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

Abstract

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.

Full text

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
1
Revisiting the concept of access to justice as a
human right in the post-welfare state
1
María Carlota Ucín
https://orcid.org/0000-0002-5730-3649
Abstract: 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.
I. Introduction
In certain discursive contexts, or when we delve into some of the literature, it may seem
superfluous to highlight that access to justice is – and should be – recognised as a human right.
Whether we are diving into civil procedure or into constitutional texts, the claim would seem
obvious. However, what tends to happen with obvious statements is that they do not require
further justification. Likewise with this one. Moreover, if we were asked eventually for a quick
justification, it may suffice to argue that our claim has support in positive law instruments. We
might then affirm that it is a human right recognised in many international instruments, such as
1
This publication is part of the project Affordable access to justice (subproject: From public to private funding),
Project number VI.C.191.082 of the Vici Research Programme which is financed by the Dutch Research Council
(NWO). Contact: ucin@law.eur.nl

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
2
Articles 8 and 10 of the Universal Declaration of Human Rights; Articles 2.3 and 14 of the
International Covenant on Civil and Political Rights; Articles 6 and 13 of the European Convention
on Human Rights; and Article 47 of the Charter of Fundamental Rights of the European Union.
And of course the right is incorporated in other international instruments that are imperative
worldwide.
However, even if this were to satisfy our interlocutor, another issue could arise, since they
might ask what precisely is our understanding of access to justice. In effect, it becomes clear that
the main term access to justice is ambiguous, and has diverse meanings, depending on the
context. The words access and justice are especially ambiguous, and it is necessary at this point
to define the sense in which I will use the phrase in this article. The word access is related to the
second term, justice, and we normally understand that – in a general sense – it refers to the way
we reach a place. It is then essential to start defining what we mean by justice as a goal.
In a broad sense, justice may be equivalent to fairness, and it can then be related to certain
material conditions that to some extent concern equality and wellbeing. This more substantive
notion of justice addresses broad questions, such as whether a society ensures equal access to
opportunities and benefits, and whether all individuals have the ability to live a just life.
2
In the
same vein, it has been said that substantive justice can be related to the sense of a fair outcome
or to getting something to which one has a right.
3
However, we can also define the word justice more strictly, and relate it to the judicial
branch and its adjudicative procedures, or, eventually, include also the alternative dispute
resolution methods. From this perspective, justice can be seen as the processes that are available
to help people enforce their rights under the law, and as the effectiveness of these processes.
4
In
this regard, some authors affirm that access to justice can be understood as the possibility for the
individual to bring a claim before a court and have it adjudicated within a due process of law. This
means that the case is heard and judged in accordance with substantive standards of fairness and
justice.
5
In this paper, I will use the term justice in the more strict and procedural sense: that is, I will
interpret it as being the procedural method of settling conflicts and adjudicating rights. Then,
linking justice with the concept of access, I will allude to the opportunity of bringing our claims to
the courts, or to any other triadic mode of dispute settlement, and to be decided by a third party
within a reasonable time, and while respecting the other conditions relating to a due process of
law.
However, access can also be subject to a formal or material interpretation. From a formal
standpoint, we can relate it to the right to have our conflicts decided in a trial, no matter how
effective this right is in practice insofar as it is recognised as being applicable to everyone. The
negative aspect of this right implies the duty of providing a legal and judicial system as well as
avoiding any interference in our protected sphere.
In the second sense – the material interpretation – we need to consider the effectiveness of
2
Larson (2015), p1.
3
Friedman (2010), p2.
4
Larson (2015), p1.
5
Francioni (2007), p1.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
3
the right in practice. In this approach, the right of access to justice may imply the imposing of
additional positive duties on the state or other subjects to guarantee that the right is enjoyed at
a practical level. Consequently, we may be forced to confront obstacles that prevent each person
or group of people from having real access to the courts or to alternative bodies of dispute
resolution.
Summing up my argument thus far, I will interpret the term access in the material sense
presented above, and justice in its more restricted and procedural sense. Therefore, I will analyse
the right to have concrete and effective access to the courts, or to any other adjudicative
institution, in order to have our conflicts decided by an impartial body. This definition can be
rooted in the decision of the European Court of Human Rights (hereinafter also ECtHR) in Golder
v. The United Kingdom,
6
where the Court states that Article 6.1 secures for everyone the right to
have any claim relating to his or her civil rights and obligations brought before a court or tribunal.
Therefore, the Article embodies the ‘right to a court’ where the right of access – that is, the right
to institute proceedings before courts in civil matters – constitutes only one aspect. This concept
must be integrated with the other guarantees laid down in Article 6.1, and related to the
organisation and composition of the court and the conduct of the proceedings, constituting the
right to a fair hearing.
Therefore, going back to our imaginary dialogue, and notwithstanding the examples given,
when we want to support the claim that access to justice – as stated above – is recognised in
international instruments, we may face certain difficulties. In effect, when we go deeper into the
textual content of these instruments, we may realise that access to justice is not always denoted
explicitly. For instance, the ECHR does not use the term ‘access to justice’ expressly.
7
Instead, it
contains provisions on a fair trial and the right to a remedy. It was the case law that provided a
full understanding of the phrase.
8
Indeed, this notion has only recently been incorporated into human rights treaties.
9
Likewise, the inclusion of access to justice as an explicit concept in national constitutions is in
response to a recent trend, probably linked to the works of Mauro Cappelletti and his research
team, as pointed out by Storskrubb and Ziller.
10
Following this trend, we may find a clear and
explicit mention of the right to access to justice in the Charter of Fundamental Rights of the EU
(Article 47) as well as in the Treaty of Lisbon. This Treaty stipulates in Article 67 (4) that ‘the Union
shall facilitate access to justice in particular through the principle of mutual recognition of judicial
and extrajudicial decisions in civil matters’. And according to established case law of the Court of
Justice of the European Union, access to justice is one of the constitutive elements of a Union
based on the rule of law.
These two levels of recognition indicate a progression that leads to the present and ample
content of this right, either through explicit norms or through court interpretations. This process
illustrates the impact of what I will call the social shift on the recognition of rights. This approach
6
ECtHR, Golder v. The United Kingdom, no. 4451/70, §36, 21 February 1975.
7
The same happens with Articles 2.3 and 14 of the International Covenant on Civil and Political Rights, and with
Articles 8 and 10 of the Universal Declaration of Human Rights.
8
European Union Agency for Fundamental Rights – FRA (2011), p 14.
9
Gerards and Glas (2017), p 13; Francioni (2007), p 24.
10
Sotrskrubb and Ziller (2007), p 178.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
4
permeated the interpretation of the international instruments, and led to the explicit recognition
of this right on several levels. As I will explain below, access to justice is a derivation of the right
to a fair and public hearing, and in the second half of the 20th century it grew in tandem with the
expansion of state functions.
This means that even if there may not always be an explicit recognition of legal aid, or any
alternative way of subsidising effective access to the courts, the interpretation of the right to a
fair trial could still provide a wide understanding that includes the notion of access to justice. This
is the case with the European System of Human Rights and the European Court of Human Rights
case law. From its early jurisprudence, elaborated in the Airey v. Ireland case,
11
the ECtHR ruled
that states were obligated to assure ‘effective’ access to courts when it was demonstrated that,
without financial means, it would be impossible for the claimant to have real access to justice.
