- The Right to Access to Justice: Its Conceptual Architecture
The right to access to justice is a global issue—both theoretically and practically. From a theoretical perspective, the right to access to justice is a central component of the web of concepts that constitutes the modern State. This right, along with principles like separation of powers, legality, and liberty—and rights like the rights to vote, equality, and expression—form a central part of the modern legal and political imagination.1 These categories shape the axes that construct the horizon of understanding that subjects committed to enlightened modernity are implicitly or explicitly immersed. These categories are also the lenses through which the legal and political world is constructed and interpreted by subjects committed to enlightened modernity. The right to access to justice occupies a central place in this horizon of understanding: it makes explicit the reason why abstract, autonomous, rational subjects create the State and conceive of the core function that it should fulfill, this is, resolving conflicts between individuals and keeping the peace.2 This right is generally understood as the capacity of all members of a political community to call upon the State to solve their differences impartially and efficiently.3 [End Page 15]
From a practical perspective, all modern liberal democracies face numerous challenges for the realization of the right to access to justice. The realization of this right is, therefore, a transnational problem. As mentioned in the introduction to this special issue: class, epistemological, and legal services market inequalities generate the access to justice deficit that all contemporary liberal democracies face in varying degrees. Although the specific characteristics of this deficit might differ, all liberal democracies have a gap between the normative and the descriptive dimensions of the right to access to justice. All of them are troubled by socioeconomic and knowledge inequalities that impede its materialization. All of them are burdened by the monopoly that lawyers usually have over the legal services market that put into question the efficacy of the right to access to justice.
In order to understand the characteristics and causes of these practical challenges, and the relevance that the right to access to justice has in the modern legal and political imagination, we must first comprehend its conceptual architecture. The way modern liberal democracies imagine the structure of this right determines, at least in part, the challenges they face for its realization. Paradoxically, when the right to access to justice is examined, the theoretical dimensions of the right are often not explored, and its foundations or its conceptual architecture are often not analyzed. The specialized literature is generally focused on one of three dimensions. First, it examines the content of the right to access to justice as a fundamental constitutional right.4 This approach, the constitutional right approach, analyzes the components of access to justice and specifies the constitutional limits of the right. This perspective sheds light on the elements necessary for individuals to be able to turn to the administration or the judiciary to solve their conflicts efficiently. Thus, this approach studies issues like the meaning of the right to have an attorney, the free and impartial character of the administration of justice, the challenges imposed by the translation of proceedings for those who do not speak the official [End Page 16] language of the State, and the levels of efficacy to solve social conflicts. This approach also examines how this right is articulated in the text of different constitutions and how authoritative interpreters (generally courts) construe its content.
A second dimension of the literature on access to justice focuses on the sociological perspective of access to justice.5 This perspective thus explores, for example, how class, ethnic, or racial inequalities prevent people from being able to access the administration or courts. It likewise studies how institutional designs facilitate or impede access to justice, and how the monopoly on the legal market—usually held by lawyers in liberal democracies—influences the possibility of obtaining quality legal representation. This approach to the right to access to justice also examines the reasons for the distance that exists—to varying degrees in all liberal democracies—between written rules, which...