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Access: What it is and how to achieve it

Fence

Access is one of those terms that you intuitively have an idea of what means. For instance, you might see the existence of a fence as a physical barrier to access a place, and the presence of an open door as the opposite. The term may let you to think about situations where you get access to something concrete, such as food, clothing, toy, or medicine, through the act of buying or receiving such goods. If you want to encompass all these meanings, the task of defining access becomes a rather complex task. The definition will depend on the conversation we are having, and the context we are discussing.

In this blog post, I present what I find to be a useful approach to operationalizing the term access for analytical purposes. Drawing on the access to justice-literature, I make a distinction between a supply and a demand side of ‘access’ while at the same time recognizing how the two sides are intimately interlinked and interdependent. The strength of the access to justice-approach is that it offers a holistic understanding of what is means to access something. As the notion ‘access to justice’ indicates, justice is the overall end-goal of the exercise. The fundamental argument is that to achieve justice, society must be (i) equally accessible to all, and (ii) organized around a system that is seen as individually and socially just (Cappelletti and Garth 1978).

The literature on access to justice comes out of a social movement which started in the US and England during the 1970s as people began asking critical questions about the workings of law and legal institutions, including how these systems really work, at what price, and for whose benefits (ibid). In this period, law and jurisdiction went from being subject to analysis by legal scholars and legal professions mainly to becoming a subject to critical examination by researchers from a range of disciplines, including sociology, political science, cultural studies, and linguistic studies. In the beginning, this movement focused on how to promote access of the poor to the courts. This included providing free legal aid as well as lowering litigation costs to ensure that the legal problems of the poor were brought before the court to the same extent as those of people with more means. Gradually, the access to justice movement broadened its focus and began to consider the more general barriers that stand in the way of achieving full social inclusion of all groups in society, and how to remove these barriers by strengthening (or inventing) facilitators of access. Barriers and facilitators of access both feature in the two categories of supply and demand, as I show in the following.

 

The supply side of access

Access is supplied by different types of actors involved in a broad range of activities. An illustrative example is the daily work of public administrative authorities who manage the supply by, for instance, making decisions regarding the level of access to specific welfare services that will be granted to individuals. Likewise, other professions, such as judges, policemen, and social workers engage as part of their job in activities that either limit or expand citizens’ effective access to relevant entitlements. In many situations, a number of non-state actors, including NGOs, civil society organizations, and private companies, such as law firms, also offer help with gaining access. All these types of actors can be seen as suppliers of access. Their performance has great impact on the level of access that individuals enjoy. Therefore, it is crucial to investigate and critically examine not only how these suppliers of access perform, but also the ways in which several factors influence their daily work:

  • The institutional set-up matters: Do suppliers of access have the necessary resources to help everyone in need of access?
  • History, tradition, and culture matters: How do suppliers of access interpret and apply central legal principles, such as the principle of non-discrimination?
  • Training matters: Do suppliers have sufficient knowledge regarding existing law and procedures, and do they know enough about the citizens they are supposed to help?

The list of factors that influence the functioning of the supply side of access is much longer, but at least this is a way to start: Asking critical questions about how central state and non-state actors influence effective access as part of their daily job, be it in public offices, at the local police station or in the private consultancy firm.

 

The demand side of access

It makes little sense to care for access, if access is not demanded by someone. The act of demanding access is a task that lies with citizens themselves. In the access to justice-literature, it is common to speak about individual’s ability to name, blame, and claim (Felstiner et al. 1980). This describes a three-step process in which individuals must be capable of (1) naming their problem as a legal problem, e.g. as a problem in violation of existing law; (2) blaming someone as responsible for that problem; and (3) claiming to have their case brought before a conflict resolution body, such as an appeal board or a court. Access lies in the heart of each of these three steps as they require individuals to have access to information about existing laws and the capabilities to understand how to interpret those laws and rules. And laws are not always easy to access; most ordinary people experience law as a jungle of rules, statutes, and judgements, often written in inaccessible language (Sarat 1990, Curran 2017, see also Munkholm 2020). In practice, therefore, access often depends on access to aid, consultancy, and advice from legal professionals or others working in the supply sector as described above.

Put simply, access can only be demanded by individuals, if they know that there is something to be accessed in the first place. But knowing that access is an option is not enough as several other factors impact on individuals’ ability to name, blame and claim:

  • Economy matters: Does the individual have the necessary economic means to pay for consultancy?
  • Education matters: Does the individual have the necessary skills to decode legislation or to understand and navigate in existing institutional set-ups (think, for example, of the increased digitalization in all public affairs)?
  • Politics matter: To what extent is access for all individuals prioritized by policy-makers; who is responsible for supplying access, and under what conditions are they working?

Inequality in society is thus central. If you are rich and well-educated, you are likely to have easier access to legal aid, knowledge regarding law etc. In comparison, if you are a poor, low-skilled worker, you are likely to meet more obstacles when seeking access to justice. Policies that seek to reduce overall inequality in society are therefore important means for stimulating access demands. Again, the list of factors that influence the demand side is for sure much longer, but this is a place to start: Asking critical questions about the capacities of the individual to name, blame and claim access, including the factors that shape those capacities.

 

Supply and access as interdependent

Both sides of supply and demand should be taking into account in any discussion of “access to something”, being it access to health, access to the labour market, or access to social protection. Ideally, suppliers of access should be adapting continuously to ensure that they meet present needs of individuals. Similarly, that individuals are well-equipped to and capable of demanding access should be a key priority in any society that cares for the rule of law, equality, sustainability, and democracy. The two sides are thus interdependent as access needs to be both supplied and demanded when the development of more just societies is the overall goal.

This two-fold understanding of access inform my ongoing work in JUST SOCIETY. Together with my colleagues and our partners in the Global South, I am investigating how we can improve access to welfare benefits and services for disadvantaged communities. The basic idea is that if we identify and document barriers to access, we will be better equipped for not only fighting those barriers but also contributing to the strengthening of access facilitators to the benefit of all societies and the people who work and live in them.

Louise Munkholm

 31st May 2021

 

References

Capelletti and Garth (1978) 'Access to justice: the newest wave in the worldwide movement to make rights effective' Buffalo Law Review 27: 181.

Curran (2017) ‘Lawyer Secondary Consultations: improving access to justice: reaching clients otherwise excluded through professional support in a multi-disciplinary practice’ Journal of Social Inclusion 8: 46.

Felstiner et al. (1980) ‘The emergence and transformation of disputes: Naming, blaming, claiming’ Law & Society Review 15: 631–654.

Munkholm (2020) Reinventing Labour Law Enforcement: A Socio-Legal Analysis (Oxford, Hart Publishing).

Sarat (1990) ‘The law is all over: Power, resistance, and the legal consciousness of the welfare poor’ Yale Journal of Law and the Humanities 2: 343–380.

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Last Updated 11.08.2021