Concept of legal need
Research on legal problems has often proceeded without explicit, detailed definitions of the concepts of legal need and access to justice (Coumarelos et al. 2006; Schetzer, Mullins & Buonamano 2002). These concepts have increasingly expanded from initially narrow definitions as successive reforms have been made to the justice system. This relationship has been a dynamic one. As views about legal need and access to justice have evolved, the justice system has been reshaped by legislative and institutional transformations specifically intended to provide greater access to justice and to better meet legal need. Justice system reforms have also influenced the concept of access to justice and the nature of legal needs research.
Macdonald (2005) identified several waves of thinking about the concepts of legal need and access to justice which have mirrored progressive justice system reforms in Canada. Traditionally, access to justice was defined rather narrowly as access to lawyers and redress through the courts. Accordingly, early justice system reforms focused on ensuring equal access to lawyers and the courts through the provision of legal aid and community legal centres (CLCs). Subsequent reforms included correcting inadequacies within the court and legal aid systems, demystifying the law through the plain language movement and public legal information and education, enhancing preventative law through alternative dispute resolution processes, and increasing public participation in law reform. In line with such reforms, the concept of access to justice has been extended to include access to legal information, legal education, non-court-based dispute resolution mechanisms and law reform.
Similar justice system reforms have occurred in Australia, dating from the 1970s. They include the development of state-funded Legal Aid and CLCs, and significant changes to the law, such as the Family Law Act 1975
, as well as increased focus on alternative dispute resolution and public legal information and education. Concurrently, the concept of access to justice in Australia has also expanded beyond access to the formal justice system.(3)
Reflecting the initial narrow view of access to justice, early legal needs research focused heavily on assessing access to lawyers and the courts (Currie 2007b; Genn 1999; Griffiths 1977; Pleasence et al. 2004c; Royal Commission on Legal Services 1979). This narrow approach to legal needs research has been criticised for ignoring legal issues that are resolved outside the formal justice system or remain unresolved (Currie 2007b; Genn 1999). The narrow approach mistakenly implies that failing to seek traditional legal resolution suggests the absence of legal need. This failing may also indicate a lack of awareness that the problem has potential legal remedies,(4)
failings in the legal system which impair legal resolution and the use of non-legal means of resolution (Schetzer et al. 2002).
The movement away from the narrow approach to legal needs research was pioneered by the ABA (1994, p. ix), which did ‘not assume that ... “legal need” required the involvement of the legal/judicial system for resolution’ but also examined resolution via other mechanisms. Genn’s seminal Paths to justice study
in the UK (Genn 1999; Genn & Paterson 2001) further broadened legal needs research by more comprehensively examining a variety of non-legal advisers. Genn (1999, p. 12) used the concept of ‘justiciable’ problems to broadly identify circumstances where there is the potential for legal resolution. She defined a justiciable problem as a:
matter experienced by a respondent which raised legal issues, whether or not it was recognised by the respondent as being ‘legal’ and whether or not any action taken … to deal with the event involved the use of any part of the civil justice system.
Genn’s justiciable problem approach involves designing the survey questions to describe specific problematic circumstances that potentially have legal consequences and remedies without explicitly labelling them as ‘legal’ problems. Respondents are asked whether they have experienced these problems but are not required to judge if these problems have any legal implications. Thus, this approach allows for the inclusion of a broad array of legal problems, including those that:
- are not recognised as legal problems by the respondent
- potentially have legal resolution that is unknown to the respondent
- are resolved outside the formal justice system or by non-legal means
- are ignored or remain unresolved.
Genn’s (1999) justiciable problem approach is similar to that of the ABA (1994), which also detailed relevant situations without labelling them as legal needs. Genn’s approach has a number of advantages over the more traditional narrow approach. First, by broadening the scope of legal problems beyond those resolved within the formal justice system, it allows more accurate estimates of the incidence of legal problems (Coumarelos et al. 2006). Second, it potentially provides a more comprehensive assessment of all the different pathways used for the resolution of legal problems, including both legal and non-legal pathways.
In addition, Genn’s (1999) broader approach provides a firmer basis for understanding both ‘expressed’ and ‘unmet’ legal need. Expressed legal need refers to the ‘supply’ or ‘demand’ side of legal need. It is widely accepted that by seeking legal information, advice or assistance a person is expressing a legal need. The narrow approach is restricted to legal need that is expressed via the use of traditional legal processes. Genn’s approach expands the concept of expressed legal need to include the use of non-traditional legal resolution strategies (e.g. alternative dispute resolution) and non-legal resolution strategies (e.g. solving a dispute with neighbours by moving home).
Although expressed legal need can be estimated using survey methodology, it can also be measured through the collection of data on the use of legal services. Such data can build an invaluable picture of the demographic groups that access particular legal services, the nature of their expressed legal needs, the pathways they follow and the outcomes they achieve (e.g. Scott, Eyland, Gray, Zhou & Coumarelos 2004). However, such data cannot estimate legal need that is expressed outside the legal system or the level of unmet legal need in the community. Unmet legal need can be measured only via survey methodology.
Dignan (2004) proposed that the best practical working definition of unmet legal need is that it constitutes a gap between experiencing a legal problem and satisfactorily solving that problem. Unmet legal need includes legal problems that are not resolved because individuals are unaware of their legal rights or are somehow constrained from asserting those rights. Dignan contended that constraints to resolution can arise from individual, social or economic circumstances that affect a person’s capability to resolve a legal problem, as well as from failings of the legal system which act as barriers to effective resolution. He also asserted that doing nothing to resolve legal problems or resolving legal problems outside traditional legal services constitutes unmet legal need only if satisfactory resolution is not reached.
Constructing a definitive measure that quantifies unmet legal need is difficult, and, to date, there is no agreed-upon measure, despite a few proposed measures (e.g. Dignan 2006; Ignite Research 2006; Legal Services Agency 2006). The difficulty in quantifying unmet legal need largely reflects the complexity in defining all situations which constitute legal problems, and the subjectivity in determining the precise outcomes that would constitute satisfactory resolution of each specific problem. Nonetheless, a broader approach to legal needs research provides a better starting point for quantifying unmet legal need. At best, the traditional narrow approach can estimate the level of unmet legal need resulting from only legal problems that remain unresolved despite access to a lawyer or the justice system. Using a broader approach, unmet legal need can be better estimated as legal problems that remain unresolved or are resolved unsatisfactorily, regardless of whether any action is taken and regardless of whether there is any involvement of lawyers or the justice system.
3. For example, the concept of access to justice adopted by the LJF includes the ability to obtain legal information, advice and assistance; access courts, tribunals and alternative dispute resolution mechanisms, obtain non-legal advocacy and support, and participate effectively in law reform processes (Schetzer et al. 2002).
4. Throughout this report, the term 'legal remedies' is used to encompass remedies obtainable in accordance with rules of law, including determinations and orders under common law, equity and legislation made by courts, tribunals or authorised administrative officers, and negotiations backed by the possibility of legal proceedings (see Walker 1980).