Access to Justice: Dynamic, Foundational, and Generative. (9th August 2021)

• Record Type: Journal Article
• Authors: Palombella, Gianluigi
• Is Part Of: Ratio juris. Volume 34:Number 2(2021)
• Page Start: 121
• Page End: 138
• Publication Date: 2021-08-09
• Subjects: Law -- Philosophy -- Periodicals; Jurisprudence -- Periodicals; 340
• DOI: 10.1111/raju.12309
• Languages: English
• ISSNs: 0952-1917

Abstract

Abstract: Access to justice reveals its contours through, and is best understood for, its dynamic nature. Conceptually, it shows a number of peculiar oscillations within couplets of opposites, like rights and structure, autonomous and derivative right, and substance and procedure. What does make for its foundational nature, and how does the latter differ from and coexist with access as a fundamental right? It belongs to the requirements of the rule of law and plays a foundational role towards legality, beyond being counted among the most fundamental rights. Despite its apparent procedural character, it has a substantive value, as well as a peculiar "generative" function. The article enquires into these conceptual features by looking at the ways through which access to justice is provided in the main European and international legal documents, as well as at its progress under judicial interpretation.