The title of my contribution was "Access to Justice and Law Reform".1 In this brief ... In 1988 I was invited by the Canadian Institute for Advanced Research to ...
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SPECIAL SECTION TO CELEBRATE TWENTY YEARS OF PUBLISHING: Access to Justice and Law Reform # 2 by Roderick A. Macdonald* Windsor Yearbook of Access to Justice (2001) 19 Windsor Y.B. Access Just. 317 * 4316 words Copyright (c) 2001 University of Windsor
BIOGRAPHY:
* F.R. Scott Professor of Constitutional and Public Law, Faculty of Law and Institute of Comparative Law, McGill University; President, Law Commission of Canada (July 1 1997 - July 1, 2000). An abbreviated version of this essay was presented on March 31, 2000 as one of three key-note addresses at the Department of Justice of Canada Symposium entitled "Expanding Horizons: Rethinking Access to Justice in Canada", Ottawa, Ontario. I have further developed several themes raised here in "Implicit Law, Explicit Access: Is There Any Point to Redesigning Institutions of Civil Justice?", an address delivered on May 19, 2000, at the Australian Law Reform Commission Conference, "Managing Justice... The Way Ahead For Civil Disputes", Sydney, Australia. I should like to dedicate these brief reflections to my Dean at the Faculty of Law of the University of Windsor between 1975 and 1979, Ron Ianni, who first introduced me to the fields of public legal education and access to justice.
ABSTRACT: ... Some 10 years ago I had the privilege of participating in a Symposium organized by the Windsor Yearbook of Access to Justice. ... In Part One, I draw out lessons of five different experiences I have had over the past quarter-century toiling in the fields of community legal education and access to civil justice. ... Nonetheless, public legal education in the service of access to justice is a double-edged sword. ... Now I have come to believe that traditional public legal education in the service of access to justice may well have too narrow a focus and too narrow a target. ... One of the central aims of the Programme was to undertake empirical research to test various hypotheses about the reasons why so many Canadians had virtually no access to official law. ... Yet our processes of official law-making by Parliament are far less accessible for reasons of cost, delay and complexity than even the least accessible judicial forum. ... TEXT: [*317] Introduction
Electronic copy available at: http://ssrn.com/abstract=1440979
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Some 10 years ago I had the privilege of participating in a Symposium organized by the Windsor Yearbook of Access to Justice. The title of my contribution was "Access to Justice and Law Reform".1 In this brief reprise my aim is to revisit and recast some of the ideas I advanced in that article. In Part One, I draw out lessons of five different experiences I have had over the past quarter-century toiling in the fields of community legal education and access to civil justice. In Part Two, I examine more closely some of the access to justice conundrums I have confronted over the past three years as President of the Law Commission of Canada. Part One: Five Experiences, Five Lessons (?) I once believed that information was power, and that better public legal education was the pre-condition to accessible justice. I once believed that more official law giving more rights was the only road to more justice. I also once believed that achieving access to justice was essentially a matter of removing barriers to courts such as cost, delay and complexity. Now I am not so sure. I no longer see the objective in either structural or instrumental terms. Rather the challenge runs much deeper. It is to rethink our attitudes about what law in a modern, pluralistic society actually comprises, about who owns this law, and about what official law can realistically contribute to our achieving a more just society. So let me turn to my first theme: The Limits of Public Legal Education Twenty-five years ago, fresh out of graduate school, I joined the teaching staff of the Windsor Faculty of Law. Windsor appealed to me for one key reason. It was the home of an innovative and quite far-reaching experiment in public legal education - the Community Law Programme. By 1977 I had become co- director of the programme, and was keen to continue the tradition of producing video and audio tapes for broadcast on cable outlets, distributing [*318] booklets and pamphlets to public libraries, and organizing workshops and seminars meant to increase public knowledge of law. Over the next little while, the Community Law Programme embarked on several other initiatives: writing comic books for elementary schools about legal history and the foundations of law; establishing a clearinghouse for public legal education called the Community Law Journal; and sponsoring a summer long Community Law Caravan through northern Ontario.2 Most public legal education programmes rest on the belief that citizens have a right to know about the law. Usually, by law is meant the rules that are made by legislatures and announced by courts. The idea is that potential litigants must be given enough information to recognise when they have a claim for the vindication of which they can, if need be, call the coercive apparatus of the state in aid. Nonetheless, public legal education in the service of access to justice is a double-edged sword. It does enhance access to justice by giving citizens the tools to engage in preventative law and informal dispute resolution. But it often winds up enhancing a certain dependency on lawyers and the formal dispute resolution system. Far from educating lawyers and judges about the legal needs of the public, legal information programmes typically co-opt the public into thinking that it cannot obtain justice without the aid of lawyers, judges and official law. Far from inducing the law to talk the language of the public, public legal education programmes typically wind up inducing the public to talk like lawyers. Now I have come to believe that traditional public legal education in the service of access to justice may well have too narrow a focus and too narrow a target. Public legal education should really be directed to educating both citizens and officials about ways of overcoming exploitation and pathologies in the implicit law of everyday human interaction; and it should be about promoting fairness and due process in the strategies that people have for negotiating their way through life. So the true access to justice challenge is: How can we provide information and resources for citizens so that they can use their own understandings of the requirements of a just legal order to make the official system more sensitive and responsive?
