Expanding Horizons: Rethinking Access to Justice in Canada

Appendix B

Appendix B

Citizen Access to Justice: Issues and Trends for 2000 and After

Mark Kingwell, University of Toronto
(Prepared for the Symposium: Expanding Horizons: Rethinking Access to Justice.
Hosted by the Deputy Minister of Justice and Deputy Attorney General of Canada.
March 31, 2000, Ottawa, Ontario)

Introduction

In this short paper I am going to identify some key issues and trends for access to justice as Canadians enter the twenty-first century. This is not an exercise in prognostication or futurism, but instead an attempt to characterize matters that already concern us, and will likely continue to do so in the years to come, as we struggle to make Canada a more just nation.

I write from a particular perspective, that of the political philosopher and social critic. I will not assess here the current state of federal policy, or summarize the recent access-to-justice literature, tasks for which I am not competent in any case. Nor will I mainly focus on the specific issue of access to the justice system. My intention is, instead, to offer a survey of some larger-scale ideas that might help us think more productively about access to justice, beginning with some deeper reflections on what justice itself is, and why we, as citizens, need to feel that channels of accountability and influence are open to us in pursuit of a just society.

It is important to state immediately, as a baseline assumption, that access to the justice system must be part of any just society; and that, moreover, Canada's record in this regard is not as enviable as some complacent politicians would have us believe. Despite the worthy efforts of legal aid programs and other measures aimed at more general distribution of this key social good, it is still the case in this country that those with greater financial means consistently enjoy greater access to, and wield more influence within, the machinery of law and the courts. Not every part of justice is about going to law, as I will argue below; but if many of us still cannot afford to fight a legal battle, or defend ourselves formally, when that is the appropriate course of action, then we cannot rest content about the larger questions of justice. As always, the courts are a limit-case of whether a given citizen is being served by the social system to which he or she belongs.

In the remainder of this paper I will focus on the following five main trends and issues. (1) The still-growing diversity of Canada as a nation, and the changing face of the global population of which it is a part. (2) The growing globalization of political experience, consequent upon the globalization of economic and cultural life, and a resulting decline of faith in national sovereignty. (3) The complex isomorphic relationship between cultural and political experience – a relationship swiftly changing, now up to the global level. (4) The role of technology, and access to technology, in political life. And (5) The possibility of new forms of citizen action, and access to justice, in our speedy times.

In the space available I will only be able to sketch the issues in outline, but I hope these sketches, necessarily so brief in this form, will lead to further discussion.

1. Diversity

Canada has an enviable record in accommodating cultural and ethnic diversity within its evolving form of federalism. In this sense, it is a success story in the contemporary problem of making liberal states responsive to the challenges of a changing citizen base. But Canada still falls short of true accommodation of difference, especially in crucial justice-based areas such as the legal profession and the court system. (Also the universities, government more generally, and many professions.)

The basic insight of liberalism, the dominant form of modern political theory, is that states are legitimate if and only if they provide room for differences of opinion with respect to how one may live. At the inception of the European modern era, this principled tolerance was directed mainly, if not exclusively, towards the issue of religious diversity, and was in large measure a pragmatic solution to the problem of bloody wars based on sometimes arcane theological disagreements. (That a disagreement is arcane is not, as history shows, any reason for the resulting conflict to be any less serious, or less violent.) Early liberal theorists such as Locke and Spinoza argued that a society might tolerate different routes to salvation, as a matter of personal interest, so long as basic structural matters such as property and contract were secured centrally. Gradually, the idea that any state should have a single, comprehensive theological or philosophical basis – a "perfectionist" view of its citizens – was replaced by the idea of the state as a guarantor and guardian of basic rights, with personal matters left to private reflection.

This is crude summary. In practice, many old ethical and religious conflicts continued and many new ones entered. The liberal solution to diversity has never been perfect, and has lately been challenged by particularistic claims made on behalf of groups who feel marginalized by the central tenets of the liberal orthodoxy: women, gays, people of colour, First Nations. By the same token, religious differences have lately been supplemented by differences in culture, race, gender, and sexuality as issues in political accommodation. This has forced liberal states to be flexible and open-ended, and to find new forms of compromise among citizens who may share only very little in the way of basic ethical commitments.

