'Re-Privatization' of Private Property

 

Prepared for the conference

 

Commodification: Theories, Practices, Histories and Representations

University of Wollongong

19-20 February 1998

'In seeking to resolve tomorrow's disputes, the justice consumer will demand options as surely as he or she will insist on choices in seeking any other valuable commodity.'

- Chief Justice's Commission on the Future of the Courts (Massachusetts) 1992: 17

'Justice is a right, not a commodity.'

- Dave Morris, defendant in the 'McLibel' trial, 1995

As suggested by the Massachusetts report quoted here, there are a number of current trends towards the commodification of justice. I will return to these by way of illustrating what the 'commodification of justice' might look like. However, it is not the purpose of this paper to argue that justice has been or will be commodified, but rather to explore the implications of such a step. The question posed, and at least partly answered, by the paper will be: 'what difference would it make if justice were a commodity?'

I am focusing on civil justice, that is to say, the adjudication of disputes between private parties (individuals or corporations). Civil litigation offers a particularly fruitful sphere in which to study the ways in which the practice of law constitutes private property. Litigation in the courts is a public display of law in action. Parties engage each other, disputants and the public are present, and the players take their ordained places (temporal and physical) in the ritual. Property is central to civil litigation, since these disputes are frequently over debts, inheritance or some other form of property. Even when they are tort or damages cases they are frequently reduced to a claim for some amount of money in reparation.

The social transformation of private property

My principal argument is based on law's role in aiding the transformation of private property into a publicly recognised benefit. The paper will inquire into some of the ways in which law manages this change. In particular, the role of courts and litigation will be considered in order to illuminate the symbolic role of a justice system in a regime of property relations.

Land, goods or money are transformed into private property by various forms of social symbolism. These processes are familiar in the field of commodification, since it is just these sorts of social symbolic and interaction process which transform use value into commodity value. The meanings which attach to objects of value are defined through a wide range of social interactions, which may vary between cultures and historical circumstances. Food, for instance, may acquire various cultural values through religious ceremonies, family life, production practices or marketing. Even money, in the form of currency, may be invested with various cultural values or meanings depending upon whether it is a child's souvenir of an overseas trip, a baptised peso note with magical properties in western Colombia Taussig 1980: 126ff, or an item exchanged in a Swiss bank.

How is it that goods are constituted as private property or as commodities? There are, of course, numerous symbolic systems which constitute the nature of commodities and property. Money, for instance, relies for its social meaning and context upon book-keeping, stock exchanges and other markets. Land becomes property through fencing and surveying and the various meaning systems ('beating the bounds'; trigonometry) surrounding those practices. Yet in considering any of these systems of property relationships we soon come back to contracts, titles and the legal system from which their meanings derive.

The puzzle of the nature of capital or exchange values was a thread which ran through many writings of the nineteenth century. From 'Ravenstone's' complaint in 1821 that 'it is not a very easy matter to acquire an accurate idea of the nature of capital' to Simmel's tome of 1900, The Philosophy of Money, the mystery of money and its ontology weighed on many minds. Ravenstone went on to lampoon the reified place of capital in the thought of his day:

'No man hath seen its form; none can tell its habitation. … Its treasures are not real wealth, they are only representations of wealth. … Capital is like the subtle ether of the older philosophers; it is around us, it is about us, it mixes in everything we do. Though itself invisible, its effects are but too apparent. It is no less useful to our economists than that was to the philosophers. … It is the deity of their idolatry which they have set up to worship in the high places of the Lord; and were its powers what they imagine, it would not be unworthy of their adoration.' (quoted Pasquino 1991: 105-06)

In 1840 Proudhon, refusing to recognise the legitimating role of capitalist institutions, answered the question 'what is property?' with the answer, 'it is robbery' (Proudhon 1964 (1840): 87) . Marx developed his theory of commodity fetishism as a way of explaining the mysterious power of capital over economic life. In this theory labour was transformed into use value and, hence, commodity value through a series of equivalences of value. Commodities are thus constituted as 'social things whose qualities are at the same time perceptible and imperceptible by the senses.' (Marx 1919 I:83) ) The social relations of people 'assume, in their eyes, the fantastic form of a relation between things'. Our own products assume an independent life, and enter into relations with us and with each other as fetishes. We are less the owners of commodities than their guardians.

