Access to Justice

Comment: A revival of access to justice research?

Bryant G. Garth
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To cite this document: Bryant G. Garth. "Comment: A revival of access to justice
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 COMMENT: A REVIVAL OF ACCESS
TO JUSTICE RESEARCH?

Bryant G. Garth
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Access to justice is both a topic of engaged social-legal research and a key

component of legal professional ideology. There is a relationship between
the two. The more committed the organized legal profession to the issue of
access to justice, the higher the profile of scholarly research on topics that
relate in one form or another to access to justice. The organized bar’s
commitment peaked in the 1960s and 1970s, waned in the 1980s, and has not
regained the position it once had on the domestic U.S. agenda. In contrast,
however, access to justice has recently emerged strongly on the reform
agenda that U.S. and multilateral foreign aid organizations – along with the
U.S. legal profession – are promoting abroad as part of the renewed post
Cold War effort to build the rule of law.
It takes very little Internet searching to see the centrality of access to
justice rhetoric in the law and development world. The World Bank
statement on legal and judicial reform includes an assertion that
‘‘Improving, facilitating and expanding individual and collective access to
law and justice supports economic and social development. Legal reforms
give the poor the opportunity to assert their individual and property rights;
improved access to justice empowers the poor to enforce those rights’’
(World Bank, 2008). A World Bank concept paper on ‘‘legal empowerment’’
contains the following statement on the need to awaken rights conscious-
ness: ‘‘There are many instances in which relatively poor and vulnerable
people take on rights consciousness. But under what conditions do they

Access to Justice
Sociology of Crime, Law and Deviance, Volume 12, 255–260
Copyright r 2009 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1521-6136/doi:10.1108/S1521-6136(2009)0000012014
255
 256 BRYANT G. GARTH

adopt this perspective? The ideas rooted in transnational human rights

documents need to be translated into terms that make sense in local
contexts. This requires the work of intermediaries, such as local organiza-
tions, human right activists, academics, journalists’’ (World Bank, 2006).
Similarly, a document of the OECD states that ‘‘The rule of law and
access to justice are crucial to the immediate upholding of law and order,
and to human security imperatives, stability and development. Assistance in
this area is, therefore, vital to build and sustain peace’’ (OECD, 2008). The
UNDP similarly takes the position that ‘‘Access to justice is a vital part of
the UNDP mandate to reduce poverty and strengthen democratic
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governance. Within the broad context of justice reform, UNDP’s specific

niche lies in supporting justice and related systems so that they work for
those who are poor and disadvantaged’’ (emphasis in original) (OECD, 2004).
Finally, the American Bar Association recently promoted its high profile
World Justice Forum with a headline stating that ‘‘Access to Justice is the
Key to Advancing the Rule of Law, Experts at World Justice Forum Agree
at ABA World Justice Initiative’’ (ABA, 2008).
This international revival of concerns with access to justice so far involves
more professional ideology than scholarly research. Consistent with the
dominance of economists in the world of developmental assistance, it draws
substantially on the literature from law and economics emphasizing the
importance of property rights as key bases to legal empowerment. The
UNDP’s Commission on Legal Empowerment of the Poor, led by
Madeleine Albright and Hernando de Soto, thus emphasized the linkage
between secure property rights and access to justice before concluding its
work in the summer of 2008 (UNDP, 2008).
The literature mobilized on behalf of this focus also included references to
U.S. works on legal needs and to British studies of civil justice problems and
solutions (e.g., Genn, 1999). Much of this work and certainly the conceptual
framework reflect studies done in the earlier period, and the recent cited
literature in any event is relatively sparse. It may be that here, as elsewhere,
international developments will provide some impetus to raise the value of
discourses that have lost their position on the mainstream research and
reform agendas at home. My simple question for this new collection of
works on access to justice is whether the new body of literature exemplified
in this collection portends a potential revival of research on the topic both
nationally and internationally.
I start with a personal reflection. I lived through and experienced the
vicissitudes of this research agenda focused on access to justice. After law
school, I took a research fellowship in Florence to work on the Ford
 Comment: A Revival of Access to Justice Research? 257

