Define the concept of rule of law and access to justice.

Introduction:

The expression “access to justice” is ubiquitous in legal and political discourse. Its attractiveness as a catchphrase owes much to the powerful linguistic messages it conveys.  These messages include both an ideal and an implicit promise that the ideal is attainable.

The ideal embodied in the concept of access to justice embraces[1] the proposition that each person should have effective means of protecting his or her rights or entitlements under the substantive law. This ideal is often seen as an element of the fundamental principle that all people should enjoy equality before the law.  That principle in turn derives from the notion that the very foundations of justice rest on recognition by the state of the values of human dignity and political equality.

2. THE KEY CONCEPT OF OFFENCE SERIOUSNESS:

a) Define ‘Rule of law’:

The rule of law refers to a principle of government in which all persons, institutions and entities, public, private including the state itself are accountable to laws. Which publicly promulgated equally enforced and independently adjudicated. The rule of law consistent international human rights norms and standards. Justice is an ideal of accountability and fairness in the protection and vindication of rights of 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. While its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant. The Law affirms and protects the equality of all persons.  By way of example only, the law may not discriminate against persons by reason of race, color, religion, or gender. The law must respect the dignity and preserve the human rights of all persons. The Law must establish and respect the constitutional structures necessary to secure a free and decent society and to give all citizens a meaningful voice. The Law must devise and maintain systems to advise all persons of their rights and just expectations and to empower them to seek redress for grievances and fulfillment of just expectations without fear of penalty or retaliation.

 At least two principal conceptions of the rule of law can be identified:

i)        formalist or “thin”

ii)      substantive or “thick”

Formalist definitions of the rule of law do not make a judgment about the “justness” of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on or derived from the rule of law.

 

b) Defining Access to Justice

Access to Justice is the ability of people to seek and obtain a remedy through formal or informal institutions of justice and in conformity with human rights standards. Lawyers cannot guarantee that justice will be attained in a particular instance but the skills and industries of lawyers can

Assure to their clients equal access to justice many who need legal advice or representation. In civil or criminal matters are not able to enlist the unpaid services of a lawyer. Implicitly the idea that justice is something obtained through (state) courts is so obvious to such authors that they did not feel the need for a clear definition of the concept.

This has changed since. With an increasing diversification of mechanisms of redress in modern countries, the access to justice concept has been progressively broadened to include other forms of ‘justice’ as well. [2]

 

c) In relation to economics

One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries to know the rule of law matter for economic development or not. [3]Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks and such a framework includes government spending on the judiciary in which many transitional and developing countries  completely controlled by the executive.

The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. “Rule of law” has been used primarily in the English-speaking countries. Common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries are critically important for research of links between the rule of law and real economy.[4]

 

d) The Nature of the Problem

One important basis of legal empowerment is ‘legal identity’ the formal legal recognition by the state that a person exists. In developed countries citizens take this for granted. Whether through a birth certificate, national ID card or other means they are empowered to own property, legally work, contract to buy and sell goods, receive government benefits, vote, initiate a complaint through the channels of public administration, bring suit in a court of law, or avail themselves of other legal protections. But the situation in many developing countries is much different. Weaknesses in the management of birth registries, costly and time-consuming procedures needed to register and other obstacles can make securing a legal identity challenge. A person without legal identity is denied a whole range of benefits essential for overcoming poverty. Those who lack a formal identity may also be especially vulnerable to exploitative practices including child labor and human trafficking. The rule of law is fundamental to the western democratic order.

 The essential characteristic of the rule of law are:

I. The supremacy of law, which means that all persons are subject to law.

ii. A concept of justice which emphasizes interpersonal adjudication, law based on standards and the importance of procedures.

iii. Restrictions on the exercise of discretionary power.

iv. The doctrine of judicial precedent.

v. The common law methodology.

vi. Legislation should be prospective and not retrospective.

vii. An independent judiciary.

viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.

ix. An underlying moral basis for all law.

 

i) Supremacy of Law

All persons (individuals, institutions and government) subject to law

 Supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. The idea of the supremacy of law requires a definition of law A failure to maintain the formal differences between these things must lead to a conception of law as nothing more than authorization for power rather than the guarantee of liberty, equally to all.

The rule of law ensures that individuals have a secure area of autonomy and have settled expectations by having their rights and duties pre-established and enforced by law.

ii) The Concept of Justice

 The concept of justice has three facets – interpersonal adjudication, law based on fault and an emphasis on procedures.