We can observe how the several waves of constitutionalism have modified the way that
rights are understood, through positive recognition or via interpretation. As metaphors can be
useful, I suggest illustrating this progression in terms of several geological layers that overlap each
other, providing incremental protection of a right by way of new and different interpretations
that are enriched by reconstructed values. This statement, however, may imply that if the
evolution of rights and its interpretation can be influenced by the consensus at a given time, we
may also have to accept that this is a dynamic movement that may never end. Therefore, we
should be flexible in understanding the new forms that the rights may assume, while the role of
the state and its obligations also change in response to the demands of the society. However,
these changes can never imply a restriction on the rights themselves, since there are imperative
principles that govern the direction of this evolution, such as the progressive realization, which is
applicable to social rights.
This is in effect what we are currently observing. Let us note that although most modern
Constitutions and international treaties recognise this right of access to justice, either explicitly
or implicitly, many countries are reshaping the role of the state in a direction that deviates from
the welfare model. And it is clear now that the crisis involving this deviation has led many states
to delegate some of their functions to private actors while they limit their own capacities to
provide social goods. It may suffice to observe the privatisation movement, where many public
services began to be provided by private enterprises as the state moved away from a number of
sectors, such as the provision of healthcare, education, certain aspects of social security, and even
prisons and security services.
12
This phenomenon of privatisation is also starting to develop in connection with access to
justice. Even if development of the ADR methods as a kind of privatisation of justice is not a
novelty, I turn my attention to another interesting shift that involves moving access to justice
from being an exclusive public responsibility to a scenario in which private actors are gaining
relevance as they begin to take on the role of ‘third party litigation funders’ (TPLF). This concept
includes several forms of enterprise that see in litigation another way of doing business, but novel
forms of solidarity are also taking place in the form of crowdfunding. These forms are being
developed rapidly, not only in Anglo-American countries but also in many others, including
11
ECtHR, Airey v. Ireland, no. 6289/73, 9 October 1979.
12
Hocking (1999), p277; Teubner (1999), p 51.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
5
European ones.
13
Underlying this problem, however, is another interesting level of analysis that suggests an
understanding of the extent to which these private actors may also be liable for their actions in
the field of access to justice. In other words, worth considering is that the shift in the role of states
may not change the nature of access to justice, conceived as a human right. The extent of the
responsibilities of private actors when they are gaining material profit in this arena should then
be determined.
At this stage, it is reasonable to wonder whether we may have to renounce the entire extent
of the protection provided by the social dimensions involving human rights. My immediate
response is no, we do not need to; on the contrary, in fact. Now – more than ever – we should go
back to the basis of the human rights theory to understand society’s new dynamics, and to be
guided by the values enshrined in human rights instruments.
Therefore, the main question, which is twofold, is to what extent does the state remain
responsible for guaranteeing access to justice, and what is the role of private actors in this
scenario. To answer this, I suggest that the framework of three degrees of obligation – applied in
human rights theory for determining the content of the rights – would be useful. I then argue that
the duty to respect, to protect, and to fulfil should be applied to access to justice, in order to
establish the different responsibilities that may be of concern to states and to private actors in
contributing to making this right effective. By doing so, we could provide arguments to feed future
debates dealing with the regulation of these instruments. This article may not provide definitive
solutions but aims to set the foundations for future works on the topic.
To this end, I will present in the following section a definition of access to justice that takes
into account its social dimension, and shows that its content has been shaped through the several
stages of constitutionalism. Touching on the recognition of this right in the European Charter of
Human Rights (ECHR) and its case law, I will examine that progression and its link to the
transforming role of the state. In Section III, I will indicate a few problems that derive from the
privatisation process, and will show that the matrix of three levels of duty can be useful for finding
to some extent a balance in future regulations involving privatised systems. In Section IV, the
matrix will be tested with respect to the right to access to justice as I explore certain preliminary
guidelines for the prospective regulation of TPLF. Lastly, in Section V I will offer a number of
provisional conclusions.
II. The concept of access to justice as a human right
13
In particular at the EU level, it is worth mentioning Directive 2020/1828/EU on representative actions for the
protection of collective interests as well as the ELI-UNIDROIT Model European Rules of Civil Procedure, both of which
deal with the topic of TPLF as an emerging practice. Also noteworthy is the Study of the European Parliament
‘Responsible private funding of litigation: European added value assessment’ (European Parliament, 2021). These
soft law instruments highlight concerns about the conflict of interest that can occur in these cases, and they focus
mainly on the conditions that should be met to allow private actors to finance litigation without destroying the
necessary balance within the process. Note: While the text was under revision, on 13 September 2022, the European
Parliament adopted a resolution with recommendations to the Commission regarding a Directive on the responsible
private funding of litigation.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
6
As previously stated, the recognition of access to justice can be found – either explicitly or
through interpretation – in many of the instruments that recognise human rights. For the purpose
of this article, I will confine my analysis to the system built upon the European Convention on
Human Rights and the case law described by the ECtHR. In particular, I will focus on the field of
civil law.
As previously mentioned, Article 6 of the Convention does not include explicitly the right to
access to justice, although its text enumerates several elements that can be integrated into the
notion of due process. Under the title of a right to a fair trial, the legal norm includes the right to
have a fair and public hearing within a reasonable time and by an independent and impartial
tribunal established by law. This applies not only to criminal charges but also to the determination
of civil rights and obligations.
The following sections of Article 6 are restricted to criminal law guarantees, and it is in these
paragraphs that the right to free legal assistance – for instance, if the person does not have the
means to pay – is mentioned. Despite the restrictive outreach of this norm, its text can be read
as giving a minimal content to the right, stipulating a kind of threshold, because nothing prevents
states from including in their legislations legal aid schemes for civil cases. The key point,
nevertheless, is to determine when the lack of access to legal aid in civil matters can constitute a
violation of Article 6 in civil rights cases.
In the classic Airey v. Ireland case, the ECtHR said explicitly that Article 6 does not oblige the
state to provide free legal aid with regard to every dispute relating to a civil right. But then the
Court added:
‘However, despite the absence of a similar clause for civil litigation (related to criminal free
legal aid), Article 6 paragraph 1 may sometimes compel the state to provide the assistance
of a lawyer when such assistance proves indispensable for an effective access to court either
because legal representation is rendered compulsory, as is done by the domestic law of
certain Contracting States for various types of litigation, or by reason of the complexity of the
procedure or of the case.’
14
Additionally, it is worth mentioning that the Court said that legal aid schemes are possible
options for guaranteeing access to justice but certainly not the only ones, and it was not the role
of that body to determine which system the state should implement.
15
This explains why Article
6 was interpreted as recognising the right to access to justice in a broad sense and not just the
right to a certain degree of legal aid. This is absolutely relevant, because, as we know, access to
justice has to overcome many obstacles, not all of which are related to the costs and the funding
of litigation.
It is also interesting to see how the Court assumed that the social rights approach was at
stake in the case. In paragraph 25, the Court expressed that sometimes the fulfilment of a duty
under the Convention necessitates positive action on the part of the state. Moreover, the Court
14
ECtHR, Airey v. Ireland, no. 6289/73, §26, 9 October 1979.
15
Idem.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
7
argued that the Convention must be interpreted in the light of current conditions, and it is
designed to safeguard the individual in a real and practical way with regard to those areas with
which it deals. And regarding the text, it added:
‘Whilst the Convention sets forth what are essentially civil and political rights, many of them
have implications of a social or economic nature. The Court therefore considers, like the
Commission, that the mere fact that an interpretation of the Convention may extend into the
sphere of social and economic rights should not be a decisive factor against such an
interpretation; there is no water-tight division separating that sphere from the field covered
by the Convention.’
16
This paragraph allows me to introduce the argument involving the connection between
access to justice and social constitutionalism. I am not saying here that the distinction between
civil or political rights on the one hand and economic and social rights on the other hand has real
importance if we look into the nature of these rights and their enforceability. However, I still find
it interesting to maintain these categories in order to demonstrate the historical evolution that is
more visible on the constitutional level. I contend that the progressive recognition of rights
illustrates the way in which reconstructed values amplify the protection of certain legal assets. I
will try to explain these ideas with an example.
