- IntroductionAccess to Justice:
Theory and Practice from a Comparative Perspective
As economic growth has increased worldwide, so has inequality— economic, social, legal, and political.1 In Latin America, socioeconomic inequality is especially severe.2 Brazil, Colombia, and Guatemala, for example, are some of the most socioeconomically unequal countries in the world.3 In the United States, this inequality has been growing [End Page 1] rapidly over the course of the past two decades, even though it has diminished elsewhere, such as in the European Union.4
Socioeconomic inequality, however, is not only a problem in itself. It is also troublesome because it fosters poverty; reducing inequality is a key step towards reducing poverty.5 Conversely, income inequality and consequent poverty hinders robust economic growth.6 Similarly, inequality results in the inefficient distribution of resources like education and bank loans, undermines the solidarity and political stability needed for articulating and implementing the redistributive policies needed to reduce poverty, and obstructs the realization of the pooŕs fundamental rights.7 Institutional change, including changes in legal institutions, constitutes part of the necessary response to poverty, inequality reduction, and economic redistribution.8
The effects that inequality and poverty have over fundamental rights of the poor are particularly negative to their right to access justice. The socioeconomic obstacles faced by the poor prevent them from hiring lawyers to protect their interests and from simply understanding or using the legal order. Poverty and inequality also negatively affect the autonomy of the poor, they do not allow the poor to interact directly with the State in order to solve their conflicts. Instead, the poor can interact with the State only through lawyers. Thus, the persistence and growth of inequality and poverty should cause concern about the poor’s access to justice: a right which is a central component of democratic, liberal states.
The papers gathered in this volume analyze access to justice in Latin America, Europe, and North America from a philosophical, legal, and sociological perspective. In these three regions of the world, as in the rest of the globe, liberal democracies face a troubling gap between the normative and the descriptive: the access to justice promises made by the legal and political system are not fully realized in practice. The studies collected here, therefore, share two baseline assumptions. First, the right of access to justice is fundamental in a liberal state. Access to justice ensures that citizens are able to defend their interests in court and achieve full inclusion in the political community. Access to justice, [End Page 2] as argued by social contract theory, is at the core of liberal democracies’ normative projects. In the liberal democracies studied in this special issue—as in all others influenced by the post-Enlightenment modern project—contractualism and its commitment to access to justice is part of the of theoretical toolbox used to constitute and legitimize the political community. For all of these liberal democracies, access to justice is necessary for achieving peace and prosperity, and for the full inclusion of all citizens in the polity.
Second, the papers gathered in this volume agree that epistemological, socioeconomic, and legal market disparities obstruct the materialization of the right that citizens have to access courts and the administration to solve their conflicts. The key objectives pursued by liberal democracies cannot be fully realized because of poverty and inequality. Both variables have a causal relationship with the access to justice deficits faced by the countries studied in this special issue.
Liberal Democracies, Access to Justice, and Social Contract Theory
In liberal democracies, lawyers have social obligations directly connected to the right of access to justice. Access to justice provides citizens with the ability to turn to the judicial and administrative bodies of the State to enforce their rights.9 As the gatekeepers of these institutions, lawyers play a fundamental role in determining who has— and who does not have—justice access. The right of access to justice is multifaceted; it may include the ability to introduce and challenge evidence presented at trial,10 to have a translator when necessary to understand trial proceedings, or to...