⚖️ Civil Justice at a Crossroads: Between an Exclusive Club and a Universal Access Service. An Economic Analysis

by Pierfrancesco C. Fasano

Introduction

Global Indicators on the Duration of Proceedings and Access to Civil Justice

Across jurisdictions, the performance of civil justice systems is increasingly assessed through empirical indicators measuring the duration of proceedings, the cost of litigation, and the effective accessibility of judicial remedies. International datasets reveal a persistent and structural tension between the formal availability of judicial protection and its practical usability by individuals and businesses.

According to data published by the World Bank, average disposition times for first-instance civil and commercial cases vary significantly across jurisdictions, ranging from fewer than 300 days in the most efficient systems to well over 1,000 days in others.¹ The World Bank’s Doing Business project—now succeeded by the Business Ready framework—has consistently identified the length of proceedings, procedural formalism, and enforcement delays as critical obstacles to legal certainty and economic activity, particularly for small and medium-sized enterprises.²

Comparable conclusions emerge from the evaluations conducted by the CEPEJ (European Commission for the Efficiency of Justice). Its biannual reports document substantial disparities in the duration of civil proceedings across Europe, with several member States recording average case processing times that exceed the thresholds commonly associated with the requirement of a “reasonable time” under Article 6 of the European Convention on Human Rights.³ The CEPEJ has repeatedly emphasised that excessive length of proceedings undermines both public trust in judicial institutions and the effectiveness of substantive rights.

From a broader rule-of-law perspective, the World Justice Project highlights persistent barriers to access to civil justice on a global scale. The Rule of Law Index identifies high legal costs, procedural complexity, delays, and information asymmetries as systemic constraints that disproportionately affect individuals, vulnerable groups, and economically weaker actors.⁴ In many jurisdictions, these factors operate cumulatively, producing a gap between formal legal entitlements and their effective enforceability.

Taken together, these empirical findings point to a structural risk: while access to justice is formally recognised as a fundamental right in most legal systems, its effective enjoyment is increasingly conditioned by time, cost, and complexity. Civil justice thus risks evolving from a universal public service into a selectively accessible system, in which judicial protection is realistically available only to those with sufficient resources, expertise, and organisational capacity.

It is against this empirical and comparative background that the present analysis is situated. By adopting an economic reading of civil jurisdiction, the following sections examine how the interaction between demand for justice and supply of jurisdiction shapes accessibility, perceived value, and the long-term sustainability of civil justice systems.

1. An Economic Reading of the Current State of Civil Jurisdiction

The functioning of civil justice may be analysed not only as the exercise of judicial authority, but also as a public service of high institutional intensity, in which demand and supply interact according to dynamics that are not always explicit. From this perspective, the Economic Analysis of Law (Law & Economics) provides a valuable interpretative framework for understanding the factors affecting access to justice, its effectiveness, and the perceived value of the justice service.

As early as 1960, Ronald Coase, in his seminal essay The Problem of Social Cost, highlighted how transaction costs decisively influence the effectiveness of legal rules. Such costs structurally include those associated with access to jurisdiction: the length of proceedings, procedural complexity, financial burdens, informational asymmetries, and uncertainty of outcomes. Where these factors exceed a threshold of sustainability, the demand for justice tends to contract or to shift towards alternative solutions, irrespective of the formal quality of the legal framework.

On this basis, the Chicago School developed its line of thought, notably through scholars such as Richard Posner, who emphasised the need to assess legal institutions also in terms of their overall efficiency. From this standpoint, a civil justice system characterised by high procedural complexity and timeframes incompatible with economic and social needs produces distortive effects on the relationship between demand for and supply of justice.

A further essential contribution to the debate was made by Guido Calabresi, who introduced a broader reflection on the relationship between efficiency, equity, and the allocation of the costs of error. Jurisdiction cannot be assessed solely in terms of productivity or speed, but must also be evaluated in light of the systemic effects it generates on access to the protection of rights.

In the Italian context, these issues have been further developed by Ugo Mattei, who has stressed that access to justice constitutes a key indicator of the democratic quality of institutions. Where access becomes excessively selective or burdensome, the value attributed to the justice service risks deriving more from its perceived scarcity than from its actual capacity to resolve disputes.

2. The Fragile Balance Between Demand for Justice and Supply of Jurisdiction

In an ideal configuration, civil justice should respond to a widespread demand for the protection of rights by delivering timely, comprehensible, and reliable decisions. However, the evolution of civil procedure has progressively increased levels of normative, procedural, and technological complexity, with a direct impact on the accessibility of the service.

As the complexity of demand increases, the supply of jurisdiction tends to become more selective and specialised, resulting in a reduction of effective access. The outcome is an imperfect market, in which the value of the service is not determined by its perceived quality, but by the difficulty of its use.

3. Procedural Complexity and the Perceived Quality of the Service

Procedural complexity has often been justified as a safeguard of correctness and thoroughness. From the users’ perspective, however, the quality of the justice service is primarily assessed in terms of effectiveness: reasonable timeframes, clarity of decisions, reliability in the reconstruction of facts, and sustainability of costs.

Where these elements are lacking, complexity does not translate into quality, but into distance between the institution and its users. The economic and symbolic value attributed to the service increases not because of its effectiveness, but because of the difficulty of accessing it.

4. Civil Proceedings as an Exclusive Club and Access as Symbolic Value

This dynamic finds parallels in other areas of social life. Access to an exclusive club or organisation—whether social, sporting, political, humanitarian, or charitable—often acquires a value that is independent of the concrete benefits offered. What is valued is not so much the substance of the service received, but access itself and the social or professional prestige associated with it.

Scarcity and selectivity of access generate symbolic value, accompanied by an increase in costs that is not proportionate to the intrinsic quality of the services rendered or expected.

Applied to civil justice, this logic risks producing a significant systemic effect: access to judicial protection may, in practice, become a pathway reserved for those who possess sufficient economic resources, technical expertise, and organisational capacity.

In such a context, the value of the justice service tends to be determined by its limited accessibility rather than by its ability to provide effective and comprehensible solutions to disputes.

5. Extrajudicial Dispute Resolution and Proportionality of the Justice Service

Alternative Dispute Resolution (ADR) mechanisms fit within this framework as tools designed to restore balance between demand and supply. Mediation, arbitration, and other consensual mechanisms allow the level of complexity, costs, and time to be calibrated according to the nature of the dispute, thereby reinforcing the principle of proportionality in the delivery of justice.

ADR does not represent a form of “second-class” justice, but rather an institutionally coherent response to the shortcomings highlighted by the economic analysis of jurisdiction.

Conclusion

A civil justice system that grounds its value in difficulty of access is, in the long term, a vulnerable system. The quality of the service cannot be measured by the complexity of its rules or the selectivity of entry, but by its capacity to provide effective, timely, and sustainable responses to the protection needs of citizens, businesses, and public authorities.

Reconsidering jurisdiction through the lens of the relationship between demand and supply strengthens the legitimacy of both the justice system and the State in the performance of one of its vital functions, and helps to rebuild trust between institutions and users, with a view to the effective protection of rights.

A common home, not a club.