3 - Some Reflections upon Access to Justice, in the Transnational Setting, as a ‘Right to Law’

Summary

The chapter presents access to justice, in the transnational setting, as a ‘right to law’. By referring to several examples and decisions of higher courts, access to justice is seen, of course, as a right and as a basic premise to the realisation of human rights. What is its conceptual consistency? As I submit, access to justice is much more than a ‘human right’, in so far as it resembles the value of a ‘right to have rights’: it is a ‘foundational right’ insofar as it features as a kind of ‘right to law’. At the same time it shows a dual nature: as a rule of law essential element or as an individual right; as a procedural or a substantive right; as a derivative or core right. Unsurprisingly, it is by upholding it in one of its different semblances that courts, legislatures, and scholars are able to enhance or downplay its potential. Finally, despite the fact that access to justice should be conceived of as a foundational right, that is, a premise to overcoming arbitrariness and lawlessness, it is often denied based on legal arguments, or in truth, prevented by observance of the rule of law: in the transnational setting, when countervailing norms endowed with alleged primacy are at stake.