Exchange, as expounded in Capital, is based in the voluntary contract between two owners, or guardians, of commodities. The existence of a 'developed legal system' is irrelevant to this relation, since the juridical relation of making a contract 'is a relation between two wills, and … this economical relation determines the subject matter comprised in each such juridical act.' (Marx 1919 I:96)

Two features of Marx's treatment of the exchange relation are significant here. The first is the radical individualism, uncharacteristic of much of his work, while the other is the voluntarism of the proprietors which determines the juridical context. Convenient as these devices are for his economic exposition of the 'development' of exchange and monetary relationships, they do not illuminate the symbolic forms of social relationships which constitute the exchange relationship and its reified outcomes.

It has been remarked that much of Weber's sociology may be seen as a dialogue with Marx's ghost. His sociology of law seems designed to fit precisely into the gap left by Marx's voluntaristic and individualistic description of the system of exchange.

Weber compares the freedom enshrined in legal rights with the legal coercion available to enforce contracts. So central is the legal system to Weber's notion of property and exchange that he defines 'exchange', precisely, as a 'legal transaction' ('within the framework of a legal order'). 'A legal order can indeed be characterized by the agreements which it does and does not enforce.' (Weber 1978: 668)

The social and associative basis of economic life and the role of law within it are highlighted by Weber's rebuttal of individual voluntarism as a foundation of exchange or of law. 'In some sense and to some degree almost every legal transaction between two persons, inasmuch as it modifies the mode of the distribution of disposition over legally guaranteed powers of control, affects relations with an indeterminately large body of outsiders.' (Weber 1978: 684)

All creditors are affected by any increase in liabilities of a debtor; all neighbours are potentially affected by any new uses to which a purchaser may put a portion of land.

Law asserts the interests of a broader community when it regulates private property relations. In doing so it legitimates private property&endash;both in general and in the specific instance of an exchange relationship. Within the English legal system this may be traced back at least to the Magna Carta, which stated that no 'freeman' could be deprived of property except in accordance with the established 'law of the land'. The system of law constitutes private property as a publicly recognised benefit, and hence effects an important part of the social transformation from use value into commodity value.

This transformation does indeed have the magical qualities which Marx identified. That transformed labour or land assumes the relations of private property under capital, however, and not, say, the magical qualities of the baptised banknote depends upon the social context within which they are constituted. The 'fiction' that land and labour are not, in fact, simply nature and human activity but really commodities, becomes reality. 'In its market form society engenders this fictional reality, and it is with these abstractions or symbols that we are forced to operate and comprehend the world.' (Taussig 1980).

As we have seen, the legal system of society is a crucial part of the symbolic order which conjures up the peculiar magic of property relations in advanced capitalism. So we may turn next to the content of our legal order to see how it is that it works its magic.

In transforming the useful object into the commodity, the monetary and legal system engages a wide range of symbolic forms. Money itself is made up of tokens and material symbols of universal value, but these are always open to alternative constructions, as Taussig's work reminds us. The meaning system of western law is constituted by elaborate devices to reinforce and reinterpret the social and economic order, such as legal principle and precedent, and other texts (eg statutes, judgements, contracts and cheques). Above all in litigation, law invokes the power of place and of ritual in its symbolic work of giving meaning to property relationships. We will see the means by which law constitutes private property in three interrelated areas: the state, ideology and social practice.

Law and the state in civil litigation

The ambiguous role of the state in civil litigation between private parties is a key focus for our inquiry. The state is represented in court by the coat of arms and by the judge, in that curiously separate-from-the-state way decreed by the separation of powers. The state foots the bill for the justice system, and provides a framework of jurisdictional boundaries and statute law.