Foundation sponsored ‘‘Access to Justice’’ Project, which led to several

volumes making the case for legal services, court reforms, and alternative
dispute resolution in order to ‘‘make rights effective.’’ (e.g., Cappelletti &
Garth, 1978a, 1978b). The project also provided a vehicle to cooperate with
the then burgeoning interdisciplinary scholarship on legal needs, disputing
behavior, legal aid, and even social movements. The still relatively new Law
and Society Association was a home where these groups could come
together in the interests of a progressive social reform agenda (Garth &
Sterling, 1998). The general essay that I co-authored with the General
Editor of the project, Mauro Cappelletti, argued that there were waves of
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reforms all directed toward the social progress that would come with
implementing the rights of ordinary people – rights that were the product of
the ‘‘rights revolution’’ of the 1960s and more generally the welfare state
(Cappelletti & Garth, 1978a, 1978b).
My period of active research into these questions for the most part ended
in the early 1980s. I was not alone in my shifting focus. The topic of access
to justice as a research question practically disappeared at that time. The
Reagan era coincided with a shift toward law and economics, deregulation,
and markets, and there was almost no public policy interest in the social
problems that had consumed scholars in the prior decade. Alternative
dispute resolution continued with a different agenda, the rights revolution
came to a halt, and scholars moved on to other topics typically far from the
rights-oriented legal idealism that attracted many to the legal profession in
the first place. Only a sprinkling of researchers who had focused on access to
justice in the 1960s and 1970s sustained that interest.
The move away from access to justice as a state priority paralleled a shift
in the organized bar from the spirited defense of activist lawyers funded by
the state to voluntary pro bono handled mostly by young corporate lawyers.
As Scott Cummings observed, ‘‘Pro bono’s institutionalization bears
important features of this reaction against centralized governmental power –
a fact made clear by way of comparison with the federal legal services
program, which symbolized both the promise and perils of the government-
centered approach’’ (Cummings, 2004, p. 20). Academic research has
understandably followed the bar’s turn to pro bono as the key vehicle to
improve access to justice. And much of that research is very much tied into
professional ideology, taking the bar to task, for example, for an insufficient
commitment to pro bono as a group or within certain elite sectors – notably
the corporate bar (cf. Rhode, 2004).
The link between access to justice research and the organized bar’s agenda
at home and abroad is therefore clear, with the agendas at home and abroad
 258 BRYANT G. GARTH

also relating to larger issues of politics and foreign relations. But the key to
advancement of any access to justice agenda in my opinion is its relationship
to critical scholarship informed by the theories and methods of social
science, especially sociology. Sociology has a particular focus on hierarchy
and inequality, which makes its methods well designed for taking on issues
that are too easily defined by a professional agenda and ideology. Law
without the sociology of law easily slips into the reiteration of legitimating
rhetoric.
To oversimplify a basic point that is both obvious and often neglected,
law and lawyers are deeply embedded in relationships of economic, political,
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and social power. As rational choice scholars note, even if somewhat too
crudely, law serves power, or the powerful would not invest in law. The
holders of economic and political power have ceded – over time and in ways
that are no longer readily visible – a little of their instrumental power in
order to make that power more legitimate. The rules necessarily have a tilt
to them (Dezalay & Garth, 1996).
It is not surprising, therefore, that legal elites have always had to respond
to the criticism that the law serves the advantaged. The most famous critical
statement to this effect is the one by Anatole France: ‘‘The law, in its
majestic equality, forbids rich and poor alike to sleep under bridges, to beg
in the streets, and to steal their bread.’’ Learned Hand’s equally famous
‘‘Thou shalt not ration justice’’ provides the profession’s response that the
legitimacy of the legal system requires that those who cannot afford legal
services should be provided access to legal rights and remedies. Since legal
rights and remedies are generally tied to the problems and interests of the
advantaged, however, there is always a built in contradiction in an access to
justice program offering more lawyers to the disadvantaged. One British
critic from the 1970s thus argued that lawyers need the poor more than the
poor need lawyers (cited in Garth, 1980).
The contradiction between the position of law and the legal profession
close to power and an ideology that promotes equal access as a key to formal
and substantive justice can be frustrating. It leads lawyers to think that only
legal solutions to social problems are good ones. And it leads to simplistic
exhortations that the unmet legal needs of relatively vague categories of the
‘‘poor’’ or the ‘‘middle class’’ require that lawyers try harder to fulfill those
needs. At the same time, considerable energy and idealism goes into the access
to justice programs, and access to law is not a trivial benefit for countries
where the law purports to protect property and the rights of citizens.
The coming together of professional idealism, sustained by longstanding
professional ideology, and critical social science, is to my mind vital to the
 Comment: A Revival of Access to Justice Research? 259

