Access to Justice

6 Key excerpts on "Access to Justice"

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  Marginalized Communities and Access to Justice

  • Yash Ghai CBE, Jill Cottrell(Authors)
  • 2009(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  Access means approach, entry into; accessible includes the idea of being able to influence. So Access to Justice means more than being able to raise one’s case in a court or other relevant institution of justice. Justice is defined as fairness; in the legal and political sphere; it usually means “exercise of authority in maintenance of rights”. Fairness covers both the procedures of access and the substantive rules that determine the exercise of authority. Access to Justice therefore means the ability to approach and influence decisions of those organs which exercise the authority of the state to make laws and to adjudicate on rights and obligations.

  Defined in this way, A2J can be a very broad concept, covering the conduct of most organs of state and the processes of getting to the courts. Many current projects on the A2J define the concept to include the entire machinery of law making, law interpretation and application, and law enforcement. Thus it also covers the ways in which the law and its machinery are mobilized, and by whom or on whose behalf. Since justice is value laden, these projects focus on the content of the law and the ways in which it can be reformed to reflect the concerns of the groups in whose name the projects are undertaken – the poor, the disadvantaged and the marginalized. UNDP, a key international player in this field, states, “Access to Justice entails much more than improving an individual’s access to courts or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable” (UNDP 2004: 6). The World Bank, adopting a broad view of A2J, says that “Justice institutions play a key role in the distribution of power and rights. They also underpin the forms and functions of other institutions that deliver public services and regulate access to resources. Clear, equitable rules and processes can facilitate effective and peaceful transitional change, and can create the enabling conditions for a functioning social and economic net by challenging inequitable practices” (2008: 1). The Asian Development Bank also uses a similarly broad view.

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  Disabled Justice?

  Access to Justice and the UN Convention on the Rights of Persons with Disabilities

  • Eilionóir Flynn(Author)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  Fraser’s approach is of particular interest in the context of both justice and Access to Justice for people with disabilities. Her recognition of the complex, interlinked nature of identities, sources of injustice and potential remedies is one which bears the closest resemblance to many real-world scenarios in which individuals and groups make claims of justice. While, on the surface, ‘Access to Justice’ may seem to be more relevant to cultural injustice, as Fraser describes it, many of the barriers to effectively accessing the various spheres of justice (legal, political, administrative, etc.) also stem from economic structures which are prejudiced towards, or unduly impact upon, persons with disabilities. In recognition of her proposition that most forms of cultural injustices (discrimination, exclusion, segregation, devaluing of specific identities, etc.) are connected to, and have ramifications for, economic systems and processes, her solutions seem to be a valid starting point from which to consider the experiences of persons with disabilities and their efforts to access justice. The notions of ‘access’ and ‘justice’ in this context will be considered further in the following section, bearing in mind Fraser’s broader approach to advancing the justice claims of marginalised groups, such as persons with disabilities.

  3. Access to Justice and Disability: A Holistic Approach to Securing Equality

  The term ‘Access to Justice’ is generally used to refer to access to the legal system, and immediately brings to mind the rights to due process and legal representation.16 This, I would suggest, is too narrow an interpretation; and for the purpose of this book I will use a broader definition which goes beyond the formal legal system and questions of ‘access’ to this, to a more holistic understanding of what justice means for people with disabilities. Bahdi17 argues that Access to Justice scholarship reveals an increasing tendency to adopt this broader approach and thus to address issues of justice as well as issues of access. Similarly, Cappelletti and Garth support a wider approach:

  The words ‘Access to Justice’ are admittedly not easily defined, but they serve to focus on two basic purposes of the legal system – the system by which people may vindicate their rights and/or resolve their disputes under the general auspices of the state. First, the system must be equally accessible to all; second, it must lead to results that are individually and socially just.18

  In the specific context of disability, Lord et al. provide the following definition for Access to Justice:

  ‘Access to Justice’ is a broad concept, encompassing people’s effective access to the systems, procedures, information, and locations used in the administration of justice. Persons who feel wronged or mistreated in some way usually turn to their country’s justice system. In addition, persons may be called upon to participate in the justice system, for example, as witnesses or as jurors in a trial. Unfortunately, persons with disabilities have often been denied fair and equal treatment before courts, tribunals, and other bodies that make up the justice system in their country because they have faced barriers to their access. Such barriers not only limit the ability of persons with disabilities to use the justice system, they also limit their contributions to the administration of justice.

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  Access to Justice

  A Critical Analysis of Recoverable Conditional Fees and No Win No Fee Funding

  • J. Peysner(Author)
  • 2014(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  7

  Here, his analysis rests on firm Western social democratic roots reflecting his own experience of growing up in Fascist Italy. Support for the project was given by the Italian government and the Ford Foundation. While the collected work deals with examples of ‘socialist law’ operating in Eastern Europe and the Soviet Union, these models are not centre stage.