The right to healthcare can be seen as a typical social right, and no one would hesitate to
include it in the social rights catalogue, even if the catalogue serves only pedagogical purposes.
However, if we look into the core of that social right, we see that human life is the legal good that
is being protected, which in turn is protected as a typical civil right. Furthermore, if we analyse
the right to a healthy environment or to sustainable development, we may also find the link with
the right to a healthy life, which includes present and future generations. My argument is that
the main legal asset – every individual’s life – is protected on many different levels that interplay
and overlap like geological layers. And what gives support to these different levels of protection
are the philosophical conceptions related to the role of the state and civil society, and which are
behind the successive constitutional movements.
The concept of liberalism guided a constitutional architecture that has provided a shielded
sphere for the functioning of civil society. It then became important to keep the power of the
state within certain limits. But during what is referred to as social constitutionalism, there
appeared the need to intervene in the economic sphere by guaranteeing some minimal levels of
protection to every citizen or to any other person. Consequently, the role of the ideal state
changed, suggesting the need to give it more power so that it could intervene in the economy
and in the market. This explains why the content of many rights was augmented, and a number
of positive obligations became part of their substance.
Therefore, returning to the aforementioned example of the growing protection of the right
to life, we observe that life initially needed to be protected through law in order to avoid arbitrary
intrusions from the state and, eventually, from other actors. Subsequently, the right to life as a
16
ECtHR, Airey v. Ireland, no. 6289/73, §25, 9 October 1979.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
8
civil right was to create an area of autonomy protected from any unfair intervention. Instead, in
the social paradigm, the need to help citizens who were in extreme need of assistance appeared
evident. Thus, the notion of the right to life also included a positive dimension that guaranteed
at least a minimal level of health to every citizen. In parallel, the state began to take on this duty
of protection by providing public healthcare services in many countries, because the welfare state
was growing worldwide. In this context, the notion of social security was also well developed as
a way of protecting citizens form all the risks related to life and health.
Nowadays, protected goods may be threatened not only by the state but also through the
action of private actors that in some instances are even more powerful than the states. This is
clearly visible in the globalised economy, where environmental pollution and the destruction of
unrecoverable resources may be generated by the actions of multinational companies. As a result,
the last stage of constitutionalism – enacted in the recent constitutional reforms – shows a
perspective that is grounded in solidarity. It takes into account the need to protect goods, such
as the environment, that are indivisible, and that are of prime concern to present and future
generations. This last approach has a tremendous impact on the right to life and health, and to
the protection of these domains it adds consideration of the environment as a social good that is
indispensable for present and future generations.
I do not deny that the right to life, to enjoy certain level of good health, and to a balanced
environment, can be seen as different rights, integrated into different catalogues (i.e. civil, social,
and solidarity rights). However, by viewing them in this manner we would be disregarding the
process that I find relevant and want to highlight here. And even if this taxonomy were useful for
some purposes, I posit that if we carry out this reconstructive exercise, we may be able to trace
the different values that permeate the growing protection of many human rights. By doing so, we
can find the core values that support a certain interpretation of a right, and then be able to modify
it in accordance with the present requirements, just as the ECtHR did in its time.
Moving on to the topic of this article, I maintain that this same evolution applies to the right
to a fair trial and the due process of law. The right to a fair trial is no doubt part of the rule of law
concept, and subsequently can be seen as a civil right stricto sensu. As this right was infused with
the political philosophy of liberal individualism and the laissez-faire doctrine, these rights began
to be protected in negative terms, although this does not mean that some positive duties were
not implied, such as organising courts and instituting legal procedures.
17
In the context of the
liberal states, a right to access to judicial protection meant essentially that individuals had a
formal right to litigate or to defend a claim. In this context, the protection remained passive or
blind to the concrete ability of a party to recognise their legal rights and to defend them
adequately. From this perspective, the right to a fair trial and due process of law are oriented to
limit the public power of the state by setting down negative obligations.
Within the social shift, this right to access to judicial protection begins to take into account
the material conditions in which the right was recognised. Thus, it also included the notion of
‘effectivity’ in order to guarantee real access to the courts for everyone, regardless of their
socioeconomic situation. This approach took into consideration that for large parts of society,
their civil and political rights, as recognised in the constitutional declarations, were insufficient to
17
Weston (2006), p 21.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
9
provide real access to the courts. This same interpretation follows from the Airey case within the
ECtHR as it was expressed in Artico v. Italy.
18
In paragraph 33 of the decision, it is stated that:
‘The Court recalls that the Convention is intended to guarantee not rights that are
theoretical or illusory but rights that are practical and effective; this is particularly so of the
rights of the defence in view of the prominent place held in a democratic society by the
right to a fair trial, from which they derive (see the Airey judgment of 9 October 1979, Series
A no. 32, pp. 12-13, par. 24, and paragraph 32 above).’
The right to effective access to justice – as stated here – has emerged as part of a greater
movement initiated by the recognition of social rights. During the last half of the 20th century, this
approach emphasised the impact of socioeconomic disparities and other forms of inequalities on
accessibility to the legal system. It highlighted the substantial gap that exists between, on the one
hand, the promise of liberal ideals like equality before the law and the rule of law and, on the
other hand, the ability of members of different groups in society to effectively enjoy them.
19
Connected to that movement, the Florence Project led by Cappelletti and Garth was
involved during the 1970s with judicial reforms that were related to the welfare state. They
referred to a society with considerable governmental involvement in an essentially private
economy, and with a governmental commitment to ameliorating the economic and social
conditions of the disadvantaged.
20
And it was within this context that the problem of effective
access was studied using the metaphor of the three waves. These waves included reforms
concerned with the economic, territorial, and cultural obstacles to access to justice; the
protection of collective interests; and the idea of access to material justice through alternative
and appropriate forms of providing solutions with regard to claims.
21
According to the above-mentioned evolution, access to justice is linked to the welfare state
ideal, and it broadens the spectrum relating to the responsibility of the state to provide support
and funding to less fortunate litigants.
22
In this context, the problem of access to justice meant
the problem of access to a complex social and administrative machinery, as well as the difficulty
regarding control of the fairness of the decisions made within this machinery.
23
However, all the social institutions that provided some form of aid to people in need became
financially unsustainable in several countries.
24
Therefore, it is necessary today more than ever
to go back to the basis of fundamental rights and see how we can create sustainable systems that
provide access to justice. Considering the historical perspective introduced in this section, and its
relevance for understanding the extent of rights and duties, we must acknowledge that we are
living in the context of the post-welfare state, where the role of the state and private actors is still
18
ECtHR, Artico v. Italy, no. 6694/74, §33, 13 May 1980.
19
Mor (2017), p1.
20
Cappelletti and Garth (1981), p 20.
21
Cappelletti and Garth (1978), pp 3-124.
22
Storskrubb and Ziller (2007), pp 178, 179.
23
Tunc (1981), p 337.
24
Storskrubb and Ziller (2007), p 188.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
10
being redefined.
25
At the same time, it must be taken into consideration that we are immersed in the third
wave of constitutionalism. As mentioned earlier, its main characteristic is the prevalence of
solidarity concerning the public values to be protected. This new solidarity shift also tells
something about the role of private actors in providing access to justice in cooperation with the
state. This topic will be developed in the following section. Beforehand, however, I will add a
complementary comment.
