ACCESS TO JUSTICE AND LEGAL PRAGMATISM

CONVERGENCES AND CONFLICTS IN THE EFFECTIVENESS OF LAW

Abstract

The purpose of this paper is to examine the relationship between access to justice as a fundamental right and legal pragmatism, most notably that developed by Richard Posner. The study aims to determine whether there is compatibility – or conflict – between the guarantee of access to justice and the pursuit of effectiveness through a results-oriented justice, as advocated by pragmatism. To address this issue, the evolution of the concept of access to justice over time will first be analyzed, particularly in light of the seminal work of Mauro Cappelletti and Bryant Garth. Subsequently, a brief historical overview of the paradigms of legal thought will be outlined, moving from natural law and legal positivism to post-positivism, the framework within which legal pragmatism arises. Within this context, Richard Posner’s pragmatist theory will be examined in greater depth. Finally, potential points of convergence and conflict between access to justice and legal pragmatism will be identified, particularly with regard to the effectiveness of rights.