By Ilan Fuchs, Ph.D. | 10/23/2023
Access to justice is a fundamental principle in a formal justice system and a civil society. In our legal system, every individual – regardless of background, social status, or economic means – should have the right to seek and obtain a fair, impartial resolution to legal disputes.
Historically, equal access to justice is supposed to be guaranteed by the U.S. Constitution, which promised in essence that all people are subject to the law and should have the ability to approach the legal system. Over time, however, our system has become more complex, more specialized, and more expensive. As a result, it is more difficult to understand, participate in, and effectively navigate.
Access to justice is a cornerstone of a just society, and it plays a crucial role in upholding the rule of law, protecting human rights, and promoting social cohesion. The emergence of civil society organizations focused on equal access to the justice system by offering legal representation to people who require help has influenced law schools. In fact, the creation of legal aid programs is a part of legal education in modern law schools.
Some state bars even require or incentivize lawyers to participate in aid organizations as part of the license renewal process. But with all the changes in the access to justice area, there is still much more work to be done.
Advancing Human Rights and Social Cohesion in the Justice System
So what can we do in the future to ensure the upholding of human rights and social cohesion? There are multiple ways to accomplish this goal.
Improve Support for Human Rights
Proper access to justice is intrinsic to safeguarding human rights and ensuring that every person's dignity and worth are protected. It allows individuals to seek redress for violations, combat discrimination, and hold perpetrators accountable.
When those with legal expertise provide legal assistance to people though community programs, that helps to ensure that litigants can more easily navigate the justice system and that the judicial system works properly. Strengthening access to the court system is essential to uphold human rights.
Uphold the Rule of Law
Access to justice is a crucial pillar of the rule of law, which ensures that laws apply equally to everyone and are properly enforced. Without access to justice, a law's effectiveness is diminished, leading to a breakdown of public trust in the system.
Legal aid programs ensure that lawyers’ clients can have their case properly described in court. These programs also ensure that litigants’ legal rights are enforced and not overlooked because of the complexity of the U.S. justice system. Promoting fair and equitable access to justice is one of the most important challenges that courts currently face.
Encourage Social Cohesion
A fair and accessible justice system promotes social cohesion and trust in government institutions. When people perceive a system as just, they are more likely to abide by the law and respect its outcomes.
Equal justice is crucial because if the lofty ideals embodied in our laws are not implemented, then marginalized groups will see the system as limited to the rich and powerful and conclude that legal protection is not relevant for the poor. If justice stops at the federal poverty guideline, then legal status is not a result of the law but the litigant’s bank account.
Support Economic Development
An effective justice system fosters a conducive environment for economic growth and foreign investments. Businesses and investors seek stable legal frameworks in order to operate, and proper access to justice enhances confidence in commercial dealings.
For instance, small businesses can have civil legal problems that limit their ability to grow and support their community and allow social mobility. Quality legal assistance is not limited to the criminal justice system. It is also relevant to civil law issues and legal aid organizations that assist in resolving civil matters, which can help improve the economy in the lower stratas of society.
Expanding Public Access to Justice May Make a Difference
Access to justice is affected by four barriers: physical, financial, procedural, and technological access. But by finding ways to overcome these barriers, ensuring that everyone has equal treatment in the system may become easier in the future.
Physical Access
In many communities, legal services are concentrated in urban areas, leaving rural communities with limited access to legal professionals. Low-income people living in more remote areas will need services such as mobile courts to deal with their legal problems.
In other communities, legal services are not available or located far away, making them difficult to access. For instance, if a litigant was in a small town in rural upstate New York, there might be a local court but no way to easily get legal representation.
Although it is possible for people to represent themselves in court cases, it is no secret that self-represented litigants tend to be less effective. Having access to legal services is crucial; if there is no affordable lawyer in town, then that is a crisis.
There are also other ways to resolve disputes without large expenditures. Some jurisdictions have impartial, trained mediators so that legal disputes can be more easily resolved.
In some regions, informal justice systems prevail, which creates challenges in harmonizing traditional practices with formal legal frameworks. Without increased access to justice in civil and criminal matters, people might turn to alternatives that destabilize society. While courts are essential, a traditional court is not the only option with answering the basic needs of marginalized populations.
