The Rawlsian Justice: Access to Justice & the Law

I. Introduction

This article argues that access to justice, access to court, and the accessibility to the justice system in general must be addressed and approached according to John Rawls' view of justice; justice that benefit the least advantaged among us. This short article will start with a layout of the Rawls' theory of justice, and how this theory has transcended the boundaries from philosophy into the legal realm.

II. John Rawls Theory of Justice:

In his book “A Theory of Justice”, John Rawls offered a version of justice that benefits those at the bottom of the social and economic ladder of the society. Rawls argued that in a just society, basic liberties such as freedom of speech must be guaranteed to all citizens and that fair equality of opportunities to hold public positions must be afforded to all members of the society; think of public funding for local and general elections.

As to distributive justice, Rawls argued that inequalities are tolerable, acceptable, or even encouraged as long as it benefits the least advantaged (the difference principle). Rawls takes a social contractarian approach to justify his concept of justice. Basically, Rawls argued that if a number of reasonable (rational) people, behind a “veil of ignorance”, were to constitute a just society, meaning they did not know what their social and economic attributes would be in this new society, those reasonable people would choose a society that benefits the least favored among them. This is because a reasonable person wants to insure herself in case she is to born into this new society as one of the least fortunate. However, if a reasonable person knew that she would be advantaged in this new society, she would try to contract for a society that advances her interests and vice versa; in other words, “if a man knew that he was wealthy, he might find it rational to advance the principle that various taxes for welfare measures be counted unjust; if he knew that he was poor, he would most likely propose the contrary principle.” Hence, the idea of a veil of ignorance was introduced.

On the other hand, the efficient justice that maximizes utility for the vast majority of the society might not be fair. The greatest good for the greatest number might leave a slight minority, regardless of how small this minority, in pain and agony. Rawls believed that everyone is better off when the least advantaged among us are better off, and this summarizes his view of justice as fairness. Therefore, the formal institutions in any given society must not be passive and must work to improve the conditions of the least advantaged, for this will benefit the society as a whole.

In 1993, John Rawls attempted to universalize (globalize) his concept of “justice as fairness” in an article titled The Law of Peoples. Rawls explained:

“There will also be principles for forming and regulating federations (associations) of peoples and standards of fairness for trade and other cooperative arrangements. Beyond this, they will include certain provisions for mutual assistance among peoples in times of famine and drought and, should it be feasible, as it should be, provisions for ensuring that in all reasonably developed liberal societies a people’s basic needs are met. These provisions will specify duties of assistance in certain situations, and they will vary in stringency depending on the severity of the case.”

However, Rawls advocated against resource-rich peoples subsidizing the mismanagement and irresponsible spending of the least favored peoples, or worse subsidizing human rights violation among peoples who are burdened by unfavorable conditions. Nonetheless, Rawls insisted on assisting less favored nations that lack the resources to provide and protect the basic liberties to their citizens; Rawls argued that “eventually each society now burdened by unfavorable conditions is to be raised to, or assisted towards, conditions that make a well-ordered society possible.”

Access to justice (“ATJ”), as a concept, has been viewed as access that benefits the least advantaged in the society. This Rawlsian approach towards the concept of ATJ had, ironically, preceded John Rawls himself. Two years prior to Rawls being born, Reginald Heber Smith presented his famed book of “Justice & the Poor”, stating that the “blindfolded lady with the even scales…must be wooed. It costs money to fight a lawsuit. In a very practical sense justice is something that has to be bought. Someone must pay the price. If, then, we desire the poor to have justice, we must make justice cheap; and for those who have no money, we must make it free.”

III. Access to Courts & ATJ in the Legal System:

The consensus in the literature is that any allocation of resources to promote ATJ must benefit the least advantaged and the most vulnerable in the system. The reasoning underlying this argument is simple: in the absence of public assistance to under-resourced and disadvantaged groups, the adversarial system will be grossly imbalanced in favor of the “haves” against the have-nots. Resource-rich parties have access to highly skilled lawyers and to zealous advocacy. Thus, many have argued that the issue of ATJ is one of equality or, more accurately, lack thereof. Some have claimed that, in many cases, money “matters more than merits and equal protection principles are routinely subverted in practice.” Almost 70 years ago, the US Supreme Court warned against this unequal access to justice stating that there “can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Therefore, the disparity in resources must not be taken lightly when one addresses the methods and processes that we use to resolve our disputes.

In her 2001 article, Deborah Rhode approached the issue of ATJ as a resource and equality problem claiming that “it is often better to be rich and guilty than poor and innocent.” She argued that while all citizens should be equal before the law, resource-rich clients, nonetheless, have clear advantage in the adversarial judicial system. Rhode, also, claimed that unlike “most other industrialized nations, the United States recognizes no right to legal assistance for civil matters,” and that there is a judicial “acquiescence in distributional inequalities” due to “bar resistance to pro bono obligations and legislative resistance to adequate funding for legal services.” However, Rhode acknowledged that equal access to justice is an idealistic and unrealistic demand, that wealthy clients will always have better ATJ, and that the pragmatic and correct approach should be to assist the least advantaged to obtain, at least, an adequate ATJ. She reasoned that due to “the elasticity of legal needs among the general public and the disparity of talent within the profession, any serious effort to equalize access would require not only massive public expenditures but the prohibition of private purchases.”

In his 2020 article, Daniel Maldonado focused on the theoretical aspect of ATJ. Maldonado addressed the issue from a social contractarian perspective. He argued that ATJ is a core reason and an essential condition for the transition from the state of nature to the civil state. Citing Rawls and implementing Hobbes and Locke’s version of the social contract, Maldonado argued that people in pre-political life sought violence to resolve their disputes because of a universal lack of ATJ. People agreed to move from this pre-political state to the political (civil) state because of two reasons: a) they came to the realization that resolving their conflicts through violence is not a sustainable way of life; and b) they were guaranteed an equal access to an “impartial third party that has the power to solve conflicts or produce binding decisions”. Maldonado reasoned that “the citizens must be able to call upon the sovereign to protect their lives and property. Without equal access for the citizens to the justice the State provides, the [state] would disappear. The passion of those who form the State would lead to war, and war would lead to the destruction of the conditions that would allow for having a contented life.” However, Maldonado failed to explain how to provide this equal access to justice; this might be due to his focus on the conceptual and doctrinal architecture of the concept of ATJ. While absolute equality with respect to ATJ might never materialize, the focus in the literature has always been on promoting ATJ as to the disadvantaged and marginalized members in the society even if these efforts do not result in ideal equality due to limited resources or flaws in the system. As some scholars have argued, the more realistic goal is to provide adequate, if not equal, ATJ for the least fortunate in the society.

In criminal law, one might argue that ATJ means access for defendants. In tort law, ATJ usually means access to injured claimants; in labor law, its access for workers; in civil rights cases its access for minorities and marginalized groups.

Finally, our legal systems must implement a Rawlsian view of justice to enhance access to justice. This means that access to justice in our legal systems must focus on the least fortunate among us; those who lack the resources to adequately pursue justice.