1. INTRODUCTION

2. WHAT IS JUSTICE?

Legal Science must seek its object in the persistent inquiry into the nature of law, aiming to ground its focus in this critical investigation, producing and extracting knowledge beyond the outdated conceptions of natural law, whether subjective or objective, which are embedded in fixed and immutable norms, ideologically constructed or discovered as logical references for stabilizing social and economic life, in an artificial sense of fairness devoid of any connection to the legal realities and economic relations inherent to capitalist society. Legal Science, as a postmodern theoretical achievement of humanity, based on multiple systems of legal explanation, represents a continuous challenge to the consciousness of nations against the absolutism of legal ideas formed in theories devoid of historicity, designed to preserve dominant privileges through the euphemism of formal equality of rights and the symbolic defense of human rights. (LEAL, 2005, p.22).

"Justice is, therefore, above all, a value: not a being, but an attribute of being. Not the imposed order, but the value of that order, or rather, the values it expresses, the 'possible characteristic of a social order' (Kelsen, 2001). Not only law and its corresponding judicial apparatus, but also, and primarily, the ideology and contradictions that shape this law.Now, if the State can be seen as the political expression of society and its conflicts, each type of society will correspond to a particular State. Consequently, to each model of the State, with its values, there will correspond a specific type of justice" (BRANDÃO, 2007, p.1).

According to Norberto Bobbio, justice is a normative concept: “it is a social end, just like equality, freedom, democracy, or well-being,” and the greatest difficulty lies in defining it in descriptive terms.

The polysemy of the term derives from the very meaning given to justice. As Bobbio highlighted, with Aristotle began the distinction between distributive justice and corrective justice. Distributive justice is expressed through the distribution “of honors, material goods, or any other divisible thing among those who participate in the political system,” while corrective justice pertains to situations where one seeks redress for a harm suffered (ROBERT, SÉGUIN, 2000, pp. 198-199).

• Robert further states:

"We can still establish the dichotomy between formal justice and material justice—the former requiring the application of legal norms. Legal norms, in turn, may be formally just or unjust, but formal justice will apply them using the formal principle that different cases should be treated differently. On the other hand, material justice seeks to find the similarities and differences in the characteristics of each case to serve as a basis for similar or differentiated treatment" (ROBERT, SÉGUIN, 2000, p.199).

"Article 5: All persons are equal before the law, without distinction of any kind, ensuring to Brazilians and foreign residents in the country the inviolability of the right to life, liberty, equality, security, and property, under the following terms: (...)" (BRASIL, 2010, p.14).

3. EVOLUTION OF ACCESS TO JUSTICE

"The history of law reveals that society has gone through various stages before arriving at jurisdiction. Initially, there was social vengeance—tribes and social groups gathered for mutual defense. Later, in the phase of private vengeance—such as the Judgment of Ordeals—vengeance was no longer carried out by the social group but by the nascent State. Finally, the current phase emerges, where we observe that the State prohibits vengeance and assumes the function of dispensing justice. The State creates the obligation and the necessity to provide legal assistance to those who could not afford it" (ROBERT, SÉGUIN, 2000, p.177).

"Within an axiological conception of justice, access to justice is not reduced to being synonymous with access to the judiciary and its institutions, but rather to 'an order of values and fundamental rights for human beings,' which are not restricted to procedural law" (CESAR, 2002, p.49).

"On the other hand, it is essential to highlight that access to justice, from a broader perspective, should also be seen as a political instrument, a transformative movement, and even more, a new way of conceiving the legal system" (CESAR, 2002, p.51).

"Nevertheless, from the beginning of this century, with the surprising growth of capitalist societies in both size and complexity, the individualistic perspective has weakened, and collective claims for new rights, termed 'new human rights,' have emerged. These are the rights that will truly make the previously recognized rights in 'declarations of human rights' effective. It is through the actual right of access to justice that this is achieved" (CESAR, 2002, p.55).

• Cappelletti highlights:

"In market economies, lawyers, particularly the more experienced and highly competent, tend to devote more of their time to paid work than to free legal assistance. Moreover, to avoid excessive charity, those who support the program generally set strict eligibility limits for those wishing to benefit from it" (CAPPELLETTI, GARTH, 1988, p.32).

