The example of eBay’s direct enforcement mechanism seems to challenge our
way of conceptualising enforcement only in relation to the law of the nationstate, and to the nation-state’s monopoly on violence. Hence, the tension
between private and public becomes emphasised, the need to find justification
for privatised coercion immanent.
3.3 Reacting through justification
How, then, does the legal system go about justifying the use of coercion, the
basis of its authority? How is this authority changing as a result of changes in
social practices? Gélinas et al. discuss the role of judicial ritual and architecture in
legitimising dispute resolution. Through historically oriented analysis they
describe how the visible symbols of justice, i.e. the courthouses, have transformed
from early outdoor gatherings to secular cathedrals and symbols of power. The
authority of justice is reflected through these outward symbols:
Throughout time, societies have invented and reinvented social practices,
including rituals based on the understanding that the power of rituals derives
from the State, society, ancestors, God, or other external sources. For
example, it is the authority of the State and the constitution that makes
people rise as the judge enters the courtroom. People do so not because they
feel like it or because they particularly respect one individual judge, but
rather because they recognize the authority bestowed on the figure of the
judge. Judicial rituals may thus be subject to change because their normative
force is viewed as a function of external, cultural considerations, rather than
based on factors internal to or inherent in the form a particular ritual itself.
52
As the demand for efficiency of judicial proceedings gains ground, Gélinas et al.
draw attention to the possible repercussions of legitimacy. They suggest that
efficiency could diminish the role of judicial rituals and judicial architecture,
which traditionally have contributed to public confidence in civil justice.
53 However, the foundation of legitimacy is not straightforward. In contrast to public
dispute resolution, arbitration proceedings usually put less emphasis on ritual and
focus more on active participation of the parties. Thus, the active participation, the
feeling of being heard, which the seminal studies of Lind and Tyler have proven
central to the perceived fairness of judicial redress,
54 compensates for the lack of
ritual and restores legitimacy. Based on the example of arbitration, Gélinas et al.
suggest that legitimacy of judicial institutions could be founded on partly contrasting
grounds, the ritual and participation of the parties.
55
As this example depicts, changes in social practices impact law’s justification, law is
unable to remain indifferent to societal ruptures. At this point, it is possible to sketch
an overview of the challenge posed by technology-driven private enforcement and
how its emergence intensifies the tension between private and public. As private
enforcement challenges the boundaries of state-bound law, the need to justify
private use of coercion and the inability to do so leads to a justificatory crisis.
78 Theoretical implications of dispute resolution technology
way of conceptualising enforcement only in relation to the law of the nationstate, and to the nation-state’s monopoly on violence. Hence, the tension
between private and public becomes emphasised, the need to find justification
for privatised coercion immanent.
3.3 Reacting through justification
How, then, does the legal system go about justifying the use of coercion, the
basis of its authority? How is this authority changing as a result of changes in
social practices? Gélinas et al. discuss the role of judicial ritual and architecture in
legitimising dispute resolution. Through historically oriented analysis they
describe how the visible symbols of justice, i.e. the courthouses, have transformed
from early outdoor gatherings to secular cathedrals and symbols of power. The
authority of justice is reflected through these outward symbols:
Throughout time, societies have invented and reinvented social practices,
including rituals based on the understanding that the power of rituals derives
from the State, society, ancestors, God, or other external sources. For
example, it is the authority of the State and the constitution that makes
people rise as the judge enters the courtroom. People do so not because they
feel like it or because they particularly respect one individual judge, but
rather because they recognize the authority bestowed on the figure of the
judge. Judicial rituals may thus be subject to change because their normative
force is viewed as a function of external, cultural considerations, rather than
based on factors internal to or inherent in the form a particular ritual itself.
52
As the demand for efficiency of judicial proceedings gains ground, Gélinas et al.
draw attention to the possible repercussions of legitimacy. They suggest that
efficiency could diminish the role of judicial rituals and judicial architecture,
which traditionally have contributed to public confidence in civil justice.
53 However, the foundation of legitimacy is not straightforward. In contrast to public
dispute resolution, arbitration proceedings usually put less emphasis on ritual and
focus more on active participation of the parties. Thus, the active participation, the
feeling of being heard, which the seminal studies of Lind and Tyler have proven
central to the perceived fairness of judicial redress,
54 compensates for the lack of
ritual and restores legitimacy. Based on the example of arbitration, Gélinas et al.
suggest that legitimacy of judicial institutions could be founded on partly contrasting
grounds, the ritual and participation of the parties.
55
As this example depicts, changes in social practices impact law’s justification, law is
unable to remain indifferent to societal ruptures. At this point, it is possible to sketch
an overview of the challenge posed by technology-driven private enforcement and
how its emergence intensifies the tension between private and public. As private
enforcement challenges the boundaries of state-bound law, the need to justify
private use of coercion and the inability to do so leads to a justificatory crisis.
78 Theoretical implications of dispute resolution technology