Electronic copy available at: http://ssrn.com/abstract=1440979
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My second theme is: Society, not Law, is Where Justice Truly Resides In 1988 I was invited by the Canadian Institute for Advanced Research to become Director of its Law and Society Programme. One of the central aims of the Programme was to undertake empirical research to test various hypotheses about the reasons why so many Canadians had virtually no access to official law. Why did official law so often fail to take hold of the social situation into which it was being projected? Was official law too [*319] much like a top- down projection of authority and not sufficiently oriented to building a just social order? Would a legal pluralistic approach to law in society better enhance access to justice for all citizens?3 Much of our present concern for access to justice rests on the realization that processes for engaging the public in law-making (establishing the law in books) and in the business of law-applying (the law in action) are suboptimal. For example, rule-making institutions are where the principles of justice and the basic conditions of access to justice are determined. Yet our processes of official law-making by Parliament are far less accessible for reasons of cost, delay and complexity than even the least accessible judicial forum. What is more, processes of law-applying by key front-line officials - police, clerks, inspectors, and lawyers - do not always respect norms of due process and are not always just. Access to justice means most of all that people are able to find justice in their everyday encounters with public officials; it is about transparency, accountability, integrity and ethics in the delivery of public services. The exclusion of so many people from the presumed benefits of the legal system flows directly from the inability or refusal of official law to make space for and reflect the living law of everyday human activity. So the real access to justice challenge is: How do we provide opportunities for citizens to participate more fully in legislative and administrative processes by which law is made and administered so that official law is a more ethical reflection of the justice arising in everyday law? Now I will pass to my third theme: Access to Courts is Not the Same as Access to Justice. Between 1989 and 1991 I had the opportunity to Chair a Task Force on Access to Civil Justice struck by the Quebec Minister of Justice. The mandate of the Task Force was not just to find ways to increase public access to the courts; it was to review the entire civil justice system in Quebec. The first part of our report focused on issues of cost, examining issues like the legal aid plan, pre-paid legal insurance schemes and like mechanisms. The report then inquired into structural issues like adjusting the jurisdiction and procedures of the small claims court, to streamlining civil litigation processes through pre-trial conferences, to class actions, and court-annexed mediation. This led to studies of alternative dispute resolution generally, and ultimately to the idea of preventative law through legal information [*320] hot-lines, plain language legislation and contracts, and increased used of obligatory standard- form contracts.4 Most of our recommendations ultimately rested on the view that justice according to law can only be guaranteed through the courts. How misguided we were. Experience has shown that true access to justice means more than overcoming the time, cost and complex barriers that limit people's ability to deploy official institutions to help resolve a legal problem. Making dispute-resolution institutions more objectively accessible will not overcome the main failings of official law simply because official law is, in myriad ways, the cause of these failings. Subjective, not objective, barriers bulk largest. Words like disenchantment, disenfranchisement and disempowerment best capture how many citizens view the justice system. Our systems of civil justice are not designed to contest or disrupt the existing distributions of social power that stand in the way of broader access. Access to justice will never be achieved through reactive adjudicative institutions that are meant to find justice in relationships by simply restoring an unjust status quo ante. Efficiency in the service of injustice is not a social good. So the core access to justice challenge is: How do we give as much emphasis to the "justice" component of the phrase "access to justice" as we do to the "access" component so that citizens will actually want to pursue justice in courts?
