Legal Theory: Facilitating Access to Justice in the Legal System

This essay provides a legal analysis and critique, focusing on the significance of legal theory in enhancing access to justice, particularly for economically disadvantaged individuals within the Australian legal system. It includes a legal research diary evaluating the relevance and reliability of sources, followed by an essay discussing how understanding legal theory facilitates critical analysis of issues related to access to law and justice. The essay explores legal realism and its challenges to the rule of law, emphasizing the importance of legal knowledge in addressing the barriers faced by disadvantaged individuals. It highlights the need for equal access to legal services and opportunities, regardless of economic status, and concludes that developing legal awareness can help include marginalized communities in the legal system. References to various sources and legal theories support the arguments presented.

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LEGAL ANALYSIS AND CRITIQUE

Table of Contents
PART A......................................................................................................................................3
Legal Research Diary.................................................................................................................3
PART B ESSAY........................................................................................................................6
Introduction................................................................................................................................6
Discussion..................................................................................................................................6
Conclusion..................................................................................................................................9
References................................................................................................................................10

PART A
Legal Research Diary
Addition
al
Source 1
Schetzer, Louis, Roberto Buonamano and Joanna Mullins, "Access To Justice &
Legal Needs." (Law & Justice Foundation, 2002)
<http://www.lawfoundation.net.au/ljf/site/articleIDs/012E910236879BA
ECA257060007D13E0/$file/bkgr1.pdf>
Addition
al
Source 2
Law Council of Australia, "People Experiencing Economic Disadvantage."
(2017) <https://www.lawcouncil.asn.au/files/web-pdf/Justice
%20Project/Consultation%20Papers/People%20Experiencing
%20Economic%20Disadvantage.pdf>
Addition
al
Source 3
Chapman, Peter and Alejandro Ponce, "How Do We Measure Access To Justice?
A Global Survey Of Legal Needs Shows The Way" (Open Society
Foundations, 2018)
<https://www.opensocietyfoundations.org/voices/how-do-we-measure-
access-justice-global-survey-legal-needs-shows-way>
Which of
these 3
sources
are you
critically
evaluatin
g?
Schetzer, Louis, Roberto Buonamano and Joanna Mullins, "Access To Justice &
Legal Needs." (Law & Justice Foundation, 2002)
<http://www.lawfoundation.net.au/ljf/site/articleIDs/012E910236879BA
ECA257060007D13E0/$file/bkgr1.pdf>
Criticall
y
evaluate
The source is relevant to the topic of essay in a manner that it is also about
addressing the legal requirements of the society as well as to develop access to

the
relevanc
e and
reliabilit
y of that
source.
justice by the public specifically the economically disadvantaged people.
In addition, the source investigated the access to justice and legal necessities of
people experiencing economic disadvantage in New South Wales which
established closure relevancy with the assignment topic as it is also based on the
legal system of Australia.
The source has discussed about how people experiencing economic disadvantage
are kept away from the process of legal decision making and lack participation in
legal processes taking place in the legal system of Australia. In a similar manner,
the topic of essay is about the significance of legal knowledge and its application
to resolve such issues being faced by the people experiencing economic
disadvantage.
The source has discussed about the issues faced by the economically and socially
disadvantaged people while the topic of essay is only to discuss about the
economically disadvantaged people. The mere difference is this otherwise all
other aspects are similar. However, in the essay, I have related the matter to legal
awareness and knowledge and how it helps in developing awareness among
specified group of people.
In this manner, the source is highly relevant to the topic of essay.
Explain
the
methodo
logy you
used to
locate
that
In order to locate the source, I types “Access to Justice and legal needs” and
searched it on Google. However, there were so many related articles and
websites. I considered the first one the authors of which are Schetzer, Mullins &
Buonamano (2002). It was the first article that appeared on the search list.

source,
includin
g
screensh
ots of the
searches
you
perform
ed to
locate
that
source
Screenshot:

PART B ESSAY
Introduction
The agreement to promote ‘rule of law’ at national as well as international level ensure equal
access to justice for all without any discrimination on the basis of age, gender, or economic
status. The justice systems along with the rule of law contribute to sustainable development
as well as comprehensive progress and growth. The accessibility and efficiency of the justice
services directly influence the manner of resolution of employment and land disputes, in
promoting accountability of the government and decision making of the businesses to invest
and establish contractual relationships. The citizen-oriented access to justice framework
requires conceptualization of legal and justice requirements of the people. As a general
modernization goal to increase efficiency within the justice sector, to meet legal and justice
requirements is considered as a fundamental mechanism for nurturing access to justice. The
effective understanding of the legal theory facilitates critical analysis of the issues related to
the access of law and justice in the legal system of a country.1 This essay is aimed to
contribute to the improvement of fair and impartial justice system to address the needs and to
improve access to justice by economically disadvantaged people, by gaining effective
understanding of the legal theories.
Discussion
Legal Realism posed challenge to the rule of law theory regarding clear, stable and
conventional legal rules applied by the judges without taking into consideration, the social
status or conditions. The rule of law opposes decisions of courts because court decisions state
the will of judges instead of law. If the laws are made on the basis of point of view of judge
1 Louis Schetzer, Roberto Buonamano and Joanna Mullins, "Access To Justice & Legal Needs." (Law & Justice Foundation,
2002) <http://www.lawfoundation.net.au/ljf/site/articleIDs/012E910236879BAECA257060007D13E0/$file/bkgr1.pdf>.

