… The publication of this book represents the success of political and social movements that have shaped the expectations, practices, culture, and laws of dispute resolution systems in the last centuries and, more recently, have brought to the fore concerns about a ‘justice gap’, as demand exceeds the supply of responders.
But demand for what? The core questions include what kinds of harms merit legal recognition as well as whether, were all claimants able to obtain a response, the resulting procedures would be part of a civil legal system worth calling ‘just’. How does one measure whether the quantum of legal protection and the invocation of those rights and entitlements are optimal or reflect under-protection, over-protection, under-claiming or over-claiming? What factors are the bases for assessing the various processes espoused or criticized? What are the baselines for assessments of outcomes? What are the vantage points from which to understand the civil legal system and to make judgments about whether a system is just or unjust?
In this brief commentary, I step back to ask prior questions about the normative aspirations, the doctrinal mandates, and the pragmatics of contemporary civil justice systems. I explore some of the law and the political economy of the choices pursued under the rubric of ‘paths to a civil justice system’, as I underscore three interrelated facets to be taken into account when assessing the justice of a legal system …
Resnik, Judith, Constituting a Civil Legal System Called ‘Just’: Law, Money, Power, and Publicity (November 2, 2020) in New Pathways to Civil Justice in Europe (Xandra Kramer, Alexandre Biard, Jos Hoevenaars and Erlis Themeli, eds), Springer, 2020.