Access to Justice: Definitions and Conceptual Issues
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Access to justiceAccess to Justice refers to:
Related termsA number of expressions and related terms are also commonly used in relation to access to justice issues. The definitions provided below are generally agreed upon and come from key actors involved in access to justice programs. They are presented in alphabetic order.Alternative Dispute Resolution (ADR)"An adjudication mechanism in which a third party acts as an arbiter, conciliator or mediator between two(or more) parties involved in a dispute. The goal of ADR is to seek conciliation or negotiation among theparties, rather than solving the dispute through the involvement of a court. ADR systems can be attached toadministrative bodies or to the courts, or they can exist in the community in an informal way (e.g. throughvillage or religious leaders). Traditional systems are generally based on alternative disputeresolution. The use of ADR is a voluntary choice of the parties, who are also free to reject the ADR decisionand take the dispute to a formal court of law. In certain instances, the initiation of court procedures requiresthat ADR has been attempted previously, without success."2Formal Justice System"Involves civil and criminal justice and includes formal state-based justice institutions and procedures, such as police, prosecutors, courts, and custodial measures."3Grievance"A gross injury or loss that constitutes a violation of the countrys civil or criminal law, or international human rights standards."4Human Rights"Legal norms protecting individuals and groups, that apply to all human beings without discrimination, andthat defend fundamental interests for human dignity and well-being. Human rights claims give rise tocorresponding duties in others to act in a way that ensures protection."5Go to Justice & Rule of Law: Human Rights Promotion & Protection Informal Justice Systems"Dispute resolution mechanisms falling outside the scope of the formal justice system. The term does not fit every circumstance as many terms exist to describe such systems (traditional, indigenous, customary, restorative, popular), and it is difficult to use a common term to denote the various processes, mechanisms and norms around the world. The term informal justice system is used here to draw a distinction between state-administered formal justice systems and non-state administered informal justice systems."6Go to Justice & Rule of Law: Traditional & Informal Justice Systems Justice"An ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant."7Go to Justice & Rule of Law: Introduction Justice remedy"Redress provided by the justice system to a particular grievance. Justice remedies are legal remediesthat typically involve a third party (the justice institution or mechanism), whose functioning is alsoregulated by norms, in settling the dispute. Justice remedies in civil and in criminal justice are different.Civil justice remedies can involve restitution, compensation and other forms of redress. Criminal remediesmay also result in penalties and punishments that seek preventive and restorative purposes (e.g.incarceration and community work). On some occasions, civil justice may also involve the award of punitivedamages."8Legal aid"Includes legal counsel and other facilities (e.g. financial facilities through reduction in court fees, translation services for deaf-mute litigants, psycho-social support to victims of trauma) that people need to navigate thelegal process. Legal aid is fundamental to reducing the economic, social and emotional risks involved inthe process of seeking justice."9Legal awareness"A persons knowledge of the possibility of seeking redress through the justice system, whom to demand it from, and how to start a formal or traditional justice process."10Legal counsel"Includes the capacities (from technical expertise to representation) that people need to initiate and/orpursue justice procedures. Adequate legal counsel serves to facilitate in the case of public defence systemsand pro bono lawyering), laypersons with legal knowledge, who are often members of the community theyserve (paralegals) or both. Legal counsel is one component of the wider concept of legal aid."11Legal empowerment"The use of legal services, legal capacity-building and legal reform by and for disadvantaged populations, often in combination with related development activities, to increase their freedom, improve governance and alleviate poverty."12Legal needs"The needs of a person for protection against the conduct of another person or institution, or, more broadly, for help with solving a problem in a relationship with a person or institution."13Legal protection"Provision of legal standing in formal or in traditional law, or both. It involves the recognition of peoples rightswithin the scope of justice systems, thus giving entitlement to remedies either through formal or informalmechanisms. Legal protection determines the legal basis for all other stages in the access to justice process. Legal protection can be enhanced through: (a) treaty ratification and their implementation in domestic law, (b) constitutional law, (c) national legislation, (d) implementing rules and regulations and administrative orders, and (e) traditional and customary law."14Litigant"Person, group of persons, or institution, who use the justice system in order to resolve a dispute."15Microjustice"Paths to justice for the poor that are sustainable economically, in the sense that they are attractive to use for the poor and at the same time attractive to deliver for suppliers, without extensive subsidies by the state or by donors."16 The notion has been suggested to stress the analogy to microfinance. It is an approach suggested to tackle the problem of access to justice for those with limited resources. The challenge is to develop processes that are affordable to users with limited resources, whilst making it attractive for the providers of justice to act as suppliers. "Microjustice allows the demand for justice and the supply of justice to meet by using tools of the modern services economy: information technology, economies of scale, cheaper labor at the place of delivery, flexible adjustment to local circumstances, self-help and empowerment of the user."171. United Nations Development Programme (UNDP), Programming for Justice: Access for All, A practitioners guide to a human rights-based approach to access to justice (Bangkok, Thailand: UNDP Regional Centre, 2005), 213. 2. Ibid. 3. Eva Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute (Oslo: United Nations Development Programme (UNDP), Oslo Governance Centre, December 2006), 9. 4. United Nations Development Programme (UNDP), Access to Justice: Practice Note (New York: United Nations Development Programme, 2004), 6. 5. UNDP, Programming for Justice, 214. 6. Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute, 9. 7. United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 4, para 7. 8. UNDP, Programming for Justice, 214. 9. Ibid. 10. Ibid. 11. Ibid. 12. Stephen Golub, "The Rule of Law and the UN Peacebuilding Commission: a Social Development Approach," Cambridge Review of International Affairs 20, no. 1 (March 2007), 48. 13. Maurits Barendrecht and Patricia van Nispen, "Microjustice," (February 1, 2008) TILEC Discussion Paper No. 2008-010, 7. 14. UNDP, Programming for Justice, 215. 15. Ibid., 215. 16. Maurits Barendrecht and Patricia van Nispen, "Microjustice." 17. Ibid. |
