Accessibility to Justice

Making Justice Accessible: A Journey Through the Common Law System

By Jay Chauhan*

A. The Foundations of Common Law

The common law system, originating in England and evolving over centuries, forms the backbone of the legal framework in numerous countries worldwide, including the UK, India, Canada, the United States, and approximately 60 others. The system traces its roots back to Lincoln’s Inn, one of the four ancient Inns of Court in London, established in the 13th century. Barristers at Lincoln’s Inn and other Inns of Court began taking up legal causes on behalf of clients, bringing their cases before the judiciary, and building what we now understand as the "common law." This development wasn’t merely a legal mechanism but a societal safeguard designed to render justice by allowing legal advocates to represent both plaintiffs and defendants, creating a dual narrative around every issue.

The adversarial structure of common law relies heavily on the skill of each barrister to assert their client’s case, with the understanding that justice emerges from the rigorous testing of each side’s arguments. In theory, this system protects individual rights by providing each party with fair representation, aiming to maintain a balanced and just outcome.

B. Professional Conduct and Legal Boundaries

A crucial element supporting the common law system is the code of professional conduct that binds lawyers. Core principles such as lawyer-client confidentiality and the provision of independent legal advice are fundamental, ensuring that every client receives impartial, private, and competent representation. However, the conduct codes do not mandate lawyers to aim at resolving disputes; rather, they emphasize advocacy, often creating scenarios where the lawyers’ primary role is to assert and defend their client’s position. This omission leaves a gap in conflict resolution, particularly when an adversarial approach may intensify rather than alleviate the dispute.

C. Accessibility and Financial Barriers

One of the most pressing issues facing the common law system today is accessibility. The cost of legal representation has risen sharply, putting it out of reach for the majority, especially in areas such as family law. A staggering 65% of separating couples, facing some of the most challenging periods of their lives, end up self-representing due to the high cost of legal services. While lawyers command fees far exceeding those of most trades, many professionals focus on representing corporate or affluent clients who can afford these rates, leaving the average individual struggling to find affordable legal support.

Healthcare in places like Canada has addressed the financial barrier with programs such as OHIP (Ontario Health Insurance Plan), which covers medical costs for residents. Yet, no comparable system exists in law. In a complex legal situation, individuals often find themselves in a Catch-22: already financially strained by the issue they are trying to resolve, they may become further impoverished by the legal costs associated with it. The absence of a state-funded or subsidized legal support system in many common law countries leaves many vulnerable individuals without realistic access to justice.

D. The Potential of Mediation and Non-Adversarial Approaches

Family law is an area particularly susceptible to adversarial conflicts. The children of separating couples frequently suffer the consequences of prolonged and contentious legal battles. One solution to this problem lies in mediation—a non-adversarial approach that allows couples to work through their differences with the guidance of a mediator, aiming for outcomes that protect family relationships and, importantly, the well-being of any children involved. Advocating for mediation in family law is essential, not just to alleviate the financial burden but to help families find solutions that emphasize cooperation rather than conflict.

E. The Role of Artificial Intelligence in Enhancing Access to Justice

In addition to mediation, the advancement of artificial intelligence (AI) offers a promising avenue for democratizing legal access. AI could simplify litigation procedures by automating form generation, drafting preliminary arguments, and preparing clients for court appearances. Through AI, individuals could receive the foundational tools needed to represent themselves effectively, reducing the need for costly legal services in straightforward cases. This technological shift could be instrumental in bridging the gap between those who can afford legal counsel and those who cannot, expanding access to justice on a broader scale.

F. A Personal Journey in Law and Advocacy

As a product of both Lincoln’s Inn in England and Osgoode Hall in Canada, I’ve witnessed firsthand the transformative potential of a legal education rooted in the common law tradition. My experiences inspired my novel Love in the Empire, available on Amazon at a modest price, where I share my journey through law, life, and the unique challenges of a career in justice. Moreover, my mentorship initiative, the Angel Mentorship Group on Facebook, seeks to guide new lawyers, emphasizing a commitment to justice and the public good over wealth accumulation.

In making justice accessible, it is crucial that we re-evaluate our adversarial approaches, especially where mediation could yield more humane results. Additionally, exploring AI’s potential in law could open doors for self-representation, making the legal system more accessible and alleviating some of the financial burden it currently imposes on individuals. By fostering these changes, the law can live up to its noble mission: to serve the public good, protect rights, and deliver justice to all. Justice is the foundation of our civilization.

*Jay Chauhan is a lawyer in Canada, India and England and is a retired Deputy Judge and author of the novel Love in the Empire which narrates Jay’s story of love and law in the historical context. This article is for leaders in the legal community and those who have the power and ability to influence the legal system, including Hon. Arif Virani, Minister of Justice and Attorney General who invited me once to talk to his constituency on women entrepreneurship.