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Conceptual Study:

Access to Justice and Rule of Law

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Various Definitions of Access to Justice


From:
-Access to Justice concerns the availability of legal aid for poor people (paraphrase of the concept as implicit in the famous Dutch Access to Justice study De weg naar het recht, 1975) to -Access to Justice is the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards (UNDP 2005)
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Various Definitions of Legal Empowerment


The use of legal services, often in combination with related development activities, to increase disadvantaged populations control over their lives (Golub 2006) Fighting poverty by identifying and providing the poor with legal and institutional tools that allow them to benefit from greater security and to create wealth within the rule of law (CLEP 2006) To create rights, capacities, and/or opportunities for the poor that give them new power to use law and legal tools to 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

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On the basis of rules or principles of state law, religious law or customary law
In accordance with the rule of law

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 of view, 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) and in 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 law law 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 to fundamental 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 every individual (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 every aggrieved person has access (independence of the judiciary, sometimes broadened to trias politica) there are other institutions (Ombudsman, Human Rights Commission, Tribunals, etc.) charged with safeguarding elements 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 every aggrieved person has access (independence of the judiciary, sometimes broadened to trias politica) there are other institutions (Ombudsman, Human Rights Commission, Tribunals, etc.) charged with safeguarding elements of the rule of law

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Relation A2J - Rule of Law


-Access to Justice is incorporated in a broad conception 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 attention within 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?

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