Yet law has always had a contradictory relationship to the state, from the origins of the western legal tradition in Gregory's papal revolution against the temporal powers, to Hegel's identification of law with the realm of civil society. This relationship is seen as 'paradoxical' in the information age, with the state, traditionally positioned in opposition to civil society, becoming a principal guardian of its institutions. 'Although the state attempts to dominate civil society, it cannot avoid protecting some of the fundamental dimensions of civil society by providing the overall legal framework of social relations not directly regulated by the state.' (Splichal 1994: 74)

The closeness of the courts to the state is nowhere clearer than in their capacity to mobilise state power. Having ruled on a matter of private property, the courts can expect the state or its agents to enforce that decision. State agents such as the police or sheriffs may execute the court's orders, or private agents, including the parties themselves or bailiffs, may expect to carry out the court's directions without hindrance from, or with the support of state power.

Early responses to the growth of informal justice systems and new forms of alternative dispute resolution (ADR) in the 1970s debated whether informality involved an expansion of 'community' or civil society at the expense of state power, or whether the state was expanding its own power through (under the guise of) an expansion of informality. Having arisen at a time in academic fashion when the hegemony of Gramsci was succumbing to Foucault's discipline, there has been a discernible preoccupation with power and a concern to discover its locus. A number of analyses have postulated a broader expansion of disciplinary power into a range of sites hitherto unaffected by centralised state power (Pavlich 1996; Santos 1982) .

Harrington has pointed to the central place of politics in these debates, and of the dominant view of law as a political instrument, whether for class repression or for social reform. In her own work she has tried to go beyond this instrumental view of law as an arm of politics to see how the independent sources of legal authority can constitute political relationships (Harrington 1988). The nature of the state's relationship to the law can only be resolved as a question to be asked rather than as a position to be defended.

We have seen here that the state supports civil litigation by providing a framework and infrastructure. It also enforces the outcomes of civil litigation through its monopoly on the legitimate use of force. Yet perhaps the central role of the law in relation to the state as well as to private property is in the very definition of what is 'legitimate'.

Justice and legitimacy in civil litigation

The enforceability of legal decisions is removed from being seen as shear force into the realm of an accepted social interpretation of the 'right' by means of the elaborate symbolic system of law. This consists of an interrelated set of ideas and practices which together make up the self contained meaning system of the law. These articulate with the ideas and practices of a broader public or ethical community. The law's acceptability derives from its claim to interpret justice.

Historically the enforceability or legitimacy of court orders has derived from some higher source of authority or iustitia channelled through the law. Throughout much of the western legal tradition this has been divine authority, which, depending upon the historical era and the relations of church and state, may or may not be contiguous with regal (or state) authority. In the very origins of disputes between church and state over the proper allocation of power we find the the tension between ratio, as divine reason, and voluntas as the human will or the arbitrary command of the ruler.

In the context of civil litigation, attention is focussed on the ways ratio, as the force of reason, relates to the voluntas or private will of the entrepreneur or the 'guardian' of private property. Just as the arbitrary exercise of political will or power is tempered and legitimated by the transcendent force of reason as the bearer of justice, so the private and purely arbitrary appropriation and use of goods is transformed into a socially recognised system of private property by the institutional power of law's rational deliberation.

The determinacy of rule governance is derived from the power of reason. However, we may look back to Aristotle to see the origins of this reason not in theology but in ethos, a shared moral way of life (Dallmayr 1992: 300) . Hegel rediscovered a social and immanent foundation for law in Sittlichkeit, the ethical life of a rational social order of institutions and laws (Hegel 1967 (1821): 319 and Part 3 passim) . Hegel was but one of a number of writers&endash;the most notable other being Bentham&endash;who sought, in the wake of the enlightenment and the French Revolution, to humanise the foundations of law and the social order derived from it in the human affairs of the public sphere.

