Justice

Access to justice

Disadvantaged groups are particularly likely to face problems accessing justice institutions.  These groups can be excluded because institutions are remote, slow and unaffordable, or because they are biased and discriminatory.  Other barriers to justice occur when disadvantaged groups are not aware of their rights, or where justice institutions and processes are intimidating or unnecessarily complex.

Page contents

Where is a good place to start?

This paper categorises the barriers that need to be addressed in order to promote access to justice.

Abregu, M. 2001, Barricades or Obstacles: The Challenges of Accessible Justice', in R. V. Puymbroeck, (ed) Comprehensive Legal and Judicial Developments: Towards an Agenda for a Just and Equitable Society in the 21st Century, World Bank, Washington DC.
It is recognised that the poor have unequal access to justice and that this undermines the possibility of equality in society. The reasons for this situation are many. This article by Abregu, Ford Foundation, attempts to identify the obstacles to poor people accessing justice and to propose some ways in which these problems may be addressed.
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Also available: summary of the entire book.

This paper explains why justice is so important for poor people and introduces a broad range of responses in the areas of legal and institutional reform and legal literacy.

Anderson, M. 2003, Access to Justice and Legal Process: Making Legal Institutions Responsive to Poor People in LDCs, comment paper on access to justice and legal process, paper for discussion at WDR Meeting,16-17 August 1999.
This paper examines the issues surrounding the judicial and legal systems in developing countries. Michael Anderson highlights the institutional obstacles that the poor face when seeking access to justice, and suggests policy responses for overcoming them.
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Legal empowerment

Legal empowerment is the use of law and related development activities to increase disadvantaged populations’ control over their lives and thereby alleviate poverty.  It involves not only spreading awareness among citizens about their rights, but also giving them the skills and opportunities needed to access institutions and services.  Interventions may work across different sectors, in areas such as natural resource management or health services, and can complement good governance, poverty reduction or gender empowerment programmes.

The following two texts are general introductions to the concept of legal empowerment and explain how it differs from more conventional ‘rule of law’ approaches:

Golub, S., 2003, Beyond the Rule of Law Orthodoxy: The Legal Empowerment Alternative, Democracy and the Rule of Law Project, Rule of Law Series No. 41, Carnegie Endowment for International Peace.
The author constructively critiques much justice sector work as being too top-down, state-centred, and donor-driven. The analysis goes on to present a legal empowerment alternative, which features civil society support and identification of priorities by the users themselves, and to offer successful examples of such approaches
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Golub, S. and McQuay, M, 2001, Legal Empowerment: Advancing Good Governance and Poverty Reduction, Law and Policy Reform at the Asian Development Bank.
This report for the Asian Development Bank considers how legal empowerment contributes to other development goals such as poverty reduction, good governance and public participation. It identifies the most effective strategies for legal empowerment and the factors contributing to their success.
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Legal services and legal aid

Legal services for the poor include counselling and representation in court, but often are more expansively defined to include mediation, representation before non-judicial fora, assistance with the legal aspects of administrative processes, assistance provided by non-lawyers who have been trained to acquire legal knowledge and skills (paralegals), and even non-formal legal education.  Legal aid refers to legal consultation or representation provided to financially needy clients at no charge, or at subsidised rates.

McClymont, M. and Golub, S. 2000, 'Nonlawyers as Legal Resources for their Communities', in Many Roads to Justice, Ford Foundation.
This chapter reviews the methods used by NGOs and CBOs supported by the Ford Foundation to enable disadvantaged populations to become more legally self-sufficient, filling legal aid voids that exist in societies with few lawyers. ‘Non-lawyers’ refers mainly to professional or voluntary paralegals but also to ordinary community residents who use the law collectively or individually to gain access to government services and legal processes.
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Rhudy, R, 2000, 'Expanding Access to Justice: Legal Aid Models for Latin America', chapter 2 in 'Justice Beyond Our Border: Judicial Reforms for Latin America and the Caribbean', C. Biebesheimer & F. Mejia, eds, Inter-american Development Bank, Washington DC.
This chapter analyses various models of legal aid and access to justice, considering how they might be applied in Latin America and the Caribbean. Numerous local factors will affect how particular models might be developed in a particular context with performance often depending on factors independent of the model's structure itself, including leadership, governance structures, issues related to funding and the environment within which it operates.
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University legal aid clinics can enhance the quality of clinical legal education as well as increasing access to legal services.  Diverse university-based and NGO approaches enable new and future lawyers to become involved in access to justice work.

