Access to Justice and Rule of Law-Adriaan

7/29/2019 Access to Justice and Rule of Law-Adriaan

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Conceptual Study:

Access to Justice and Rule of Law

Van Vollenhoven Institute


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Various Definitions of Access to Justice


From:

-Access to Justice concerns the availability oflegal aid for poor people (paraphrase of the

concept as implicit in the famous Dutch Accessto Justice study De weg naar het recht, 1975)

to

-Access to Justice is the ability of people toseek and obtain a remedy through formal orinformal institutions of justice, and inconformity with human rights standards(UNDP 2005)


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Various Definitions of Legal

Empowerment


The use of legal services, often in combination withrelated development activities, to increase disadvantagedpopulations control over their lives (Golub 2006)

Fighting poverty by identifying and providing the poorwith legal and institutional tools that allow them to benefitfrom greater security and to create wealth within the ruleof law (CLEP 2006)

To create rights, capacities, and/or opportunities for thepoor that give them new power to use law and legal toolsto escape poverty and marginalization. (Bruce et al. 2007)


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Commonalities and differences


-Bottom up

-Concerned about the poor

-Centrality of the legal system (to some extent)

-Enabling v. overcoming obstacles

-Centrality of power relations

Access to Justice is often used as the umbrella concept (e.g.Genn et al. 2004)


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Umbrella Definition of A2J


Access to justice exists if:- People, notably poor and vulnerable,

- Suffering from injustices

- Have the ability

- To make their grievances be listened to

- And to obtain proper treatment of their grievances

- By state or non-state institutions

- Leading to redress of those injustices- On the basis of rules or principles of state law, religious

law or customary law

- In accordance with the rule of law


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1. (Notably) Poor and Vulnerable People


You need to identify them.


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2. Suffering from injustices


What is your standard?- State law?

- Your point of view?

- The point of view of those concerned?


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3. Have the ability


- Practical issues- Psychological issues


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4. To make their grievances be listened to


- From injustice to grievance

- First step: being listened to


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5. And to obtain proper treatment of their

grievances


- Second step: to obtain proper treatment

- Again: what is proper (state law, researchers point ofview, or the point of view of those concerned?)


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6. By state institutions or non-state

institutions


- Recognising that various forums may exist

- Implications for proper?


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7. Leading to redress of those injustices


- Third step: redress

- Once again: what is the standard for redress?


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8. On the basis of rules or principles of

state law, religious law or customary law


- Underlining the legal pluralist approach of the concept

- Making justice legal and not incidental- Introducing a normative point of reference


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9. In accordance with the rule of law


- Introducing a firm normative standard: procedural(whether the process is fair) andin accordance with

human rights


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A Rule of Law Model


Category 1 : Procedural elements

law (= written acts, regulations and decrees) as

instrument of government action (rule by law)state actions are subject to lawlaw must be clear and certain in its content,accessible and predictable for the subject, and

general in its application (formal legality)consent determines or influences the content

of the law and legal actions (democracy)


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A Rule of Law Model


Category 2: Substantive elements

subordination of all law and its interpretations tofundamental principles of justice, moral principles,

fairness and due process

protection of individual rights and liberties (fundamental

political and property rights [1st generation])the state exists for the benefit of each and everyindividual (social human rights / social welfare [2nd

generation])protection of group rights (3rd generation)


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A Rule of Law Model


Category 3: Controlling Mechanisms

there exists an independent judiciary charged with the

interpretation and application of the law to which everyaggrieved person has access (independence of the judiciary,

sometimes broadened to trias politica)there are other institutions (Ombudsman, Human Rights

Commission, Tribunals, etc.) charged with safeguardingelements of the rule of law


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A Rule of Law Model


Category 3: Controlling Mechanisms

there exists an independent judiciary charged with the

interpretation and application of the law to which everyaggrieved person has access (independence of the judiciary,

sometimes broadened to trias politica)there are other institutions (Ombudsman, Human Rights

Commission, Tribunals, etc.) charged with safeguardingelements of the rule of law


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Relation A2J - Rule of Law


-Access to Justice is incorporated in a broadconception of the rule of law (in any case when it

involves state law and state institutions)

-Access to Justice can be seen as a shift of attentionwithin an extended version of the RoL model and by

explicitly incorporating institutions other than courts


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How to do research on A2J?


Access to Justice and Rule of Law-Adriaan

Documents

Transcript of Access to Justice and Rule of Law-Adriaan