Examining a Right of Access to Laww

Abstract

Persistent calls for recognition of a human right of ‘access to justice’ are too often expressed in rhetorical terms, without a sure footing in human rights theory and practice. Instead, the claimed right must be formulated in terms that are coherent and plausible within the accepted framework of international human rights. In this paper I explore the idea of a human right relating to the operation of law, and propose that such a right is best characterised as a ‘right of access to law’ (rather than ‘to justice’), concerned with people’s commonly experienced operation of law in society, and their ability to know the state’s posited law when they need to. The United Nations Development Programme states that ‘Legal awareness is the foundation for fighting injustice. The poor and other disadvantaged people cannot seek remedies for injustice when they do not know what their rights and entitlements are under the law’. One response to this – the response that is examined in this paper – is to hold the state accountable for its failure to ensure that people are not ignorant of the law. It is a matter of human dignity to be able to comply with law’s direction and so to avoid the associated sanctions, and to be able to make use of law’s facilitative function and so to gain the benefits and protections that law offers. A right of access to law has been explored as part of the emerging right of access to state information, but law is not properly characterised as ‘state information’, and the rationale for a right of access to state information does not support a right of access to law. A more promising approach is to see a right of access to law as integral to the meaning and effect of established human rights, for example where enjoyment of a right is subject to limits ‘imposed by law’, or where the full scope of a right is dependent on state law, or access to a remedy for human rights violations is dependent on the terms of state law. It may be, therefore, that a right of access to law can be established as integral to knowing, understanding and enjoying established human rights. But as a procedural right, a right of access to law would be available only when necessary to give effect to a substantive right, and not generally as a free-standing right. Although there are circumstances in which a human right would be interpreted so as to require access to law, there are as well circumstances where no human right is engaged but that nevertheless a right of access to law is called for. This suggests that a right of access to law must be conceptualised as a free standing right.