Towards a Theory of Legitimate Access: Morally Legitimate Authority and the Right of Citizens to Access the Civil Justice System

This Article considers the issue of what the state is morally obligated to provide by way of citizen access to the civil justice system. It begins by describing the general problem of morally legitimate authority and how it bears on the problem of access to the civil justice system. It then identifies three different approaches to the general problem of morally legitimate authority and argues that none of these approaches warrants thinking that the state is morally obligated to provide each citizen with perfectly equal access to the civil justice system. The argument concludes that the three approaches to legitimacy converge on two principles: one that defines an affirmative obligation (the Reasonable Access Principle) to provide to each citizen what is minimally necessary to develop and defend a plausible legal position, and one that defines a negative obligation (the Equality Principle) to refrain from restricting access to the civil justice system for reasons that deny the equality of every moral person.