1. Interpersonal adjudication

 This aspect of the concept of justice is based upon the rights and duties of the individual person. The liberal concept of justice is an interpersonal one – resolution of conflicts between individuals. Individuals can suffer or perpetrate wrong. Individuals can be punished, protected and granted restitution. Justice is an interpersonal thing. It consists in upholding that which is right and due as between persons. Social justice which involves society and groups is a concept which is directly antagonistic to the liberal idea.

Even between persons, absolute justice is frequently unattainable. The best result which is practically and logically possible is not necessarily the perfect result.

Between persons justice consists in upholding right behavior and the courts can adjudicate between persons. Resort to the courts is only considered when a problem exists. The role of the judicial process is the resolution of conflicts. Perfect justice cannot be dispensed by the state. The role of the courts is to deal with injustice once it has already occurred. The traditional emphasis upon adjudication and non-recognition of so-called social welfare rights is evident in the protection which the law traditionally afforded to private property. Inter-personal adjudication is practical and realistic. By its very nature it deals with the real problems which arise between individuals instead of those problems which arise solely in the minds of ideologues.

 2. Law based on standards and fault

 The idea of commutative justice which has characterized the laws and customs of most civilized societies is now being progressively replaced by distributive justice. Commutative justice aims at correcting the violation of pre-existing rights. It seeks to give back to one what has been taken away from him or to give him adequate compensation in lieu of it. Distributive justice on the other hand aims at distributing wealth according to egalitarian schemes. In

Practice, distributive justice results in the creation of new rights and liabilities in substitution for those traditionally enjoyed or suffered under the law. These rights are created in accordance with the Ideologies, prejudices, or subjective opinions of individual bureaucrats or members of tribunals who make decisions. Powerful pressure and interest groups influence those making the decisions.

3. Due process

The key institutional and procedural characteristics of a liberal legal order include rights which ensure that a person is not disadvantaged except according to rules of procedure and evidence established by law which ensure a fair trial. These institutional safeguards give protection to the cluster of personal liberties associated with the criminal process such as the right not to be imprisoned or held without trial, the right to be informed of charges and the right to be presumed innocent until proven guilty. The rules of procedure evidence and natural justice also protect individuals from arbitrary governmental action and illegal deprivation of private rights. They are essential to the protection of individual rights of personal freedom and private property

 iii) Discretion

The keystone of the rule of law is the idea of the government of laws rather than the government of men. The keystone of the government of laws is legal control over human discretion. The existence of widespread discretion is therefore directly inimical to the existence of a liberal order. Discretions need to be exercised on the basis of justice or some real justification or even of more reason. An unfettered discretion is an opportunity for temptation and for arbitrary, insolent, discriminatory, intrusive, socially engineering and corrupt, government. Where there are fixed laws there is certainty, there is certainly impartiality and consistency. A person may stand upon his legal rights without fear or favor. Discretion, on the other hand, undermines justice. Discretion may exist in the context of executive, judicial and legislative branches of the modern state. Executive discretion is the most dangerous of all forms of discretion. This is because its impact upon the Citizen is immediate and uncertain. Legislative discretion is uncertain but not immediate. Judicial discretion is immediate but not uncertain. Executive discretion in suffering from the effect of immediacy additional to uncertainty is open to the greatest possible abuse. The

 Administrator has immediate unfettered power over the individual who stands at his mercy. The opportunities for arbitrary, insolent, discriminatory, intrusive and corrupt activity as well as totalitarian social engineering are maximized at this point.

 iv) The Doctrine of Precedent

The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound by prior decisions of superior courts. To precedent helps achieve two objects of the legal order. Firstly it contributes to the maintenance of a regime of stable laws. This stability gives predictability to the law and affords a degree of security for individual rights. Secondly it ensures that the law develops only in accordance with the changing perceptions of the community and therefore more accurately reflects the morals and expectations of the community.

A system based on precedent will be rational will be adaptable to varied and changing circumstances will take into account all the varieties of human experience, will be highly practical and will be composed by the finest minds of many generations tuned to a fine balance and learned in the art of detecting legal issues and resolving legal problems. The gradual development of the system will avoid the pitfalls of hasty and counterproductive reformism.

 v) Common Law and Statute

The common law method of adjudication, in the context of the doctrine of judicial precedent is fundamental to the protection of rights and the prevention of arbitrary determinations.

 

1. What Is “The Common Law”?

The word common law is used in many different contexts. The word common law is used in the present context to describe the body of legal principles and concepts which were evolved over many centuries by judges in the English courts of law.

 The common law was influential in moldings both the area of and restrictions on freedom in England and those parts of the world which have the common law tradition as their legal foundation. A study of the history, development and modern undermining of the common law is crucial to an analysis of the democratic order which it has helped to shape and underpin.

The common law is the product of long evolved social values which are judicially articulated and interpreted. [5]

One of the greatest virtues of the common law system is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community.