enterprise of developing some positive reform agenda that can actually

help ordinary people, including those who are disadvantaged. Rebecca
Sandefur’s (2007) work provides that kind of critical stance grounded in
empirical research and sociological theory. Among other insights, she has
shown that familiarity with the legal system can be a recipe for inaction and
discouragement rather than an assertion of legal rights (2007), that what
lawyers provide is often simply a signal to the legal or administrative system
to follow its own norms – whether the lawyer is competent or not (Sandefur,
forthcoming), and that the general supply of helping resources – not just
access to law – has a major impact on how people act to remedy their
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problems. The research in this collection is part of this welcome new

research trend as well.
I will highlight just a couple of the insights that I think come from these
articles. One is that law as a potential solution to any kind of social problem
should not be taken for granted. Authors in this volume examine cascades of
social problems (Ab Currie) and look toward a more general sociology of
troubles that goes well beyond legal needs (Jennifer Earl). They question
perceptions of problems (Pascoe Pleasence, Nigel Balmer, and Tam) and
offer novel insights about how race and ethnicity affect what access to
justice might mean (Mary Rose, Kwai Hang Ng). Furthermore, instead of
focusing on gaps in the provision of legal services and exhortations to close
the gap through good works, the authors look at the way that pro bono
lawyers act in relation to the professional, economic, and career incentives
that they face (Stephen Daniels and Joanne Martin, Marie Nell Trautner).
Daniels and Martin, in particular, provide the first detailed examination of
the landscape of pro bono, showing the relationship between the provision
of legal services and the incentives and hierarchies in a very competitive
world both of non-profits and corporate law firms in Chicago. It has very
little to do with so-called legal needs.
This kind of critical empirical work is essential to enlighten some of the
work taking place abroad, and it also has the potential to reenergize this
research line at home. Without empirical work informed by sociological
theory, the access to justice movement, however much legal rhetoric goes
into it, is bound to do very little for the ostensible beneficiaries of the
programs. One of the strengths of the movement in the 1960s and the 1970s
was that the professional program was criticized, held accountable, and
to some extent informed by social science theories attuned to questions of
hierarchy, inequality, and organizational legitimacy. My own history, of
course, links me with legal idealism and professional ideology, and I
therefore hope for this kind of critical combination. Whether it materializes
 260 BRYANT G. GARTH

or not, however, this new research promises to give us a far better under-
standing of what law means and does not mean in people’s everyday lives.
It will be immensely valuable when the time finally does come of a renewed
focus on the problems of individuals and how best to ameliorate them.

REFERENCES
American Bar Association. (2008). World Justice Forum, July 2–5, 2008, News from the World
Justice Forum. Available at http://www.abavideonews.org/ABA517/news_printables/
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Access_to_Justice.html
Cappelletti, M., & Garth, B. G. (1978a). Access to justice: A world survey. Leyden and Boston/
Milan, Sijthoff/Giuffre (Vol. I of the Florence access-to-justice project series).
Cappelletti, M., & Garth, B. G. (1978b). Access to justice: The newest wave in the worldwide
movement to make rights effective. Buffalo Law Review, 27, 181–292.
Cummings, S. L. (2004). The politics of pro bono. U.C.L.A. L. Rev., 51, 1–149.
Dezalay, Y., & Garth, B. G. (1996). Dealing in virtue: International commercial arbitration and
the construction of a transnational legal order. Chicago, IL: University of Chicago Press.
Garth, B. G. (1980). Neighborhood law firms for the poor: A comparative study of recent
developments in legal aid and in the legal profession. Sijthoff: Alphen aan den Rijn.
Garth, B. G., & Sterling, J. (1998). From legal realism to law and society: Reshaping law for the
last stages of the social activist state. Law and Society Review, 32, 409–472.
Genn, H. (1999). Paths to justice: What people do and think about going to law. Oxford: Hart
Publishing.
OECD. (2004). Access to justice practice note 9/3/2004 CONTENT. Available at http://
www.undp.org/governance/docs/Justice_PN_En.pdf
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rule of law. Available at http://www.oecd.org/dataoecd/26/51/35785471.pdf
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