Tuning in to a discussion about access to justice, we might think, mistakenly, that the big problem is how much the legal system costs. The cost of litigating a dispute is too high, it goes, and so lawyers should flatten fees, cap fees, and unbundle fees, fleeing fees like so many fleas. Only the richest (they have the money) and the poorest (they have so little they qualify for aid) can litigate, so to achieve justice for the masses we should turn to alternative dispute models like mediation and online dispute resolution. The justice system is too complicated and too remote (in language, in bureaucracy, in erudition), so we ought to implement a different process and put our fate in the hands of artificial intelligence and resolve our disputes with app taps. All of these, of course, provide only access to the courts, not access to justice. That the two are equated is a marvel for etymology (or another column), and obfuscates the real problem. This equation, courts=justice, confines our efforts to playing a game with pawns while the bishops, knights, and queens dominate the board.
Access to justice – not the phrase understood by its common usage, but instead by its actual meaning – is the extent to which an individual may live in a just society. We have it if we can eat (adequately), pray (with freedom of choice), and love (whom we want). We have it if we can walk the streets unassailed. We have it if we can work and be rewarded for our efforts. We have it if our children are not taken away from us. We have it if we have freedom from captivity. We have it if we can look at each other and know that, by and large, we share the same view of the sea, the land, the sky, the office, and the home. Such access is not achieved by the courts, but by ourselves, our politics, and how we choose to shape our society. We can solve every access to the courts problem and still be left with an unjust society. The real question is: do we wish to live as a community? Do we really?
Neither can justice be wholly found in the mere adherence to law, a principle of process but not of substance.
After all, a racist, sexist, discriminatory workplace can oppress by fitting the oppressed within the rule of the law. It knows not to blatantly oppress with discriminatory words which would invite lawsuits. Instead, it mercilessly surveils the oppressed and writes reports within the rule of law: noting how often the oppressed comes in late, underperforms on unquantifiable matters of discretion, and eventually strips the oppressed of all humanity, inducing the metamorphoses of Kafka. Oh, make no mistake, the discriminatory workplace is most discriminating indeed.
And a discriminatory society can oppress by policing the oppressed within the rule of law. It, too, knows not to blatantly oppress with inflammatory words. It relies on statistics and models, it surveils the oppressed and, ripe with confirmation bias, confirms its oppressive hypothesis: by surveilling the oppressed ever more, it discovers ever more crimes. Its acts are based on science, after all. One can walk tall, as Lincoln Alexander would have us do, but a discriminatory society does not care how one walks. It follows the rule of law and perpetuates oppression – the two concepts are not incompatible.
And a discriminatory government is no different than any other entity. The powerful possess both the will and the wiles, leaving little space left for justice writ large. Regardless of how many treaties are upheld, it is hard to reconcile such adherence to the rule of law when clean water, let alone opportunity for a just life, is not afforded to those oppressed.
Justice is a just society: a wage beyond a mere living wage to a fair wage; work beyond mere toil to meaningful achievement; education beyond mere availability to real opportunity; health beyond mere medicine to thriving; life lived beyond mere wandering to flourishing. There is no question we live in a wealthy society. We don’t need to wait for a prosperous future to achieve utopia. The opportunity is already here, but seizing it has eluded us.