The previous presentation, provided to illustrate the several ways in which human rights
have been shaped historically, can be related to the notion of the three generations of rights
advanced by Karel Vašák. In this typology, the three generations are linked to the three themes
of the French Revolution: namely, the first generation of civil and political rights is connected to
the value of freedom (liberté); the second generation of social rights is related to the value of
equality (egalité); and the third generation of rights is linked to the value of solidarity
(solidarité).
26
These three generations overlap, and are cumulative, interdependent, and
interpenetrating.
27
Karel Vašák’s framework was controversial as well as topical in the theory of human rights,
and it is currently argued to be insufficient to comprehend the discourse on human rights.
28
However, and because of the similarity to my proposal, I need to state that without denying the
limited utility of these categories, I emphasise the notion of progression and the cumulative effect
of the several waves of recognition of rights. I do not suggest with this that there is either a priority
between generations or a lack of development or infancy relating to the latest rights. I only try to
show family ties within the duties included at a certain moment that pertain to the scope of a
right, and to demonstrate at the same time the parallel understanding of the role of the state and
society. In my view, this understanding is not static, and I therefore suggest in this paper the need
to consider a new balance for the post-welfare state.
III. A new balance for the post-welfare state
In the previous section, I stated that in the last few decades we have witnessed a redefinition
of the role of the state. After the crisis involving the welfare state, the tendency has been to apply
many restructuration measures that led to privatisation or to the marketisation of public services,
as well as to some branches of industry and commerce being deregulated. Examples include the
decrease in the ownership of the state through genuine privatisation, the contraction of public
services, and their delegation to private entities governed by market rules. The reduction in social
security placed more responsibility on market-based solutions and on the family.
29
25
According to Baeten et al. (2015), the term post-welfare state refers to a new configuration of the welfare state
characterised by the decentralisation of welfare provision to lower government levels, like cities, and to the private
market. Government becomes governance and enters various novel relations and negotiations with private welfare
providers that need some form of regulation. Post-welfarism therefore can be understood as a way of organising the
provision of state welfare more in line with market principles (p 209).
26
Vašák (1977), pp29,32
27
Weston (2006), p21.
28
Domaradzki1 et al. (2019), pp 423–443.
29
Wilhelmsson (1999), p4.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
11
In this context, it has been noted that:
‘Pressures of globalization and technological changes combined with the neo-liberal policies
of national governments, both conservative and progressive, have created a transnational
wave of privatisation.’
30
This can explain why this phenomenon is not a rara avis, but a common note with regard to
many of the contemporary states. The fact is that the social needs that justified and explained the
development of the various types of social assistance have not disappeared, and they still need
to receive some level of response. In this same vein, it has been observed that even though the
level of state-produced welfare services is sinking, some basic welfare expectations remain in
European societies because of the adherence to welfarist ideals. Therefore, this should be taken
into account when considering the basis of the post-welfarist society.
31
Given the above, the still latent question concerns what role should the state enact and how
could private actors be integrated into this new picture. Under these circumstances, it is usual to
start thinking about a combination of state resources and the market, which together can provide
the expected level of welfare. Ultimately, there is a need to expand the space for intersections
within public and private spheres. And while the market economy may learn how to construe the
fulfilment of social and ecological goals, players in the political arena must learn to use profit to
reach these goals.
32
As Wilhelmsson suggests, the interesting question is not whether we should have these
kinds of mixes, but what should the proportions of the ingredients be.
33
In my opinion, this
enquiry is central, and applies to the future regulation of third-party litigation funding. In legal
terms, the author suggests that it is relevant to study the implications of the decline of the welfare
state with regard to private law, and how new responses from this area of law can be given.
34
Moving a little further, I contend that it is relevant to introduce the human rights perspective into
private law, particularly when confronted with the need to regulate these new forms of funding
civil litigation.
If we keep a broad view of historical processes, we can better understand that the welfare
state was only an intermediate and urgent response to social problems, while solidarity still needs
to be integrated into the market mechanisms and other domains of civil society. At the same time,
the division between private and public law starts to fade, as the phenomenon of the
constitutionalisation of legal systems well illustrates, and the horizontal effect of human rights
begins to permeate areas of private law.
35
The same tendency is visible in the increasing development of public interest litigation,
which is driven by civil society as a way of enacting constitutional values through the courts. The
30
Teubner (1999), p51.
31
Wilhelmsson (1999a), p 242.
32
Whilhelmsson (1999), p9.
33
Whilhelmsson (1999), p5.
34
Idem.
35
Colombi Ciacchi (2006), pp 167-180; Kay and Fisch (1998) p512.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
12
increase in the recognition of human rights makes it clear that they are infiltrating the civil law
discourse, as well as being the basis for making companies and other private actors liable for their
actions. In effect, within the domain of private law, liability is seen as the key to holding private
actors responsible. It has been stated:
‘Liability law would have to emphasise not only physical security but also solidarity, taking
into account expectations of economic security and equality.’
36
This has also become evident within climate change litigation and its related discourse, as
the courts are using the human rights framework to uphold the responsibility of companies in the
fulfilment of international norms, such as the Paris Agreement.
37
The situation can also be analysed from another perspective, suggesting that every
particular domain of the private sphere requires a regulation that fits its goals and is aligned with
their inherent values. In Teubner’s understanding, contemporary social practices can no longer
be analysed in terms of the single binary (public/private), so it is not useful to think in terms of
the impact of public logic on the private sphere, and vice versa. At the same time, it is important
to state that the private sphere – defined as the area in which individuals interplay – cannot be
reduced to the idea of any action that is guided by profit. Instead, it should be seen as a more
sophisticated arena that includes social relationships, culture, art, and other matters involving
individual decisions.
38
Teubner argues that many of these areas were regulated previously under the dominance
of a political party, and now that they have been privatised they tend to be regulated according
to the rules of economy. However, this creates a mismatch between their internal logic and that
of the market.
‘While the new market regime liberates a whole set of sociocultural activities that had been
stifled within the old regime public service provision, in the long run privatisation tends to
create fatal mismatches with those sociocultural activities that are economically non-viable,
even if they are central to the full achievement of their proper rationality and normativity.’
39
According to Teubner, it is not a matter of insisting on the tension between public services
and the market in each area of autonomy. Instead, it is necessary to check each area’s specific
requirements and values in order to understand how they fail to align with the profit-related logic
imposed by the market. This view can be linked to Sandel’s ideas with regard to showing all the
assets that money should not be able to buy. The author presents two independent objections to
markets within the debates about the marketisation of some areas of life.
The fairness objection focuses on the inequality that market choices may reflect, since real
36
Whilhelmsson (1999), p26.
37
Ucin (2021).
38
Teubner (1999), pp p53/4.
39
Teubner (1999), p61.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
13
freedom of choice may be an illusion. This objection points to the injustice that can arise when
people buy and sell things under certain conditions of inequality. In turn, the corruption objection
takes into account the attitudes and norms that market relations may damage or dissolve. It
focuses on the degrading effect of market valuation and exchange regarding certain goods and
practices. According to the corruption objection, certain moral and civic goods are diminished or
corrupted if they are bought and sold. This argument is independent of the previous one, since it
may apply under conditions of equality or inequality alike. This objection highlights the contrast
between the goods at stake and the aim of profit and other values that guide the market, and
evaluates the risk of corruption of the goods in question. This can be analysed in many examples,
such as, among others, education, the adoption of children and organ donation.
40
Even if the above-mentioned authors come from different conceptual frameworks, in the
end Sandel’s second objection to marketisation meets Teubner’s idea of what constitutes a
mismatch. And, if we agree with this view, it may not only be a matter of working on the conflicts
between the political rationality of the public services and the economic rationality of their
privatised successor. It is also a question of identifying areas of conflict where the logic of the
market collides with fundamental principles of the social sub-systems involved.