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This brings me to my fourth theme: Law's Fundamental Role is to Create Conflict, Not Resolve It. In 1994, I was asked by the Ontario Civil Justice Review to revisit some of the ground covered by the Quebec Access to Justice Task Force in the light of what I had learned from my work with the CIAR Law and Society Programme. The objective was to determine if disputes had certain innate characteristics that would permit them to be streamed (by some sort of mandatory pre-hearing technique) into different A.D.R. processes. My study was meant to explore whether there were systematic reforms that could be undertaken to institutions of civil disputing so that they could each be deployed most effectively to resolve the kinds of disputes for which they were best suited.5 The short answer, I discovered, is no. Here is why. Human conflict does not have ready labels and "inherent" characteristics that allows it to be easily classified as a civil dispute appropriate for a particular process. Like music, art, poetry, ballet, the movies and dance, the role of law is to take [*321] the unarticulated hurts and frustrations of life and give them form whereby they may be framed, argued about and channelled into productive exercises of social learning for those in conflict. Every human event can be a means for symbolising conflict; and every human conflict has transformative possibilities. What is at stake can be clarified by asking whether the goal is to explore: "alternative" dispute resolution - different ways of resolving disputes; or whether the goal is to explore: "alternative dispute" resolution - ways of resolving disputes that have been cast differently. Traditional ADR strategies kick in much too late in the process. The conflict has already been labelled and framed by law. We should really be talking about alternative dispute creation. To appreciate the real possibilities of alternative dispute creation is nothing more than to appreciate how we come to define ourselves, and through these self-definitions, to define others. So the central access to justice challenge is: How do we re-conceive human conflict in a manner that permits official institutions to engage citizens in an exercise of symbolic reconstruction of conflict in a manner that provides them with opportunities for moral growth? And so I come to my fifth and last point: Disenfranchisement Flows From a Failure of Diversity. Between 1994 and 1997, with funding from the Social Sciences and Humanities Research Council, I undertook a comprehensive empirical study of the small claims court process in Montreal. Over 9000 files were examined to obtain a socio-demographic profile of plaintiffs in the court. This was followed up with detailed interviews of users, judges, community leaders, and non-users. The aim was to assess whether official institutions and processes that had been designed specifically to enhance access to justice actually had any impact in doing so.6 The study rested on one assumption only: namely, that legally cognisable non- business conflict is randomly distributed. The plaintiff population of the downtown Montreal court was plotted onto the census profile from the catchment of the court to identify statistically significant variances, if any. There were. The paradigmatic plaintiff turned out to be much like me - white, male, non-immigrant, English or French speaking, professional, well-educated, falling within the 40-80 percentile of wage-earners and aged between 35 and 60. Of course, it may be that non-business conflict is simply not randomly distributed. But detailed interviews with plaintiffs, and with members of socio-cultural organizations from under-represented plaintiff populations [*322] suggest the contrary. The kinds of conflict for which the small claims court process is designed--landlord-tenant, consumer product warranty, neighbourhood conflict, person-to-person sale of goods disputes, the provision of defective services--are, by and large, randomly distributed across sociocultural difference. Why then, the discrepancies? Three reasons why visible minorities, the poor and women are more likely to "lump it" than to litigate stand out: a failure to interpret a particular dispute as a legally cognisable dispute; a sense that for reasons of having less confidence, less personal resilience and less energy vindication by law is unlikely; and a belief that neither the process nor its remedies spoke meaningfully to their situation. So the fundamental access to justice challenge is:
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How do we create a system of civil disputing that actually keeps questions of identity and diversity alive in its rules, processes, and personnel so that citizens have equal capacity to make, decide and enforce the law that generates fidelity and commitment? Part Two: The Living Law of Access to Justice Reform Between July 1997 and July 2000, I was honoured to serve as the founding President of the Law Commission of Canada.7 This experience proved to be a remarkable opportunity to test whether any of the lessons of my quartercentury odyssey in quest of a more just and accessible law could be translated into action. In large measure, the opportunity arose from the distinctive mandate that was given to this federal law reform agency. In its new guise, besides the usual duty to identify anomalies and obsolescence in the statute book and to propose reforms to keep legislation up to date, the Law Commission is directed to: (1) build networks and partnerships with other organizations interested in law reform so as to cast a critical eye on the law and its functioning in contemporary society; (2) adopt a multi-disciplinary perspective in order to discover the foundations of our current regulatory regimes and how to modify these so that the law becomes more accessible and efficient; (3) develop new concepts of law and new approaches to law more appropriate to contemporary society. As we sought to build the research agenda of the Law Commission we found ourselves