The social practice of law: civil procedure and publicity

The sea change to the foundations of law&endash;from divine authority to social life&endash;at the beginning of the nineteenth century was more at the level of justification or ideology than at the level of legal practice. The basics of civil procedure in litigation have revolved around a number of well established variables and common elements throughout much of the western legal tradition (Millar 1923-24). We may now turn to a consideration of those elements. They may be interpreted within the framework of the law itself, or of the consensus of the public sphere which emerged in the nineteenth century (Hegel, Bentham), or from the viewpoint which I am attempting to develop here, as a set of practices which serve to conjure the social transformation of private property. Each viewpoint informs the other.

Philosophically, it has been claimed that a model of practical reason may be developed out of some minimal standards of justice within a social context. Any fair deliberation, even including the internal dialogues of the mind, may be seen to be based on principles which are familiar from civil litigation procedure: fair representation of opposing views, an impartial arbitrator and adequate reasons for decisions. These are at the basis of any practical decision-making process. On this reckoning the interplay of forces within an institutional context of adjudiction is a foundation for determining just outcomes in any human deliberation. This socially situated view of justice places particular emphasis on context, even down to the physical setting in which delegates are placed on either side of an adjudicator. (Hampshire 1989: 51-54)

The principles of civil procedure as they have been elaborated in legal theory bear many similarities to the philosophical principles of deliberation in practical decision-making discussed by Hampshire. They require two parties to have their views fairly represented; an impartial adjudicator who makes a judgement binding on the parties; some procedures and tests of proof (which may be more or less formal or rational); an established medium (oral and/or documentary) in which the proceedings are conducted and recorded; and public scrutiny of the process and recognition of the outcomes (Millar 1923-24). Parties to a legal dispute may be individuals or corporations, rich or poor, men or women. Often a dispute involves pitting these pairs of unequals against each other: people with injuries and insurers; bankrupts and banks; husbands and wives. Litigation, like western law in general, has evolved in the context of uneven disputes, dating back to its regulation of feudal relationships. On some views the law is always an instrument to legitimise the interests of the powerful. This should not be regarded as an a priori conclusion, but like the role of the state is rather an empirical question in any case and any historical era. Indeed, we may judge the success of particular legal and judicial systems by the extent to which they equalise the contests of unequals.

A key determinant of this is the relative ability of each party to present a well argued or persuasive case (in the terms of the courts' criteria of proof). Excessively formal legal systems may pose difficulties in this respect when people cannot afford (equally good) lawyers and cannot represent themselves in the court's terms. On the other hand, informal systems may allow unrepresented parties to put their case just as they wish, yet this may still fail to meet the court's or tribunal's standards of proof. Parties may be given enough rope to hang themselves (Conley and O'Barr 1990; O'Barr and Conley 1985) .

Much legal and, a fortiori judicial attention is devoted to the question of judgement. According to Australian law, the adjudicator in civil actions ('for breach of contract and for wrongs') must be a judge; and only the decisions of a judge are binding and enforceable (Mason 1996: 6). The awesome power of the judge, initially over life and death, and still having authority over governments (constitutional courts), liberty and property is based in this universal authority of judgement. Judicial impartiality, guaranteed in large part by the independent place of the judiciary, both on and off the bench, is central to the standards of procedure. Other aspects of judicial performance noted by social science observers include the form of the judgement itself as a ritualistic affirmation of legal reason and authority (Brion forthcoming) .

The key principle which anchors the social practice of civil procedure in a legitimating ideology of right or justice is that of publicity. The NSW Summary Offences Act of 1832 regulated for the first time the sitting place of courts in the new Australian colonies. In requiring courts to be held 'in public at designated places' the Act brought together the ancient requirement of the Magna Carta that courts be held in a 'fixed place' and the current rationale of public exposure. While the public nature of courts may be traced back to Germanic and Greek traditions, this demand was championed as a bourgeois principle of justice in the wake of the French Revolution, by Mirabeau and Bentham . The foundation for publicity as a prerequisite of justice was located by Hegel within the context of the ethical life of a society (Hegel 1967: §215). Since the early nineteenth century publicity (Öffentlichkeit) has been inseparable from the justification of law by its location in civil society and the bourgeois public sphere.

