A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe

A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe

During the 20th Century (especially since the end of the 1940s), many national constitutions, international documents and human rights treaties explicitly recognized a so-called right of access to justice, in various degrees of scope and coverage. And yet, the concrete articulation of the basic prin...

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Publicat a:URI:https://journals.openedition.org/tp,
Autor principal: Segatti, Marco
Format: Article ou chapitre numérique
Idioma:Anglais
Publicat: Teoria politica 2020
Matèries:
Equality
Access to justice
Capabilities Approach
Legal Aid
Judicial Administration
Accés en línia:Accès Université d'Orléans et IFPM
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spelling openedition-oai:revues.org:tp_704 en https://journals.openedition.org/tp/704 2020-05-26T02:00:00Z info:eu-repo/semantics/openAccess article info:eu-repo/semantics/article urn:handle:20.500.13089/lh9i All rights reserved A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe Teoria politica Rosenberg & Sellier info:eu-repo/semantics/reference/issn/1972-5477 info:eu-repo/semantics/reference/issn/0394-1248 URI:https://journals.openedition.org/tp Segatti, Marco Equality Access to justice Capabilities Approach Legal Aid Judicial Administration During the 20th Century (especially since the end of the 1940s), many national constitutions, international documents and human rights treaties explicitly recognized a so-called right of access to justice, in various degrees of scope and coverage. And yet, the concrete articulation of the basic principles that should govern the effective allocation of the right of access to justice has proved difficult and uncertain. Constitutional courts on one side, national legislators and political activists on the other, have often stumbled on difficult problems. This paper argues that a capabilities approach (CA, for short) has much to say in guiding the difficult political questions that lurk behind judicial, political and social interventions in the field. In a nutshell, the argument is this: we are well advised to interpret the provision of equal access to justice as an instrument for the protection of people’s capabilities, both within as well as beyond the legal process itself. When the need for tragic choices in prioritizing litigants or classes of cases arises, we are well advised to use two conceptual tools recently elaborated within a CA, and allocate, for example, the right to legal aid for a particular class of litigants or areas of law in light of its fertility in promoting the parties substantive achievements both within and beyond the legal process itself, or the corrosiveness of the disadvantages caused by not providing it. The paper has four sections. The first section provides a short introduction to a CA, presenting its vocabulary and speculating on its reach in guiding practical thought in the field of access to justice. The second section closely comments on the decisions by the US Supreme Court and the European Court of Human Rights that provide the general framework of constitutional protections for indigent parties in the US and in Europe. The third section introduces two observation-concepts that have been recently developed within a CA, and that might prove especially useful in the field of access to justice and, in particular, for allocating the right to legal aid to indigent parties —namely, the concepts of «fertile capability» and «corrosive disadvantage». The fourth section concludes.
collection OpenEdition Journal
language Anglais
format Article ou chapitre numérique
building 0/Bibliothèque numérique/
1/Bibliothèque numérique/OpenEdition Journals/
topic Equality
Access to justice
Capabilities Approach
Legal Aid
Judicial Administration
spellingShingle Equality
Access to justice
Capabilities Approach
Legal Aid
Judicial Administration
Segatti, Marco
A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe
description During the 20th Century (especially since the end of the 1940s), many national constitutions, international documents and human rights treaties explicitly recognized a so-called right of access to justice, in various degrees of scope and coverage. And yet, the concrete articulation of the basic principles that should govern the effective allocation of the right of access to justice has proved difficult and uncertain. Constitutional courts on one side, national legislators and political activists on the other, have often stumbled on difficult problems. This paper argues that a capabilities approach (CA, for short) has much to say in guiding the difficult political questions that lurk behind judicial, political and social interventions in the field. In a nutshell, the argument is this: we are well advised to interpret the provision of equal access to justice as an instrument for the protection of people’s capabilities, both within as well as beyond the legal process itself. When the need for tragic choices in prioritizing litigants or classes of cases arises, we are well advised to use two conceptual tools recently elaborated within a CA, and allocate, for example, the right to legal aid for a particular class of litigants or areas of law in light of its fertility in promoting the parties substantive achievements both within and beyond the legal process itself, or the corrosiveness of the disadvantages caused by not providing it. The paper has four sections. The first section provides a short introduction to a CA, presenting its vocabulary and speculating on its reach in guiding practical thought in the field of access to justice. The second section closely comments on the decisions by the US Supreme Court and the European Court of Human Rights that provide the general framework of constitutional protections for indigent parties in the US and in Europe. The third section introduces two observation-concepts that have been recently developed within a CA, and that might prove especially useful in the field of access to justice and, in particular, for allocating the right to legal aid to indigent parties —namely, the concepts of «fertile capability» and «corrosive disadvantage». The fourth section concludes.
author Segatti, Marco
author_facet Segatti, Marco
author_sort Segatti, Marco
title A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe
title_short A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe
title_full A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe
title_fullStr A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe
title_full_unstemmed A Capabilities Approach to Access to Justice. Unfulfilled Promises, and Promising Strategies in the US and in Europe
title_sort capabilities approach to access to justice. unfulfilled promises, and promising strategies in the us and in europe
publisher Teoria politica
publishDate 2020
container_title URI:https://journals.openedition.org/tp
url https://ezproxy.univ-orleans.fr/login?url=https://journals.openedition.org/tp/704
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