It thus begins to make sense to speak of "liberaloid" rather than liberal states: ones that manage to combine quite substantive central documents such as the Canadian Charter of Rights and Freedoms (which goes beyond the minimalism of classical liberalism) with looser forms of citizen identity that demand little in terms of agreement or central identity. Given the growing diversity of our population, and the changing face of the global population, where those of European descent are in a shrinking minority, this open-endedness is appropriate and necessary.

There is, however, a lag in responsiveness to this diversity within institutions, in particular institutions that are designed to be preservative. For present purposes, the Canadian court system is a good example. While there have been substantial gains made in recent years by women, people of colour and Native Canadians, they are still dramatically underrepresented on the country's benches. In ways sometimes too subtle to measure, this affects the quality of justice available to many citizens of this country.

It also, more deeply, opens up the question of whether Canada as a society is being sufficiently responsive to the growing range of cultural and ethnic differences that mark the Canadian population. Canada has proved itself comparatively welcoming to people from elsewhere in the world who want a better life. A persistent challenge as we move into this new period of our history will be to follow through on that welcome, to make the social and political infrastructure of the country a reflection of the many kinds of people who choose to call themselves Canadian.

2. Globalization and Citizenship

The other side of our relatively open immigration policy, the side facing outward rather than inward, poses a different kind of challenge. It means that we must now reconceive our justice commitments externally as well as internally. Such rethinking is likely to alter our sense of what it means to be a citizen of Canada -- or of any other currently existing country.

It is a commonplace today to note that old ideas of civic belonging no longer compel our attention or answer our needs. Nevertheless, it is a commonplace worth repeating, and one that has special resonance for the question of access to justice. The political structures to which the old ideas of civic belonging are wedded, including national governments and their routine exchanges of services in return for tax loyalty, are not yet dead. But they are suffering -- and they are often as nothing compared to the real powers of our world, the real centres of loyalty and identity for most people: corporations. (That loyalty is, to be sure, quite often misplaced or undeserved.)

Corporations and firms have not simply taken over the structures of production and consumption. They have also, in extreme cases, usurped our private selves and our public spaces. They have, furthermore, created bonds of belonging far stronger than any fractured, tentative nation could now hope to offer. They provide structures of identity and loyalty, ways of making sense of one's place in a complex world. They are also far more powerful, and richer, than many nations: the annual budget of France was only three-quarters of the combined value of America OnLine and Time Warner when those two media giants merged in January 2000, and Kmart's 1998 U. S. sales were equal the estimated budget of the entire Russian military.

But corporations are not democratic, and they do not possess the political legitimacy that is necessary to justify that kind of power. We have global markets, however unjust and skewed; and we have a global culture, however banal and enervating. What we don't have, but desperately need, is a global politics to balance and give point to these de facto universal facts.

These issues are relevant to access to justice because the abrupt restructuring of power vectors around the world has meant, in many cases, a drastic diminution of national sovereignty and, hence, a reduction in the ability of national governments to meet the needs of their own citizens. Countries that were formed in the eighteenth- and nineteenth-century rounds of unification, or emerged in strength after the upheavals of world war in this century, no longer appear viable. In many cases, including Canada, the nation of yesterday is increasingly reduced to the economic colony of today, beholden to markets that have no respect for sovereignty. A member of the G7 (G8 if that other crumbling nation-state, Russia, is invited; or even G20 in a later formulation), Canada nevertheless lacks power in arranging its own affairs.

What this means for citizens is not yet obvious. Should they seek accountability, and hence justice, at other levels of governance, as when protesters organized against the World Trade Organization meetings in Seattle in 1999 (the first significant acts of post-national citizenship)? Or should they continue to seek access to the resources actually commanded by their national government, even as those resources become more attenuated and unreliable? Undoubtedly the immediate future holds the challenge of finding complex, multi-tasking forms of citizen action in the service of justice: we will have to tailor demands for accountability and just distribution of social goods at the appropriate level, the level where action is most likely to call forth a meaningful response.

