chapter  1
22 Pages

The rule of law and access to justice

ByYASH GHAI, JILL COTTRELL

For the Vienna World Justice Forum and its future work, the American Bar Association (ABA) developed a tentative definition of the rule of law (ROL) and elaborated criteria to determine the extent of its observance in a state. In its view, the ROL comprises four universal principles: (a) a system of selfgovernment in which all persons, including the government, are accountable under the law; (b) a system based on fair, publicized, broadly understood and stable laws; (c) a robust and accessible process in which rights and responsibilities based in law are enforced impartially; and (d) diverse, competent, independent and ethical lawyers and judges (ABA 2008). These principles give the impression of a procedure-based ROL, but it is clear from their elaboration that the ABA’s conception of the ROL includes important values. Among the values are the limitation of the powers of the state by a fundamental law, a democratic, participatory and transparent law-making process, clear and accessible laws and their faithful and fair administration, equal access to justice for all, and justice itself understood as including the protection of political, civil, economic, social and cultural rights. In the ABA concept, the ROL is an unqualified good. Many others have

expressed strong criticism of it. Its critics trace its origin in the development of the modern nation-state and the market economy; a system and supremacy of law is considered critical to both. Others see the ROL as the ideology and mechanism of class domination. The ROL is seen as technology for bureaucratic rule, promising much to the ordinary citizen but delivering little. Many critics of the liberal state associate the ROL with it. Bhikhu Parekh,

for example, describes various institutional and structural features of the modern state which in his view impose uniformity and ignore diversity. The organizing principle is state sovereignty, which justifies the centralization of power and displaces local and group sites of power. This sovereignty operates on a territorial basis, with hard boundaries. Rules for the exercise of this sovereignty are biased towards majoritarianism, stifling the voices of minorities. People relate to the state through the concept of citizenship, based

rigidly on equal rights and obligations of all persons, premised on loyalty to the state, and acknowledging no distinctions of culture or tradition. Citizens have rights but these are rights of individuals, based on an abstract and uniform view of the human person, without recognition of the difference made by gender, ethnicity, age, etc. The state operates through the medium of the law, but it is the law created by the state, rather than pre-existing bodies of customs or local law. The state favors the uniformity of structures and seeks to achieve the homogenization of culture and ideology, propagating them as universal values. The domain of the state is the public space, with an ever-shrinking area of private space, which alone allows some expression of cultural diversity (Bhikhu Parekh, 1997).1