Access to Justice: Dynamic, Foundational, and Generative

• Published date: 01 June 2021
• Author: Gianluigi Palombella
• Date: 01 June 2021
• DOI: http://doi.org/10.1111/raju.12309

© (2021) The Authors. Ratio Juris published by the University of Bologna and John Wiley & Sons Ltd.

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no

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Ratio Juris. Vol. 34 No. 2 June 2021 (121–138)

Access to Justice: Dynamic,

Foundational, and Generative

GIANLUIGI PALOMBELLA

Abstract . Access to justice reveals its contours through, and is best understood for, its dynamic

nature. Conceptually, it shows a number of peculiar oscillations within couplets of opposites,

like rights and structure, autonomous and derivative right, and substance and procedure. What

does make for its foundational nature, and how does the latter differ from and coexist with

access as a fundamental right? It belongs to the requirements of the rule of law and plays a

foundational role towards legality, beyond being counted among the most fundamental rights.

Despite its apparent procedural character, it has a substantive value, as well as a peculiar “gen-

erative” function. The article enquires into these conceptual features by looking at the ways

through which access to justice is provided in the main European and international legal docu-

ments, as well as at its progress under judicial interpretation.

1. Access to justice is often seen as a fundamental right, featuring among the most

relevant achievements in contemporary constitutional provisions as well as in the

European normative settings both through the Charter of Fundamental Rights of the

European Union (CFR) and in the European Convention on Human Rights (ECHR).

It has mainly been the focus of studies on procedural law, where it reveals a range of

implications worthy of deeper reflection in varied substantive legal domains as well.

The notion itself has been an object of contention among a number of alternative

conceptions, whether substantive or procedural, a right or a structural feature of law,

an instrumental or inherent value, a core or derivative right. All of these alterna-

tives imply diverse practical consequences in allowing or limiting access to justice.

However, going through those diverse ideas concerning the protection (or denial) of

access is not only instructive per se , but helps bring to the forefront its more stable

traits, its present “nature” as well as the role that access to justice plays in the current

transformations of law. Accordingly, access to justice appears to exceed the “normal”

view as a fundamental right because— as I shall submit— it is, beyond that, a “ founda-

tional ” condition/right, a condicio sine qua non of legality as such.

However, access does not play the static function of any other building block in

the legal edifice. Although at times unexpected or unnoticed, access to justice evolves

through cases and circumstances, and its transformative semblances are witnessing

its very remarkable dynamic core. Finally, the dynamic power of access reaches to a

further and unique capacity that should be called generative : The procedural structure

of access is not just serving pre- existing substantive rights, granting them effective

[Correction added on 16 August 2021 after online publication: the copyright line has been

updated in this version.]

Gianluigi Palombella122

Ratio Juris, Vol. 34, No. 2© (2021) The Authors. Ratio Juris published by the University of Bologna and John Wiley & Sons Ltd.

remedies, but it can help structure novel rights and open new scenarios of legal pro-

tection. The three aforementioned features of the notion of access can be illustrated

by paying attention to the interplay between conceptual understanding and practical

uses in legal realities.

Although the right of access to justice is most often considered an absolute, its

contents and contours need to be written again and again. What makes for it in real

practice is a complex assessment to be constantly updated. As Cancado Trindade

( 2011 , 77) has noted, “[v]irtually all existing mechanisms of international protection

have been conceived and adopted as responses to different kinds of human rights vi-

olations. As new needs of protection arise, new responses are needed.” Both access to

justice and its protection accordingly bear a dynamic nature, whose scope and fabric

are to be defined with a view to increasing the chances of concrete implementation.

That is why for a long time sociolegal analyses have often undertaken legal enquiries

on access to justice: Conditions of factual deprivation of rights, as well as obstacles

against standing before a court, are brought into legal analysis as part of the monitor-

ing the evolution of access to justice (Cappelletti and Garth 1978 ).

It is appropriate to understand access to justice, first of all, through such a dy-

namic conception, one that approaches rights from their normative angle: In that

vein, as Joseph Raz wrote, we recognize a right as the reason for a range of evo-

lutionary protections or implementations that cannot be entirely fixed in advance:

“the implications of a right, such as the right to education, and the duties it grounds,

depend on additional premises and these cannot in principle be wholly determined

in advance. […] there may be future circumstances which […] give rise to a new duty

which was not predicted in advance. Even if no such duty is unpredictable, the total

implications of the right to education are in principle unpredictable. Because of this,

rights can be ascribed a dynamic character” (Raz 1986 , 185).

The complexity of access to justice cannot be overstated, even if seen simply

through its known and “predictable” ingredients. The sheer right to a judge is a

necessary part of it, and it carries a well- known, iconic strength, but that would

not give us enough to go on: The fairness of the procedure or the effectivity or

availability of concrete remedies are of equal relevance. Any of these are segments,

drawing the line of access to justice. They can end up undermining it, and making it

an empty ritual. This is why a right to effective remedy or to a fair trial has become

essential to it.

On the “formal” side, some normative pillars work as reference points and reflect

the composite fabric of access. From the Magna Carta Libertatum access to justice

runs all the way to the Universal Declaration of Human Rights (Arts. 8 and 10), the

UN International Covenant on Civil and Political Rights (ICCPR) (Arts. 2(3) and 14),

and a great number of national, regional, and international documents.

1

In European

human rights law, Article 13 of the European Convention on Human Rights (ECHR)

guarantees a right to an effective remedy, and Article 6 a right to a fair trial; in the

section concerning justice, the European Charter of Fundamental Rights (CFR)

1 For example, the 1998 Aarhus Convention on Access to Information, Public Participation in

Decision- Making and Access to Justice in Environmental Matters and the 2006 Convention on

the Rights of Persons with Disabilities, just to mention a couple.