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

18 Pages Posted: 25 Aug 2020

See all articles by Carlo Vittorio Giabardo

Carlo Vittorio Giabardo

University of Girona, Càtedra de Cultura Juridica; University of Turin School of Law; gLAWcal - Global Law Initiatives for Sustainable Development

Date Written: July 1, 2020

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.

Keywords: dispute resolution, ADR, mediation, rule of law, legal formalism

Suggested Citation

Giabardo, Carlo Vittorio, Private Justice: The Privatisation of Dispute Resolution and the Crisis of Law (July 1, 2020). Wolverhampton Law Journal, Vol. 4, 2020, Available at SSRN: https://ssrn.com/abstract=3679932

Carlo Vittorio Giabardo (Contact Author)

University of Girona, Càtedra de Cultura Juridica ( email )

Girona
Spain

University of Turin School of Law ( email )

Italy

gLAWcal - Global Law Initiatives for Sustainable Development

52 East Quay, Wapping Quay
Liverpool, L3 4BU
United Kingdom

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