"Changes in procedural forms, changes in the structure of courts or the creation of new courts, the use of laypersons or professionals, both judges and teachers, modifications in substantive law aimed at avoiding litigation or facilitating its resolution, and the use of private or informal mechanisms for dispute resolution" (CAPPELLETTI, GARTH, 1988, p.65).

"Much has been done recently, both globally and in Brazil, in favor of the universalization of judicial protection. International doctrine speaks of three waves of procedural law reform, aimed at (a) comprehensive legal assistance for the needy, (b) the inclusion of certain supra-individual conflicts that were previously excluded from any judicial protection (diffuse and collective rights and interests), and (c) the technical improvement of internal procedural mechanisms (Mauro Cappelletti). In Brazil, these movements breaking away from traditional civil procedure are extraordinarily significant in recent decades. The establishment of small claims courts (today, special civil courts), the institution of public civil actions and collective actions for the protection of environmental and consumer values, the collective writ of mandamus, the more frequent use of that remarkable political instrument known as the popular action, the vigilant performance of the Public Prosecutor's Office in court, and the evolving mindset of judges now focused on the values underlying all this reality—this is the developmental picture that Brazil has been experiencing with greater intensity than in any other part of the civilized world. It could become an effective factor in aligning the procedural system with the reality of the population's needs. It is hoped that the occasional misuse of some of these mechanisms will not lead to a retraction or regression in relation to the progress they represent" (DINAMARCO, 2009a, p.116).

4. WHAT IS ACCESS TO JUSTICE?

The issue of access to justice is not limited to the understanding that it is possible to obtain judicial services from a competent body, namely the Judiciary, which represents a portion of the power of the State. Undoubtedly, access to justice must be offered by this body; however, it is not solely confined to it for its consolidation. (NEVES, 2012, p.1).

Access to justice, therefore, is not synonymous with mere admission to the process or the possibility of initiating a lawsuit. As will be seen in the text, for effective access to justice, it is indispensable that the maximum number of people be permitted to demand and defend themselves adequately (including in criminal proceedings); restrictions concerning certain cases (small value, diffuse interests) are also condemnable. However, for the completeness of access to justice, this and much more is required. (CINTRA, GRINOVER, DINAMARCO, 2010, p.39).

• According to the author DINAMARCO:

To meet the constitutional requirement of the adversarial principle, every procedural model described by law must contain—and all procedures that are concretely initiated must contain—opportunities for each party to present, argue, and prove their case. The plaintiff argues and makes requests in the initial complaint; once the process is initiated by the filing of this complaint, the defendant is allowed to respond right away, being able to assert defenses and request dismissal of the complaint or termination of the process. The plaintiff can request the anticipation of the remedy, which will be granted if the requirements set forth in law are met (CPC, art.273); both parties are permitted to produce evidence for the alleged facts; the party adversely affected by a decision has the option to request a favorable ruling from the Court (appeal). When making a request, each litigant presents arguments intended to persuade the judge, and also argues at the conclusion of the proceedings and before the verdict, analyzing the facts, the evidence, and the legal consequences thereof, etc. (DINAMARCO, 2009a, p.222).

These needs can be summarized in a binomial composed of quantity and quality. It is insufficient to increase the range of conflicts that can be brought to justice without enhancing the capacity to produce favorable outcomes. It is also inadequate to produce favorable outcomes concerning conflicts that are amenable to judicial resolution while leaving many others outside the realm of judicial protection. (DINAMARCO, 2009a, p.128).

Since the random or subjective idea of a legal order realizable through judicial activity is antinomic, we present the topic under the designation "access to jurisdiction" (and not to justice), because the correct expression "access to jurisdiction" dispenses with meta-legal explanations of unattainable sociological idealism or outdated judicial attitudes. Access to jurisdiction is achieved through the right of action created by the constitutional norm as an unconditional right to invoke the judicial activity of the State (...). (LEAL, 2005, p.82).