 In the modern era, there is a growing belief that the solutions to these problems can be brought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies by political and bureaucratic authorities through processes of abstract rationalization or imperfect empirical investigation. Sometimes it’s based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. [6]The common law experience reflects the wisdom and even the follies of our civilization. However it represents an evolved public morality which is the soundest basis for the formulation of legal precepts.

 2. The Virtues of the Common Law

 The common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct. [7]In deciding these disputes the courts draw upon precedents embodying the public morality which have been developed over the ages. Through the process

 Of disputation, debate and impartial adjudication, the common law reconciles conflicting interests and develops the necessary constraints on the liberty of the subject.

  vi) Common Law Needs To Be Supplemented By Legislation

 Legislation in a modern technological age is necessary and useful. The common law method, like all human creations is imperfect. It can usefully be supplemented by legislative action. But modernization is not the same as social engineering. Under the guise of modernism, social activists are implementing their policies. The complaint regarding the modern method is that the common law is being smothered out of existence and legislation has become the primary source of social regulation. Legislators and bureaucrats claiming a superior wisdom indulge in structuring and ordering society in disregard of the community consciousness and values. It is this kind of legislative activism that leads to progressive erosion of human rights under the color of safeguarding public interests. In contrast, the common law method assimilates the public morality into legal principles through the direct participation of citizens in the assertion of their individual rights on the basis of the customary ways of the community. The restrictions on individual liberty that evolve from this process have a greater relationship to the needs of the people as perceived by the people themselves. The common law restrictions on freedom are expressed in the form of criminal offences, civil wrongs and liabilities arising out of the sanctity of contract. When these restrictions are examined it is not difficult to see their relationship to the public morality and in particular to the religious beliefs and values of the community.

One of the problems of applying the common law method in the modern era is that circumstances posing dangers to society can arise suddenly and the common law response may not be sufficiently rapid to avert harm. In these circumstances it becomes necessary to create safeguards by legislative action. In such situations, although the common law may not provide an immediate remedy, its basic approach will provide valuable guidance for determining the justifiability and extent of proposed restrictions. [8]The common law approach gives predominance to community perceptions and values. The common law approach is also characterized by the importance attached to personal freedom, the freedom of speech and expression and the freedom to hold

And enjoy property. [9]The precedence given to these rights flows from their indispensability for the enjoyment of all other rights and liberties.

 1) The Critics of the Common Law

 The critics of the common law are never tired of pointing out the problems that have arisen as a consequence of common law decisions. In a world of imperfect human beings reacting with each other in an uncertain and accident prone environment, problems are inevitable. Yet the strength of the common law is appreciated if it is compared to other legal systems of the past and the present. If comparative studies are conducted, the record of the common law will appear infinitely superior to that of every other legal system the world has known except the civil law tradition.

2) Retrospective Legislation

Laws should apply prospectively and not retrospectively. A person should never be made to suffer in law (criminal or civil) for an act which was not unlawful when he committed it. Retrospective legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law.

 Vii) An Independent Judiciary

The most elaborate system of rights, remedies and procedures would be of little use when there is no independent, impartial and competent judiciary. The independence of the judiciary has been ensured by the judges’ security of tenure as well as the judiciary’s own distinguished traditions of learning, integrity and technique and the law of contempt. Independence of the judiciary was inextricably linked to the system of formal courts.

The most elaborate system of substantive, procedural and remedial provisions is meaningless without an independent, impartial and competent judiciary for one reason: administration. Without jurisdiction to administer the law is purely academic and without a proper judiciary the jurisdiction to administer is purely oppressive as may be seen in numerous uncivilized countries of the world.

 In order to have a proper judiciary properly exercising its jurisdiction several things are necessary. They fall into three broad groups: technical competence, commitment to sound ideals and finally, institutional independence. Naturally, these groups overlap to a certain extent.

 Although formal courts in Australia are yet largely independent there has been a proliferation of a vast array of tribunals which are neither independent nor competent. These are the administrative tribunals which determine countless privileges and deprivations which are incidents of the modern welfare state. These tribunals are structurally prone to ideological manipulation and many of them are in fact directed by law to make decisions based on ideologically determined criteria. These control and/or reward systems are progressively replacing the system of independent adjudication based on formal rights.

The ethos of the judiciary and the formal courts is being challenged by intellectual influences, particularly by a novel ethos of a “democratic” judiciary and by suspicions that Labor governments’ policy of judicial appointment is sometimes based upon the criteria of philosophy and party loyalty before merit and judicial excellence.

   viii)     Limits on the Power of the Legislature to Delegate

The purpose of legislation according to Madison was to deal with general principles. Legislation should be about general principles not about details of policies.[10]

Delegation of the law making function is inevitable in the modern state. The objectionable aspects of delegation which have undermined the rule of law are: the sheer magnitude and volume of delegated legislation, the abdication by Parliament of its duty to lay down “general principles” and the inordinate extent of uncontrolled discretions that have been conferred on the executive.

