Karine Bates

Health and legal literacy for migrants: twinned strands woven in the cloth of social justice and the human right to health care

BackgroundBased on an analysis of published literature, this paper provides an over-view of the challenges associated with delivering on the right to access quality health care for international migrants to industrialized countries, and asks which group of professionals is best equipped to provide services that increase health and legal literacy. Both rights and challenges are approached from a social justice perspective with the aim of identifying opportunities to promote greater health equity. That is, to go beyond the legal dictates enshrined in principles of equality, and target as an ethical imperative a situation where all migrants receive the particular assistance they need to overcome the barriers that inhibit their equitable access to health care. This assistance is especially important for migrant groups that are further disadvantaged by differing cultural constructions of gender. Viewing the topic from this perspective makes evident a gap in both research literature and policy. The review has found that while health literacy is debated and enshrined as a policy objective, and consideration is given to improving legal literacy as a means of challenging social injustice in developing nations, however, no discussion has been identified that considers assisting migrants to gain legal literacy as a step toward achieving not only health literacy and improved health outcomes, but critical participation as members of their adoptive society.ConclusionIncreasing migrant health literacy, amalgamated with legal literacy, aids migrants to better access their human right to appropriate care, which in turn demonstrably assists in increasing social engagement, citizenship and productivity. However what is not evident in the literature, is which bureaucratic or societal group holds responsibility for assisting migrants to develop critical citizenship literacy skills. This paper proposes that a debate is required to determine both who is best placed to provide services that increase health and legal literacy, and how they should be resourced, trained and equipped.

The Need to Reform Civil Justice

Systems of civil justice comprise both rules of civil procedure and the organization of the court system. These rules, in addition to determining how cases get to and move through the courts, serve the broader purpose of ensuring the fair resolution of disputes in an efficient manner and providing for judicial intervention and creativity where appropriate. Beyond mere dispute resolution, civil procedure offers a means of balancing incentives and disincentives to litigation. If litigation is too costly or too complex to practise, then access to justice is compromised. Conversely, if litigation is too cheap or too accessible, the court system may be overburdened, and the costs of the administration of justice will rise.

A New Research Framework

In this final chapter, we propose that further research on civil procedure should focus on the question of which values a civil justice system should be designed to further, in addition to practical proposals to improve the administration of justice. We wish to stress that focusing solely on efficiency measures in order to save resources leaves the issue of which values to promote untouched and results in a favouring of the status quo. Advocating a more efficient justice system does not help answer the question of how the justice system is to be organized. In other words, efficiency for the sake of freeing up resources should be instrumental to other ends, which need to be researched and identified, rather than an end in and of itself.

Judicial Architecture and Rituals

Efficiency lies at the heart of judicial reform in a time when public institutions face a situation of shrinking resources and when “managerial thinking” about justice is prioritized. The public is told that judicial systems need to undergo structural reforms in order to make dispute resolution more efficient. From this perspective, a concern for judicial rituals may appear anachronistic. A decision to adopt more efficient judicial structures would necessarily require a reduction in the use of judicial rituals, which can be time-consuming and expensive. But, before making the decision to discard judicial rituals in favour of efficiency, we need to ask two important questions. First, can disputes be resolved without judicial ritual? Second, would a de-ritualized dispute resolution process result in a loss of legitimacy for the entire judicial system?

Converging Adversarial and Inquisitorial Traditions

Another issue affecting access to justice reform is the categorization of civil justice into one of two systems: adversarial systems, typically associated with common law jurisdictions, and inquisitorial systems, typically associated with civilian jurisdictions. These systems tend to favour different procedural arrangements. The adversarial system allows for greater party participation and control over the proceedings, while the judge has more power in the inquisitorial system. A desire to retain these distinctions is one factor hindering effective civil justice reform, and it is important that access to justice proponents avoid essentialism when distinguishing these two forms of civil justice. Indeed, the actual distinctions between the two systems are slowly eroding, and advocates of reform in each system could benefit from looking at what is working, or not working, in the other.

The Challenges of Participatory Justice for Public Adjudication

Another important theme to consider in civil justice is the convergence of a number of phenomena identified in civil procedure: the move toward alternative dispute resolution (ADR), the preference for settlement, the shifting of the role of the judge toward managerial judging, and the shifting of the role of lawyers toward conflict resolution advocacy. These phenomena all point to a discernible move away from justice by adjudication toward “participatory” justice, as well as a move away from public justice toward more private forms of justice. By private forms of justice, we mean both dispute resolution mechanisms that intervene only between parties without binding effect on third parties, as well as the rise of legal norms produced by private entities, which opposes the historically constructed idea that the State has a monopoly over legal norms and that legal norms are those which have been produced in a public forum. We offer an overview of some of the arguments put forward to justify and challenge these changes in dispute resolution processes, the role of judicial actors, and that of the State in the administration of justice. We also try to identify the values that may underlie these shifts.