Financial Access
Financial barriers are one of the most significant hurdles for people seeking to resolve legal problems. Many individuals, especially people from marginalized and economically disadvantaged backgrounds, cannot afford legal representation, court fees, or other related expenses.
However, a lack of financial resources should not deprive anyone of their right to justice. Offering legal services to the poor is at the core of a civil society.
Also, the limited financial resources allocated to legal aid services result in inadequate support for low-income individuals and vulnerable groups. Insufficient funding can undermine the provision of free or subsidized legal representation.
To ensure a fair outcome in court cases, more is needed from the government. But while government officials acknowledge the need for legal aid resources, most of the financial support to legal aid organizations comes from the private sector. As a result, it becomes difficult for legal aid organizations with modest means to provide legal advice and ensure that their clients’ basic human rights and access to justice is upheld.
Procedural Access
Even if someone has physical and financial access to legal services, procedural complexities can still hinder individuals from fully participating in the legal process. The system's complexity, formal language, and technical requirements may be overwhelming for many people, creating an environment where individuals struggle to effectively articulate and understand their rights.
Civil society is only fulfilling its goals if legal rights and privileges are properly utilized. For example, women who are domestic violence victims need to navigate a complex labyrinth of procedures and forms. Ideally, they should be given access to the many legal resources they will need as well as guidance through the system. For these victims, the family legal system could be more streamlined to ensure their rights are properly upheld.
In addition, language is a challenge in U.S. courts. Lengthy legal procedures and complex jargon deter individuals from seeking justice, because they fear a court case will be time-consuming, costly, and difficult to understand.
For some marginalized populations with a low literacy level, they face the basic problem of understanding what kind of legal help they need. Sometimes, that is the result of cultural and linguistic barriers.
For instance, some ethnic minorities and immigrants with limited English proficiency may have difficulty understanding the English language. This lack of knowledge can prevent them from effective participation in the U.S. legal system.
Technological Access
The growing reliance on technology in legal proceedings can create problems for litigants who do not own computers or have limited access to the internet. Ideally, courts should be sensitive to the needs of a community and find ways for their digital services to be available to people with limited computer access or a limited knowledge of technology.
Initiatives to Improve Access to Justice
There are various ways to improve a litigant’s access to justice. They include:
- Improving legal aid and pro bono services – Governments and non-governmental organizations can expand legal aid services and encourage legal professionals to provide pro bono assistance to bridge the financial gap of litigants. Many bar associations see this work as part of their mission.
- Simplifying legal processes – Legal systems can be streamlined, and court procedures can be made more user-friendly to reduce complexity and delays. There are also alternative dispute resolution mechanisms that can be used.
- Offering more community-based legal services – Establishing legal clinics and community-based services can bring justice closer to people in remote areas and marginalized communities.
- Raising legal awareness through public legal education – By using public awareness campaigns, governments can empower individuals to understand their rights and what are the available legal remedies to their justice challenges. Justice includes knowing what rights the system ensures and providing safety to litigants, which is not only the job of the police but also justice systems.
- Adopting online dispute resolution – Implementing technology-driven dispute resolution platforms can provide people with more accessible and efficient avenues for resolving a legal problem.
- Using culturally sensitive approaches – Ensuring that legal services are culturally sensitive and linguistically accessible is essential to accommodate the needs of diverse populations.
Access to Justice Is a Fundamental Human Right
Access to justice is not a luxury; it is a fundamental human right that is the underpinning of a fair and just society. Overcoming the challenges to access to justice requires a multi-faceted approach, involving legal reforms, policy changes, and increased collaboration between government, society, and the legal profession.
By empowering individuals with the means to seek and obtain access to justice, we can build a more equitable and inclusive society where the rule of law prevails, human rights are protected, and social cohesion thrives. It is a collective responsibility to ensure that access to justice becomes a reality for all, irrespective of their circumstances, and to uphold the principles of justice and equality for a brighter future.
The Supreme Court building might be the place where all lawyers want to come one day. But if the local courthouse is out of the reach of a minimum-wage employee, then access to justice and the legal system has failed.
