Theme
Access to justice has become a central theme in Latin American judicial reforms.
Summary
Access to justice has become a central theme in Latin American judicial reforms. Its apparent simplicity belies considerable ambiguity as to its precise meaning, the benefits it confers, and thus the methods whereby it is best advanced. While often interpreted as just a question of getting more people to court, for at least the last three decades observers have noted the inadequacy of this definition. Once it is discarded, the implications for programmes to enhance access are far less clear. This short essay reviews some of these issues and suggests an alternative, if not exactly easier, way of defining and operationalizing the concept. While based on the Latin American experience, the arguments are intended for more general application.
Analysis
Access to Justice in the Latin American Context
Most Latin American court systems were traditionally distinguished by their inaccessibility to a majority of citizens. Those most usually affected were the poor and groups discriminated against because of ethnic, gender or other characteristics. These simple facts have inspired the addition of access enhancement to judicial reform goals and the inclusion of programmes attacking the barriers faced by these citizens.
The concept is simple; the repercussions are more problematic. This is reflected in the changing thinking on how the goal is best attained. While the focus here is the courts, it should be understood that justice services also encompass prosecution, police, legal defence and various kinds of alternative dispute resolution. Generally, judicial reformers’ attention to access enhancement has included three strategies or approaches:
• Efficiency measures which work to increase the coverage of services normally supplied and thus presumably to serve more (and more varied) demand. Common techniques include delay reduction, procedural simplification and personnel policies putting a premium on rapid service.
• Direct increases in the supply of services and their deployment to areas and in forms intended to reach the traditionally marginalized users. These include measures to increase the number and improve the distribution of judicial services (taking them to where marginalized users may be located); adoption of specialized courts (family, land, labour or social security), introduction of small claims or justices of the peace courts designed for needs of smaller users; Alternative Dispute Resolution (ADR); and subsidised legal services.
• Finally, new forms of litigation (especially public interest law) intended to represent needs and advance the interests of classes of individuals.
While not always introduced in this order (or initially, as in the case of efficiency, as a means of increasing access), the three approaches take a progressively broader view of what the problem of access is about, and what benefits its remedy is intended to bring. Whereas the first set of measures assumes that increasing the supply of a traditional good will automatically make it available (accessible) to non-traditional users, the second set is already considering the special needs of non-traditional clients and the broader variety of factors that may discourage their inclusion –hence, the recourse to new forms of courts, non-traditional mechanisms and legal aid–. The third approach, a response to the perceived inadequacies of the first two, is less concerned with providing the dispossessed with normal services than with using the legal system to better their collective lot. The emphasis is less on access than on justice and on justice in a very different sense. While not particularly enamoured of this last approach, which also underestimates the ‘normal’ needs of its intended beneficiaries, it is a convenient introduction to the broader question of what increased access is intended to produce and what in turn we see as the output of a justice or judicial system.
Access as an Individualized, Absolute Value
The ability to use the courts to resolve ordinary conflicts, protest government abuses and as a means to claiming other constitutionally guaranteed services and goods is typically depicted as a basic right of all citizens and thus one where government must make special efforts to ensure equal availability. However, access, conceived as citizens’ right to their day in court, cannot increase infinitely. Greatly expanded access and thus greatly expanded court use will either increase court congestion, thereby putting its own limits on access, especially for those who cannot tolerate lengthy delays, or require the expansion of services. Initially, this expansion can be achieved by increasing judicial efficiency, but over the longer run, judicial budgets will have to be increased. In Latin America, court shares of the public budget have already reached levels (percentages) far above those in Western Europe and the US. Hence, further proportional increases seem unlikely.
Much as with health, education or even police protection, there are limits to what the state can provide, and decisions to be made as to priorities (one dollar spent on justice versus one spent on health, etc). It appears to be particularly difficult for jurists to accept this fact –they are not used to the notion that rights (whether to health, education, or especially justice) must be allocated against resource constraints and thus that some kind of rationing will be necessary–. And even when they admit that other kinds of rights are subject to budgetary limitations, justice often appears as an exception: ‘The provision of an adequate system of justice available to all cannot be treated as another budgetary item, to be juggled with all other claims in the disposal of such income as a government gets’.
The inherent limitations on supply do not mean that access cannot be increased or distributed differently. They do mean that any remedy will have to recognize the impossibility of an infinite growth in services, and thus that implicit or explicit policies will exclude some uses and users. The preferred solution would appear to be facing those limitations head on and making explicit decisions as to how and to whom services will be provided. Otherwise, spontaneously developed rationing systems may perpetuate or even worsen inequities.
