An analytical framework for empirical research on access to justice.

AuthorBedner, Adriaan
PositionAccess to Justice in Indonesia
  1. Introduction

    This article addresses conceptual and analytical issues involved in research on access to justice. Its first draft was written in order to facilitate twelve empirical case studies, which were conducted in 2008-2009 in various parts of Indonesia within the framework of the so-called Access to Justice in Indonesia Project (AJI).1 The main objective of the original paper was to structure the research and help the researchers focus consistently on the perspective of the justice seeker. The version presented here has been modified based on the experiences of the field researchers in applying the methodology proposed.

    The UNDP definition of access to justice and its conceptual framework for access to justice constituted the starting point for developing the conceptual and methodological tools as proposed in this paper (UNDP 2007: 5). The UNDP framework proved to be very useful for standardising the structure of access to justice research and the resultant reports. However, it also limits the focus to what can be addressed by interventions of legal aid and legal empowerment. By contrast, in our approach the perspective of the justice seeker is central, and that often appears to be different than what the intermediary or legal aid provider assumes.

    The present article first discusses a number of concepts of access to justice in use, before presenting its own definition. Taking the perspective of the justice seeker, this definition refers to both the process of obtaining access to redress mechanisms and the end goal of that process. In this manner it attempts to broaden the view of researchers from mainly focusing on issues of access to legal aid providers and state courts.

    Second, by means of the so-called ROLAX2 framework it tries to map in a systematised way how a potential justice seeker finds his or her way through the legal repertoire--or drops out of it for various reasons. Each step is briefly clarified to explain to the researcher what is meant by the various terms in the scheme and how one step relates to the other. For each step, the article points at some potentially useful theories and ideas that may be further explored by researchers working on a particular topic. Researchers can also use the framework for positioning their particular subject.

    Third, the article suggests how the Rule of Law concept can be used within access to justice research, without losing sight of the nuances required to do so in different settings. The rule of law is part of our access to justice definition and in practice was not always well understood by the researchers working with the framework. Hence we deal with it separately. We do not propose one definition of the rule of law, but use elements from different definitions of the concept as found in the literature to construct an analytical framework for assessing the quality of legal systems. 'Rule of law' in this manner does not refer to a clear-cut, one size fits all concept that will inevitably bring about 'good access to justice', but rather presents a tool to notice and address the potential for misuse of power in access to justice processes.

  2. Defining Access to Justice

    2.1 Overview of definitions

    Prior to the 1970s most access to justice definitions were a kind of short hand for access to (state) courts through legal aid--and today much of the research in this field still addresses these topics. (3) However, the central position of state courts as the only way to 'get justice' is not sustained by empirical facts. Indeed, earlier writings on access to justice do not deny that justice can be obtained through other institutions than the state legal system only, or that lawyers are the single avenue to this system. To cite an example, in 1962 Orison Marden (1962: 154), President of the Bar of the City of New York, wrote:

    '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. Thus, in her standard work on the English legal system 'Paths to Justice', Hazel Genn (1999) not only explores access to courts and how these process cases, but also access to other mechanisms dealing with injustices, such as mediation. Fifteen years earlier, Cappelletti and Garth (1978: 6) in their earlier mentioned work already argued that

    'access to justice serves 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, and second, it must lead to results that are individually and socially just.'

    In the case of developing countries as Indonesia, it makes sense to travel further down this road. The primary reason is that effectively, state courts and other state institutions are not as important in dealing with disputes as they are in countries where the access to justice literature originates. (4) Legal and socio-legal literature on Indonesia has traditionally paid much attention to forms of dispute resolution other than those of the state and many authors have indicated that the two (or more) do not always sit together comfortably (e.g. Von Benda-Beckmann, 1984). Likewise, the World Bank (2008) research report 'Forging the Middle Ground' indicates that many of those involved in the cases covered in this report preferred non-official mechanisms to the ones officially established for this purpose.

    On the other hand, one should not underestimate the importance of the state in any form of dispute resolution or rights vindication. Most of the literature indicates that rather than a dichotomy between state and non-state actors existing alongside each other, one finds forms of hybridisation. Thus, state courts may effectively recognise the jurisdiction of adat courts--even if this goes against legislation and legal doctrine (Pompe 1999). A more regular case is that state officials play an important role in addressing citizens' grievances. For instance, village and (sub-) district heads, police, or officials from certain government agencies may engage in forms of mediation (Nicholson2001) or in receiving and processing complaints. It is important to note that the formal road to justice via courts is not often followed and that various alternatives and mixtures are used. (5) This in itself is a sufficient reason to prefer a wide definition of access to justice, at least if one intends to capture more than just a small slice of the entire range of mechanisms used to address citizens' grievances. An example of such a definition is the one proposed by UNDP (2005: 5):

    '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.'

    Compared to the definition offered by Cappelletti and Garth, the first notable difference is the explicit reference to 'informal institutions'. Secondly, 'rights' vindication or dispute resolution' has been replaced by the more straightforward 'remedy'. And finally, 'individually and socially just' as a standard has been turned into the less equivocal 'human rights'.

    Elegant as it is, this definition raises several questions. For a start, the notion of remedy requires some further consideration. In the more limited definitions of access to justice, the choice for courts as the foremost avenue to justice assumes that the 'remedy' is a court judgment which represents the outcome of the justice process. It logically follows that if courts are not the single object of access to justice research, other remedies must be explored as well, such as mediation agreements, police orders, municipal council decisions, etc. This would imply that 'institutions of justice' not only refers to institutions specially assigned the task of resolving disputes, but rather applies to all institutions addressed to provide a remedy. However, it is not clear whether that is the actual objective of the UNDP definition.

    In the same manner, the definition does not refer to what a remedy is sought for. If we assume that UNDP refers to an injustice, it may cover anything experienced as an injustice by a person, unrelated to any specific normative system. This casts the nets extremely wide and does require more clarification.

    Furthermore, although human rights offer a clear standard to evaluate the remedy provided, (6) one may question whether they provide the most appropriate basis for evaluating the quality of justice procedures. If one conceives of human rights to include the right to a fair trial this seems sufficient. However, since we have widened the understanding of justice institutions beyond courts, it makes sense to judge their performance from rule of law notions such as the principle of legality and the concept that government is bound by law. (7) In doing so, and in line with the UNDP definition, we look beyond state/government institutions to include traditional and religious forms of government as well as hybrid forms.

    Finally, the idea of 'remedy' should go beyond the decision made, the agreement signed or the regulation passed, and extend to the implementation stage to secure the change that actually addresses the grievance. It is also necessary to look at the sustainability of the new situation, viewing access to justice as a long term issue. The UNDP...

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