Academic journal article Law, Social Justice and Global Development Journal

An Analytical Framework for Empirical Research on Access to Justice

Academic journal article Law, Social Justice and Global Development Journal

An Analytical Framework for Empirical Research on Access to Justice

Article excerpt

1. Introduction

This article addresses conceptual and analytical issues involved in research on access to justice. Its first draft was written in order to facilitate twelve empirical case studies, which were conducted in 2008-2009 in various parts of Indonesia within the framework of the so-called Access to Justice in Indonesia Project (AJI).1 The main objective of the original paper was to structure the research and help the researchers focus consistently on the perspective of the justice seeker. The version presented here has been modified based on the experiences of the field researchers in applying the methodology proposed.

The UNDP definition of access to justice and its conceptual framework for access to justice constituted the starting point for developing the conceptual and methodological tools as proposed in this paper (UNDP 2007: 5). The UNDP framework proved to be very useful for standardising the structure of access to justice research and the resultant reports. However, it also limits the focus to what can be addressed by interventions of legal aid and legal empowerment. By contrast, in our approach the perspective of the justice seeker is central, and that often appears to be different than what the intermediary or legal aid provider assumes.

The present article first discusses a number of concepts of access to justice in use, before presenting its own definition. Taking the perspective of the justice seeker, this definition refers to both the process of obtaining access to redress mechanisms and the end goal of that process. In this manner it attempts to broaden the view of researchers from mainly focusing on issues of access to legal aid providers and state courts.

Second, by means of the so-called ROLAX2 framework it tries to map in a systematised way how a potential justice seeker finds his or her way through the legal repertoire--or drops out of it for various reasons. Each step is briefly clarified to explain to the researcher what is meant by the various terms in the scheme and how one step relates to the other. For each step, the article points at some potentially useful theories and ideas that may be further explored by researchers working on a particular topic. Researchers can also use the framework for positioning their particular subject.

Third, the article suggests how the Rule of Law concept can be used within access to justice research, without losing sight of the nuances required to do so in different settings. The rule of law is part of our access to justice definition and in practice was not always well understood by the researchers working with the framework. Hence we deal with it separately. We do not propose one definition of the rule of law, but use elements from different definitions of the concept as found in the literature to construct an analytical framework for assessing the quality of legal systems. 'Rule of law' in this manner does not refer to a clear-cut, one size fits all concept that will inevitably bring about 'good access to justice', but rather presents a tool to notice and address the potential for misuse of power in access to justice processes.

2. Defining Access to Justice

2.1 Overview of definitions

Prior to the 1970s most access to justice definitions were a kind of short hand for access to (state) courts through legal aid--and today much of the research in this field still addresses these topics. (3) However, the central position of state courts as the only way to 'get justice' is not sustained by empirical facts. Indeed, earlier writings on access to justice do not deny that justice can be obtained through other institutions than the state legal system only, or that lawyers are the single avenue to this system. To cite an example, in 1962 Orison Marden (1962: 154), President of the Bar of the City of New York, wrote:

'Lawyers cannot guarantee that justice will be attained in a particular instance, but the skills and industries of lawyers can assure to their clients equal access to justice [. …

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