Figueiredo, Ivanilda (2009). "Access to Justice: a human right essential to the capability approach as seen by the theories of Sen and Nussbaum with data from IBSA vulnerable groups" Paper presented at the 6th annual conference of the HDCA, 10-12 September 2009, Lima, Peru.
he access to justice is a human right essential to the improvement of people capabilities. To verify the truth of this assumption, two approaches will be analyzed: one, theoretical; the other, empirical. At last year’s conference, I presented a paper about the illations made at the very beginning of the research. This year, I have been going deeply into the theoretical analysis in order to demonstrate the importance of access to justice to the improvement of people’s capabilities. The value of access to justice will be explored as it applies to both the approaches of Sen and Nussbaum. The objective of my PhD study is to demonstrate that when people have access to justice, they are able to improve their capability in two perspectives: people can enlarge their‘functionings’ (SEN, 2005, p 30) through the struggle for rights and for public policy; and people can also increase the scope of capability itself with the enhancement of their power of choice. Where Amartya Sen and Martha Nussbaum agree and disagree will be explored in the paper in order to show the importance of access to justice in both approaches of capability theory. At this point in the study, I have concluded that access to justice is a device by which people can improve their standard of living and gain practice in exercising their capability. In other words, access to justice is not a ‘functioning’ or a capability: access to justice is a tool to improve ‘functionings’ and capabilities. Therefore, as Amartya Sen commonly says, the success of a society could be measured according to the substantive freedom which their members enjoy (SEN, 2000, p. 32). And it is this very enlargement of the substantive freedom is one function of the access to justice that I have suggested. The study of these authors’ theories, as well as their followers and critics, will be analyzed to prove this contention. A grant from the Ford Foundation in a national contest allowed me to apply empirical research, so that the study would not only be confined to the realm of theoretical analysis, which would not have been consistent with my path as an academic and practitioner. For more than one year, I have worked with a team of academics and students analyzing and evaluating data compiled from three countries: India, Brazil and South Africa (called IBSA countries), whose constitutions include access to justice and access to rights1, and thus, have a commitment to access to justice in many international human rights instruments2.