Expanded access has other potential costs. One disadvantage of making access too easy is that it discourages the development of alternative, non-judicial means for resolving or even avoiding conflicts. Where creditors can depend on the courts for debt collection they will be less cautious in making loans, and privately financed credit bureaus and similar services will not develop. Where every minor squabble among neighbours can get a court hearing, there may be less inclination to tolerate differences. Government agencies, which are often major users of court services, may send disputes with clients to courts rather than attempting to resolve the problems at the source. Here lengthy delays work in the agencies’ favour as they are better positioned to wait them out than are most private citizens. And even where the government stands to lose (both because of the monies invested in keeping the case active and the delayed rewards –for example in a tax collection case–), its attorneys will not bear the costs and in fact may benefit from the appearance of productive activity. In short, while increased access may be a desirable goal, more attention is required to the form it takes and who benefits from the change.
Access as a Means not an End
Treating access as a means may raise still more juridical hackles but at the very least we should recognize its dual role. Conceived as a right, access to justice is an end, and the problem of its rationing becomes still thornier. Conceived as a means, the question is no less difficult but shifts to one of the results being pursued. The answers are as numerous as the definitions of justice: the traditional response that the purpose was ensuring that individual conflicts were resolved in accordance with the prevailing legal norms is now joined by an emphasis on guaranteeing other individual and group rights, enhancing juridical security and predictability, reducing crime, deterring the escalation of conflicts, protecting citizens against government abuses, enhancing the status of the traditionally marginalized and even forcing socio-political change. It should also be recognized that ‘access’ to the social benefits (what economists call the public, as opposed to private good) of justice is available to all members of a society (and to many non-members) whether or not they ever take a case to court. Typically, the 80% or more of the population who only see the inside of a court on television can still enjoy the enhanced physical and juridical security a well functioning justice system is supposed to deliver.
While the various goals are not necessarily incompatible, it is not likely that a single access strategy will serve all of them equally. In fact, radically expanded access can create a short term setback in several –for example the goals of deterring conflicts or increasing juridical security–. Assuming an enormous gap between the formal legal framework and actual practice, this may not be a negative development, but the way divergences are worked out is not guaranteed either. However the courts initially decide, the political powers are likely to have the last word, and may well determine it is better to forego overly ambitious legal ideals rather than having to implement them.
In short, while one motive for expanding access is the notion of a social revolution by judicial fiat, the political cards are stacked against its realization. Despite a current tendency to judicialize politics, the courts are really not organized or empowered to make basic decisions on policy, and if they enter very far into that realm they will most likely provoke an unpleasant reaction. More modest ambitions –giving more individuals a peaceful, legal way to resolve their conflicts and thereby enhancing the reach of the rule of law in private to private and private to public dealings– might be more realistic, but even here resource limitations will require choices being made. Here, the real challenge is how to use the courts to leverage extrajudicial reconciliations, still in line with the legal framework, but reached through other means, or to encourage compliance (the deterrence effect) so that the overall level of conflict and rule violation is reduced. Expanding, or more appropriately, altering access is a part of the solution, but doing this effectively will require a much harder look at what courts already do and the potential for changing their activities.
A New Look at Reform and at the Place of Access
Once we get beyond the simplistic notion that the goal is to give every potential user his or her day in court, and begin to ask what we really are pursuing, we are faced with some very basic questions about the role of the legal/judicial system; the nature of its product (justice); the benefits, to individuals and societies, of court use; the nature and impact of current use patterns; and the potential and reasons for changing them. While not always in the context of access, these questions are being raised by a growing number of observers, including those in countries with justice systems presumed to work fairly well. Among some of their early and very tentative findings, the following are most relevant for the remaining discussion:
• First, we really do not know enough about who uses courts and with what effect; thus, many of the assumptions guiding reform design tend to be based on fragmentary, often anecdotal, evidence, shaded by ideological predispositions or mere wishful thinking.
• Second, although it is evident that the individual and social impacts and benefits of court use may diverge significantly, the application of this knowledge to rationalize judicial services is relatively unexplored.
• Third, there is an increasing and near universal public dissatisfaction with court performance, even in countries where citizens perceive their judges as hard working, honest, and competent. This suggests, even in the best of cases, a growing expectation gap –between what citizens believe courts should do and what they actually can deliver–.