constantly bumping up against well-ingrained assumptions about the nature and role of law--and about the nature and role of law reform agencies. Overcoming these assumptions, I now believe, is the single most important access to justice challenge in Canada today. Lack of access flows less from structural features of the official legal system itself, than from our curious beliefs about what the system can and should be doing. From today's vantage point, the past fifty years of legal developments in Canada can be seen as revealing much about ways not to think about law and law reform. [*323] Three main misconceptions, I believe, lie behind the general inaccessibility of civil justice (and not just official civil justice) in Canada. A first misconception is reflected in the arrogance with which we --as politicians, lawyers, law reformers, judges, law reformers, citizens--thought we could make the recalcitrant facts of social life conform to the neat patterns of official legal regulation. The belief that it is possible to make people better by detailed rules has revealed itself to be false. Today, study after study shows that the official law enacted by legislatures and administered by courts and tribunals has only a small direct bearing on the everyday lives of most citizens. A second misconception appears in our simple-minded pursuit of equality by reference exclusively to those socio-biological characteristics of human beings that we have deemed to constitute their personhood. Equality has shown itself to be an enormously complex concept, over-theorized and under-practised. Yet the one abiding social differentiator, transcending all other inequalities, is social class. Today, study after study show that the economic roots of inequality cannot be eradicated by legislated anti-discrimination surrogates. The third misconception is our assumption that law can only be made by, and justice can only be guaranteed through, the institutions of the political state. We now know that law is secreted in the everyday interactions of citizens--as couples, neighbours, co-workers, and so on. Today, study after study shows that true access to justice means giving all citizens the means to make, decide and enforce their own law in the multiple sites where they actually find normative commitment. Sustaining the three misconceptions about the nature and role of law are a pair of debateable suppositions about the motives and capacities of human beings. One is that people are not able to function in society without the assistance of public officials staffing specialized regulatory bodies: this is an unfounded supposition about the anarchy of "unregulated" human interaction. The other assumption is that people are naturally inclined to exploit each other, and will always try to extract disproportionate advantage in situations of conflict: this is an unfounded supposition about the inherent unfairness of "untutored" human intuition.
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The last few years have, however, witnessed increased public discomfort with this pessimistic conception of social life and the image of law that derives from it. Indeed, when viewed in the perspective of an alternative understanding of human interaction that embodies cooperation and fairness, a focus on "access to justice" twice displaces what should be the law reform objective. We come to focus on "access" to justice rather than on "justice" itself; and while we proclaim "access to justice" as a goal, what we really mean is "access to law". The most significant concerns about justice felt by Canadians have little to do with legal rights; and the most significant barriers to access can only be overcome through a re-orientation in the way we think about conflicts, rights, adjudication and all-or-nothing remedies. Let me suggest some of the elements of this needed re-orientation. Most [*324] importantly, the law will come to be seen as being as much the affair of all Canadians, as the business of legislatures and courts. Citizens are seeking a more responsive and pluralistic law. They know that, however much legislatures and courts claim a monopoly on law, it is the living law of their day-to-day lives that provides the foundation upon which a just and respectful society is built. In a democracy, citizens renew the law by living the law, often managing to redress the injustices of an official law that Parliament is unable or unwilling to change. There is, consequently, a great need to rethink traditional socio-cultural concepts in order to assess whether they are still useful as anchor points for policy in a society that is becoming more culturally diverse and disparate. In addition, as real choices about how one might lead one's life become more numerous, it is necessary to rethink both the substance of the law, and the means by which this substance is conveyed. To minimize the chances that legal rules will be either too broad (over-inclusive) or too narrow (under-inclusive) , even those legal concepts that relate to social facts ought now to be defined by reference to the underlying public policies being promoted. In the future legislation will have to be recast so that the connection between policy rationale and legal definition is strengthened. There is, consequently, a need to rethink laws that are based on concepts that attempt to project essentialist criteria, to replace these by concepts that are defined directly by the finalities and goals being sought. Still again, we should not ignore the important symbolic role of modern law. Law lies at the nexus of our institutions and processes for maintaining an open, democratic society and our values as reflected in everyday experience. Law offers citizens the channels to inject these values and aspirations into official practice, as well as models to give them form in their own lives. The perspectives of legal professionals are an important stabilizing force in a democratic society. But these professional perspectives must always be mediated by the understandings and perspectives of other citizens. There