Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State

Access to justice — as defined here — is linked intrinsically to the different forms of the welfare state and social constitutionalism. However, due to the crisis currently confronting the welfare state, a change is occurring in the role of states and in the cut-off involving many social programmes, including the ones providing legal aid as part of access to justice programmes. This new scenario has led to an increase in the number of private actors playing the role of ‘third party litigation funders’ (TPLF). The main, twofold question I propose to answer in this article is to what extent does the state remain responsible for guaranteeing access to justice, and what exactly are the duties of private actors. For this purpose, I analyse from an argumentative perspective the concept of access to justice as a human right in the European system of human rights, and I suggest that the framework of three degrees of obligation (duty to respect, to protect and to fulfil human rights) should be applied for a better understanding of the topic. In this context, I examine the different soft law instruments that regulate access to justice, and I suggest certain gaps that should be filled in applying the human rights approach.