• Fourth, so far as we understand individual decisions to access the courts, they seem increasingly based less on the ‘legitimacy’ of the claim than on a rational calculation of the costs and benefits of taking legal action. Legal counsel may affect this calculation, sometimes in ways that benefit only their own interests. However, the parties themselves are increasingly sophisticated as to how the strengths and weaknesses of a specific legal system might work to their advantage or disadvantage, regardless of whether a judgment is eventually rendered. Here the legal system becomes less a neutral means of resolving conflicts than another resource to alter relative bargaining positions or even the nature of the issues at stake.
• Finally, while the judicial process is inevitably an expensive way to resolve conflicts, a part of the high costs arise from its monopolistic structure and the control over such factors as supply, demand, fees and content exercised by legal practitioners. There certainly are judges and lawyers interested in producing improved services at reduced costs, but guild interests are a strong deterrent to many kinds of change. Bar associations typically, for example, oppose the introduction of pro-se (self) representation for the obvious reason that it cuts into their members’ employment opportunities.
One conclusion emerging from these partial findings is that the dominant model shaping our understanding of the judiciary’s role and thus current reform efforts may simply not be suited to contemporary societies –especially because of the dramatic qualitative and quantitative changes in the demands placed on it–. In its most basic form this model suggests that the justice system, by resolving disputes through the application of legal norms, will enhance the rule of law, increase juridical security and predictability, reduce conflicts, and bring social transactions more into line with the overall legal framework. It is fairly silent on the content of that framework although it does assume that laws will be applied equitably and universally and that all parties will have an equal chance to take their complaints and grievances to the courts.
Part of the growing expectation gap doubtless involves a realization that this is not quite how the system works. However, before we declare the model in crisis, it is worth speculating whether it ever operated that way. The common complaint that the courts rather than resolving conflicts, merely provide another set of resources for the disputants, may not be anything new. Parties have always used the threat of judicial action, or a judgement itself as a means of reaching a negotiated settlement with their opponents. On both the civil and criminal side, negotiated agreements have long been the key to how court systems deal with excessive demand, and while neither the process nor the outcome may coincide with popular understandings of justice, cases do eventually come to closure. Moreover, at least where courts are assumed to take their part in the process seriously and professionally, the threat of judicial action clearly does deter some forms of non-compliance –while a minority of the individually aggrieved may actually get their day in court, and still fewer may be satisfied with the results, their real numbers are probably reduced because potential violators do fear the law–.
Nonetheless, high costs (both to individual users and to society as a whole), burgeoning demand, growing delays, the potential for opportunistic abuse (using the courts to avoid justice and not even necessarily through illegal practices) and increasing public cynicism do imply that the model has its limits, and that it may be time to either lower our expectations or change the system itself. Because such changes have direct implications for conventional notions of access rights, their further development bears a short discussion.
One suggested direction of change is to weaken or reverse the connection between conflict resolution and rule enforcement, partially abandoning the notion that courts enhance juridical security and rule compliance through the resolution of an endless number of individual disputes. Their decisions can send a strong message as to how and which rules will be enforced, but as the sheer number of conflicts increases, the impact is dampened, both by the noisy environment and the parties’ efforts to plead exceptions. Courts are also needed for periodic fine tuning and occasional drastic re-interpretations of the norms, but where this is not the issue, there may be better means for dealing with how rules will be applied to individual cases. In this more deductive model, courts strengthen the general rules through their treatment of critical cases, thereby setting the pattern for out-of-court application and, ideally, discouraging certain types of conflicts from repeatedly arising.
Recognizing that courts are only one part of a society-wide set of mechanisms for resolving conflicts, routine disputes would be channelled elsewhere, leaving to courts those of more general significance. The ADR movement and the creation of administrative tribunals or special offices for dealing with routine matters like consumer complaints address the first part of the equation. The increasing use of small claims courts featuring pro-se representation, less formal procedures and more involved judges constitutes a related, if still judicialised response. From a different angle, the increased emphasis on public interest law among those representing marginalized groups takes on the second element. Having decided that representing individual clients is a very ineffective way of defending their rights, advocates of the poor have begun to focus on cases with potentially broader consequences –those which challenge patterns of government or private behaviour violating the interests of entire groups of citizens–.
A second set of suggestions derives from the argument that most judicial actions have a higher component of individual as opposed to social benefits. It thus proposes charging users a greater share of the real costs involved in handling their cases, or even overcharging them so as to discourage some kinds of use. This approach obviously conflicts with the demand for greater access, but costs could be scaled or subsidies provided so as to put all potential users on an equal footing. Still, some uses may merit discouraging no matter what the society status of the parties –if the rich tend to abuse their access this is not because they have different motives, but only the means to exercise them–.