41
As a preliminary conclusion, I consider it relevant to bear in mind the idea that the state is
still responsible for operating this balance through legislation. The new regulations should avoid
the prevalence of economic interests over those purposes and values that support certain newly
privatised areas. In the case of certain public services, it could be crucial to protect the value of
solidarity against the pure aim of profit. This is because, ultimately, privatised public and other
related services are simultaneously part of two social systems: the economic and the social
system in which they perform their services. Private law therefore has to balance economic and
social interests. In practice, this can mean enforcing by law its non-economic aspects against the
logic of economic calculation.
42
Taking a step into the analysis of access to justice, we should consider what values it serves,
and provide regulation that can protect them. What must be avoided is any corruption emerging
from the prevalence of the profit aim, which may grow if it is not constrained. Access to justice
may not be a pure example of a public service, but it is protected as a human right. Additionally,
it should be highlighted that access to justice provides the opportunity to enjoy the right to a fair
trial, which is in effect a public service, and therein also lies its importance. At the same time,
programmes like legal aid are also clear examples of public services, and, by analogy, the services
provided by private actors as third-party funders could be considered likewise.
However, there are no absolutes in this growing arena where public and private spheres
intersect. The expansion of private funding for civil litigation is a natural development of private
autonomy, which in itself is not a bad thing, and should also be protected. In this regard, it is
necessary to establish a balance that considers the particularities of the different areas in which
TPLF can interplay and provide appropriate regulations. Therefore it is essential to consider values
like participatory democracy, rule of law, and equality in order to guide the regulation of these
40
Sandel (2012), pp 110-114.
41
Teubner (1999), p 64.
42
Teubner (1999), p 75.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
14
emergent forms of private action within a field that used to be guided entirely by public values.
Before delving deeper into this argument, however, I feel it is also relevant to comment on
the human rights perspective, and on how this can also orientate future regulations regarding
TPLF. Within the doctrine of human rights, it is topical that the complete fulfilment of each kind
of right involves the performance of three types of duties that are transversal and apply to every
right, regardless of whether it is categorised as positive or negative. This transversal perspective
explains that the duties to respect, to protect, and to fulfil apply to every right.
43
It must be noted, however, that this does not mean all these duties should be performed
equally by the same actors or institutions.
44
And although human rights refer to norms concerning
the relationship between individuals and the state, there is still room to include the
responsibilities of private actors. Indeed, it can be accepted as evident that in order to protect
and fulfil human rights, the state is entitled to impose duties on individuals through the law.
45
In this vein, it has been pointed out that over the past few decades a paradoxical
development has taken place in the international community. While the obligations of states have
become increasingly detailed, the international standards of relevance to transnational
corporations have moved in the opposite direction, by providing benefits but without imposing
parallel duties in their regard.
46
However, under Article 29 of the Universal Declaration of Human
Rights, everyone has a duty to the community. And for corporations, this entails two levels of
responsibility: to the local community in their area of operation and to the national society in
which they function. Therefore, it becomes urgent to spell out the boundaries of these
responsibilities.
47
It appears to be timely to build up a framework of duties that are appropriate for regulating
TPLF. In this way, access to justice can be protected from the corruption of its values, a risk that
may derive from the prevalence of the aim of profit. From this perspective, we could also establish
a better distribution of roles between the state and private actors. It is obvious that a balance
that may have worked during the period of the welfare state may no longer be suitable.
In effect, as described earlier, we are witnessing a shift in the role of the state. The decline
in investment in some public services implies the intervention of new actors, such as corporations
or civic society itself. In any case, the change in the role of the state must not imply abandoning
a certain protection of individuals and respect regarding fundamental rights. It is relevant to re-
evaluate the role of the law, and to embrace it as the main instrument for guiding conduct with
respect to human rights.
Going back to the three levels of obligation, we have to define the duty to respect, to
protect, and to provide aid or fulfil.
48
The duty to respect rights or to avoid depriving the protected
good means that subjects should avoid doing harm to or depriving others of the protected good.
This duty applies generally to everybody in a civilised society. However, it is reasonable to foresee
43
Shue (1980), pp52-64; Eide (1984; 2006) and Alston (1984).
44
Shue (1980), p 52.
45
Eide (1984), p 154 and (2006), p175.
46
Eide (2001), p 560.
47
Eide (2001), p 560.
48
Shue (1980), pp52-64; Eide (1984), p154.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
15
that this duty may be infringed upon, and it is the role of the state, through the law, to establish
norms defining crimes or the conditions of civil liability that follow the violation of this first duty.
The duty to protect the right is linked strongly to the first one. From the state’s perspective,
this duty implies two levels of obligation. The first level implies maintaining law enforcement by
the police and by any criminal or administrative prosecution. But the second level entails the duty
to design social institutions that do not exceed the capacity of individuals and organisations,
including private and public corporations, to conduct themselves in an appropriate manner. This
includes chronic threats that require imaginative legislation and long-term planning.
49
In this vein,
to avoid violation, the law may also try to prompt compliance by providing incentives and indirect
burdens, which can come in the form of subsidies, tax discounts, or exceptions.
Finally, it is crucial to consider that, despite every effort, there may be instances where
certain people may need practical assistance. And here is where the duty to fulfil comes into play.
This is the typical situation with regard to social benefits in general and within the scope of this
paper; it refers to the arena where we can observe the development of legal aid or other forms
of TPLF. It is precisely at this level that the previously analysed shift in the role of the state is taking
place.
In particular, the debate on access to justice under the present circumstances implies that
new forms of providing access must be considered for those in need, and who are beyond the
protection of legal aid programmes. If we consider that in many countries these systems have
undergone budgetary cuts, it is logical that their beneficiaries are being affected, and may suffer
under these restraints. However, we should consider not only people that may be left out of legal
aid schemes but also those in other situations in which the costs and benefits of filing a claim do
not provide a positive result.
In this context, we are witnessing the emergence of several forms of third-party litigation
funding that tend to complete the scene of the financing of access to justice. Under these
circumstances, we should see that not only legal aid schemes – and therefore not only the states
– are involved in the third category of duties. When profit-oriented private actors intervene in
this arena, they must at the same time respect human rights. This standard should then guide
future regulations with regard to these private funding schemes.
As I will show in the next section, this is not the only element to be taken into account by
legislators. According to Teubner’s ideas, private law should mediate in order to limit profit-
related goals while protecting the logic that is related to access to justice as a human right. On
the one hand, this will contribute greatly to limiting some of the ethical problems of the market,
such as inequalities, discrimination, asymmetry of information, and so forth. On the other hand,
it will help to avoid the market logic with regard to corrupting the internal values of democratic
participation, access to justice, and rule of law.
Actual regulations, coming particularly from soft law instruments, focus mainly on some of
the conflict of interests between parties and the funders. However, the importance of including
protection of the core values of access to justice appears to have been overlooked. I therefore
argue the urgency of including a human rights approach to this regulation, which would prompt
the development of social responsibility on the part of enterprises when they provide public
49
Shue (1980), p 62.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
16
goods or services, and would tend to reduce any possible discrepancy within these systems. I will
develop this idea in the following paragraphs.
IV. The regulation of TPLF and the human rights perspective
Over the last few years, we have witnessed a considerable development of various forms of
third-party litigation funding. Truth is that the first wave of development has taken place in
commercial areas associated mainly with financing the costs of arbitration.
50
But this does not
mean there are no other marginal cases, and that this scheme cannot also expand to provide
financial support regarding small consumer claims or other types of civil cases as well as public
interest litigation claims.