is, consequently, a need to re-examine when it is best to abandon the moralising attitude of the law, so as to adopt an attitude grounded in economics, medicine or a therapeutic frame. Finally, we need to become more sensitive to the distinction between governance under the Rule of Law and governance by detailed, bureaucratic rules. No doubt, the law serves as a means to control inappropriate behaviour and to re-establish equilibrium where it has been unjustly disrupted. But its primary aspiration and most important task is to recognize and further the capacity of people to act responsibly towards each other by offering them a wide range of facilitative institutions and by establishing general baselines for self-directed action. We will have to develop a vision of law as a societal resource through which we can bring our core values into focus, and that is conducive to us pursuing and promoting these values. There is, consequently, a need to abandon as much as possible the perspective that law is a mode of social control of a population that does not have the capacity to act fairly and justly towards others without the heavy hand of the state telling it what to do. [*325] Conclusion: There are no Slogans It is always tempting to want to boil down social complexity into slogans - like law and order, efficiency, wealth maximization, and even access to justice. But we must resist the reductionism of slogans. Law is at once a dynamic and a fragile human accomplishment. It mirrors and partly moulds the moral character of a society. Unfortunately, most contemporary proposals to enhance access to justice are simply the reaction of an official system that fears losing its capacity to control to the manifold other social institutions and practices of civil society where
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people negotiate their own law. That is, the quest for official legal solutions means that we are now less inclined, and less able, to imagine creative responses to the challenges of deep human affect. I will conclude with what I believe are the two fundamental lessons of my 25 years of travail in quest of a more accessible and more just law. First, it is time to jettison the beliefs that the state has a monopoly on law- making and that courts are indispensable to resolving human conflict. Most human conflict is discovered, symbolised and resolved far from the institutions of the official legal system; and most human conflict finds expression in a language and vocabulary that only remotely mirrors the language and vocabulary of legislative and judicial processes. Second, it is time to jettison the belief that a lack of access to justice can be remedied principally by systemic reform and by institutional redesign. Law is a precious resource for mediating human relationships. A failure to ask what we expect of our law is a failure to ask what we expect of ourselves. Every day we consciously disengage from the hard work of building a more just society. This disengagement is the greatest barrier to access to justice. True access to justice requires us to seek and to find meaning in our interactions with others by discovering and nurturing just relationships. In the end, we vindicate the goal of a just and accessible law by making it just and accessible in our own lives. FOOTNOTES :
1 See R.A. Macdonald, "Access to Justice and Law Reform" (1990) 10 Windsor Y.B. Access Just. 287-337. 2 For a review of these activities see R.A. Macdonald, "The Community Law Program at Windsor - An Interim Report" (1976) 10 Law Society of Upper Canada Gazette 344-351; and R.A. Macdonald, "The Community Law Caravan" (1978) 12 Law Society of Upper Canada Gazette 78-89. 3 During this period I had the opportunity to address the implications of legal pluralism for overcoming many of the key determinants of exclusion: class "Socio-Legal Perspectives on Institutional Renovation: Critical Legal Pluralism" (1993) 42 U. New Brunswick L. J. 391-395; culture "Justice, Immigration and Legal Pluralism" in P. Kelly, ed., Colloque dans le domaine de la justice et de l'immigration (Ottawa: Metropolis Project, 1997) at 94-101; gender "Should Judges Be Legal Pluralists" in Aspects of Equality: Rendering Justice (Ottawa: Canadian Judicial Council, 1996) at 229-234; and race "Recognizing and Legitimating Aboriginal Justice: Implications for a Reconstruction of Non-Aboriginal Legal Systems in Canada" in Aboriginal Peoples and the Justice System (Ottawa: Royal Commission on Aboriginal Peoples, 1993) at 232-274. 4 See Jalons pour une plus grande accessibilite a la justice, Report of the Task Force on Access to Justice, Ministere de la Justice du Quebec (531 pages). The Task Force process and Report are discussed in R.A. Macdonald, "Theses on Access to Justice" (1992), 7 Can. J. Law & Society 23-45; "Accessibilité pour qui: Selon quelles conceptions de la justice" (1992), 33 Cahiers de droit 457-484; "Problèmes de participation aux services de la protection juridique" in S. Langlois, et al., eds., Traité des Problèmes sociaux (Québec: Institut québécois de recherche sur la culture, 1979, 1994) at 907-922. 5 R.A. Macdonald, Prospects for Civil Justice (Toronto: Ontario Law Reform Commission, 1995) iii, 186 pages. 6 The complete study will be published in a book entitled Small Claims, Smaller Justice? To date three parts of the research have already been published: "Tales of Wows and Woes From the Masters and the Muddled: Navigating Small Claims Court Narratives" (1998) 16 Windsor Y.B. Access Just. 48-89 (with S.C. McGuire); "Small Claims Courts Cant" (1996) 34 Osgoode Hall L.J. 509-551 (with S.C. McGuire); "Judicial Scripts in the Dramaturgy of Montreal's Small Claims Court" (1996) 11 Can. J. Law & Society 63-98 (with S.C. McGuire). 7 See Law Commission of Canada Act, 1996 S.C., c. 6.7. For a discussion of trends in law reform and the rationales for expert law reform agencies see R.A. Macdonald, "Re-Commissioning Law Reform" (1997), 35 Alta. L.Rev. 831-880. See also R.A. Macdonald, "Law Reform and Its Agencies" (2000) 79 Can. Bar Rev. 99-118.
