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Access to Justice: the Newest Wave in the Worldwide Movement to Make Rights Effective

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Access to Justice: the Newest Wave in the Worldwide Movement to Make Rights Effective Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1978 Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective Bryant G. Garth Indiana University School of Law - Bloomington Mauro Cappelletti Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Human Rights Law Commons, and the International Law Commons Recommended Citation Garth, Bryant G. and Cappelletti, Mauro, "Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective" (1978). Articles by Maurer Faculty. 1142. https://www.repository.law.indiana.edu/facpub/1142 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. ACCESS TO JUSTICE: THE NEWEST WAVE IN THE WORLDWIDE MOVEMENT TO MAKE RIGHTS EFFECTIVE* MAURO CAPPELLETI** AND BRYANT GARTH*** The authors dedicate this essay to the memory of Professor Max Rheinstein, a master whose genius, world-wide experience, and sensitivity set the stand- ards by which comparative scholarship will long be measured. "But the just will live forever." (The Wisdom of Solomon 5:15.) N o aspect of our modem legal systems is immune from criticism. Increasingly it is asked how, at what price, and for whose bene- fit these systems really work; this type of fundamental question, al- ready discomforting to many lawyers, judges and legal scholars, is made all the more unsettling by an unprecedented invasion into the legal profession's traditional preserve by, among others, sociologists, anthro- pologists, economists, political scientists, and psychologists. We must not, however, resist our invaders; rather, we must respect their in- sights and respond to them creatively. By revealing the actual work- * Copyright © 1978, Mauro Cappelletti. The present essay is one of the fruits of a four-year comparative research project entitled "Florence Access-to-Justice Project," sponsored by the Ford Foundation and, with a slightly more local focus, the Italian National Council of Research (CNR). The essay will serve as the General Report introducing the Project's forthcoming four-volume series. The volumes, being published by Sijthoff (Leyden and Boston) and Giuffr6 (Milan) under the general editorship of Mr. Cappelletti are: Volume I. Access to Jus- tice: A World Survey (edited by Messrs. Cappelletti and Garth); Volume II. Access to Justice: Studies of Promising Institutions (edited by Mr. Cappelletti and Mr. John Weisner); Volume III. Access to justice: Emerging Perspectives and Issues (edited by Messrs. Cappelletti and Garth); and Volume IV. Patterns in Conflict Management: Essays in the Ethnography of Law. Access to Justice in an Anthropological Perspective (edited by Professor Klaus-Friedrich Koch). Extensive references will be made in the present essay to the 23 national reports in the World Survey volume, as well as to essays and studies in the other Project volumes. The approach of the present essay, in addition, is rooted in two earlier volumes pub- lished under the auspices of the Florence Project: M. CAPPELLETTI, J. GORDLEY & E. JOHNSON, JR., ToWARD EQUAL JUSTICE: A COMPARATIVE STUDY OF LEGAL Am IN MODERN SOCIETIES (Milan/Dobbs Ferry, N.Y.: Giuffr6/Oceana 1975) and M. CAP- PELLETTI & J. A. JOLOWICZ, PUBLIC INTEREST PARTIES AND THE ACTIVE ROLE OF THE JUDGE IN CIVIL LITIGATION (Milan/Dobbs Ferry, N.Y.: Giuffr6/Oceana 1975). A pre- (Footnote continued on next page) BUFFALO LAW REVIEW [Vol. 27 ings of our legal systems, critics in the social sciences can in fact be our allies in the most recent phase of a long historical struggle-the struggle for "access to justice." It is this struggle, as reflected in modern legal systems, that is the basic focus of this article and the compara- tive Access-to-Justice Project which has produced it. The words "access to justice" are admittedly not easily defined, but they serve to focus on two basic purposes of -the legal system-the system by which people may vindicate their rights and/or resolve their disputes under the general auspices of the state. First, the system must be equally accessible to all; second, it must lead to results that are individually and socially just. Our focus here will be primarily on the first component, access, but we will necessarily bear in mind the second. Indeed, a basic premise will be that social justice, as sought by our modem societies, presupposes effective access. The task in this Article is to trace -the emergence and development of a new and comprehensive approach to access problems in contem- porary societies. This approach, it will be seen, goes