Injustice in Person
The Right to Self-Representation
Published on 4. June 2015
Book
Hardback
252 pages
978-0-19-968744-2 (ISBN)
Description
In common law jurisdictions, litigants are free to choose whether to procure legal representation or litigate in person. There is no formal requirement that civil litigants obtain legal representation, and the court has no power to impose it on them, regardless of whether the litigant has the financial means to hire a lawyer or is capable of conducting litigation effectively. Self-representation is considered indispensable even in circumstances of extreme abuse of process, such as in 'vexatious litigation'. Intriguingly, although self-representation is regarded as sacrosanct in common law jurisdictions, most civil law systems take a diametrically opposite view and impose obligations of legal representation as a condition for conducting civil litigation, except in low-value claims courts or specific tribunals. This disparity presents a conundrum in comparative law: an unfettered freedom to proceed in person is afforded in those legal systems that are more reliant on the litigants' professional skills and whose rules of procedure and evidence are more formal, complex, and adversarial, whereas legal representation tends to be made obligatory in systems that are judge-based and offer more flexible and informal procedures, which would seem, intuitively, to be more conducive to self-representation.
In Injustice in Person: The Right to Self Representation, Rabeea Assy assesses the theoretical value of self-representation, and challenges the conventional wisdom that this should be a fundamental right. With a fresh perspective, Assy develops a novel justification for mandatory legal representation, exploring a number of issues such as the requirements placed by the liberal commitment to personal autonomy on the civil justice system; the utility of plain English projects and the extent to which they render the law accessible to lay people; and the idea that a high degree of litigant control over the proceedings enhances litigants' subjective perceptions of procedural fairness. On a practical level, the book discusses the question of mandatory representation against the case law of English and American courts and also that of the European Court of Human Rights, the International Criminal Tribunal for the former Yugoslavia, and the Human Rights Committee.
In Injustice in Person: The Right to Self Representation, Rabeea Assy assesses the theoretical value of self-representation, and challenges the conventional wisdom that this should be a fundamental right. With a fresh perspective, Assy develops a novel justification for mandatory legal representation, exploring a number of issues such as the requirements placed by the liberal commitment to personal autonomy on the civil justice system; the utility of plain English projects and the extent to which they render the law accessible to lay people; and the idea that a high degree of litigant control over the proceedings enhances litigants' subjective perceptions of procedural fairness. On a practical level, the book discusses the question of mandatory representation against the case law of English and American courts and also that of the European Court of Human Rights, the International Criminal Tribunal for the former Yugoslavia, and the Human Rights Committee.
Reviews / Votes
Rabeea Assys book is a refreshing and controversial challenge to the current orthodoxy. . . He has written a stimulating book from a new perspective. I warmly commend it to anyone who has a serious interest in access to justice issues. * Sir Rupert Jackson, Law Quarterly Review * Rabeea Assys Injustice in Person addresses one of the most difficult problems currently confronting courts in common law jurisdictions. Lawyers, judges and court administrators face increasing numbers of litigants in person (LIPs). The presence of LIPs demonstrates our collective failure to realize the ideal of access to justice for all. Injustice in Person provides a refreshingly clear consideration of the seemingly intractable issues surrounding the phenomenon of LIPs from a rich variety of perspectives. . . Assy demonstrates a masterful command of the principles of civil procedure and their theoretical underpinnings. He skillfully dissects the arguments favouring the right of self-representation and exposes the hopeless plight in which we leave LIPs. * Robert Sharpe, Cambridge Law Journal * Injustice in Person brings to the fore a central problem facing judicial systems around the world: how to respond when civil litigants have no lawyers to represent them. Ranging across continents, legal systems, and political theory, Dr Assy examines the law and history of the right to self-representation. This book clears a thicket of doctrine to offer a new and an insightful analysis of why self-representation is not a solution in theory or in practice for democracies, aspiring to provide effective access to judicial remedies. * Judith Resnik, Arthur Liman Professor of Law, Yale Law School * Injustice in Person offers a path breaking analysis of the right to self-representation in the justice system. Drawing on examples from both civil and common law countries, Rabeea Assy provides a compelling argument for when litigants should not be allowed to represent themselves, in order to promote values of personal autonomy and procedural fairness. * Professor Deborah L Rhode, Director, Center on the Legal Profession, E W McFarland Professor of Law, Director of the Program on Social Entrepreneurship, Stanford University * Injustice in Person challenges the received wisdom that the value of self-representation outweighs considerations of efficiency, of rectitude of decision, or of desirable outcomes. In so doing it lays the foundation for a more enlightened and better informed debate about legal assistance, which may well have far reaching consequences for the administration of justice. * Professor Adrian Zuckerman, Emeritus Professor of Civil Procedure, Fellow of University College, University of Oxford * From the domain of outliers to our legal system, Dr Assy constructs a careful analysis of the obligations of a just society to provide access to the legal system. What is fascinating in this book, and completely novel to the best of my knowledge, is to place the right to self-representation in the context of a failed regime of liberal individualism. The result is a delightfully unexpected series of arguments about the importance of a societal commitment to affordable and meaningful legal process. * Professor Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, New York University School of Law * There is a critical justice gap in the western world. Slow, overpriced, and even overdrawn legal systems are leaving more and more people 'outside the law'. Many people are responding with self-help as litigants. Legal systems are discomforted by this, and ill equipped to accommodate this modern day phenomenon. This important monograph starts in the right place: with the importance of access to justice. One distinctly arguable response is individualism, which then calls on these legal systems to accommodate it in a much fuller way than they presently have. This is an important and challenging book in the context of one of the important issues, not just for law, but of our time. * Hon Sir Grant Hammond KNZM, President of the New Zealand Law Commission, Sometime Dean of Law at the University of Auckland, Former Judge of the New Zealand Court of Appeal *More details
Other editions
Additional editions
E-Book
06/2015
1st Edition
OUP eBook
€79.49
Available for download
E-Book
06/2015
1st Edition
OUP eBook
€79.49
Available for download
Person
Dr Rabeea Assy is an Assistant Professor at the University of Haifa Law Faculty and a regular speaker at the University of Oxford. In 2011 Dr Assy obtained his DPhil from the University of Oxford, where he was a Clarendon Scholar and a Modern Law Review grantee. His LLB and LLM (ranked 1st in class, summa cum laude) were completed at the University of Haifa. In 2010-2011 Dr Assy was the Editor and subsequently the Editor-in-Chief of the Oxford University Commonwealth Law Journal, and in 2009 a Visiting Researcher at the Hauser Global Scholars Programme at New York University Law School.
Dr Assy is an expert in comparative civil procedure. His work on litigation in person has earned him a number of prestigious awards and grants, including very generous research grants from the EU Marie Curie Actions Programme and the German-Israeli Fund. His work in this area has also been published in a number of leading journals across the Commonwealth.
Dr Assy is an expert in comparative civil procedure. His work on litigation in person has earned him a number of prestigious awards and grants, including very generous research grants from the EU Marie Curie Actions Programme and the German-Israeli Fund. His work in this area has also been published in a number of leading journals across the Commonwealth.
Content
Introduction ; 1. The Unasked Question ; 2. English and American Jurisdictions ; 3. The ICTY's Jurisprudence ; 4. Simplifying Legal Language ; 5. The Judge's Mantle and the Advocate's Robe ; 6. Lay Representation and McKenzie Friends ; 7. Losers-But Choosers ; 8. Litigant Satisfaction ; 9. Reconsidering the Right to Self-Representation ; Conclusion