McCutcheon, A. 2000, University Legal Aid Clinics: A Growing International Presence With Manifold Benefits,' in M. McClymount and S Golub (eds.) Many Roads to Justice, Ford Foundation.
This article focuses on how university legal aid clinics are being utilised, in many countries, to pursue social justice goals. The author also looks at the substantial benefits these clinics can offer to developing countries, if supported by legal practitioners, educators and donors. The examples McCutcheon uses are clinics that aid under- privileged areas of their societies.
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Golub, S., 2004, Forging the Future: Engaging Law Students and Young Lawyers in Public Service, Human Rights, and Poverty Alleviation, Open Society Justice Initiative
It is widely proven that providing legal services to the poor enhances development in general. But how can this best be done and why is the donor community in general not funding existing initiatives? This Open Society Justice Initiative Issues Paper advocates the use of Clinical Legal Education and seeks to fill the informational vacuum that makes it an underappreciated and underutilised resource.
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This document by Penal Reform Organisation considers a range of 'good practices' developed in Africa and elsewhere in providing legal aid services in the criminal justice system.

Penal Reform International, 2006, Index of Good Practices in Providing Legal Aid Services in the Criminal Justice System, Penal Reform International.
Legal aid has traditionally been associated with lawyer-centred services. However, the services that the majority of African people require are often quite different. This document, published by Penal Reform International (PRI), argues that good practice should focus on the needs of people at the beginning of the criminal justice system, particularly, in villages, police stations, courts and prisons. Good practices can prevent unnecessary expenditure, time-wasting and further the cause of justice - without necessarily having recourse to a lawyer.
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The following collection of case studies from the Open Society Initiative provides information on experiences with legal aid in countries including Lithuania, Bulgaria, Chile and East Timor.

Open Society Justice Initiative, 2004, Justice Initiatives: Legal Aid Reform and Access to Justice, February 2004 Issue, Open Society Justice Initiative, New York.
The right to legal aid in criminal cases is enshrined in many human rights treaties and in most national constitutions and it is considered the test of a governments’ commitment to the rule of law. Yet few countries apply it fully and consistently. This study from the Open Society Justice Initiative explores this issue drawing on examples from several countries such as Lithuania, Bulgaria, Chile, East Timor, Israel, South Africa and the UK.
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Public interest litigation

The legal systems in some countries, including civil law jurisdictions, allow various forms of public interest litigation.  This enables concerned individuals or civil society organisations to take legal action on behalf of the general public or disadvantaged groups.  The aim can be to promote social change beyond the outcome for that particular case.

Hershkoff, H. and Hollander D. 2000, 'Rights into Action: Public Interest Litigation in the United States,' in M. McClymount and S. Golub (eds.) Many Roads to Justice, Ford Foundation.
This paper draws on examples from the activities of Ford Foundation grantees in the United States during the 1980s and 90s, with particular reference to women's rights, minority rights and immigrant or refugee rights.
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Dasgupta, M., 2002, 'Social Action for Women? Public Interest Litigation in India's Supreme Ccourt,' Law, Social Justice and Global Development Review, 2002, No. 1
The Supreme Court of India has said that public interest litigation (PIL) is an effective tool for protecting the rights of the disadvantaged, especially women. However, is this really the case? This Law, Social Justice and Global Development article looks at the issues surrounding the practice of PIL in India and its impact on women’s rights, especially in the areas of rape, sexual harassment and prostitution.
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This handbook is designed for legal empowerment practitioners, and includes resources on legal aid and public legal education:

