Injustice in Person: The Right to Self-Representation

This book explores whether mandatory legal representation may sometimes be justified. Litigation in person is widespread in common-law jurisdictions and self-representation is treated as a fundamental right, regardless of financial means or the capacity to litigate effectively. This right is considered sacrosanct even in circumstances of extreme abuse of process, as, for instance, in ‘vexatious litigation’. By contrast, most civil-law systems take the opposite view, generally imposing legal representation as a condition of civil litigation. So, paradoxically, it is the relatively flexible and informal judge-based systems, which might be thought more conducive to self-representation, that tend to make representation obligatory, whereas the more formal and complex adversarial systems, where professional representation is critical, offer unfettered freedom to proceed in person. The high numbers of such litigants and the burdens placed on judicial resources by their lack of legal knowledge pose serious challenges to the administration of justice in common-law jurisdictions. This book challenges the conventional position in these legal systems, arguing that as a matter of principle, a litigant who lacks the knowledge and skills to present her case effectively cannot legitimately insist upon representing herself when by doing so she is likely to inflict disproportionate costs on her opponent and on the administration of justice. This argument is developed by discussing the case law of English and American courts as well as judgments of the ECtHR, the ICTY, and the HRC. The book further develops a theoretical framework for assessing the justification of mandatory legal representation in specific circumstances, by comparison with the criminal context, an assessment of the value of self-representation in terms of outcome, and an examination of possible intrinsic justifications, including autonomy and litigant satisfaction.