Finally, the social costs of the system, and to some extent the individual ones, can also be held down by extending the more conventional remedies of further procedural simplification and that of the legal framework itself, providing judges with more means to discourage dilatory practices, unreasonable appeals and frivolous motions, and efforts to make negotiation both more acceptable and more transparent. Once the public understands that negotiated settlements are not only common, but often the only way a solution will be reached, they may adopt more realistic expectations as regards their own chances and the process in general.
The common thread in all these proposals is their tendency to take a systemic view of judicial services and thus of the concept of access. Here the right of access does not refer to specific cases and users, but rather to participation in the individual and collective benefits accruing from society’s provision of the best, and most equitably delivered, justice service it can render. That service also includes more than the courts and extends to other mechanisms for performing the functions of conflict resolution and rule enforcement. Individuals have a right to petition for attention to their specific complaints, but as in the case of other services (public security, health and education) the optimal delivery may not mean that everyone gets what they want when they want it. Who gets what, when and how is a question of policy –and so transcends both the choices of individuals and of the service providers–. This is particularly important as current patterns of supply and use have a historical origin which may run counter to the common good. Any decision to alter these patterns should obviously involve more than the judges, lawyers, and their usual clients.
In a rationalized distribution, some services may not be provided by the state at all, and others may be provided only if paid fully or partially by the individual beneficiary. Where the provision of services (ie, court attention to certain issues) is deemed to be a high priority, subsidies may be provided for those who cannot pay. For other public services, these kinds of policy choices, while difficult, are more easily conceptualized. In the case of justice, this is a novel approach, but one which is increasingly necessary given the growing demand, and the costs of increasing the supply. Since every case cannot have its day in court, it becomes necessary to understand the demand, the implications of meeting it and the potential for choosing what is most critical for the public good. This may not mean that everyone gets to take their case to court; it does mean that everyone should participate equally in the benefits of the system as a whole, and that the decision as to which cases are viewed by courts, which are handled by other state-sponsored means and which are left wholly to party financing (the judicial equivalent of cosmetic plastic surgery) is based on a global review of social priorities, not the cumulative weight of individual claims.
This revised vision of judicial services may not lie well with those who see justice as an absolute right, embodied in the ability to get to court. However, it can be made far less regressive than current reality, which for all the rights discourse, in the end depends on market mechanisms (the law of supply and demand) to determine who actually has access to the courts. Furthermore, the values intended to be maximized by justice can be quite revolutionary ones. They depend less on the rationing system than on the rules that are being enforced. If the idea is that these rules will reverse existing social inequities and create some new kind of society, the question as to whom or rather what issues will be privileged will be quite different from a situation where the idea is to maintain the existing social equilibrium. The revolution does not start with the courts, but if a society wishes to produce it, then the courts and other parts of the justice system writ large can be used to this end.
With all their other problems, the notion of rationalizing judicial services according to anticipated impacts on core values and the collective good may be far beyond the grasp of many Latin American countries. For the medium run, most will be concerned with ensuring that judges are competent and honest, that they are provided with the resources and incentives to handle a reasonable caseload in a timely fashion (which also means defining what is reasonable and timely –in many of the region’s countries average caseloads and disposition rates are quite low–), that the laws they enforce make sense, that courts are located throughout the country and not just in the major urban centres, that citizens are adequately informed as to how the system works and that they do not confront unusual barriers to having their petitions attended. However, it is not too early to think about the model, to avoid falling into the trap of attempting to imitate a system already declared unrealistic by its principal users.
Conclusions
If the key to reform is striving for possible goals, then the traditional conceptualization of the right of access may already be an erroneous target. Barriers to court use by those who truly need it should of course be eliminated, but this is hardly the same as guaranteeing everyone their day in court. Given the limitations on what courts can handle, abusive use by anyone will have to be combated and alternative mechanisms for resolving less legally-significant disputes encouraged. The presumed benefits encompassed in the term ‘access to justice’ conflate a number of essential goods: equal protection of the law, recourse from public or private violators and a means of resolving other types of conflict. In today’s more complex societies, courts perform a critical role in ensuring their provision, but they can no longer be expected to do it alone. No right is absolute or infinite, not even justice, but we can at least work to ensure that its benefits reinforce high priority values and are equally available to all citizens.
Note: The opinions expressed here are those of the author and in no way should be taken as representing official World Bank views.
Linn Hammergren
Senior Public Sector Management Specialist, Latin America and Caribbean Region, The World Bank