Having a Say: Democracy, Access to Justice and Self-Represented Litigants

Access to Justice is one of the most contested issues on the law-and-society agenda. There is a long-standing exchange over its meaning, objectives, and success. Beneath that engagement, there is a deeper and more basic debate about the overall ambitions for access to justice: is the goal to improve peoples access to the legal process and generate more positive outcomes (the practical thesis), or to enhance peoples participation and ultimately their ability to affect justice as an end in itself (the democratic thesis)? This thesis adopts the latter approach. The plight of self-represented litigants (SRLs) offers a revealing glimpse into the more systemic failings of the litigation process. This thesis builds on original qualitative work that explores SRLs experiences and circumstances in their own voices. The challenges presented by their growing numbers bring into question the whole basis for understanding and advancing the debate on access to justice. Indeed, existing ways to understand access to justice are found to be seriously lacking. Instead, a fresh agenda of questions and answers recommend themselves to deal with the new realities of the existing legal process. The existence of SRLs does not simply create difficult challenges within the legal process, but presents a huge and subversive challenge to the legal process itself. Due to this disconnect between the theory and realities of litigation, any progress in improving access to justice demands a transformed approach to further study and policy analysis. Responding to this new state of affairs is not easy or straightforward. But it must be done if the drive for better access to justice is to make significant and meaningful headway. Consequently, this thesis contributes to the theory and practice of access to justice by shifting the discourse about what access to justice should be and how it might be pursued. The democratic approach advocated seeks to encourage the meaningful participation by SRLs in the legal and political processes and institutions that impact their lives. In doing so, the hope is to challenge the existing litigation framework and ensure that democratic rhetoric matches reality in the pursuit of access to justice.