  Cappelletti’s thesis is that the liberal bourgeois states of the 18th and 19th centuries adopted procedures for civil litigation that reflected the individualistic philosophy of rights, i.e. formal rights. Access to judicial protection was a natural right – pre-dating states – and merely required the state not to allow it to be infringed by others.8

  In his contribution, Lawrence Freidman, the renowned legal historian, states that the Access to Justice movement derives from a relatively novel idea:

  A single incandescent notion lies behind the reforms and the reform theories: that there is, or ought to be, a single, uniform, universal body of norms; that every citizen – every man, woman and child – regardless of rank, social status or income must be able to enjoy the protection and privileges of that body of norms.9

  Freidman argued that this idea conflicted with earlier, more limited access jurisdictions enforcing restricted norms, such as merchant courts in England, which existed until the 18th century. In the 19th century litigation became more expensive as court fees increased, and litigation declined, even though law (particularly in civilian code-based countries) became more uniform and predictable. Selfevidently access was an issue for poor citizens, but also for small traders attempting to recover a debt or enforce a contract. Indeed, the small claim courts with limited fees and costs in England and in the USA became largely venues for small traders, not individuals attempting to enforce rights.10

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  Access to Justice for Disadvantaged Communities

  • Mayo, Marjorie(Authors)
  • 2014(Publication Date)
  • Policy Press

    (Publisher)

  TWO Concepts of justice and Access to Justice Before focusing upon the development of legal aid and the history of Law Centres, more specifically, this chapter starts by summarising different definitions and perspectives on social justice and their varying implications for social welfare. Among others, Piachaud has pointed to ‘the very ambiguity of the term “social justice” – a “feel good” term that almost all can subscribe to’ (Piachaud, 2008, p 33). While the pursuit of social justice ‘has been the driving force behind much, perhaps most, social change’, in Piachaud’s view (Piachaud, 2008, p 50), ‘opinions about what is fair and just have differed, and will probably always do so’, he concludes. Although similarities have been identified, there have also been significant differences of approach, both in theory and in practice. There has been widespread agreement about the importance of basic political liberties and fair process, together with widespread agreement about the importance of social rights, such as access to education, if citizens are to benefit from political rights, as Marshall argued (Marshall, 1950). But there has been far less agreement about what, if any, inequalities would be justifiable, and on what basis. Rawls’ A theory of justice (Rawls, 1971) has been centrally significant here as an influence on subsequent debates, sparking criticisms from varying perspectives. Deriving his arguments from processes of reasoning – as to what principles we would choose if we did not know what our own position and life chances were going to be – Rawls himself claimed that his conception of the principles of justice stood independently of any particular moral or religious views

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  Key Ideas in Law: The Rule of Law and the Separation of Powers

  • Jack Beatson(Author)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  6 Access to Justice

  This chapter deals with two interlinked components of Access to Justice. The first is that people should have access to a court or tribunal to defend themselves against criminal charges or to resolve their disputes in a binding manner without undue delay. On the efficacy of attempts to exclude such access, see 144. The second is that the procedures provided by the state should be fair, enabling both parties to put their case. The primary concern here is with courts and tribunals, but the requirements of fairness for administrative decision-making by ministers and other public officials are also touched on. The requirement that the judges resolving those disputes should be independent and impartial is considered in the next chapter. The importance of an independent legal profession with a duty to represent all, including the unpopular, odious and heinous is referred to at 30.

  In considering the requirements of the two components, it is important to bear in mind the different purposes served by criminal, civil and public law justice. The state uses criminal law to set out what must not be done, to determine whether individuals have committed crimes, and to punish those who have. Through civil and family law, the state sustains social stability and economic growth. It does so by providing public processes for resolving civil disputes about matters such as contracts, civil wrongs (known as ‘torts’) and property; and disputes within families, including property rights on divorce and about children. It also provides procedures for enforcing legal rights and for protecting private and personal rights. Public law is concerned with the exercise of constitutional responsibility, ensuring that government and public authorities act in accordance with the law. It does so by two processes. The first is a common law supervisory jurisdiction called ‘judicial review’, which is concerned with the legality of governmental and public action rather than its merits, although the line between the two can be difficult to draw, see discussion at 58 ff. The second are the statutory rights of appeal or other mechanisms for challenging decisions by public authorities, tailored by reference to context so that areas such as environmental regulation, social security, special educational needs, and immigration have processes specifically adapted for them.

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  Ethics of the Legal Profession

  • Sir Fred Phillips(Author)
  • 2016(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  1 Luban identifies the man from the country as the poor litigant knocking at the door of justice in a dying state coming face-to-face with the first doorkeeper – the fees of the lawyer. Luban may well have added that the two inner sentinels are nothing if not the various forms of procedural and other delays the hapless litigant is sure still to encounter: the statements of claim, defences, replies and rebuttals which are to bedevil him on his lonely way to the seat of justice.

  CONSTITUTIONAL DEVELOPMENT

  This chapter attempts to explore some practical steps the applicant for access may take on the way to justice – taking as our point of departure the turbulent developments which have manifested themselves on a global basis at the end of the 20th century and the beginning of the 21st century in the matter of providing Access to Justice.

  Shortly after World War II there was the Universal Declaration of Rights, which came into effect in 1953 – although it had been adopted and proclaimed by the United Nations General Assembly on 10 December 1948. Under that Declaration, the United Kingdom undertook an obligation to promote and respect human rights and fundamental freedoms – access to the courts being embraced by a number of these freedoms. In due course this obligation found its way into the written constitutions of not only newly-independent states after World War II but even into constitutions of most of the few remaining overseas dependent territories. As a result, all the new constitutions are declared or deemed to be ‘the supreme law’ of the countries to which they relate and jurisdiction has accordingly been conferred on the courts to determine questions relating to the interpretation of the constitutions and to grant redress, by way of declarations, orders, writs and directions in any case in which a person alleges that any of the protective provisions has been, is being, or is likely to be, contravened in relation to him. The result is that in so far as the Caribbean regime is concerned, a formidable jurisdiction has developed by virtue of this access to the courts. The Canadian Charter of Rights enshrined in their patriated Constitution of 1982 (this being one of the latest) has had the same effect in Canada.

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