Abstract
This Chapter analyzes the possible uses of the three interpretations of equal access to justice discussed in Chap. 3 within one classic debate in the field of access to justice: the evaluation of the practical relevance of a categorical distinction between criminal and civil cases for the recognition of a right to counsel. The chapter concludes that we shouldn’t trust either one of the received interpretations to provide conclusive guidance in practical matters in the field of access to justice: each of the received interpretations misses important features of the relevant legal and social phenomena we should be ready to evaluate and, thus, requires extensive integration and qualifications by a richer set of conceptual resources.
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Notes
- 1.
This is, famously, the work of Gideon v. Wainwright, 372 U.S. 335, 344 (1963), the landmark Supreme Court decision, which first interpreted the Six Amendments’ rights of the accused, to include a categorical right to counsel. See Chap. 9 for a detailed analysis.
- 2.
Hayek (1944), p. 80.
- 3.
See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). See, for a fuller account, Chap. 8.
- 4.
Id at 344.
- 5.
See Powell v. Alabama, 287 U.S. 45 (1932).
- 6.
Id at 45.
- 7.
Ibid. at 46.
- 8.
Ibid. at 47.
- 9.
Ibid. at 48.
- 10.
Ibid.
- 11.
Ibid.
- 12.
Sutherland’s insistence on the petitioners’ ‘ignorance’, ‘illiteracy’, and ‘youth’ should tell us something else as well, which is of especially great value, I would submit, for the access to justice scholar: the tendency of powerful people (e.g., a US Supreme Court justice) to ridicule, or even insult, or in any case underestimate, less powerful people (a group of black teenagers on a freight train travelling through the southern states in the 1930s) even when the powerful person is very attentive in construing a well-meaning argument which could empower the former, going as far as to condition the argumentative work of his well-meaning argument to such ridicule, insult, or underestimation.
- 13.
References
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Engel, D., and F. Munger. 2003. Rights of inclusion. Chicago: University of Chicago Press.
Goffman, E. 1963. Stigma: Notes on the management of spoiled identity. London: Penguins Books.
Hayek, F.A. 1944. The road to Serfdom. Chicago: University of Chicago Press.
Silbey, S. 2005. After legal consciousness. Annual Review of Law and Social Science 1: 323.
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Segatti, M. (2024). Duties of Assistance and the Criminal/Civil Distinction. In: Equal Access to Justice. Law and Philosophy Library, vol 145. Springer, Cham. https://doi.org/10.1007/978-3-031-52939-9_4
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