Access to Justice and the Public Interest in the Administration of Justice

Article excerpt

Abstract: The public interest in the administration of justice requires access to justice for all. But access to justice must be "meaningful" access. Meaningful access requires procedures, processes, and institutional structures that facilitate communication among participants and decision-makers and ensure that judges and other decision-makers have the resources they need to render fully informed and sound decisions. Working from that premise, which is based on a reconceptualization of the objectives and methods of the justice process, the author proposes numerous specific changes in decision-making processes and practices. These changes are required to achieve a standard of decision-making that is consistent with the public interest in the administration of justice within a constitutional framework under the social and political conditions of the early 21st century. The essay illustrates the application of the principles and methods of "legitecture" to the analysis of problems of institutional design in law.

**********

   ... justice and the just society ... is essential to
   flourishing of men, women and children and to
   maintaining social stability and security. (1)

INTRODUCTION

The public interest in the administration of justice requires that everyone have access to justice. Access to justice must be "meaningful" access. Meaningful access mandates procedures, processes, and institutional structures that provide judges and other decision-makers with the resources they require to render fully informed and sound decisions. This essay argues that changes in the judicial process are needed to meet that objective at a standard that is consistent with the public interest in the administration of justice within a constitutional framework under contemporary social and political conditions.

What Makes Access to Justice Meaningful?

The core purpose of access to justice is to ensure that all those who require the assistance of the legal system obtain it. Access to justice requires full and effective communication between agents and representatives of the legal system and all those who use its services. In matters before the courts, the core functions served by the judicial process are those of hearing and being heard. To have effective and meaningful access to justice, the parties must be heard. Cases do not decide themselves; judges do. To decide a case, a judge must hear and understand the case. Judges are not seers, oracles, or mind-readers. Cases need to be presented in a manner that can be fully understood by the judge who is required to make a decision based on the evidence and the law. This requirement extends to all the evidence adduced and all argumentation. Whether an action requires the judge to clarify legal rights, rule on an application, or resolve a dispute, practices and procedures that tend to limit or frustrate effective communication will also tend to have the effect of limiting meaningful access to justice. One or more of the parties to the process will be silenced, not have the direction they require, or fail to realize that additional steps need to be taken to place necessary information and perspectives before the court to ensure their evidence and submissions are understood.

Adjudicating in the contemporary context entails challenging responsibilities. Some of these challenges are due to social and cultural heterogeneity. Others flow from the complexity of the issues or specialized technical nature of some evidence. Diversity on the bench serves important social and political purposes and contributes to enriching judicial perspectives and the exchange of views among judges about emerging issues and the role of the judiciary. (2) But a diverse bench does not and cannot, for obvious practical reasons, ensure that the judge or judges presiding in any given case will have either the life experience and requisite social and cultural awareness and understanding or the technical background required to produce a well-grounded and soundly-reasoned decision. …