51
In a broad sense, TPLF can be defined as a process whereby a funder – with no direct interest
in a piece of litigation – pays the legal fees of one of the parties, and receives a return on that
investment. This is normally contingent upon the success of the case, and is paid to the funder
from the proceeds of the action.
52
In a simplistic presentation, we can say that these contracts
may be based on a non-recourse basis, which means that the amount that is borrowed will only
be repayable if the case is successful and an award of damages is received.
53
The third-party funder can be a bank, a hedge fund, an insurance company, or some other
entity or individual.
54
If we keep the definition very vague, it could include crowdfunding
alternatives and insurance companies as well as the attorneys providing funding in cases of
contingency-fee agreements. For the purpose of this article, however, I will restrict the definition
by referring exclusively to those agreements where the funder is an investor, irrespective of
whether it is a bank or another entity. Other forms of third-party funding will be excluded.
Despite the growing expansion of this market, many countries within the European Union
have no specific regulations with regard to TPLF, with the exception of Slovenia, where this kind
of financing of litigation is permitted, and is regulated in accordance with the principles set out in
the 2013 Commission Recommendation on collective redress. At the same time, TPLF is
prohibited in Greece and Ireland, while in Germany, the German Federal Court prohibited the use
of TPLF in actions for confiscations or profit pursuant under the Unfair Competition German Act.
55
Directive 2020/1828/EU of the European Parliament and of the Council on representative
actions for the protection of the collective interests of consumers refers to the funding of
50
Rowles-Davies (2014), p 2. According to the European Parliament Research Service Study (2021), the most
commonly funded claims are arbitration claims, claims pursued by insolvency practitioners, intellectual protection
claims, investment recovery, anti-trust claims, and collective consumer claims. This document also shows that TPLF
is commonly used to enforce judgments, especially in the context of cross-border litigation (p4).
51
Rowles-Davies (2014), p 10. Mendez claims that third party litigation financing may allow more middle class and
less advantaged Americans to engage in civil litigation and seek redress for wrongs perpetrated against them,
therefore increasing access to justice for those plaintiffs who cannot afford to pay a lawyer on an hourly basis. See
Mendez (2021), p 107.
52
Rowles-Davies (2014), p 4.; Mendez (2021), p102.
53
Idem.
54
Sahani (2020), p 615.
55
European Parliament (2021), p 1.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
17
representative actions in Article 10. It states in paragraph 1 that – provided this is allowed by
national law – Member States shall ensure that where a representative action is funded by a third
party, conflicts of interest are prevented. It refers mainly to the tension between the economic
interest of the funders and the protection of the collective interest of the consumers. To this end,
in the second paragraph of Article 19, the directive establishes that states shall ensure that the
decisions of the qualified entities in the context of the procedures, including settlement
agreements, are not influenced by a third party in a manner that would be detrimental to the
collective interests. The norm is also concerned with preventing the representative action being
brought against a defendant that is a competitor of the funder, or even against a defendant on
whom the funder is dependant (Article 10.2. a,b). To achieve these aims, it prescribes that the
courts or administrative authorities should be competent to assess these extremes.
This norm is focused on the eventual conflict of interest that may exist between the funder’s
goal and the values that support the right to a fair trial and the rule of law. It tries to prevent some
forms of mismatch between the aim of profit and the public interest that is implied in access to
justice and judicial review. On the one hand, it tries to avoid any unfair influence on the claim of
consumers that could contribute to a limitation of their right to access to justice and to have a
fair trial. On the other hand, it tries to avoid the prevalence of spurious interests on the part of
funders, which are geared to prejudice the defendant. At this point, the norm is tackling an
eventual corruption of civil justice by the introduction of private interests that may collide with
those related to justice, rule of law, accountability, and, ultimately, to consumer rights and
collective redress.
In the same vein, Rule 245 (2) of ELI-UNIDROIT Model European Rules of Civil Procedure
56
specifies that funding arrangements must not contain any terms that could be detrimental to the
party that is receiving financial aid, by imposing a disproportionate amount in return or by giving
the funder an undue influence over the conduct of the proceedings, which may eventually
prevent the party from entering a settlement that could represent their best interests. Therefore,
and to allow a certain assessment of this aspect, the rule establishes that any party who receives
funding from a professional third-party funder or a crowdfunder shall disclose this fact, as well as
the identity of the funder (Rule 245 (1). This duty goes further in the case of collective procedures,
where Rule 237 (2) allows courts to require a qualified claimant to disclose the details of any
funding agreement that pertains to the instance at stake.
The approach exhibited by these norms is interesting, since it demonstrates awareness of
the possible tension between the aim of profit and other values such as those mentioned above.
However, many other issues that go beyond these situations need to be taken into account in
future regulation. A few of these issues are analysed in the Study of the European Parliament
‘Responsible private funding of litigation: European added value assessment’.
57
This document
explores the gaps and the potential policy options for improving the EU framework, and it
56
ELI-UNIDROIT (2020).
57
European Parliament (2021). Note: While the text was under revision, on 13 September 2022, the European
Parliament adopted a resolution with recommendations to the Commission regarding a Directive on the responsible
private funding of litigation. The resolution follows some of the points of the study and report, while it detaches on
others from that previous text.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
18
considers the contractual, ethical, and procedural aspects of TPLF.
58
Not all of the gaps mentioned
there are focused on the link that exists between TPLF and access to justice. In this domain, the
document presents the eventual conflict of interest and the need to disclose the agreement under
certain circumstances.
59
It addresses the question of fairness relating to excessive rates of
return,
60
and also examines the risk of an expansion of frivolous claims being made through
unregulated third-party funding.
61
As with the examples analysed previously, these cases could
also be perceived as a mismatch between the aim of profit and fair access to the court.
Moving ahead, I would like to rethink the dynamics of TPLF in connection with the matrix of
duties. As I implied earlier, these contracts are the result of citizens exercising their autonomy.
And for this reason, they should not per se be limited by the state. Autonomy as well as freedom
of contract should be protected, and, in order to respect these rights, the state should avoid
interfering in this domain. At the same time, the right to conclude contracts in this field should
also be protected by legislation. This entails not only the protection of the provider but also, and
I would say especially, of the consumer. As a result, both aspects of the contract may be accorded
a balanced safeguard. However, when we analyse the content of these contracts, we see that
they are providing services relating to another human right: namely, access to justice. This private
activity, geared towards the aim of making a profit, is growing in an area that was once
monopolised by the state. It is easy to envisage how the aforementioned risks associated with
privatisation can occur.
When applying the matrix of obligations to understand the content of access to justice, we
can see the following. There is a duty to respect this right by preventing harm or any limitation to
it. This duty applies not only to authorities but also to private actors, especially if they are going
to offer financial services in this area. The duty to respect implies, for example, the forbidding of
any form of discrimination, and this can plausibly lead to a special new field opening up with
regard to this regulation. In addition, special attention should be paid to the selection criteria that
funders apply in choosing the cases they will support. It may also be related to the duty of respect,
the consideration regarding fairness, and the forbidding of excessive rates of return.
Considering the duty to protect access to justice, we may move to the responsibility of states
to exercise their legislative powers reasonably. In this regard, it is public responsibility to establish
a coherent system that can provide everyone with affordable access to justice. I need not
emphasise that at the moment this is the major challenge facing states. This suggests distributing
charges and benefits within groups in society while protecting the rationale of the right to access
to justice in these mixed systems. The regulation of TPLF cannot and should not be seen as an
isolated matter, but in connection with the existing forms of public legal aid.
Consequently, the way a sustainable system can be built up is linked to the budget the state
is willing to devote to legal aid programmes. This places us in the third level of obligation, related
to the duty to provide aid to those in need. In times when the public budget is shrinking, the
growth of private initiatives may be stimulated. But the duty to protect this right still falls into the
58
European Parliament (2021), pp 17-23.
