Democratizing Justice, Whose Problem Is It?

Democratization means making something, usually a public good, accessible to everyone. The democratization of technology related to the internet or the democratization of health care are examples. As digital technologies become more widely adopted in areas touching peoples’ daily lives such as making appointments, applications for employment, being informed about changes in conditions of services or bargains available in the marketplace the reasons for making enabling technologies accessible to everyone become increasingly obvious. In a nation with a long-standing system of publicly funded health care the reasons are obvious although the realization seems to be falling short. In justice democratization is being discussed, but unlike health care, in which democratization is accepted but falling short of its full realization, democratization of justice is a concept and an objective yet to be fully explored.

The introduction of United Nations Sustainable Development Goal (SDG) 16 in 2016 has energized the access to justice movement. SDG 16 is about promoting peaceful and inclusive societies for sustainable development, providing access to justice for all and building effective, accountable and inclusive institutions at all levels. SDG 16 has inspired evocative new themes in the recent discourse around access to justice such as justice for all[1], people-centered justice[2] and, more recently, the democratization of justice.[3]

More than a decade before SDG 16, legal needs research began focusing on legal problems as they are experienced by members of the public, rather than from the perspective of the formal justice system. Hazel Genn focused her landmark Paths to Justice study on justiciable problems, problems with legal aspects whether or not the individual recognizes the legal aspect of the problem or whether or not the person engages any part of the formal justice system to resolve it.[4] Since Professor Genn’s seminal research, a large body of research producing remarkably consistent results has developed worldwide. From that we know now that legal problems are ubiquitous. Approximately a third to a half of all adults will likely experience one or more everyday legal problems within about a three-year period. Most people do not recognize the legal aspects or the potential seriousness of problems when they first occur. A majority of people do not obtain legal advice or other authoritative assistance. Many people do not resolve their problems in a timely way and experience a variety of adverse consequences as a result. Some people experience multiple inter-related problems that resist resolution unless the problem clusters are dealt with holistically. This has changed the way in which legal problems are viewed within socio-legal research and scholarship. The results of the contemporary body of legal needs research and the aspirational goals expressed within high level policy discourse in access to justice has set the higher bar for meeting the legal needs of the public. The task of expanding access to justice stretches the capacity of legal services providers beyond the funding available from traditional sources and beyond the skill sets normally resident in legal clinics.

Taking legal services as a starting point,[5] democratizing justice can be accomplished using a number of strategies that have already been tried. First, it requires outreach. This means finding innovative ways to reach out to communities, learning from them in order to understand the problems being experienced by people, then working with those communities to find solutions that make sense for and to the people being helped. It means serving more people, serving people who might not otherwise receive help and assisting people with a range of problems that may be greater than the traditional menu of problems encompassed by coverage restrictions. It means establishing networks of access to justice services, so people can be referred to organizations with the skills and experience to deal with problems beyond the capacity of the legal service provider. It means partnering with community organizations that make up the social organizing of helping that exists in most communities. Collaborative partnerships might involve joined-up efforts to resolve multiple issues for individuals with complex problems. Importantly, it means discovering ways to connect with people who do not recognize they are experiencing problems that may have legal solutions. This can involve referrals from the trusted intermediary organizations to which people often turn first for help. This may require working with community organizations to give them the legal capability to identify potential legal need in their own clients and referring them to the legal services provider. Once established, outreach can create its own pathways as the service becomes alive and embedded in the community. This can involve observing how outreach evolves once set in motion, learning from the evolving strands of outreach how people learn about services available and responding to these new patterns, perhaps by locating the outreach where people will see it, reaching out through social media, appearing at community events, being in the community with the frequency and regularity that people begin to recognize the services as part of their community and a source of help like other services that are there when they need it. These are all elaborations and refinements of that guiding principle of taking justice out “to where people are at”.

One of the important accomplishments of the access to justice movement in decades past has been convincing governments that access to justice is the financial responsibility of the state. That was accomplished during a period in which access to justice rested solely on a rule of law rationale. Now the question: what is a legal problem? is open for debate. As thinking evolves about the nature of legal problems, about justice and access to justice and as aspects of well-being are added to the desired outcomes of access to justice services, we have cast the net wider and have made achieving access to justice a more daunting task. There is now no turning back to a perspective on access to justice that is an exclusively courts and lawyers narrative. In this emerging version of democratizing justice legal services providers are asked to take the lead and do more. Community groups who are already providing assistance to the same people who may require legal help are being asked to take some ownership of the justice problem. We are called upon to ask: whose problem is it? How will it be adequately resourced in a coherent way?

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Ab Currie, Ph.D.
Senior Research Fellow
Canadian Forum on Civil Justice

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[1] Justice for All, The Report on the Task Force for Justice, Conference Version, Centre for International Co-operation, New York, 2019, www.justice.sdg16.plus

[2] Organization for Economic Co-operation and Development, OECD Framework and Good Practice Principles for People-Centred Justice, OECD 2021, GOV/PGC(2021)26, https://www.oecd.org/governance/global-roundtables-access-to-justice/good-practice-principles-for-people-centred-justice.pdf

[3] National Centre for Access to Justice and the Fordham Urban Law Journal, Access to Justice Solutions Symposium, February 9, 2024, Panel 3: The Movement to Democratize the Law, https://ncaj.org/news/you-are-invited-people-struggling-and-law-failing-what-are-solutions-access-justice-crisis

[4] Hazel Genn, Paths to Justice, What People Do and Think about Going to Law, Oxford, 1999

[5] Not necessarily the only perspective on democratizing justice. Supporting non-legal organizations with primary mandates to help people with problems such as domestic violence or housing by producing guides to the law and public legal information is one approach. Another is for legal clinics to provide secondary legal consultations to service providers in community service organizations and voluntary organizations assisting their own clients when they feel the problem may have legal issues.