluate how doctrinal self-understanding is capable of
reacting to these changes, which tools are engaged to systematise technology,
and how different rationalities from other subsystems direct these reactions. This
means that there is a deconstructive element in my analysis, although I do not
use deconstruction as a methodological tool. Instead, we employ influences from
systems theory, from the critical and political stance of critical systems theory,
social constructivism and the sociology of technology to examine how justificatory
narratives can be engaged for systemising multifaceted social reality.
Defining technology for the needs of the legal system necessarily participates in
social meaning construction. American physicist and philosopher of science
Thomas Kuhn claims that the emergence of technology has often played a
significant part in creating new sciences.
49 Kuhn’s initiative towards epistemological
change of scientific practices has also paved the way for the sociology of scientific
38 Theoretical implications of dispute resolution technology