59
European Parliament (2021), p21.
60
European Parliament (2021), p 22.
61
European Parliament (2021), p 20.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
19
category of state responsibility, and therefore a system should be created that safeguards respect
towards human rights standards. Provided that the newly designed system is sustainable and
respects human rights, it may respond to social needs. For this, however, the state should take
into account the tensions and mismatches that may arise, especially with the privatisation of this
domain. In this case, conflicts of interest may derive from the fact that private investors or
enterprises will be dealing ultimately with the fulfilment of a human right.
However, this is not the only level on which human rights should be considered. Legislation
should also take into consideration the incorporation of some degree of solidarity in the
regulation of business actors. Third-party funders are not only providing a financial service but
are also interacting in an area that is strictly linked to the right to a fair trial and access to courts.
Consequently, they come very close to providing a public service.
62
This situation places them in
a delicate role, and their duties must be defined from a human rights perspective. Legislation
should be imaginative in order to conceive of proper ways of establishing some kind of solidarity
in this area. This could be enacted through taxation, in case this can add some level of solidarity
to the system.
63
Eventually, some form of pro bono activities could be encouraged by legislation.
64
While states have the primary responsibility, there are certain situations in which they are
unable or unwilling to provide public services such as legal aid. It then becomes necessary to
address this situation without undermining human rights values.
65
A realistic view of the actual
powers and resources of state and non-state agents must take into proper account the effects of
globalisation, and the ways in which power has been reconfigured in this new scenario.
66
I would
argue that it is necessary to introduce protective standards into the habitual contracting terms.
This should be done through private law, but may also imply a compromise among judges in the
interpretation of the law and contracts.
This approach is in line with the UN Guiding Principles on Business and Human Rights.
67
This
document is also based on the three levels of duty to respect, to protect, and to provide aid. The
principles contained therein are grounded on recognition of the well-known obligations of states,
but also on the duty of business enterprises to respect human rights. The UN Guiding Principles
mention the duty of states to protect human rights against abuse within their territories by third
parties, including business enterprises. The way this can be done includes by means of the
regulatory and policy functions. For enterprises, Principle 13 also establishes that the duty of
respect implies that business enterprises must avoid causing or contributing to adverse impacts
on human rights through their activities, and address such impacts when they occur. The Principle
62
In a similar vein, Mendez has argued that the states should promote a healthy and responsible litigation finance
industry. This implies a consideration of the particular elements of this contract, and leads to the conclusion that
simply using the consumer protection laws may be insufficient for the industry as well, as it is also inadequate to
treat financiers as simple lenders. See Mendez (2021), p 119.
63
Although at this preliminary stage I cannot present definitive proposals, the redistributive effects of taxation could
be thought as useful to enact solidarity in this domain. This does not necessarily or exclusively mean to tax the
funders, but could include the beneficiaries. The proceeds of such taxation could improve the public aid programs
finance, for example.
64
Sahani (2020), p 330.
65
Brown (2016), pp 71-80.
66
Brown (2016), pp 63-70.
67
United Nations (2011).

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
20
also establishes that enterprises seek to prevent or mitigate adverse impacts that are linked to
their operations, products, or services. This last element can be related directly to the above-
mentioned role of private investors funds that provide TPLF.
On the basis of what has been presented here, there are two types of matters to be
addressed by legislation. The first type is related to the general functioning of fairness within the
judicial process as well as the protection of the values implied in judicial review. We note that the
main topics analysed in the instruments referred to earlier could be related to this broad matter.
However, it is still possible to add other topics that can contribute to TPLF’s final legal shape. The
second type of matters is related in particular to the role of private actors in the respect of access
to justice conceived as a human right, and to the definition of their particular duties in providing
some degree of fulfilment of this right.
As I argue here, with regard to the three levels of duty, the regulations should also provide
a key to guide the conduct of private actors on every level. Being that the state is principally
responsible, it should not only respect this right but also, and in particular, facilitate the regulation
of a well-balanced system that guarantees not only legal aid for individuals in need but also a fair
contractual atmosphere for those who would apply for these financial services. The litigation
funding provided by third-party funders places these investors in the role of providers of a service
protected as a human right. Therefore, they are placed voluntarily in the area covered by the duty
to fulfil the right to access to justice, the third level in the aforementioned matrix. The specific
regulation of TPLF provided by the state should take into account the duty of third-party funders
to respect the right to access to justice, and to provide aid in a way that balances both of the
interests in question: namely, the aim of making a profit and the protection of a human right.
V. Concluding remarks
It is difficult to reverse the idea that human rights are a construction based on the
responsibility of the state. We have human rights as shields against state action or omission to
act. And this is true – or particularly true– if we look into the origins of the recognition of
fundamental rights in written instruments. However, we live now in a more complex world. We
need to be protected not only from the state but also by the state. Owing to the increase in
globalisation, we are seeing an expansion of multinational corporations whose power is not only
equivalent to but arguably greater than that of the states. And even if this phenomenon is not
entirely new, the legal shift is still incomplete, which is why it is relevant, even imperative, to start
laying down some pertinent points in the discussion.
It is necessary to expand the protection of human rights, not only because private actors are
now posing certain risks but also because the states are becoming weaker, and may not be able
to produce the necessary changes effectively if society is not involved. As presented here, one of
the duties of the state is to prevent harm perpetrated by others. This prevention can be in the
form of legislation, which may imply the sanctioning of criminal offences but also the design of a
wide range of programmes that promote respect for human rights, and even their promotion by
private agents. This could be done, in general, by means of incentives, taxes, and other ways
relating to civil or administrative responsibility.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
21
Nevertheless, the domain of private action is huge, and the state cannot and may not
regulate everything. Therefore, a wide range of activities exist in the private sphere that need to
develop with some degree of freedom, but at the same time must be guided by the values
inherent in human rights. This is a matter of urgency, since in many areas, such as the increasing
dangers of climate change, we do not have time to waste. In other areas, like access to justice as
reviewed here, urgency is relative but still present. Providing the means to afford concrete access
to justice is necessary, and is an appropriate domain for the expansion of certain businesses.
However, in some areas, certain compromises from actors with high standards regarding the
protection of human rights may be required, and this should be guided carefully by regulation.
The state then needs to regulate and take all the actions necessary to protect citizens from
any restriction of their rights. And in connection to access to justice, this implies that the core
values of this right – namely, equal access to a fair trial under dignified conditions of treatment
without any trace of discrimination – are balanced with the enterprise’s aim of making a profit.
The role of the state is to guide private action and to create, if necessary, incentives to promote
compliance with human rights. The model of the welfare state is probably no longer a viable
option, but the compromises are not erased; the methods may be changed, but the social
contract is not rescinded. Private actors may interact in this new arena, with strong compromises
regarding these values as necessary conditions for reproducing a liveable society. Peace is
something we build every day by means of small actions; rule of law is an institutional way to
facilitate this, and businesses must cooperate in maintaining the balance, not only for the sake of
others but also for their own interests.
To build a sustainable system that regulates access to justice means focusing not only on
individuals in need of legal aid but also on those in other tiers of society that are out of the reach
of these programmes. Considering the three levels of obligation, it can be seen as a duty of the
states to provide legal aid to people who are in need. Beyond these extreme cases, however, we
should also consider a balanced regulation that assigns responsibilities to private actors that are
willing to provide financial services. The three levels of duty still apply here, and their complete
regulation would coordinate the role of states and private agents. Because it is difficult to expect
business corporations or investors to comply spontaneously with these duties, it is the state’s
responsibility to provide innovative legislation that supports and ensures these ways of
proceeding.
