Private Justice: The Privatisation of Dispute Resolution and the Crisis of Law

Abstract

We are experiencing a major revolution in the way in which disputes between individuals are resolved. Almost everywhere civil justice is being privatised and court adjudication is disappearing. Private conflicts are less and less decided by judges sitting in courtrooms, through a fair trial and according to law, and are more and more resolved out-of-court with the help of decision-facilitators through settlements and agreements. Despite the unquestioned importance of this global tendency, its most theoretical dimensions have woefully attracted very little attention. How does this radical and structural change affect the way we look at, and think of, the law? How is this revolution transforming, or even disarticulating, our ideas of legality and justice? This article aims to set the background for further discussion of these issues and provide a tentative answer to these questions. It does so by critically looking at some of the rhetorical arguments deployed by ADR advocates (with a focus on the English legal system) and investigating from a theoretical viewpoint how they potentially threaten our traditional views (a) on the role legal rules are expected to play in societies and (b) on the concept of formal justice and its corollaries