Public Interest Law Initiative, 2001, Pursuing the Public Interest: A Handbook for Legal Professionals and Activists.
The role of the law in protecting social rights in the transitional societies of the former Soviet Union and Eastern Europe is still being defined. Numerous groups have formed to defend various kinds of public interest using the law, and most have faced similar kinds of hurdle. This book from Columbia University's Public Interest Law Initiative assembles their experiences and offers a guide to those starting new initiatives.
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Legal and judicial reform

As well as being important for achieving accessible justice in themselves, legal and judicial reform may be vital for the success of other justice sector initiatives. The political oversight role of the judiciary means that legal and judicial reform can also contribute to other aspects of governance, such as public financial accountability or service delivery. Legal and judicial reform can include institutional and procedural reforms to promote judicial efficiency, effectiveness and independence; similar reforms in prosecutorial services, criminal defence bureaus, or other parts of a legal system; and support for professional legal education and training to enhance professionalism and impartiality. It also includes law and regulatory reforms to replace laws that do not comply with international human rights standards, are outdated, contradictory, or biased against the poor.

The following book is a useful entry point for both legal and judicial reform. Its various papers include discussions on experiences to date, regional perspectives, and wider issues like political accountability and the role of the media and civil society:

Van Puymbroeck, R. V. 2001, Comprehensive Legal and Judicial Development: Toward an Agenda for a Just and Equitable Society in the 21st Century, 2001 Proceedings of a global conference, World Bank, Washington, D.C., June 5-7, 2000.
Justice, law and human rights are fundamental prerequisites for economic and social development. What are the elements for a successful legal and judicial system? How can the poor be given a voice for justice? These and other questions of universal concern are addressed in this book, which presents a selection of papers discussed at a global conference on comprehensive legal and judicial development sponsored by the World Bank in June 2000, in partnership with the IMF, UNDP and other Development Banks.
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Here are three case studies of donor experiences with legal and judicial reform programmes in Colombia, Pakistan and Peru:

Said, J. and Varela, D. 2002, Colombia - Modernization of the Itagüí Court System, A Management and Leadership Case Study, World Bank Legal and Judicial Reform Series.
What can common management techniques contribute to legal and judicial reform processes? This paper from the World Bank presents a case study of an innovative court management initiative in Itagui, Colombia and shows how the application of such techniques made the traditional court model more effective. The study puts the main components of the initiative in the context of international public sector modernisation standards. This case demonstrates that the application of organisational change management concepts can improve effectiveness.
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Armytage, L. 2003, 'Pakistan's Law and Justice Sector Reform Experience: Some Lessons', Law, Social Justice and Global Development Journal (LGD) 2003 No.2
What is the experience of Pakistan’s Access to Justice reform program (AJP)? What lessons can be learned for the emerging discourse on law and justice in development programs? This paper, in the online journal Law, Social Justice and Global Development, based at Warwick University, analyses history, objectives, progress to date and lessons learnt as the AJP addresses institutional problems to improve access to justice in an element of the governments’ wider poverty reduction strategy.
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Lawyers Committee for Human Rights, 2000, Building on Quicksand: The Collapse of the World Bank's Judicial Reform Project in Peru.
Recipient government commitment is crucial to the potential success of World Bank (WB) funded judicial reform programmes. But how can commitment be effectively assessed? This paper by Human Rights First assesses the case of Peru and suggests that judicial independence is the most important measure of commitment. It argues that government commitment should be assessed before the Bank agrees to finance a judicial reform proposal. However, it acknowledges that commitment may be hard to determine.
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The following two texts consider experiences with reforms to court administrative systems:

Warren, C. 2001, Court Administration as a Tool for Judicial Reform: An International Perspective, Institute for Court Management, Court Executive Development Program.
State and Federal Court systems in the US have undergone significant change over the past fifty years where a process of administrative innovation and improvement has taken place. In other countries this change has been more recent and they have faced similar problems. This Institute for Court Management paper focuses on court administration as a component of judicial branch reform in the US and other countries.
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Baar, C. 1999, The Development and Reform of Court Organization and Administration, presented at the Public Administration and Development Jubilee Conference, Oxford University.
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Measures to enhance judicial independence and impartiality include reform of judicial selection and evaluation systems and changes to career structures, terms and incentives.

