Access to justice and human rights in Afghanistan

In anthropological and legal literature, the phenomenon termed ‘legal pluralism’ has been interpreted as a co-presence of legal orders which act in relation to their own ‘levels’ of referring ‘fields’. The Afghan normative network is generally described in terms of pluralism, where different normative systems such as customs, shari’a (Islamic law), state laws and principles deriving from international standard of law (e.g., human rights) coexist. In order to address the crucial question of access to justice, in this article, I stress the category of legal pluralism by introducing the hypothesis of an inaccessible normative pluralism as a key concept to capture the structural injustices of which Afghans are victims. Access to justice can be considered a foundational element of every legal project. Globally, the debates concerning the diffusion and application of human rights develop at the same time ideologically, politically, and pragmatically. Today in Afghanistan, these levels are expressed in all their complexity and ambivalence. It is therefore particularly significant to closely observe the work done by the Afghanistan Independent Human Rights Commission and to discuss the issue of human rights by starting from a reflection on what might be defined a socio-normative condition of inaccessibility.     

Access to justice for New Zealand health consumers

New Zealand has evolved a just, sensible and balanced system for addressing adverse medical events. This article considers potential changes to enhance justice for health consumers after an adverse event. Patient motivations for claiming are described. Changes to the complaints regime are considered with the aim of opening up access to the Human Rights Review Tribunal. Modest change only is advocated, to avoid the potential for the tribunal to become a de facto appeal mechanism. The preferable solution is greater access to Health and Disability Commissioner investigations. The second part of the article considers changes, some implemented already, to the compensation regime to make it more affordable. These will compromise the ability of the scheme to address the remedial interest of injured patients in compensation. Undesirable consequences are likely to occur across the system. Policy-makers need to consider the ramifications of change for the system as a whole.     

Access to justice: a new approach using human rights standards

This article details a trial of a new approach to measuring access to justice that utilises human rights instruments as the reference point. It involves an examination of people's actual experience of the justice system using human rights standards as the benchmark. The research project selected the right to income security. The project trialled a range of methods gathering data about how people have been treated in the Australian social security system and how they would expect to be treated if there was a human right to social security in Australia. This data is assessed against the set of standards developed to measure the enjoyment of the right to social security. The trial suggests that without knowledge about human rights and legal rights, without the confidence to exercise those rights and without the capacity or capability to seek or find help it is unlikely that people will realise their rights and accordingly access to justice is placed in question. The research methodology has the potential to be a useful model to conduct further access to justice research.     

Doing justice to justice

Adshead's recognition that only when taken together can the many different conceptions of justice accommodate what is called for in the particularly demanding setting of forensic mental health care, is to be applauded. Each must be honoured and built into the systems of assessment and treatment that are the tasks of the forensic psychiatrist, she demonstrates. Adshead's far‐reaching revisions could resolve much that is troubling about the present practice of forensic psychiatry. Yet how much these revisions can overcome the moral dilemmas associated with dual roles in forensic psychiatry, is not so clear.     

Teaching restorative justice to education and criminal justice majors

In academia, departments in Education and Sociology/Criminal Justice are in different colleges, but professionals in these fields frequently interact, such as probation officers working in schools and teachers working in prisons. This paper describes a course that addressed a commonality of the two by focusing on Restorative Justice. The content of the course was multi-disciplinary and co-taught by two professors from these different disciplines, and students were from a wide range of majors. Not only did the course content focus on Restorative Justice, this perspective guided how the course was taught. All classes were conducted within a Circle, students participated in the creation of the syllabus, students contracted for grades, and students organized many of the discussions. Emphasis was on critical analysis of Restorative Justice practices and theories. Quantitative and qualitative evaluations were provided as well as reflections by the teachers.     

