Access to Justice and Political Ignorance

I will do one last post ― for now, that is, until the Supreme Court’s judgment comes out ― prompted by the British Columbia “hearing fees” case I have been blogging about. In this post, I want to step back a little, and offer some thoughts on the bigger picture of which the “hearing fees” ― a price charged by the provincial government for time in court ― fit into the broader access to justice problem.

I’m not sure if this comes across clearly in my posts on the subject, but I am quite worked up about these fees. I think that there is something very wrong about them. While I have argued that legally, they are objectionable as a violation of the constitutional principle of the Rule of Law, the strictly legal claim cannot ― and is not intended to ― capture the feeling of injustice that these fees provoke. (That is true of any legal claim, in my view ― though others, notably my brilliant NYU colleague Emily Kidd White, might disagree.) But while legal claims are best left relatively confined and technical, as a matter of political morality, it is appropriate to denounce the hearing fees not just as violations of specific constitutional rules and principles, but as an unconscionable barricade against access to justice.

They are not the only such barricade, of course. Even in jurisdictions where there are no hearing fees, litigants are required to pay fees for any number of court “services,” including the filing of a claim. The state sanctions and enforces the cartels that limit the supply and drive up the prices of legal services, otherwise known as law societies. Judging by the backlogs in the courts, there are not enough judges and/or courtrooms to handle all the cases in a timely manner, which is a basic function of the state on any liberal  view, whether classical or social-democratic. (Indeed, it is a perceived need to ration court time that led B.C. to impose escalating “hearing fees” intended somehow to deter long trials.) And then, of course, there is the issue of funding for legal aid.

What is really depressing about all this is that these problems are almost entirely absent from the political conversation, or indeed the broader public debate. Lawyers (and judges) are the only ones to talk about at least some of them. They are self-interested, of course (lawyers especially), and although this does not make them wrong, it does mean that some problems created by their self-interest, notably the cartelization of legal services, are practically never discussed. Politicians, who are ultimately responsible for decisions about how legal services are regulated and how the justice system is funded do not discuss these issues.

This is, I suppose, just one more manifestation of the pervasive political ignorance that affects policy-making of all sorts. People are just not knowledgeable about politics, political institutions, or issues of public policy. Yet one would think that, unlike some of the more abstract problems (say that of public debt and the appropriate level of government spending) which might not affect anyone in particular (important though they are important for us collectively) and so attract few people’s attention, the problems of access to justice not only impact real people every single day, but may indeed affect anyone at some point in one’s life, whether personal (say because of a divorce) or business. Having to wait, or not being able to afford, to take one’s case to court might not be as physically painful as waiting for a surgery, but it must be wrenching all the same. Why doesn’t the suffering of people who are being denied access to justice attract the sympathy of the public opinion?

There are a couple of developments which, although not necessarily bad ― perhaps even positive ― in themselves, might be making the problem worse. One is that that relatively few politicians are lawyers, and fewer of those who are have actually practised law than might have been in the past. (I might be wrong about this… I would welcome corrections.) Of course, lawyers have no God-given right to govern, and more occupational diversity among politicians is almost certainly a good thing. But if more politicians were aware of how serious the problems of access to justice are, they might just have been doing more about them. The other relevant development is that, to the extent the politicians have in fact done something about the difficulties with access to justice in the courts, their response has mostly been to steer people out of the courts altogether, whether into alternative dispute-resolution fora or into administrative tribunals set up to take over the resolution of some common disputes that the courts would otherwise have dealt with in the past. Again, these alternative mechanisms need not be a bad thing. They might, indeed, be providing more effective forms of adjudication or fuller compensation than even a perfectly well-functioning court system would. But by relieving some of the pressure on the court system, they probably help ensure that nothing much gets done about making it into an accessible and well-functioning one.

Perhaps this is all just a self-interested rant. I am a lawyer, after all, albeit not a practising one. Of course, the public resources are limited, and there are many claims on them. Should the government spend on courts money that it is also badly needed in the schools or in the hospitals? Many people will not agree with that, even though, as I wrote here, the “existence and accessibility [of courts] are essential to what government itself is ― the kind of government we have anyway, one based on the law and not on arbitrary power.” And even if not a self-interested rant, this post is at most sad meditation. Sad, and inconclusive. 

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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