Clearly this situation will get more complex before it gets simpler -- if it ever gets simpler. Access to justice, no less than any aspect of life now, cannot be restricted in scope to the national level. Our demands for justice are always tempered by the needs of other citizens: that, after all, is a key part of what it means to be a citizen in the first place. The mounting challenge in this new century is going to be finding ways of making sense of citizenship on a trans-national, possibly post-national, scale even as we struggle, as always, to make our local environments civil, well-ordered, productive and pleasant. One likely outcome -- one which, like much of what I am discussing here, is already true in many respects -- is that, as the national level of social organization declines in importance, municipal and transnational levels of organization (or, more accurately, governance) will experience a twinned increase in influence.

3. Culture and Conflict

Given these changes on the larger scene, it is time to accept that we cannot address the political emptiness of our de facto global culture by simply continuing the talk about nations and their laws, or conversely by confining political debate to the local level, however proximate and significant it may appear to us. Those moves, which made sense when the world was still dominated by the nation-state model of a century ago, today simply surrender the larger field to the power of corporations to create and dominate markets, to rape the environment, and to amass profit without regard for the labour which actually creates wealth.

So much is probably obvious. What is not obvious to many people is what, precisely, we can do about it. The task for any useful theory of citizenship now is therefore to provide a sense of meaningful political activity in a world where such activity is ever threatened with meaninglessness. We have to press the internal commitments of globalism rather than retreat from it. We have to make the new cosmopolitan ideal not just a marketer's dream, an image from a Gap ad campaign, but a political reality. We must, furthermore, create a new sense of belonging that embraces differences as well as transcends them, that forges commitment across boundaries without erasing the things that make those boundaries interesting in the first place. Already it is impossible to travel the world without coming across a Disney store or a McDonald's or a Nine West outlet in some public square. We could hardly count it a victory if we simply reproduced that deadening sameness at the level of the citizenry.

A tall order. The persistent challenge set political theory by diverse cultures is how to find a degree of political substance that is sufficient ("thick" enough) to bind citizens, but at the same time sufficiently flexible ("thin" enough) to allow them to pursue their life projects without undue interference. This challenge holds whether we are confining ourselves to a single nation-state like Canada or the United States, or attempting, however boldly, to speak of a larger sphere. When we consider the difficulties that beset even these lower-level political bodies -- the enduring conflicts between the Quebecois and English Canada, the sharp divides and threats of separatism still afflicting blacks and whites in America -- it may seem bizarre to attempt a move to a higher plane. Is there, could there ever be, a single conception of citizenship that would answer to the needs of those living in Germany as well as those living in Indonesia? Is anything that could even command intelligibility in both places, and in a hundred more besides, going to be much better than an empty form?

To get this argument off the ground, we have to narrow our search parameters somewhat. For the simple answer to the former query is of course: No, there is not a single conception of citizenship equal to the diversities of current nations. For one thing, most of them (Germany is a good example) are rooted in 19th-century ideas of the nation as ethnos, as a body of racially similar people. In contrast to earlier notions of the nation as demos, a body of politically linked people, these ethnic nations have a built-in charge of vicious exclusion. Hence the gradations of citizenship offered to people who enter contemporary Germany, from the lowly Gastarbeiter – the guest-worker, modern-day equivalent of the Metics found in ancient Athens -- to the literally full-blooded citizen. Nor is this even an extreme example of political exclusion based on race. For that you have to look to the southeast, to the Balkans; or to central Africa, in Rwanda.

If we dwell too long on these depravities, our confidence that anything may be said or done begins to wane. They are a necessary curb on flights of political fancy, but they cannot be allowed to dominate the field of our awareness. Still, the violent robustness of the ideas of belonging at work in these tortured places would seem to mock the attempt at creating a more inclusive form of citizenship. In the language of thick and thin, how could anything capable of stretching across the range of political contexts be anything but thin to the point of transparency, a flimsy sheet of political naïveté?