I have analysed the ideology and practice of litigation as a number of distinct elements. Yet one of the most obvious aspects of any judicial proceedings is the interconnectedness of each of these elements. The court case is an event which takes place in a particular setting, according to certain rules, and with defined roles and relationships among the various players, including a role for a broader public. Judges themselves indicate this totality with phrases such as 'judicial process', as in this recent Australian High Court judgement: '[T]he integrity of the courts depends on their acting in accordance with judicial process …. Public confidence in the courts requires that they act consistently and that their proceedings be conducted according to rules of general application.'

The commentary of the courts, and of individual judges, on such issues is substantial, yet it rarely goes beyond a self-justifying concern to maintain the judiciary's and the courts' dignity, independence or position of public trust. This paper contends that the 'integrity of the courts' or 'public confidence' in them is not just an end in itself, but is a necessary condition of the law and the justice system continuing to play a role (inter alia) in legitimating private property. The courts maintain this confidence, and hence the wider structure of property relations, through a constellation of procedures which, taken together, may be seen to cohere around adherence to a set of rituals.

These rituals have been founded upon a variety of justifications in various socio-legal systems, notably theology and public scrutiny or participation. Whatever the foundations of law, however, the outward forms required of civil litigation have been characterised by predictability of form or process (if not outcome); outward conformity with an internal logic of legal proof (which may nevertheless evolve); and adherence to a spatial order which defines both the place of the court in the public sphere, and the place of the judge, parties and other players in the ritual setting of courtroom architecture. The common setting, the public gaze and the allocated place of each participant serves to situate the dialogue of each, and ensure the unity of the whole as a public dialogue rather than the mutually contradictory babble of a crowd (Garapon 1995: 298-99).

Having outlined the key elements of civil procedure, and their way of working in tandem and in relation to broader social interests and intellectual currents, we may turn to an analysis of some of the current trends which challenge the role of the state in civil enforcement or the legitimacy or practice of civil litigation. The implications of those challenges will be analysed.

Justice commodified?

In opening this paper we saw the language of court reform which regards justice as a commodity, offering a choice of modes and providers. The language of that report, which looks forward to the year 2022, is not particularly fantastic or futuristic. The future is now. There are numerous ways in which courts and private providers of alternative dispute resolution (ADR) are already effectively offering a wide range of choices to the 'justice consumer'. Those choices bear various relationships to state power and the binding judgements of courts.

Private firms in Australia and elsewhere offer various forms of dispute resolution or early neutral evaluation of cases. They may have names like 'Mediate Today' and have panels of retired judges or politicians and academics. Among the purported advantages of such an approach to dispute resolution are economy, delay reduction, the preservation of business relationships, the independence of 'neutrals' and confidentiality . In the United States early neutral evaluation and other arbitrations provided by retired judges have been referred to as 'rent-a-judge' schemes. In Sydney the National Dispute Centre has high profile mediators such as former NSW Chief Justice Sir Laurence Street, and occupies former barristers' chambers two doors from the Supreme and Federal Court.

Contracts are commonly drawn up which specify private mediation or dispute resolution procedures or agents to be used in case of a dispute. This has become common practice in contracts between consultants and governments in Australia. The terms for resolution of disputes may, alternately, be agreed after a dispute has arisen. In the United States the most controversial instances of such contracts are those between doctors or health maintenance organisations and their patients: '[J]ust moments before being wheeled into serious knee surgery, a Utah housewife in her surgical gown is told she must sign a mandatory arbitration agreement in order to proceed with the operation.' (Reuben 1997: 588)

In New South Wales, the District Court had referred over 22,000 cases to in-house arbitration by barristers between the enactment of the Arbitrations (Civil Actions) Act in 1983 and 1994. Subsequently, the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 empowered courts to refer matters for mediation and neutral evaluation. The distinctions between the effects of these acts is that arbitration may be mandatory and lead to enforceable resolution, whereas mediation and neutral evaluation, even when referred by a court, are consensual and unenforceable (though parties may enter into enforceable agreements). (Davidson 1995: 195-7) In cases of mediation or settlement between the parties, terms of settlement may or may not be disclosed, and may or may not be registered with the court.

