4 Heading towards justification
In Chapter 2 the new social practices involved in using modern technology were
seen as an emerging social system named the use of information and communications technology (ICT), which explains how the disruptive elements of
technology enter the legal system as external irritants. In Chapter 3 this overview
of technology was applied to dispute resolution in order to demonstrate how
public enforcement is slowly becoming a redundant means of providing conflict
management for low-intensity cross-border disputes.
This chapter connects the theoretical framework of systems theory with the
changing private forms of coercion enabled by technology. Here, it is argued that
technology-enabled privatisation of coercion is challenging the state’s monopoly
on violence and thus creates a justificatory crisis for conflict management. The
chapter begins with a description of how the difference between public and
private dispute resolution was originally reconciled in the aftermath of the
alternative dispute resolution (ADR) movement. This reconciliation in a peaceful
coexistence and cooperation is called the Traditional Ideal Model, referring to
the public acceptance of private ADR as long as the state’s monopoly on
enforcement is preserved. However, the use of ICT is increasing privatisation of
coercion, which, in turn, challenges the status quo portrayed through the
Traditional Ideal Model and creates a justificatory crisis. After establishing this,
the function of justification within the legal system is discussed and it is argued
that justification should be understood as a structural coupling between the legal
system and other societal sub-systems that transmits external rationalities to the
legal system’s operations. The chapter concludes with a brief description of
existing justificatory narratives that will be discussed in further detail in the
following chapters.
4.1 The breaking point of consensus
4.1.1 Traditional ideal model and cross-border disputes
Traditionally, the courts have constituted the only official access point to the
state’s monopoly on violence and going through the courts has been the primary
method of accessing enforcement. Surprisingly, this state of affairs has not
In Chapter 2 the new social practices involved in using modern technology were
seen as an emerging social system named the use of information and communications technology (ICT), which explains how the disruptive elements of
technology enter the legal system as external irritants. In Chapter 3 this overview
of technology was applied to dispute resolution in order to demonstrate how
public enforcement is slowly becoming a redundant means of providing conflict
management for low-intensity cross-border disputes.
This chapter connects the theoretical framework of systems theory with the
changing private forms of coercion enabled by technology. Here, it is argued that
technology-enabled privatisation of coercion is challenging the state’s monopoly
on violence and thus creates a justificatory crisis for conflict management. The
chapter begins with a description of how the difference between public and
private dispute resolution was originally reconciled in the aftermath of the
alternative dispute resolution (ADR) movement. This reconciliation in a peaceful
coexistence and cooperation is called the Traditional Ideal Model, referring to
the public acceptance of private ADR as long as the state’s monopoly on
enforcement is preserved. However, the use of ICT is increasing privatisation of
coercion, which, in turn, challenges the status quo portrayed through the
Traditional Ideal Model and creates a justificatory crisis. After establishing this,
the function of justification within the legal system is discussed and it is argued
that justification should be understood as a structural coupling between the legal
system and other societal sub-systems that transmits external rationalities to the
legal system’s operations. The chapter concludes with a brief description of
existing justificatory narratives that will be discussed in further detail in the
following chapters.
4.1 The breaking point of consensus
4.1.1 Traditional ideal model and cross-border disputes
Traditionally, the courts have constituted the only official access point to the
state’s monopoly on violence and going through the courts has been the primary
method of accessing enforcement. Surprisingly, this state of affairs has not