of Ministers of the Council of Europe sums up the general definition of enforcement
as follows:
‘Enforcement’ means the putting into effect of judicial decisions, and also
other judicial or non-judicial enforceable titles in compliance with the law
which compels the defendant to do, to refrain from doing or to pay what has
been adjudged;
36
In this study, enforcement is referred to in this general meaning of legitimised
obtaining of funds based on an existing legal decision. In other words, this
examination targets the core area of enforcement, where the use of the legal
system provides legitimisation of the use of coercion. A point of interest is that
indirect ways of coaxing compliance may involve similar use of coercion as stategoverned enforcement. The social pressure of tribal communities and the following social sanctions, which Norwegian sociologist Vilhelm Aubert has studied,
37
are also methods of forcing compliance, and thus it can be seen as an alternative
to enforcement.
As compliance is the social expectation, enforcement is a question of exception.
Most decisions reached both in litigation and ADR procedures are carried out
voluntarily and there is no need for coercive measures. From this perspective,
enforcement is always a glitch in the system, although a necessary one, as
economic action requires the safety valve of enforcement. This means that the
importance of enforcement is not decreased by its exceptionality.
In addition, private enforcement epitomises the tension between private and
public and provides a peephole to the engine room of law, as difficulties in
justifying private coercion through state-bound law become apparent. Law’s
inherent violence cannot be hidden when decisions are put into action by force.
As it is, enforcement reveals something relevant about law on a linguistic level, an
issue raised already by the French philosopher Jacques Derrida. As Derrida points
out, the English idiom of ‘enforcing the law’ and its relation to ‘enforceability’
do not hide the use of force in applying law, unlike the French equivalent of
‘appliquer la loi’. Derrida states that
‘The word “enforceability” reminds us that there is no such thing as law
(droit) that doesn’t imply in itself, a priori, in the analytic structure of its
concept, the possibility of being “enforced”, applied by force. There are, to
be sure, laws that are not enforced, but there is no law without enforceability, and no applicability or enforceability of the law without force,
whether this force be direct or indirect, physical or symbolic, exterior or
interior, brutal or subtly discursive and hermeneutic, coercive or regulative,
and so forth.’
38
This means that, in enforcement, law cannot hide its embedded violence. We can
claim that law ceases to be law if the coercive element that provides for normative
expectations is removed. As the paradox cannot be downplayed, we face the abyss
70 Theoretical implications of dispute resolution technology
as follows:
‘Enforcement’ means the putting into effect of judicial decisions, and also
other judicial or non-judicial enforceable titles in compliance with the law
which compels the defendant to do, to refrain from doing or to pay what has
been adjudged;
36
In this study, enforcement is referred to in this general meaning of legitimised
obtaining of funds based on an existing legal decision. In other words, this
examination targets the core area of enforcement, where the use of the legal
system provides legitimisation of the use of coercion. A point of interest is that
indirect ways of coaxing compliance may involve similar use of coercion as stategoverned enforcement. The social pressure of tribal communities and the following social sanctions, which Norwegian sociologist Vilhelm Aubert has studied,
37
are also methods of forcing compliance, and thus it can be seen as an alternative
to enforcement.
As compliance is the social expectation, enforcement is a question of exception.
Most decisions reached both in litigation and ADR procedures are carried out
voluntarily and there is no need for coercive measures. From this perspective,
enforcement is always a glitch in the system, although a necessary one, as
economic action requires the safety valve of enforcement. This means that the
importance of enforcement is not decreased by its exceptionality.
In addition, private enforcement epitomises the tension between private and
public and provides a peephole to the engine room of law, as difficulties in
justifying private coercion through state-bound law become apparent. Law’s
inherent violence cannot be hidden when decisions are put into action by force.
As it is, enforcement reveals something relevant about law on a linguistic level, an
issue raised already by the French philosopher Jacques Derrida. As Derrida points
out, the English idiom of ‘enforcing the law’ and its relation to ‘enforceability’
do not hide the use of force in applying law, unlike the French equivalent of
‘appliquer la loi’. Derrida states that
‘The word “enforceability” reminds us that there is no such thing as law
(droit) that doesn’t imply in itself, a priori, in the analytic structure of its
concept, the possibility of being “enforced”, applied by force. There are, to
be sure, laws that are not enforced, but there is no law without enforceability, and no applicability or enforceability of the law without force,
whether this force be direct or indirect, physical or symbolic, exterior or
interior, brutal or subtly discursive and hermeneutic, coercive or regulative,
and so forth.’
38
This means that, in enforcement, law cannot hide its embedded violence. We can
claim that law ceases to be law if the coercive element that provides for normative
expectations is removed. As the paradox cannot be downplayed, we face the abyss
70 Theoretical implications of dispute resolution technology