Is the PULS a new idea?
The PULS has some familiar elements, but this combination is the first of its kind.
Though some of its elements are not new. Legal need surveys, which form part of the PULS, are not a new idea – they have a long history and have become increasingly popular around the world in recent years.
Attempts to measure people’s legal capability are more recent. Some legal needs surveys have included questions on awareness of law or familiarity with legal services.
The PULS looks to shift the dial, increasing the aspects of capability it covers, and using modern psychometric methods to capture them. Psychometrics is the field concerned with the objective measurement of skills, knowledge, abilities, attitudes and traits.
The elements which make the PULS different include:
- the range of legal capability covered
- the integration of psychometric methods into scale development, giving us greater confidence in the results, and
- that we will be able to see the intersection between capability and the experience of legal problems.
As a contribution to global research in this area, we hope that the PULS leads to an increased interest in understanding legal capability and a new approach to exploring legal need.
What is 'access to justice', 'legal need' and 'unmet legal need', and how do they relate?
These are key concepts underpinning the PULS - they help clarify the questions we’re trying to answer and set the parameters of the research.
Access to justice
Broadly, access to justice can be defined as the ability of people to get a just resolution to their everyday legal (or justiciable) problems, and enforce their rights in compliance with human rights standards (as set out in the United Nations Development Programme, 2005).
Sometimes - but by no means always - this involves legal support or processes, because justice in this context is about just resolution, not legal services. In fact, it’s well understood that courts and law play a very small part in everyday justice, and that it’s more common for people to resolve problems without legal advice or process.
Sometimes experience of justiciable problems is referred to as legal need, and problems where there was no legal advice as unmet legal need.
The prevalence of problems and whether there was any legal advice are useful indicators, but don’t cover all circumstances, and are not enough to capture legal need or unmet legal need. For example, an everyday legal problem could be quickly resolved by a confident and capable person speaking to the other side, without any advice. In such a case, there was a justiciable problem, but never a legal need.
We think of the OECD's definitions:
- legal need: when a shortage of legal capability means people can’t resolve their everyday legal problems, and need help to deal with them appropriately
- unmet legal need arises when a problem is not dealt with appropriately because effective legal support is not available
- Fundamentally, there is no access to justice where legal need is unmet
What is a 'legal need survey' and what is a 'justiciable problem'?
Legal need surveys, which explore justiciable (or everyday legal) problems. are fundamental to understanding how people experience law and how services can respond to their needs.
Legal need surveys
Part of the PULS is a legal need survey – they have played an important role in access to justice policy around the world, including in Australia.
Legal needs surveys investigate the experience of justiciable problems from the perspective of those who face them, rather than the professions and institutions that may play a role in their resolution. This approach is often referred to as ‘bottom up’ which is increasingly evident in access to justice policy around the world.
Legal need surveys have a long history, dating back to the 1930s, and became increasingly popular after Professor Dame Hazel Genn’s Paths to Justice report. In Australia, the most important legal need survey has been the Law and Justice Foundation of New South Wales’ LAW Survey, conducted in 2008 and published in 2012. Legal need surveys are now used to measure and monitor achievement against the UN Sustainable Development Goal 16.3.3 – part of their target to promote the rule of law at the national and international levels and ensure equal access to justice for all.
For a comprehensive guide to legal need surveys and access to justice see the recent OECD and Open Society Foundations report, written by Professor Pascoe Pleasence (who joins us on the PULS project), VLF Research Director Professor Nigel Balmer, and Peter Chapman. The report informed the legal need component in our PULS questionnaire.
Justiciable or everyday legal problems
The term ‘justiciable problem’ in the context of legal need surveys was coined by Professor Dame Hazel Genn during her Paths to Justice project. It is used to describe problems that raise legal issues, whether or not this is recognised by those facing them, and whether or not lawyers or legal processes are used to deal with them. In fact, the majority of everyday legal problems involve neither legal advice (for example, from lawyers) or legal processes (for example, ending up in court).
If the evidence relied on is the number of people seeking legal advice or using legal systems, you will only see a fraction of the issues people face. This means policy and service decisions using this information will only address a fraction of community experience and need.
What is legal capability and why are we interested in it?
Legal capability covers the knowledge, skills, attributes and resources you might need to deal with everyday legal problems.
Legal capability can be broken down into four stages -
- Recognition of issues
- Accessing information or assistance
- Resolving the issue, and
- Wider influences and law reform (such as law-making / regulatory processes).
There are many dimensions which can give a person legal capability. We set out some in our ‘Law… What is it Good For?’ report.
At each of the four stages, ability to deal with a problem is shaped by -
- Knowledge (e.g. about the law, rights, assistance, information, processes)
- Skills (e.g. recognition of issues, information literacy, communication, decision-making, problem solving and digital skills)
- Attributes (e.g. self-awareness, persistence, confidence and attitudes)
- Resources (e.g. money, time, social capital and the availability of services and processes).
While we are not able to capture all aspects of legal capability, the PULS will measure a number of important dimensions, including knowledge of rights and assistance; confidence when facing justiciable problems; problem solving and digital skills; recognition of the relevance of law; and attitudes to the law, courts and lawyers.
Some earlier legal need research sought to understand why people responded to justiciable problems the way they did, and why some people got legal advice while others didn’t. Over time, researchers have sought to build increasingly sophisticated models to explain people’s response to justiciable problems and found more and more factors at play. Among these have been aspects of what we now think of as legal capability, such as whether or not problems are seen as legal.
The PULS will explore legal capability more fully than previous surveys. This will give us a better understanding of why people take particular paths when faced with problems. It will also support better understanding of the type, level and complexity of services that different people might need, highlight opportunities for policy intervention, and provide questions that can be repurposed in future research and evaluation (see – Who is the PULS for?).
Further discussion of legal needs in the context of the concept of legal capability can be found in the article Justice & the Capability to Function in Society.
How does the PULS explore legal capability?
Measuring legal capability is not simple and means learning from other disciplines.
The PULS will investigate capability in a number of different ways -
- through hypothetical scenarios, for example asking what respondents think the law is or what they know about sources of help in different situations
- using scales to look, for example, at whether or not respondents feel courts and lawyers are accessible
- with questions about what respondents’ do or are able to do, for example what people can do online, or the extent to which they understand forms
- through the respondent’s experience of an everyday legal issue - finding out for example whether respondents saw their problem as legal or as something else.
Some of these require psychometric scales which capture the part of capability that we are interested in. We developed some of these scales as part of our ‘Law… What is it Good For?’ report. We are also drawing on other research using psychometric methods to capture aspects of legal capability.