The movement of landless rural workers in Brazil and their struggles for access to law and justice
Boaventura de Sousa Santos, Flávia Carlet
Ghai, Yash and Cottrell, Jill (eds.) Marginalized Communities and Access to Justice. Abingdon: Routledge, 60-82.

One day Mahatma Gandhi was asked what he thought of Western democracy. He replied: “it would be a good idea”. If Gandhi were able to return to earth today to tell us what he thought of the rule of law and access to justice, he would most certainly respond in the same way. In fact, in most countries of the world, if the notions of rule of law and access to justice were taken seriously, there would be social revolution. By privileging the dominant elites to the detriment of the vast majority of citizens, the law, and the judicial system in particular, have often been used to consolidate and legitimize social regimes that are manifestly unjust.

A dispassionate analysis of the policies used by Western nations and multilateral organizations in the last 30 years to promote rule of law and access to justice shows that these policies have done little or nothing to reduce social inequality and exclusion. Whether by coincidence or not, inequality (between rich and poor countries, and also between different social groups in particular countries) has increased significantly over this period.

However, the law and the courts, which naturally reflect society and the various conflicts being played out in it, are themselves full of internal contradictions. This means that, in certain very specific situations, they may be used successfully by oppressed and excluded social groups to further their claims. In these cases, the rule of law and access to justice may in fact play an important role in bringing about greater social justice (conceived as real, rather than merely formal, equality between citizens).

In order to understand the options available to social movements engaged in a struggle for rights, we need to look more closely at the dominant conceptions of access to justice (Cappelletti and Garth 1978). Underlying them is a depoliticized notion of social change according to which societies are based on the primacy of the rule of law and law is conceived as an autonomous normative system, designed to reduce the complexity of social conflicts and ensure the predictability of individual legal relations. Social change is achieved by promoting the operation of an effective, efficient, fair and independent legal system, which is to be accomplished by dignifying the legal and judicial professions, designing new organizational models for the courts, promoting procedural reforms and training magistrates and administrative staff (Sadek 2001). It is this conception that has presided over judicial reform policies throughout the world in the last 30 years.

If, however, social change is conceived as a political process whose aims are the gradual inclusion of marginalized and vulnerable social groups and the construction of more substantive forms of social justice, then law will be perceived as an important component of a broader political process, and one which reflects the latter’s contradictions. It will thus have to be conceived of as a semi-autonomous social system, whose function is not only to resolve disputes but also possibly to create them and will operate as a site for both the reduction of social complexity and the increase of social complexity. This will involve a major change in the ways courts see their role in society. They will be attentive to the vast range of injustices (socio-economic, racial, sexual, ethnocultural, cognitive, environmental, historical, etc.) in our societies and will assume their share of responsibility in solving the problems caused by them. This will also involve new conceptions of judicial efficiency. For instance, swift justice is not always good justice. An innovative interpretation of the law, that goes against routine but is socially more responsible, may require more time for study and reflection. Thus, from the point of view of the democratic revolution for justice, speed is not an end in itself; it has to be associated with a standard of quality of the justice (and not just quantity of justice), with greater social responsibility, so that it can become a citizens’ justice.

This means that although the law and judicial systems have traditionally been used by the dominant classes to protect their privileges, they are nevertheless not immune to social struggle. For this reason, they may, in certain circumstances, be used by oppressed or excluded social groups to combat those privileges and struggle for greater social justice. Whenever that happens, access to justice may be an important part of the “democratic revolution of justice”, oriented towards the overall democratization of the state and society. >READ FULL CHAPTER