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Koinonia Legal Research and Book Publishing Website 7
Part of the The 22 Chapters in the New Human Right of Free Access to Public Legal Information Book Series series:
Editions:eBook - First

The Existence of Free Access to Public Legal Information as a Legal Right

By , PhD in international human rights law, legal information technology (legal informatics), indigenous customary law and indigenous rights

Chapter 4: The Existence of Free Access to Public Legal Information as a Legal Right in The New Human Right of Free Access to Public Legal Information and its Proposed United Nations Convention (ISBN 9789083108520) which is Volume 1 of the Human Right of Free Access to Public Legal Information Book Series (Publisher: Koinonia Legal Research and Book Publishing, Tilburg, The Netherlands 2020)

Publisher: Koinonia Legal Research and Book Publishing
Excerpt:

Book Chapter Abstract

Free access to public legal information is an ancient concept that began with the publishing technique of inscribing laws on stones and other durable materials that were kept in public places (e.g. the Law Code of Hammurabi in about 1754 BC) and it later enjoyed express judicial recognition after more than 3,000 years (e.g. in the 1886 US case of Nash v Lathrop). The Free Access to Law Movement (FALM) that started in 2002 and contemporary legal scholarship have now popularised and enlivened the concept. However, the available literature on the right of free access to public legal information does not examine it precisely in the specific context of legal rights, neither is there any existing comprehensive definition of the right, although such definition can enhance its understanding, application, protection, promotion, and actualisation globally.

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This study developed and used a novel contextual framework and the doctrinal legal analysis of the relevant principles in the primary sources of law (especially legislation, national constitutions, judicial decisions, and international legal instruments) to determine whether free access to public legal information exists as a legal right. The seven major findings include the following. One, all levels of government (national, regional, and local) and intergovernmental organisations (IGOs) worldwide that have lawmaking and judicial powers are the duty-bearers that have the exclusive moral and legal obligation to provide free adequate access to all categories of their public legal information. Two, all persons and corporate organisations that are bound to obey the law because they are presumed to know the law, ignorance of which is no excuse for its violation, are the beneficiaries or right-holders who are legally entitled to the required free adequate access that the duty-bearers are obligated to provide. Three, access to public legal information is enforceable via mandamus and under the general right of access to public information in national constitutions and in freedom of information or right to information legislation that exists in at least 129 countries and territories. Four, the legal framework under which the right exists is inadequate. The study concludes that free access to public legal information exists as a legal right and acknowledges the claims that it is also a human right. It proposes a comprehensive definition of the right and makes recommendations for the proper national and international legal framework for its protection, promotion, and actualisation to enhance national and global free access to all categories of laws and law-related public documents. The study has law-reform and policy-relevant implications for the rule of law and the global system of criminal justice, and it innovates the application of the ancient public trust doctrine (PTD) to the concept of free access to public legal information.

Keywords: Human right of free access to public legal information, Free access to law, Huricompatisation customary law ascertainment, Public trust doctrine (PTD) and access to law, Definition of right of free access to law, Access to law (duty-bearers and right-holders), Lee Loevinger and jurimetrics, Ignorance of the law is no excuse

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