about appropriate policy, the faith of people in the law and justice system would decline.2 But
the judicial system or the Legal Realism does not settle the opposing requirements of the
legal adaptation as well as legal certainty. As per American Realists, judges are considered to
be as the creators of law actually as they deliver judgment on the basis of various ideals,
traditions and opinions to bring the law to the surge of society.3
There are various approaches for the measurement of disadvantage and relevant indicators are
poverty, deprivation, and exclusion. It means the people experiencing economic disadvantage
have low income due to which, they lack essentials in life and are not provided with the
opportunity to participate in various economic, social and political activities due to poverty.4
It is essential for the people experiencing economic disadvantage to acquire legal assistance
which includes availability of legal information, legal aid and advice as well as legal
representation as and when required.5 It is their right to partake effectually in the legal system
which includes access to courts and official alternative dispute resolution processes. They
must have the right to obtain non-legal support and to partake effectually in law improvement
processes.6
Better understanding of legal theories facilitate deeper understanding of law and better
analysis of the issues related to access of law to the disadvantaged people in the legal system
of Australia.7 Through legal knowledge, one can gain in-depth knowledge about the legal
problems being faced by the disadvantaged people, availability of services as well as
processes to deal with such problems, barriers arising in easy access of law and justice, and
2 OECD, "Understanding Effective Access to Justice" (OECD Conference Centre, 2016)
<http://www.oecd.org/gov/Understanding-effective-access-justice-workshop-paper-final.pdf>.
3 American Legal Realism (Western Sydney University, 2018).
4 Asher Flynn and Jacqueline Hodgson, "Access to Justice and Legal Aid" (Hart Publishing, 2017)
<https://www.bloomsburyprofessional.com/uk/access-to-justice-and-legal-aid-9781509900848/>.
5 Law Council of Australia, "People Experiencing Economic Disadvantage." (2017)
<https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Consultation%20Papers/People%20Experiencing
%20Economic%20Disadvantage.pdf>.
6 Rosalie McLachlan, Geoff Gilfillan and Jenny Gordon, "Deep And Persistent Disadvantage In Australia" (Australian
Government Productivity Commission, 2013) <https://www.pc.gov.au/research/supporting/deep-persistent-disadvantage>.
7 Ben Phillips, Riyana Miranti and Yogi Vidyattama, "Poverty, Social Exclusion And Disadvantage In Australia" (University
of Canberra, 2013) <http://www.natsem.canberra.edu.au/storage/Poverty-Social-Exclusion-and-Disadvantage.pdf>.

the benefits of services and processes not being provided by the Australian legal system to
the economically disadvantaged people.8
As it had been opposed by Oliver Wendell Holmes Jr., a legal realist, that the courts play
significant role in the process of development of law because according to him, law has not
been based on logic but on experiences.9 The world is continuously experiencing change and
by the time the laws and regulations adapt itself to the world, the world has already
progressed to another level. The value of legal progress is one of the major structural
components of social evolution, which suggests more relevance of law to the experience
instead of logic. The law should be regarded as merely one feature of the society, however,
majority of sociologists do not agree with the idea of value-free explanation of law and
consider it as a controversial matter because one cannot escape their values while describing
something. So, they are more concerned about analysing and interpreting the contribution of
law and legal administration in affecting certain forms of behaviours or conduct. The
effective knowledge about legal analysis and interpretation develops a view that all the
sections and strata of society should be equally considered before law and they should not be
discriminated on any basis in the eye of law.10
However, the prospective to search for the legal resolution to a problem shows legal need, the
decision not to do so does not mean non-existence of legal need. An individual might prefer
to solve their problem by themselves or through other alternative ways of dispute resolution
instead of taking the matter to the court. It cannot be concluded that individual does not have
legal need. In certain circumstances, even if an individual prefer to have alternative to the
legal system to resolve the issue, they might perceive taking the matter to the courts and
8 Peter Chapman and Alejandro Ponce, "How Do We Measure Access to Justice? A Global Survey of Legal Needs Shows
the Way" (Open Society Foundations, 2018) <https://www.opensocietyfoundations.org/voices/how-do-we-measure-access-
justice-global-survey-legal-needs-shows-way>.
9 Law And Social Theory (Western Sydney University, 2018).
10 Michelle Cunningham, David Orsmond and Fiona Price, "Employment Outcomes Of The Economically Disadvantaged"
(Reserve Bank of Australia, 2014) <https://www.rba.gov.au/publications/bulletin/2014/mar/3.html>.