Equal access to justice

Conclusion My concerns are unlikely to strike a note amongst those senior judges delivering “big justice” who will operate in the multi-track. They seldom encounter disabled people in their courts and when they do access, communication and representation problems are likely to have been sorted out at an earlier stage. But for those of us who have to deal with those earlier stages or are to (and already do) deliver “bulk justice” in the fast track and small claims courts, coping with disabled litigants is already a problem. Hitherto we have responded with insufficient care to their needs, but is it too late to hope that we may be encouraged (or better still constrained) to take into account their disclosed needs when managing cases so that civil proceedings may be conducted in a manner that is fair to all. If we do not face up to this now we could find ourselves and our courts in breach of the Disability Discrimination Act 1995 which is intended to impose the new culture on society (including our courts). The message from society is clear: a change in the culture of civil justice is required but we must not overlook the “disability factor”. A District Judge at Preston on the Northern Circuit.     

Bargaining for justice: A means to resolve competing justice claims

In many types of social situations, individuals defend their claims to a portion of the rewards by arguing that they are just. Although a great deal of research demonstrates that individuals differ in their distribution preferences and thus their beliefs about what is fair, the literature curiously omits consideration of the consequences of these differences, especially the conflict they may engender. This paper first reviews the few attempts to address such justice conflict. The limitations of these approaches suggest concerns to be addressed in an alternative framework. The paper presents a theoretical discussion of this alternative that integrates assumptions about distribution preferences, justice beliefs, conditions fostering the emergence of justice conflict, and elements of negotiation processes as a basic framework for predictions about the bargaining strategies individuals may employ to resolve competing justice claims.     

Social justice and legal justice

The main aim of this paper is to challenge the validity of the distinction between legal justice and social justice. It is argued that what we usually call legal justice is either an application of the more fundamental notion of social justice to legal rules and decisions or is not a matter of justice at all. In other words, the only correct uses of the notion of legal justice are derivative from the notion of social justice and, hence, the alleged conflicts between criteria of social and legal justice result from the confusion about the proper relationship between these two concepts. Two views about the social justice/legal justice dichotomy are of particular importance and will provide the focus for the argument: this dichotomy is sometimes identified with a classical distinction between distributive and commutative justice and sometimes with the distinction between substantive and procedural justice.     

Access to justice and the need for a holistic approach to the delivery of legal aid services in developing countries: Lessons from South Africa

Jindal Global Law Review - Legal Aid South Africa, in its previous incarnation as the Legal Aid Board, was established in 1969, and began operating in 1971. During the apartheid era the scheme had...     

The criminal justice response to wife assault

This paper reviews the criminal justice response to wife assault. By establishing a set of conditional probabilites for the reporting, detection, prosecution, and conviction for wife assault, the paper establishes that a “winnowing process” occurs that is not dissimilar to that reported for other crimes. The probability of wife assault being detected by the criminal justice system is about 6.5%. Given that it is detected, the probability of arrest is about 21.2% [comparable to a 20% arrest rate for a composite of 121 crimes reported by Hood and Sparks (1970)]. Subsequent conditional probabilities for conviction and punishment generate an aggregate probability that, given that an event of wife assault occurs, the perpetrator has a 0.38% chance of being punished by the courts. The policy implications of this review are that the greatest impact on wife assault recidivism reduction would be generated by police arrest rates regardless of court outcome. At present, however, it is not known whether this effect is produced by specific deterrence or by the didactic function of law. It is concluded that too little is known of the subjective states of wife assaulters to ascertain whether deterrence or some other mechanism accounts for the decreased recidivism reported after arrest.     

Orientations to juvenile justice: Exploratory notes from a statewide survey of juvenile justice decisionmakers

This study examined the extent to which orientations to juvenile justice held by decisionmakers are related to their functional roles and educational backgrounds. Predictions concerning this question were drawn from both the literature on complex organizations and writings by scholars interpreting and forecasting the future of juvenile justice.The findings indicate that assignment to specific roles in the juvenile justice system is a significant predictor of commitment to either a rehabilitative or a just deserts model of juvenile justice. This effect appears to be modified to some extent by educational backgrounds and professional identifications. The implications of these findings for a continuation of the traditional rehabilitative ideal in juvenile justice are discussed.