In the shift from public to private forms of intervention in many areas of social development,
it is more important to discuss new ways in which private actors should proceed than to talk about
how states have changed shape. And this must be deliberated also by taking into consideration
the values inherent in human rights: mainly dignity and equality linked by solidarity. This suggests
considering not only the eventual conflict of interests but also evaluating the rationale for
selecting the cases to be financed. What about the claims that are too risky, or that are not
profitable but essential for rule of law? Or what about cases that might go against some personal
or sectorial interests? In other words, and as Sahani argues, would real access to justice need to
involve TPLF in the financing of indigent or even innocent defendants or righteous injunctions
with no monetary recovery?
68
68
Sahani (2020), p 614.

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
22
Some alternatives have been introduced in the present paper. Taxation is likely to play a
role, not only for guiding action but also as a way to trigger redistributive effects and to have a
positive influence on the judicial system, or eventually to help the legal aid systems. On a parallel
level, private action can also be nudged to work on pro bono lines, supporting cases where the
public interest is at stake. In any case, further reflection is needed as well as a broader analysis
that examines some of the actual legislations in light of the previously mentioned conceptual
matrix.
69
These are only a few preliminary ideas open to discussion, but there is still a great deal
of work to be done. Because in determining a way to create a sustainable system for access to
justice in the 21st century, an appropriate balance needs to be found between fairness and profit.
References
• Alston P (1984) International Law and the right to food. In: Eide A, Eide WB, Goonatilake
S et al. (eds), Food as a human right, The United Nations University, pp 162-174
• Baeten G, Berg LD and Lund Hansen A (2015) Introduction: neoliberalism and post-welfare
nordic states in transition, Geografiska Annaler. Series B, Human Geography, Vol. 97, No.
3 pp. 209-212
• Brown G (2016) Responsibility for human rights. In: Brown G (ed), The Universal
Declaration of Human Rights in the 21st Century: A Living Document in a Changing World,
1st ed. Vol. 2. Cambridge, Open Book Publishers, pp 71-80.
http://www.jstor.org/stable/j.ctt1bpmb7
• Cappelletti M, Garth B (1978), Access to justice: the worldwide movement to make rights
effective. A general report. In: Cappelletti M Garth B (eds) Access to Justice, Vol I, A world
survey, Sijthoff and Noordhoff-Alphenaandenrijn,- Dott. A. Giufré Editore – Milan, pp 3-
124
• Cappelletti M, Garth B (1981) Access to justice and the welfare state: An introduction. In:
Cappelletti M (ed) Access to justice and the welfare state, European University Institute,
Florence, pp 1-24
• Colombi Ciacchi A (2006) The Constitutionalization of European Contract Law: Judicial
Convergence and Social Justice. European Review of Contract Law, 2(2), 167-180. doi:
10.1515/ERCL.2006.013
• Domaradzki S, Khvostovai M, and Pupovac D (2019) Karel Vasak’s Generations of Rights
and the Contemporary Human Rights Discourse, Human Rights Review, Springer 20:423–
443
• Eide A (1984) The international human rights system. In: Eide, A. Eide W.B., Goonatilake S
et al. (eds), Food as a human right, The United Nations University, pp 152-161
• Eide A (2001), Obstacles and goals to be pursued in Economic, social and cultural rights.
In: Eide A, Krause C, and Rosas A (eds), Economic, social and cultural rights. A textbook,
second revised edition, Martinus Nijhoff Publishers, Netherlands, pp553-562
69
I tackle this aspect in a forthcoming article: How can business best approach human rights in third-party litigation
funding? Guidelines for future regulations (under review process).

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
23
• Eide A (2006), Economic, social and cultural rights as social rights. In: Claude RP, Weston
BH (eds), Human rights in the world community. Issues and action, Third Edition,
University of Pennsylvania Press, pp 170-179
• ELI-UNIDROIT (2020), Model European Rules of Civil Procedure
• European Parliament Research Service (2021), Responsible private funding of litigation.
European added value assessment
• European Union Agency for fundamental rights – FRA (2011), Access to justice in Europe:
an overview of challenges and opportunities
• Francioni F (2007) The rights of access to justice under customary international law. In
Francioni F (ed) Access to justice as a human right, Oxford University Press, pp. 1-55
• Friedman LM (2010) Access to Justice: Some Historical Comments, 37 Fordham Urb. L.J. 3
• Gerards JH, Glas LR (2017) Access to justice in the European Convention on Human rights
system, Netherlands Quarterly of Human Rights Vol. 35 (1) pp 11-30
• Hocking BA (1999) Can we, should we, use private law as a means of regaining
governmental provision of services and care for citizens? In: Wilhelmsson T, Hurr S (eds)
From dissonance to sense: welfare state expectations privatisation and private law,
Ashgate Publishing, England, pp277-299
• Kay R, Fisch WB (1998) The Constitutionalization of Law in the United States, Faculty
Articles and Papers 512. https://opencommons.uconn.edu/law_papers/512
• Larson DA (2015) Access to Justice, Encyclopedia of Law and Economics, Springer
Science+Business Media, New York
• Mendez, C (2021), Welcome to the party: creating a responsible third-party litigation
finance industry to increase access and options for plaintiff, Mississippi College Law
Review, 39 (1) pp 102-123
• Mor S (2017) With access and justice for all, 39 Cardozo Law Review 611
• Rowles-Davies N (2014) Third party litigation funding, Oxford University Press
• Sahani V (2020), Rethinking the impact of third-party funding on access to civil justice, 69
DePaul L. Rev. 611-632
• Sandel MJ (2012) What money can’t buy, Penguin Books, England
• Shue H (1980) Basic Rights. Subsistence, affluence and U.S. foreign policy, Princeton
University Press, New Jersey
• Teubner G (1999) After privatisation? — The many autonomies of private law. In:
Wilhelmsson T, Hurr S (eds) From dissonance to sense: welfare state expectations
privatisation and private law, Ashgate Publishing, England, pp. 51-82
• Tunc A (1981) The quest for justice. In: Cappelletti M (ed) Access to justice and the welfare
state, European University Institute, Florence, pp 315-359
• Ucín MC (2021) Milieudefensie vs. Shell. O sobre las nuevas formas de la justicia, Sup.
Innovación y Derecho 2021 (octubre), 1, LA LEY 2021-F

Ucín, M.C. (2023). Revisiting the Concept of Access to Justice as a Human Right in the Post-welfare State. In: YSEC
Yearbook of Socio-Economic Constitutions. Springer, Cham. https://doi.org/10.1007/16495_2023_49
24
• United Nations (2011). Guiding principles on business and human rights: Implementing
the United Nations "Protect, Respect and Remedy" framework.
• Vašák K (1977), A 30-year struggle; the sustained efforts to give force of law to the
Universal Declaration of Human Rights, The UNESCO Courier: a window open on the
world, XXX, 11, p. 28-29, 32, illus.
• Weston BH (2006) Human rights: concept and content. In: Claude RP, Weston BH (eds),
Human rights in the world community. Issues and action, Third Edition, University of
Pennsylvania Press, pp 17-26
• Wilhelmsson T (1999) Welfare state expectations, privatisation and private law. In:
Wilhelmsson T, Hurr S (eds) From dissonance to sense: welfare state expectations
privatisation and private law, Ashgate Publishing, England, pp 3-36
• Wilhelmsson T (1999a) Private Law 2000: small stories on morality through liability, In:
Wilhelmsson T, Hurr S (eds) From dissonance to sense: welfare state expectations
privatisation and private law, Ashgate Publishing, England, pp 221-251.