tribunals to be a cumbersome and expensive process.11 They might sometimes be concerned
about the financial resources as well as time consuming. Majority of studies based on ‘access
to justice’ emphasize that legal needs presume that individual becomes able to identify when
they actually have legal need. In the year 1998, the Law Society of NSW, in its access to
justice review, focused on the right to partake in the justice system supported by the leading
light that the justice system is perceived to be accessible and inexpensive, is easily
understood, and is efficient, just and effective. It suggests that fulfilling legal needs is
restricted to the matter of ability to participate in the justice system.
In 1994, the Access to Justice Advisory Committee was appointed by the Commonwealth
Government. The Committee specified that the concept of ‘access to justice’ comprises of
three elements i.e. equality of access to legal services, national equity and equality before
law. The first element which is, equality of access to legal services guarantee access to
quality legal services to all regardless of means for the purpose of protecting their rights and
interests. National equity guarantees that all can enjoy equal access to the legal services as
well as to legal service markets. Equality before law guarantees all to be entitled to equal
opportunities in various aspects such as education, employment, access to services and many
more, regardless of race, culture, gender or disability.12
It suggests that through reading and gaining knowledge about the legal theories and practices,
the issues being faced by the people experiencing economic disadvantages can be identified
and its resolution can also be realized.
11 Australian Institute of Health and Welfare, "Australia’s Health 2016" (Australian Institute of Health and Welfare, 2016)
<https://www.aihw.gov.au/getmedia/9844cefb-7745-4dd8-9ee2-f4d1c3d6a727/19787-AH16.pdf.aspx?inline=true>.
12 Rhys Price-Robertson, What Is Community Disadvantage? Understanding the Issues, Overcoming the Problem (2011)
Child Family Community Australia <https://aifs.gov.au/cfca/publications/what-community-disadvantage-understanding-
issues-ov>.

Conclusion
Better understanding of legal theories facilitates critical analysis of the issues regarding
access to law and justice in the legal system of Australia. It has been proved that knowledge
about the legal theories and practices assist individuals in dealing with legal issues arising in
the society in a lawful manner. In context of economically disadvantaged people, it has been
realized that they do not have equivalent access to law and justice in the society but by
developing legal awareness among them, they could be included in the legal circumference
and could possibly be made significant part of the society from legal perspective.
References
Australian Institute of Health and Welfare, "Australia’s Health 2016" (Australian Institute of
Health and Welfare, 2016) <https://www.aihw.gov.au/getmedia/9844cefb-7745-4dd8-
9ee2-f4d1c3d6a727/19787-AH16.pdf.aspx?inline=true>
Chapman, Peter and Alejandro Ponce, "How Do We Measure Access to Justice? A Global
Survey of Legal Needs Shows the Way" (Open Society Foundations, 2018)
<https://www.opensocietyfoundations.org/voices/how-do-we-measure-access-justice-
global-survey-legal-needs-shows-way>
Cunningham, Michelle, David Orsmond and Fiona Price, "Employment Outcomes of the
Economically Disadvantaged" (Reserve Bank of Australia, 2014)
<https://www.rba.gov.au/publications/bulletin/2014/mar/3.html>
Flynn, Asher and Jacqueline Hodgson, "Access to Justice and Legal Aid" (Hart Publishing,
2017) <https://www.bloomsburyprofessional.com/uk/access-to-justice-and-legal-aid-
9781509900848/>

Law Council of Australia, "People Experiencing Economic Disadvantage." (2017)
<https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Consultation
%20Papers/People%20Experiencing%20Economic%20Disadvantage.pdf>
McLachlan, Rosalie, Geoff Gilfillan and Jenny Gordon, "Deep and Persistent Disadvantage
in Australia" (Australian Government Productivity Commission, 2013)
<https://www.pc.gov.au/research/supporting/deep-persistent-disadvantage>
OECD, "Understanding Effective Access to Justice" (OECD Conference Centre, 2016)
<http://www.oecd.org/gov/Understanding-effective-access-justice-workshop-paper-
final.pdf>
Phillips, Ben, Riyana Miranti and Yogi Vidyattama, "Poverty, Social Exclusion and
Disadvantage in Australia" (University of Canberra, 2013)
<http://www.natsem.canberra.edu.au/storage/Poverty-Social-Exclusion-and-
Disadvantage.pdf>
Schetzer, Louis, Roberto Buonamano and Joanna Mullins, "Access To Justice & Legal
Needs." (Law & Justice Foundation, 2002)
<http://www.lawfoundation.net.au/ljf/site/articleIDs/012E910236879BAECA257060
007D13E0/$file/bkgr1.pdf>
Price-Robertson, Rhys, What Is Community Disadvantage? Understanding The Issues,
Overcoming The Problem (2011) Child Family Community Australia
<https://aifs.gov.au/cfca/publications/what-community-disadvantage-understanding-
issues-ov>