Access to justice is not equivalent to mere entry into court. The very constitutional guarantee of action would be ineffective and impoverished if it merely ensured that people's claims reach the process without also guaranteeing them adequate treatment. It is essential that the claims presented to judges reach an effective final judgment, without the exacerbation of factors that could obstruct the continuation of the process; otherwise, the procedural system itself will be sterile and ineffective while it resolves itself into a mere technique of addressing the right to action, without concern for external outcomes. In preparing for the substantive examination of the claim, it is essential that the parties be treated equally and allowed to participate, with the judge himself also not being excluded from participation, as he bears the primary responsibility for conducting the process and correctly judging the case. Only those who receive justice have access to a just legal order. Receiving justice means being admitted to court, being able to participate, having adequate participation from the judge, and ultimately receiving a judicial provision consistent with societal values. These are the contours of a just process, or an equitable process, composed of the effectiveness of a minimum of guarantees of means and results. (DINAMARCO, 2009a, p.118).

The reforms of the Code of Civil Procedure, particularly enacted through laws approved since 1994, were a response to many of the demands from both doctrine and the population for a more efficient procedural system capable of addressing the trinomial quality-timeliness-effectiveness. Aiming to improve the quality of judicial protection, they introduced a crucial innovation in preparing the judge for the judgment of the case, which is the preliminary hearing established by the new art.331 of the Code of Civil Procedure: it is at this moment that, if conciliation between the litigants is not achieved, the judge becomes acquainted with the relevant points and issues, thereby defining the subject of evidence to be produced and the means of proof to be presented. (...)

Regarding the timeliness of judicial protection, they not only enacted numerous simplifying innovations in procedural acts but also established and regulated what is known as anticipatory judicial protection (art.273), in addition to implanting a differentiated and expedited judicial protection represented by the monitoring process (arts.1102-a, 1102-b, 1102-c) and seeking prompt execution of judicial title, reaching the point of seeking the satisfaction of the credit recognized in the sentence through payment by the creditor, under penalty of fine, independent of any executive measures (art.475-J).

For the effectiveness of protection, particularly in the challenging realm of obligations to do or not to do, they empowered the judge with highly efficient powers to be exercised even in the knowledge process, dispensed from the formal initiation of forced execution (art.461). (DINAMARCO, 2009a, p.119).

Conscious of the need for institutionalized judicial protection as a factor for peace in society, the people obtain solemn promises from the State to dispense it and to guide the exercise of jurisdiction along certain lines capable of ensuring high-quality outcomes. As in other countries, Brazil features this fundamental promise in its constitutional framework, formally established in the prohibition against excluding complaints of injury or threat to rights from judicial consideration (art.5, inc. XXXV). This is the traditional formula presented as the constitutional guarantee of action and, in more recent times, as a guarantee of the unavoidability of judicial oversight. (DINAMARCO, 2009a, p.112).

However, it should be remembered that the constitutional guarantee allows citizens to bring claims regarding violated rights to the attention of the State, but the State must remain vigilant not to violate other fundamental guarantees enshrined in the constitution, such as bringing to the judiciary’s attention any violations of rights.

5. SOCIETY AND ACCESS TO JUSTICE AND ITS OBSTACLES

"Perfect effectiveness, in the context of a given substantive right, could be expressed as complete ‘equality of arms’ — the guarantee that the final outcome depends solely on the relative legal merits of the opposing parties, without regard to differences that are extraneous to the law yet affect the assertion and claim of rights. This perfect equality, of course, is utopian. The differences between the parties can never be completely eradicated." (CAPPELLETTI, GARTH, 1988, p. 15)

"It is manifestly impossible to satisfy everyone — and the very dialectical structure of conflicts demonstrates that the complete satisfaction of one party implies the contrariness to the other. However, experience also shows that, despite their conflicts, the suffering is lesser than that arising from the instabilities inherent in identification. In any case, of the anguishes of two, only one can possibly be disappointed, should their opponent be satisfied." (DINAMARCO, 2009a, p. 131)