Voluntarism in civil litigation also occurs within formal legal systems in the form of 'jurisdiction shopping'. Corporations may choose which jurisdiction (state or nation) in which to file legal actions against defendants. International contracts may specify the jurisdiction in which disputes are to be heard. This has even led to the situation where national jurisdictions may compete to gain international litigation business. Singapore, for instance, prides itself on the efficiency of its courts and the volume of international work directed through them. Many companies choose to serve writs on ships in the port of Singapore, giving it one of the busiest admiralty jurisdictions in the world.

Concern with court delay and efficiency has led courts to adopt a range of 'case management' principles, many of which have the effect of pressuring parties to settle their cases out of court.

Each of these instances raises different issues, depending on the role of the state or the courts themselves in recording, scrutinising or enforcing decisions, the inequality of power between the parties, and the procedures adopted. Obvious procedural issues include the neutrality of adjudicators or mediators, the publicity or privacy of the setting of the negotiation or arbitration, and the secrecy or openness of the reasons for decisions.

Where agreements are reached between relatively equal consenting parties, there may be no implications for the continued conjuring of private property by the law. However, difficulties arise where private agreements come to take the place of publicly ordained legal decision-making, or where the voluntarism of private agreements is confused with the legitimate authority of the law or the monopoly of state power. In those circumstances private property&endash;and the decisions, rituals and agreements as to what constitutes it&endash;move out of the public sphere and consequently have no legitimate claim to be based in the rule of law, no claim on the legitimate backing of the state, and no publicly revealed or recognised social or economic outcomes.

Impact of commodification

Moves to a commodified justice place civil litigation or dispute resolution in a new relationship to the state in either of two ways. Many of them involve less use of state infrastructure; they may be entirely private or they may be devices introduced by courts to minimise the use of resources. Whether or not they are connected with a state-based infrastructure, they may or may not invoke state support for the outcome or settlement reached.

Generally speaking, in Australia court-annexed schemes involve recording terms of settlement (though not necessarily publicly - see below), while private schemes operate outside the purview of the courts or the range of their enforcement. This is not so in the United States, where voluntaristic agreements reached through ADR, usually without any court or other public scrutiny, are commonly backed by the force of law, through court-based or statute-based recognition of settlements. This has prompted a call for such schemes to be subject to Constitutional review (Reuben 1997). In both Australia and the U.S., there are a variety of cross-cutting issues. Contracts which specify various voluntaristic or even potentially unequal forms of dispute resolution may be upheld&endash;in the event that their legality were to be tested in the traditional public forum of the courts. Many other contractual and procedural arrangements will never be tested and will continue to decide a wide range of property and rights issues outside the regulation or enforcement of the state.

Supporters of ADR have always pointed to the non-judicial origin and resolution of most disputes in the course of everyday life in families, neighbourhoods and businesses. No doubt there are many ways in which disputes arise and are settled. The trends outlined above have the potential to remove an increasing range of classes of dispute from the overview of state regulation or enforcement. Depending on one's approach to the state this may be welcomed or condemned, while increasing the scope for indeterminacy.

This indeterminacy, and the retreat of dispute resolution from claims to be based on right or justice into a reliance on expediency or agreement, challenge the legitimacy of the outcomes of property related disputes. Many such disputes continue, of course, to be litigated and judged in the traditonal manner. Yet the increasing reliance of the courts on ADR and pressures to settle lead to the possibility that the courts themselves may be less associated with the transcendent values which have in the past been seen as underpinning the legitmacy of the law. To the extent that a range of other property related disputes moves out of the courts into the voluntaristic world of ADR and contractual agreements, there is less scope for property relationships to be tested and ratified through any socially agreed principles or processes. The balance is tipped from ratio to voluntas. In this situation, however, it is not the unbridled will of the sovereign which escapes the constraints of a socially sanctioned 'higher reason', but the power of money itself. In the absence of justice, property is indistinguishable from robbery.

