In lieu of an abstract, here is a brief excerpt of the content:

  • Access to Justice and Legal Clinics: Developing a Reflective Lawyering Space Some Insights from the Italian Experience
  • Marzia Barbera (bio) and Venera Protopapa (bio)

Introduction

As stated in the introduction to this special issue, the right to access to justice is critical in a liberal state: it allows individuals to defend their interests in court and to achieve full inclusion in the political community. Nonetheless, epistemological, class, and market inequalities have historically hindered its realization. Worldwide, poor and marginalized individuals and groups do not have access to the tools they need to effectively access the judicial system. Modern liberal democracies have developed two main approaches to ensure better access to justice. The first approach focuses on providing legal services to those unable to afford a lawyer, and is identified as the “legal aid solution.”1 The second approach goes beyond the need for legal services of specific individuals, and aims to address the problem of legal representation of group and collective interests; this is identified as the “representation for diffuse interests solution.”2 Despite significant variations, the solutions that, according to each approach, have been [End Page 249] implemented to make access to justice effective have shown their limits across different legal systems.3 Accordingly, access to justice remains an open global challenge.

While inequalities limiting access to justice, and approaches to address these inequalities, are shared at a global level, the institutions ensuring access to justice are created at the local level.

This paper will focus on legal clinics as a clear example of this dynamic, and explore their potential, and their limits. for making access to justice more effective in the Italian context. To this end, it will outline the major deficiencies of the national system of access to justice, both at the individual and collective levels, and assess the extent to which clinics might address these deficiencies. It will consider the distinctive features of clinics as public interest law actors, and the way clinics have developed in the Italian context.

This paper first provides a brief description of the genesis of legal clinics in Italy, and highlights the motivations and expectations lying behind the emergence of the legal clinic movement in this context. Second, the paper gives a brief description of the institutional context of legal aid in Italy, and assesses its effectiveness in terms of granting legal assistance to those unable to afford a lawyer. The third and fourth parts then offer an account of court enforcement mechanisms that aim to ensure effective access to justice. Part three gives this account through the lens of court enforcement of the Workers’ Statute, and part four gives this account through the lens of court enforcement of antidiscrimination law provisions concerning race, ethnic origin and nationality.

This paper then explores these experiences described in the first few sections, going beyond their success or failure in enforcing rights in court, to then enlarge the field of inquiry to the relation between legal strategies and political mobilization. Part five discusses the danger that institutions and strategies, designed to strengthen access to justice, might disempower rather than empower individuals and communities that they aim to serve, and that these individual and collective needs may be forced/fit into pre-established frameworks and strategies. Part six provides a context-sensitive assessment of the type of contribution legal clinics can provide in addressing the limits of the national system of access to justice, and in moving forward a critical reflection on public [End Page 250] interest law practices in the Italian and, more broadly, in the European context.

We conclude that the coexistence of educational and social justice aims provide clinics with a number of comparative advantages over other actors of public interest law. Clinics embody a unique forum to better understand the nature of legal knowledge and legal practice, and to reflect critically on how the right to access to justice is actually enforced. Clinicians are not only a community of practice, but also a worldwide epistemic community. Legal clinics are, therefore, a space to both practice public interest law, and to rethink such practices, and to influence public policies on access to justice. Providing a reflective space on existing practices and...

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Additional Information

ISSN
1543-0367
Print ISSN
1080-0727
Pages
pp. 249-271
Launched on MUSE
2020-06-25
Open Access
No
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