Access to justice
From MicroJustice
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[edit] Justice
Before we start thinking about access, it is good to have an idea about the goods and services to which access is sought. Defining justice, is difficult though, especially if we try to describe justice as it is perceived by those who benefit from the justice system. We may not be able to do more than sketch what justice is about.
[edit] Stable and transparent relationships
First and foremost, justice is probably about a stable environment. In order to thrive, people need to feel safe. They will invest more in their homes and their families if they know that their assets cannot be taken away from them. They will learn more, be more creative, live happier lives, and contribute more to the economy if they can trust other people. Stable relationships, in which partners know what they can expect from each other, are the bedrock of any successful cooperation.
Stability is linked to transparency: What belongs to whom? Who will have which role and perform which task? How will gains and losses be shared?
Stability is linked to enforcement. Existing rights and arrangements have to be observed.
[edit] Coping with vulnerability, change and conflict
Justice is also about dealing with vulnerability, change and conflict.
Women, employees and tenants are often vulnerable because they invest more in relationships than their counterparts. This makes them more dependent than their husbands, employees or landlords depend on them. This can lead to stressful relationships, and sometimes to violence or exploitation.
People change. They learn new things and develop new preferences. New opportunities alter existing power relations. For all these reasons, existing arrangements may become less acceptable. Also, unexpected disasters may occur. And sometimes people do not live up to what others expect them to do. Change, conflict, opportunity and growth are closely related. Stable relationships constantly have to adjust and renew.
[edit] Meeting
Justice is thus about meeting. People have to get together, because they have to discuss the situation that requires attention.
[edit] Talking
Communicating and negotiating is essential, because this is often the only way to resolve a conflict. Existing arrangements have to be renegotiated. Often this happens implicitly, without words. But in case of conflict, it is necessary to discuss issues and interests explicitly. Solutions have to be crafted that fit the people and the problem.
[edit] Sharing
Justice is about sharing gains and losses. In times of crisis the really tough issues often are distributive. How much money does each person get? Who has to perform which task? Which assets will belong to whom? When people are dependent on each other for a solution, this is difficult to agree on. They need criteria that help them to determine what is a fair share.
[edit] Deciding
Justice is also about providing neutral decision making in case of continuing disagreement. Knowing that a neutral judge is available, is a powerful incentive to behave reasonably in negotiations. The shadow of the neutral also protects the vulnerable, the ones who are likely to be taken advantage of.
[edit] Stabilizing
The possibility of third party arbitration ensures that conflicting parties can return to a new form of stable ordering. They make their relationships and their rights transparent. And create a setting in which rights will be respected. In this way, justice supports a virtuous cycle of stability, change and growth.
[edit] References
Christine Parker,Just Lawyers: Regulation and Access to Justice, Oxford University Press, 1999. 272 pg
Roderick MacDonald, Access to justice in Canada today: scope, scale and ambitions, in Access to justice for a new century—the way forward, eds J Bass, WA Bogart & FH Zehmans, Law Society of Upper Canada, Toronto, 2005
[edit] Access to justice
Because justice is needed, people invest in it heavily. They try to create a stable environment. In every relationship and in every group people develop ways to cope with conflict. Within days of the setting up of a refugee camp, and within weeks of the start of a new company, a dispute system emerges. People do this on a voluntary basis, by joining forces with others in a similar position, by creating market solutions in the form of legal services and through state institutions. States supply people with rules, with trained lawyers, and with courtsAccess to justice is making justice happen. Many barriers (costs, distance, language, complexity) stand in between the legal protection people are entitled to, and their actual protection. Lowering these barriers, in economic terms lowering the costs of access to justice goods and services, is in general the way to make justice more accessible.
[edit] Waves of Thinking about Access to Justice
MacDonald (2005) identifies five waves in thinking about the concept of access to justice which demonstrate its evolution over recent decades:
- concentrating on equal access to lawyers and courts
- correcting structural inadequacies within the court and legal aid systems
- demystifying’ the law through, for example, the plain language movement
- recognising the importance of preventative law, including the role of alternative dispute resolution,
- developing proactive strategies to empower citizens to access legal education, information and assistance services, and to participate in every institution in which law is created, found, administered, interpreted and applied
Christine Parker (1989) has a slightly different way of formulating this fifth phase: The focus of a 'fifth' wave of access to justice reform would lie in creating and improving everyday justice practices, rather than relying solely on elaborating professional systems of justice that are only ever utilized by the rich and the desperate.
[edit] Rule of Law and Top down Approaches
In law and development, top down approaches have long dominated.
[edit] Legal Empowerment and Microjustice: Bottom up approaches
In the area of law and development, the legal empowerment movement is an important stream of thinking in this vein. It promotes bottom up approaches.
Microjustice is also an example of a bottom up approach. It aims to facilitate that people in a dispute, needing protection, or wanting access to essential government services can perform the five essential tasks of meeting, talking, sharing, deciding, and stabilizing.
Many people lack access to justice. According to the UN Commission on Legal Empowerment of the Poor 4 billion people live most of their lives outside the scope of the formal legal system. Microjustice aims to strengthen the capacities of people in the realm of justice. It builds on what people organize themselves and on what official legal systems provide.
