Unmet Legal Needs: Identification and Rich Descriptions

This Chapter begins to introduce the vocabulary of a Capabilities Approach (CA). The chapter discusses the first, most basic, contribution of a CA to the access to justice scholar. A CA is useful in the field of access to justice, the chapter argues, because it offers a pertinent and refined vocabulary, which can be used for rich descriptions of the relevant social phenomena. The argument is framed by showing, first, the limitations of existing empirical approaches in providing one with the relevant pieces of information for evaluating a jurisdiction’s successes, or failures, in protecting equality in access to justice. The chapter discusses ‘litigation-rates’ studies, the gradual evolution of investigations on so-called ‘unmet legal needs’, and ‘transformation-studies’ in dispute-processing. Then, the chapter introduces a suitably general definition of a CA, as a way of integrating the insights of previous approaches and overcoming their limitations. This is not just a terminological quarrel: a CA’s vocabulary (its distinction between capabilities and functionings, and its distinction between basic, internal, and combined capabilities) helps the access to justice scholar to identify the most relevant ‘informational-focus’ on access to justice; and then express the underlying evaluative choices called forth by such identification in a clear and explicit way.