What we seek is a form of universalism, and because that has become a danger word in recent political discourse, we must articulate a universalism that will not raise the hackles of those who note, rightly, how most forms of universalism have had oppressive effects. For those even a little unlike the white male rationalists who first defended universalism, the attempt to rise above particularity in search of some higher identity has meant only systematic denigration of their very real struggles for minimal identity. As the philosopher Iris Marion Young has succinctly put it: "[I] n extolling the virtues of citizenship as participation in a universal public realm, modern men expressed a flight from sexual difference, from having to recognize another kind of existence they could not entirely understand, and from the embodiment, dependency on nature, and morality that women represent."

But there is an important difference between covering-law universalism and reiterative universalism – a distinction first employed in the matter of justice by the political theorist Michael Walzer. Covering-law universalism takes a single conception of X, in the present case of citizenship, and imposes it everywhere, without regard for local conditions or needs. As a consequence, it is likely that this version of universal citizenship will be experienced as alien, even actively oppressive, by those on the ground. Reiterative universalism recognizes, by contrast, the pragmatic limits on both philosophical inquiry and political action. It asks not that a single conception, ever unaltered, make way in all cases; only that every case, whatever its particularities, find a way to express a version of the universal value.

So, for example, the current culture of science is ruled by covering-law universalism – or at least is its favoured form of self-conception. But at one time, not long ago, it displayed a much more reiterative form of universalism, since each relatively isolated pocket of empirical investigation was trying, in its own idiosyncratic way and with varying traditional backgrounds, to speak the scientific truth. The notion of scientific truth functioned as a universal value, and governed each instance of the same kind of investigation, but with a degree of difference that would seem odd, if not dysfunctional, to someone reared in the fluidly global scientific culture of our own day.

But it was not dysfunctional, just locally variant. And the local variations posed no philosophical threat to the value of truth as it then ranged across the different contexts. Hybrid forms are common, even typical, in such circumstances; elements of the universal value mingle with local customs and eccentricities. The value molds itself to the peculiar shape demanded by the local conditions, without entirely losing its coherence -- and, importantly, its connection to other iterations of the same value in other local conditions.

We need not claim that a form of reiterative universalism must "mature" into a covering-law universalism in order to be valid. Science works better because of the extensive communication across other boundaries, true, and it has successfully developed its covering laws. But citizenship, like justice, may not possess the same kind of potential -- and may not have to. Certainly there have been many thinkers, past and present, who thought it did, or ought to. But that is neither necessary nor, in present circumstances, desirable. Such theory-driven desires can cloud our judgment about what is possible, and destroy the value of this distinction by rank-ordering the two forms of universalism, such that the real victory of reiteration is lost. Pragmatism in politics demands pragmatism in theory. We must remain agnostic on the question of whether citizenship will ever achieve the kind of universalism that is currently enjoyed by scientific discourse.

What this means in practice is not something I or anyone could hope to say in quick detail, for it is work not yet done. It does seem unlikely, as I have been suggesting throughout this discussion, that essentialist notions of citizenship will help us here, will indeed erect just the kind of bloodline or basic-trait barriers that make of citizenship, in nasty instances, so viciously punitive. But the standard solution to that impasse, which involves shifting thoughts about citizenship to procedural or constitutional ground, has displayed only limited success. Citizenship can only function if it is perceived and inhabited as a political role, which is to say as a concrete disposition to act.

What I am noting now is just how deep that challenge to act goes, and how difficult the task before us remains. Constructing a stable identity in the dreamscape of our media-saturated world is fraught with overdetermination. There are always too many options, too many choices. Paradoxically, the problems of politics often arise today not in the form of a problem of scarcity, but as one of abundance. We have too much, too many things to choose from, and that effectively distracts us from forming the concrete intentions to address the more basic issue of uneven distribution of things and choices. A surfeit of options may be considered both a blessing and a curse.

But in any event there is one sense in which we have no option: we cannot begin elsewhere than with the surfeited social-cultural environment which already shapes us as what we might call (as the next theme will make clear) "cyborg-citizens."

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