The control by Parliament over “general principles” is important for the functioning of the democratic order. Parliament is elected by and responsible to the electorate. A governing political party in Parliament is elected on the basis of its manifesto which then constitutes its mandate. If Parliament is restricted to legislation on “general principles”, electoral control over

 Parliament and also over the executive is a possibility. Thus the control over Parliament and the executive by the electorate breaks down due to:

1. the sheer volume of delegated legislation, and
2. Delegation to the executive of legislative power on matters of “general principle”.

 

 ix)  The Moral Dimension

Analyses of the rule of law will not generally refer to the moral dimension. There is in education, media, politics and even from within the church and its agencies an attack on traditional morality. The conflict is not between traditional morality and values neutrality. It is between one moral order and another

Rule of Law Framework for quality assessment in Access to Justice Research

 In the previous section I described how researchers can analyze the process by which people who suffer an injustice seek a remedy through the legal repertoire.

The need for a standard for such an assessment is why we included ‘in accordance with the rule of law in the definition of access to justice. Aware that rules of law is an essentially contested concept we do not use a single definition of rule of law, but have listed and arranged the various elements that can be derived from the definitions in use as found in academic literature. This list of the elements of rule of law definitions are divided into three categories. This results in the analytical framework that we further elaborate upon and clarify in this section. The purpose of the framework in general is to provide tools for assessing the quality of a legal system. In research on access to justice it helps researchers to evaluate the steps in the access to justice process systematically. Before elaborating upon the rule of law framework we explain the concept itself and present a few issues from the debate about rule of law that we think are relevant for empirical research on access to justice.

 The Access to Justice Reform Movement

It is useful to reflect on the reasons for the very different usages of the single term “access to justice”.[11] As Cappelletti and Garth explained in their influential 1978 report, the concept of access to justice had been undergoing an important transformation for some time in many developed countries, corresponding to a comparable change in civil procedure scholarship.

In earlier times so they argued civil litigation procedures reflected the “essentially individualistic philosophy of rights then prevailing”.  A right of access to judicial protection meant essentially a formal right to litigate or defend a claim.[12]

As laissez-faire societies grew in size and complexity governments accepted that affirmative action was required to ensure enjoyment by all of basic social rights, such as the right to work, to health care and education. The right to effective access became part of the welfare state reforms.[13]

 CONCLUSION:

It’s true that the rule of law always conduct people to the justice. But it always depended to the clients and the situation. But the main rule of the law is to give the fair justice.

The first is the administration of justice so as to protect, promote and guarantee the security of society.  The second role is as guardians of the constitution – to ensure that the actions of the executive and legislative branches of government do not overstep or abuse their prescribed jurisdictions.[14]

There are few efficient, fair and transparent mechanisms with which to deal with the mass of problems facing civil societies – particularly as they emerge out of dictatorial regimes and enter the globalized economy.  Hence, there is an emerging requirement of judiciaries to construct new forms of conflict resolution that meet local conditions and needs.

 Lawyers are designers of social systems, social relationships and modes of doing business, legislation, and problem-solving mechanisms to assist members of civil society

It is equally necessary to recognize the practical obstacles to achieving these objectives.  A healthy dose of skepticism is by no means incompatible with the idealism which so often accompanies the rhetoric of access to justice.

Bibliography

 http://www.lawsociety.bc.ca/page.cfm?cid=2163&t=Access-to-Legal-Services

http://ejil.oxfordjournals.org/content/20/3/729.full

http://www.otago.ac.nz/law/oylr/2007/Bridgman.pdf

http://www.undp.or.id/pubs/docs/Access%20to%20Justice.pdf

http://www.abanow.org/2008/07/access-to-justice-is-the-key-to-advancing-the-rule-of-law-experts-at-world-justice-forum-agree/

http://www.publicjustice.net/

http://www.law.harvard.edu/programs/plp/pdf/Globalization_Lawyers_Rule_of_Law.pdf

http://www.lawsociety.org.uk/aboutlawsociety/influencinglaw/manifesto/ruleoflaw.page

http://www.abanow.org/2008/07/access-to-justice-is-the-key-to-advancing-the-rule-of-law-experts-at-world-justice-forum-agree/

http://law.leiden.edu/organisation/metajuridica/vvi/research/access-to-justice/access-tu-justice/the-concept.html