6. THE PROCESS AND ACCESS TO JUSTICE

7. ACCESS TO JUSTICE AND THE INSTRUMENTALITY OF THE PROCESS

"Speaking of the instrumentality of the process or its effectiveness means, in this context, referring to it as something made available to individuals to make them happier (or less unhappy) by resolving conflicts that involve them with just decisions. More than a principle, access to justice is the synthesis of all principles and guarantees of the process, whether at the constitutional or infraconstitutional level, in legislative, doctrinal, or jurisprudential venues. The idea of access to justice, which is the most important methodological point of the current procedural system, arises from the examination of any of the great principles." (DINAMARCO, 2009, p. 359)

• Dinamarco further states:

"The guarantee of access to the judiciary (the so-called 'right to sue') consists of ensuring individuals access to judicial protection, with their claims and defenses to be reviewed, and only denied review in cases clearly defined by law (universalization of process and jurisdiction). Today, efforts are made to prevent small conflicts or disadvantaged individuals from being excluded from the judiciary; individuals and entities are legitimized to present judicial claims (diffuse interests, class actions, direct actions of unconstitutionality extended to various representative entities); and the judiciary, gradually, approaches the merit review of administrative acts, overcoming the fascist idea of discretion and the subtle distinction between subjective rights and legitimate interests, used as a shield to protect them from judicial scrutiny. These measures towards the universalization of process and jurisdiction represent the first meaning of the constitutional guarantee of judicial control and the first step towards access to justice." (DINAMARCO, 2009, p. 359)

• Dinamarco emphasizes:

"Article 5, paragraph XXXV of the Constitution, previously interpreted as merely guaranteeing the right to sue, politically signifies placing all legal crises capable of generating dissatisfaction under the jurisdiction’s control, and therefore the feeling of unhappiness from those seeking but not obtaining a certain benefit. This provision does not merely guarantee access to the courts or a judgment of the claims but the judicial protection itself for those who are right. The guarantee of action, as such, is satisfied with opening the way for claims to be brought before the court, and a judicial decision subsequently issued, but it says nothing about the effectiveness of judicial protection itself. The principle of the inescapability of judicial review commands that claims be accepted in court, processed, and judged, and that protection be provided by the judge to the one entitled to it—and, above all, that it be effective as a practical result of the process [...]. All these openings provided by the principle of inescapability are subject to legitimate restrictions imposed by the technical rules of the process and by other coexisting rules, even at the constitutional level." (DINAMARCO, 2009, p. 203-205).

"It is easily understood that this solemn constitutional guarantee of legality does not stand on its own but serves as a pledge for observing something of greater substantive importance, which is the adversarial process. Compliance with due process, which legitimizes judicial decisions, does so precisely because experience shows the legislator, the judge, and everyone else that observing these rules is the safest path to ensuring the effectiveness of the adversarial principle. It is indispensable for the system to inform the parties of the judicial acts, the acts of court officials, and the opposing party's actions. It is essential that these acts and decisions allow the party to respond appropriately, generating new situations of convenience. A constructive dialogue between the parties and the judge must also be established to better instruct the case for decision-making." (DINAMARCO, 2009, p. 361)

• In this sense, Dinamarco explains:

"The guarantee of the adversarial principle, although intimately tied to the idea of process to the point that it is now considered an essential part, does not have its own inherent value. Together with the guarantees of access to justice, due process, natural judge, and equality of the parties, these all aim at a single goal, which is the synthesis of all the purposes integrated into constitutional procedural law: access to justice. Since the main purpose of the process is to achieve peace with justice, it is essential that the entire process is structured and conducted according to these rules aimed at making it a pathway to a fair legal order." (DINAMARCO, 2009, p. 362)

• Dinamarco connects positive instrumentality with procedural techniques:

"The substantive significance of constitutional and legal guarantees and principles of the process. Speaking of the effectiveness of the process or its positive instrumentality is referring to its ability, through the rational observance of these principles and guarantees, to ensure peace according to criteria of justice." (DINAMARCO, 2009, p. 362).

Ada

Pellegrini adds:

"Instrumentality of the process, in this context, refers to the positive aspect of the relationship that links the procedural system to the material legal order and the world of individuals and the state, highlighting the necessity of preparing it for the full accomplishment of all its social, political, and legal objectives." (CINTRA, GRINOVER, DINAMARCO, 2010, p. 47).

8. CONCLUSION

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