Justification is a logical reaction to a new irritant. Law, as much as other social
systems, has to provide itself with a narrative of its existence in order to validate
its operations, to find the roots of its rationality. In the legal system, this story
connects with the question of justice, with law’s transcendence, and the issue of
legitimacy and justification. Justification is the form that the origin myth and the
need for validation take on in the legal system. By longing for justification, the
legal system reacts to the irritant and tries to accommodate the new influences
within its own rationality. Needless to say, the legal system (like other systems)
has to react to the crisis of technology in a way that is in accordance with its
internal rationality. This is the connection point where justification emerges as
the legal system’s method of reacting to the change. This is the context in which
law’s quest for justification starts off. This is the crisis and the challenge that the
legal system needs to face and answer.
3.4 Conclusions
This chapter concludes the first part of this study, which has focused on
theorisations on law, technology and social change that all interact in dispute
resolution technology. It presented an overview of the developments that have
given rise to technology-driven private enforcement and are leading to the
justificatory crisis, which will be discussed in further detail in the second part of
this study. The first part of this chapter focused on examples of dispute resolution
technology, whereas the second part addressed the theoretical implications of
increasing privatisation of coercion enabled by the use of dispute resolution
technology. In the first part, the examples of different applications depicted the
diversity of dispute resolution technology, whereas chronological categorisation
of their development over the past decades provided insight into how the role of
technology is changing towards increasing autonomy. In the second part, the
discussion on dispute resolution technology is combined with theorisations on
the emergence of private regimes that confound the modern conception of law as
connected to the nation-state. The tension between public and private, as well as
law’s inability to detach from the nation-state, become visible particularly in
private enforcement, as justifying the use of coercion reveals the basis of law’s
authority. Thus, the pursuit of justifying private enforcement provides a vantage
point for assessing the societal change brought on by the use of ICT.
Notes
1 Margaret Hagan, ‘The User Experience of the Internet as a Legal Help Service:
Defining Standards for the next Generation of User-Friendly Online Legal Services’
(2016) 20 Virginia Journal of Law and Technology 395.
2 For example, the UK’s ODR Advisory Group suggests that the state shifts focus to
conflict avoidance, as this would save cost and increase access. See Online Dispute
Resolution Advisory Group, ‘Online Dispute Resolution for Low Value Civil Claims’
(Civil Justice Council 2015) available at https://www.judiciary.gov.uk/reviews/
online-dispute-resolution/odr-report-february-2015/ (accessed 18 June 2018) 17–18.
80 Theoretical implications of dispute resolution technology
systems, has to provide itself with a narrative of its existence in order to validate
its operations, to find the roots of its rationality. In the legal system, this story
connects with the question of justice, with law’s transcendence, and the issue of
legitimacy and justification. Justification is the form that the origin myth and the
need for validation take on in the legal system. By longing for justification, the
legal system reacts to the irritant and tries to accommodate the new influences
within its own rationality. Needless to say, the legal system (like other systems)
has to react to the crisis of technology in a way that is in accordance with its
internal rationality. This is the connection point where justification emerges as
the legal system’s method of reacting to the change. This is the context in which
law’s quest for justification starts off. This is the crisis and the challenge that the
legal system needs to face and answer.
3.4 Conclusions
This chapter concludes the first part of this study, which has focused on
theorisations on law, technology and social change that all interact in dispute
resolution technology. It presented an overview of the developments that have
given rise to technology-driven private enforcement and are leading to the
justificatory crisis, which will be discussed in further detail in the second part of
this study. The first part of this chapter focused on examples of dispute resolution
technology, whereas the second part addressed the theoretical implications of
increasing privatisation of coercion enabled by the use of dispute resolution
technology. In the first part, the examples of different applications depicted the
diversity of dispute resolution technology, whereas chronological categorisation
of their development over the past decades provided insight into how the role of
technology is changing towards increasing autonomy. In the second part, the
discussion on dispute resolution technology is combined with theorisations on
the emergence of private regimes that confound the modern conception of law as
connected to the nation-state. The tension between public and private, as well as
law’s inability to detach from the nation-state, become visible particularly in
private enforcement, as justifying the use of coercion reveals the basis of law’s
authority. Thus, the pursuit of justifying private enforcement provides a vantage
point for assessing the societal change brought on by the use of ICT.
Notes
1 Margaret Hagan, ‘The User Experience of the Internet as a Legal Help Service:
Defining Standards for the next Generation of User-Friendly Online Legal Services’
(2016) 20 Virginia Journal of Law and Technology 395.
2 For example, the UK’s ODR Advisory Group suggests that the state shifts focus to
conflict avoidance, as this would save cost and increase access. See Online Dispute
Resolution Advisory Group, ‘Online Dispute Resolution for Low Value Civil Claims’
(Civil Justice Council 2015) available at https://www.judiciary.gov.uk/reviews/
online-dispute-resolution/odr-report-february-2015/ (accessed 18 June 2018) 17–18.
80 Theoretical implications of dispute resolution technology