Constituting a Civil Legal System Called 'Just': Law, Money, Power, and Publicity
New Pathways to Civil Justice in Europe (Xandra Kramer, Alexandre Biard, Jos Hoevenaars and Erlis Themeli, eds.), Springer, 2020
16 Pages Posted: 20 Nov 2020
Date Written: November 2, 2020
From the vantage point of a world reorganized by the COVID-19 pandemic and riven with political and social conflicts, the book, New Pathways to Civil Justice in Europe (forthcoming 2020), is a powerful testament to how embedded dispute resolution systems are as normal facets of ordinary good governance. The shared commitments are to measured, consistent, and accessible means of obtaining relief for allegedly unlawful behavior. What is debated are not the goals of supporting dispute resolution services but the modalities for doing so. The questions are how and who responds to calls for legal help.
The publication of this book represents the success of political and social movements that have shaped the expectations, practices, culture, and laws of dispute resolution systems in the last centuries and, more recently, have brought to the fore concerns about a “justice gap,” as demand exceeds the supply of responders.
But demand for what? The core questions include what kinds of harms merit legal recognition as well as whether, were all claimants able to obtain a response, the resulting procedures would be part of a civil legal system worth calling “just.” How does one measure whether the quantum of legal protection and the invocation of those rights and entitlements are optimal or reflect under-protection, over-protection, under-claiming or over-claiming? What factors are the bases for assessing the various processes espoused or criticized? What are the baselines for assessments of outcomes? What are the vantage points from which to understand the civil legal system and to make judgments about whether a system is just or unjust?
In this brief commentary, I step back to ask prior questions about the normative aspirations, the doctrinal mandates, and the pragmatics of contemporary civil justice systems. I explore some of the law and the political economy of the choices pursued under the rubric of “paths to a civil justice system,” as I underscore three interrelated facets to be taken into account when assessing the justice of a legal system.
The first is about the substantive entitlements a civil justice system protects. The discussion of consumers, household members, and employees reflects the range of rights that political movements have recently brought into being. But the status quo should be taken neither for granted nor be seen as intrinsically optimal. Courts have been one venue for debate about who merits recognition as entitled to law’s protection and the forms of remedies available. Hence, new modes and technologies need to address how they will contribute to norm development. If they do not, they are at risk of being vehicles for stagnation or retrenchment.
My second concern focuses on the extent of government support for courts, for other forms of dispute resolution, and for those who seek to participate. Subsidies of various kinds are necessary to ensure that all members of the body politic are empowered to use the mechanisms created. Litigant asymmetries raise significant problems of fairness for dispute resolution. The diversity of kinds of legal rights raises a host of complex questions about line-drawing to decide what kinds of claimants to encourage and what forms of economic transfers – from the government to individuals or among disputants – to provide or require.
Third is the issue of the public face (or not) of dispute resolution systems. The obligation of courts to function in public is longstanding, but the shift to other forms of government-sponsored or government-obliged processes does not always entail access for third parties, who are neither disputants nor decision-makers. The activities as well as the results of new modes need to be available to the public (more accurately, as detailed below, the many public(s)) so that questions of the underlying legal rights, the range of remedies, and the procedures can be the subject of informed discussions about the justice of the practices.
Knowledge is required about whether pathways (using various technologies) enable people to get into courts or their alternatives. Obtaining that information requires both learning about the range of users and being able to observe the processes real-time. Only then can one know whether justice is a goal that is embedded in routes and a result of the civil remedial structures provided.
Keywords: adjudication, access to justice, alternative dispute resolution, "justice gap," remedies, privatization, publicity, third party access to information, class actions, aggregation, online dispute resolution, arbitration mandates, due process, constitutional obligation to provide legal remedial options
Suggested Citation: Suggested Citation