It is the procedures of civil litigation which distinguish it most clearly from commodified alternative forms of justice. Although in a limited range of forums, it may be that informalism has its own rituals (Garapon 1995: 291), their role as constitutive social practices are always compromised to the extent that they are not public. Processes of litigation or dispute resolution can hardly be seen to have a broader social role in defining exchange realtionships unless their procedures are seen to conform to those requirements, which Hampshire regards as universal, of fair representation of opposing views, an impartial arbitrator and adequate reasons for decisions. The requirement that this should be publicly be seen to be the case derives from the consensus which emerged in the early nineteenth century which charged society, in the form of the public sphere, with the scrutiny required to ensure justice and legitimacy. This social legitimation is ensured by a public spatial order which is cannot be guaranteed in private negotiations and secret terms of settlement.

Public recognition of the outcomes of litigation are important to the parties themselves to the extent that this is the basis of enforcement and compliance. In addition, the wider social benefits of litigation are most apparent as a result of public recognition. Lawyers are quick to point to the benefits of litigation in setting binding legal precedent: hence the 'public interest' case in its deepest sense. But it is also in a more generalised Weberian sense that the public resolution of disputes serves wider social interests. As we saw above, Weber saw the social benefits of law ranging from the determination of a dispute between parties which could affect many outsiders, to the pattern of enforceability of contracts, which characterises a legal order, and in turn defines the exchange relationship.

Antifoundationalist critics of law see the evaporation of law's theological basis as the end of its claims to any external or transcendent validity. Yet we have seen that the theological justification was replaced, after the enlightenment, by a robust consensus arising out of the principle of publicity. While the outward form of civil litigation changed little, its foundations were re-established in the public sphere. In his critique of the contemporary structural transformation of the public sphere, with particular reference to the foundations of the state, Habermas notes that the enlightenment consensus has been replaced by competing self-representations of private interests. (Habermas 1991: 195) . Here again we are confronted by the paradoxical relationship between law, the state and civil society. The new frameworks of a commodified justice conform closely to Habermas's picture of the transformed public sphere. The removal of decision making from democratic institutions and from public participation or scrutiny sees the citizen give way to the consumer, in a process by which civil society itself has been derationalized and commodified (Splichal 1994: 72-73). In the same way, the commodification of justice undermines the public recognition or scrutiny of property relations.

As a result of the current transformation of the public sphere, to the extent that justice may become commodified and privatized, we may anticipate a more profound shift in the consensus on which civil litigation and private property are based. The symbolic systems by which private property is constituted as a publicly recognised benefit lose their legitimacy and integrative role. To the extent that justice is commodified, i.e. becomes a private and voluntary benefit, it ceases to work its magic as the basis of other commodities, exchange relationships and private property. If justice itself descends into the realm of the commodity, there is no foundation to commodity relations outside the private and voluntary world of the individual will. Economic inequalities refract throughout society, recolonising the public sphere and overwhelming the polity.

A range of views are canvassed in R. Matthews (ed.), Informal Justice? (1988) and R.L. Abel (ed.), The Politics of Informal Justice (1982)

See Mohr (1997) for an exploration of some of the ways this distinction works itself out in the relations between the courts and the state.

See Hampshire (1989) , who traces such a view to Aristotle. Compare Gauss, Kant and others.

'Donnez-moi le juge que vous voudrez, partial, corrupt, mon ennemi même, si vous voulez: peu m'importe pourvu qu'il ne puisse rien faire qu'à la face du public.' Quoted Millar (1923-24: 156, n 365)

Bentham's 'main securities against misdecision are simplicity and, above all, publicity.' (Twining 1993: 383) .

Kable v DPP (1996) 138 ALR 577 per Gaudron J at 615

'Proceedings hearings and agreements are private and confidential' - Mediate Today Pty Ltd (ACN 065 563 760), which lists among its panel of 'neutrals' lawyers, professors from Macquarie and Sydney Universities and the USA, former judges and several retired politicians, including a former NSW Attorney General, Terry Sheahan (pamphlet distributed in 1995, 'Resolve Your Dispute', pp 6-7).

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