much beyond earlier ones. Originating, perhaps, in the breakdown of the traditional faith in the soundness of our legal institutions, and inspired by the de- sire to make the rights of ordinary people real, and not merely sym- bolic, it calls for far-reaching reforms and for new creativity. It re- fuses to accept as immutable any of the procedures and institutions that characterize our machinery of justice. Reformers have already ac- liminary version of this essay was presented at the 50th Anniversary Celebration of the Max-Planck Institute of Comparative Law in Hamburg and published in 40 RAELS ZEITSCUXRFT 669-717 (1976). The authors wish to express their gratitude to Professor Nicolb Trocker of the University of Siena, who collaborated with them on that version and gave particular help with respect to German materials. The authors would also like to thank the numerous persons who examined and made useful comments upon a draft of this second version, including most particularly Professors Adolph Homburger (Pace University, N.Y., and SUNY Buffalo, N.Y.) and David Trubek (University of Wisconsin) as well as Professor P. 0. Bolding (University of Lund, Sweden), Judge Anders Bruzelius (Lund), Professor Jan Hellner (Stockholm University), Professor Yvette Lobin (University of Aix-en-Province), Professor Maurice Rosenberg (Columbia University), Dr. G. D. S. Taylor (Canberra, Australia), and Dr. Philippe Thery (Paris University). Also of considerable help were the participants in the "Access-to-Justice Seminar" at the European University Institute, especially Mr. Kim Economides (London) and Ms. R6gine Loosli (Marseille), and Mr. David Margolick, a Research Fellow at the Florence Center for Comparative Judicial Studies. **J.D., University of Florence, 1952; J.D. (hon. c.) University of Aix-Marseilles; Professor of Law, Stanford University and the European University Institute at Florence; President of the Florence Center for Comparative Judicial Studies; Member of the Royal Academy of Belgium. ***J.D., Stanford University, 1975; doctoral candidate, European University In- stitute; and Research Fellow, Florence Center for Comparative Judicial Studies. 1978] ACCESS TO JUSTICE complished much with this approach. We shall evaluate their basic accomplishments, ideas, and proposals, as well as the risks and limits of this necessary, but daring, method of legal reform. I. THE CHANGING THEORETICAL CONCEPTION OF ACCESS TO JUSTICE The concept of access to justice has been undergoing an important transformation, corresponding to a comparable change in civil pro- cedural scholarship and teaching. In the liberal, "bourgeois" states of the late eighteenth and nineteenth centuries, the procedures for civil litigation reflected the essentially individualistic philosophy of rights then prevailing. A right of access to judicial protection meant essen- tially the aggrieved individual's formal right to litigate or defend a claim. The theory was that, while access to justice may be a "natural right," natural rights did not require affirmative state action for their protection.' These rights are prior to the state; their preservation re- quired only that the state not allow them to be infringed by others. The state thus remained passive with respect to such problems as the ability, in practice, of a party to recognize his legal rights and to prose- cute or defend them adequately. Relieving "legal poverty"-the inca- pacity of many people to make full use of the law and its institutions- was not the concern of the state. Justice, like other commodities in the laissez-faire system, could be purchased only by those who could afford its costs, and those who could not were considered the only ones re- sponsible for their fate. Formal, not effective, access to justice-formal, not effective, equality-was all that was sought. Until recent years, with rare exceptions legal scholarship was similarly unconcerned with the realities of the judicial system: "Such factors as differences among potential litigants in practical access to the system or in the availability of litigating resources were not even perceived as problems."2 Scholarship was typically formalistic, dog- matic, and aloof from the real problems of civil justice. Its concern was frequently one of mere exegesis or abstract system-building; even when it went beyond this concern, its method was to judge the rules of procedure on the basis of historical validity and their operation in 1. For a more detailed treatment of this theme, see Cappelletti, General Report, in FUNDAMENTAL, GUARANTEES OF THE PARTIES IN CIVIL LITIGATION 659, 726-40 (Milan/ Dobbs Ferry, N.Y.: Giuffr6/Oceana; M. Cappelletti & D.
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