US Agency for International Development, 2002, Guidance for Promoting Judicial Independence and Impartiality, USAID, Washington DC.
This guide seeks to promote understanding of the issues surrounding judicial independence. The guide is divided into three main parts. Following the introductory section, Section 2 describes the key processes and institutional arrangements affecting judicial independence, in both positive and negative ways. Section 3 comprises six regional and national studies including Latin America, Eastern Europe, Africa, France, Italy and the United States, that expand upon important differences in culture, history, and legal systems affecting judicial independence. Section 4 is composed of four papers on specific themes relevant to judicial independence.
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Hammergren, L., 2002, 'Diagnosing Judicial Performance: Toward a Tool to Help Guide Judicial Reform Programs,' paper prepared for Transparency International 9th International Anti-Corruption Conference.
This paper provides a checklist for diagnosing judicial performance. It aims to evaluate the transparency and related aspects of judicial performance and is intended to promote reform programmes. The list is composed of the characteristics believed to be critical in producing the desired patterns of behaviour. It is intended to be applied globally, and was not written with any specific legal system or tradition in mind. It aims to capture universal factors that will help identify real or potential problems in judicial operations.
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United Nation Office on Drugs and Crime, 2003, Report of the Third Meeting of the Judicial Group on Strengthening Judicial Integrity, Office of Drug Control and Crime Prevention, United Nations
How do stakeholders view the justice systems in Nigeria, Sri Lanka and Uganda? What can be done to address their concerns? This paper by the United Nations Global Programme Against Corruption, reviews the outcomes of the third meeting of the Judicial Group on Strengthening Judicial Integrity. Based on national surveys of court users and other stakeholders, it examines systemic weaknesses identified in the surveys and considers a draft code of conduct for judicial employees.
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Pilot judicial reform programmes can help to develop the tools and experience to manage large scale change effectively.

Dakolias, M. and Said, J. (eds) 1999, Judicial Reform: A Process of Change Through Pilot Courts, World Bank Legal and Judicial Reform Series, World Bank, Washington DC.
Many developing countries are giving priority to judicial reform as a neccessary condition for encouraging new investment. Governments in Eastern Europe and Latin America realise that they cannot complete their economic reforms until they have made a corresponding change in laws and legal processes. This study assesses the progress of such pilot programmes in Colombia, Peru, Ukraine and Argentina.
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The judicial council model for managing the appointment and promotion of judges and court administration has been lauded as helpful for improving judicial independence and impartiality and for effective court management.

Hammergren, L. 2002, 'Do Judicial Councils Further Judicial Reform? Lessons from Latin America', Rule of Law Series no. 28, Carnegie Endowment for International Peace, Washington DC.
This paper attempts to draw lessons from Latin America’s experience with judicial councils. It suggests that disappointments with council performance arise primarily in a failure to understand the nature of the problems under attack or the more complex mechanisms required to resolve them. Adequately designed and implemented, councils can help break institutional bottlenecks and temporarily reduce traditional forms of political interference. However, the creation of a council is no guarantee that improved practices will be introduced; in fact, the biggest difficulty in adopting a council model is the expectation that other problems will sort themselves out automatically.
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What other resources are available on the GSDRC?

More resources on the gender aspects of access to justice can be accessed on the ‘gender and justice’ section of this guide

Use the site search at the top of the page if you wish to look for wider resources on access to justice.

Additional information resources

The Open Society Institute's Justice Initiatives website - a legal resources database of documents and other resources.

The World Bank's Law and Justice Institutions website has introductory pages on Access to Justice and legal and judicial reform and includes evaluations of World Bank projects in this area.

The World Bank Legal and Judicial Reform Practice Group provides more information in these areas, including links to relevant organisations and online resources.

The online journal Law, Social Justice and Global Development (LDG) provides full text access to all its papers online.

The Southern African Legal Assistance Network (SALAN) website provides information about the access to justice work of its 12 member NGOs operating in six countries. It also has useful information about human rights and justice developments in the region, as well as links to other sites.

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