Free Legal Counsel and Access to Justice

This chapter begins with a discussion of the challenges that courts have traditionally faced in trying to expand the coverage and scope of the right to counsel, as an element of equal access to justice for all (or, at least, its partial aspects which are explicitly recognized in national constitutions). In particular, the chapter provides an account of the different approaches followed by the US Supreme Court (before and after its decision in Gideon v. Wainwright), and by the European Court of Human Rights (in interpreting the requirements of art. 6 of the European Convention of Human Rights). The analysis identifies two observation-concepts, which have been recently developed within a CA (namely, the idea of fertile-functioning and the idea of corrosive-disadvantage) and argues that both can play valuable functions in public discourse over the allocation of access rights (including the right to counsel). Finally, I conclude by sketching alternative institutional models for the delivery of the right to counsel and, then, by proposing a tentative assessment of their potentialities and limitations, leveraging the practical insights of the previous discussion.