The new theoretical conception of access to justice: The Judiciary as ultima ratio

Abstract

This paper presents a new understanding of the concept of access to justice inserted in an institutional concert that demands an efficient and deconcentrated state response of the Judiciary. In the conflictual environment, the need arises to position itself (which implies intervention), since disorder (conflict) has violence as its background, and violence is a disintegrating element of the social base and, as it were, of existence itself of State. The action that provokes the administrative response has the same effect of restoring the order in the conflict circle, acting in the taking of a position of the State. Therefore, the legal system also regulates how provocation and response will be given through a non-judicial administrative process. Access to justice implies essentially the legal provocation of the State to react democratically when taking a position, considering its public purpose and the interests of the administered ones. The reaction of the State consists in giving an adequate answer to the pretension (administrative or judicial) adduced; and, as appropriate, it is necessary to understand the extent of its material meaning. Faced with numerous clauses structuring access to justice in the Federal Constitution, it is no longer possible to reduce it to the inafasability of jurisdiction. Access to justice has a comprehensive conception and exponentially extends the possibility of an effective State response in the systemic concert involving the participation of conflict management.