The Fundamental Theoretical Underpinnings of the Right of Free Access to Public Legal Information By Dr. Leesi Ebenezer Mitee
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Chapter 5: The Fundamental Theoretical Underpinnings of the Right of Free Access to Public Legal Information

Copyright © 2021 By Dr. Leesi Ebenezer Mitee

Book Chapter Citation

Leesi Ebenezer Mitee, ‘The Fundamental Theoretical Underpinnings of the Right of Free Access to Public Legal Information’ in Developments in Human Rights Law and the Proposed Human Right of Free Access to Public Legal Information: The New Human Rights-Advocacy Approach and the Ten Criteria for the Formal Recognition of New Human Rights, Volume 1, New Human Right of Free Access to Public Legal Information Book Series (Publisher: Koinonia Legal Research and Book Publishing, Tilburg, The Netherlands 2020)

Book Chapter Title

The Fundamental Theoretical Underpinnings of the Right of Free Access to Public Legal Information

Book Title

Developments in Human Rights Law and the Proposed Human Right of Free Access to Public Legal Information: The New Human Rights-Advocacy Approach and the Ten Criteria for the Formal Recognition of New Human Rights (Volume 1)

Book Series Title

New Human Right of Free Access to Public Legal Information Book Series

Book Formats

ISBN 9789083108520 (eBook or e-Book): Digital or electronic book that you can read on your mobile phone, computer tablet, eReader, laptop, desktop computer, etc.

ISBN 9789083108506 (Paperback)

Publisher: Koinonia Legal Research and Book Publishing, Tilburg, The Netherlands

Book Author

Dr. Leesi Ebenezer Mitee
Doctor of Philosophy (PhD) with specialisation in international human rights law, legal information technology or legal informatics (the application of information technology to legal processes and legal information systems), indigenous customary law, and indigenous rights; Master of Laws (LLM) in comparative access to public legal information in the United Kingdom and Nigeria; postgraduate professional legal practice certificate (BL); Bachelor of Laws (BL); Higher National Diploma (HND) in town & country planning (urban & regional planning); Fellow, Society for Advanced Legal Studies (United Kingdom); Member, Internet Society (United States); Member, American Indigenous Research Association (United States)

Book Chapter Publication Information

The book chapter, ‘The Fundamental Theoretical Underpinnings of the Right of Free Access to Public Legal Information’ in Developments in Human Rights Law and the Proposed Human Right of Free Access to Public Legal Information: The New Human Rights-Advocacy Approach and the Ten Criteria for the Formal Recognition of New Human Rights (Volume 1 of the Human Right of Free Access to Public Legal Information Book Series) is in the publishing process.

Information on its publication, sale, and online access outlets will be published here, as soon as the book is published and available for global distribution.

Book Chapter Description (Abstract)

Some of the theories and concepts that are relevant to the right of free access to public legal information have been examined randomly in the existing literature, but there appears to be no specific systematic discussion of their relevance in the context of an integrated framework. This legal doctrinal study identified the following five relevant concepts that underpin the right of free access to public legal information and its provision: the theory of legal certainty (an aspect of which is the concept of ascertainment of indigenous customary law), the duty-right relationship between the State and the people under the rule of law, the doctrine of ignorance of the law is no excuse (ignorantia juris non excusat), the presumption of the reliability of information from official sources, and information findability. The study focused on the first three concepts (the ascertainment of indigenous customary law and the other two concepts are discussed in volumes 2 and 3 of the New Human Right of Free Access to Public Legal Information Book Series, respectively). A legal analysis of Lon Fuller’s theory of legality (which is the version of the general theory of legal certainty that is most relevant to this study because of its comprehensive coverage) revealed that six of his eight principles of legality (i.e. those on secret laws, retroactive laws, unintelligible laws, laws that command the impossible, non-existent laws, and laws that change every minute) underpin the concept of the right of free access to public legal information. The study also found that the ancient and modern doctrine of ignorance of the law is no excuse for violating any provision of the law is based on the presumption that every person knows the law, and that presumption is itself based on the existence of free adequate access to all categories of law. The provision of such access to law is every government’s exclusive moral and legal duty under the rule of law, and that duty precedes the citizens’ duty to obey the law, thus making access to law a condition precedent to the just application of the doctrine of ignorance of the law is no excuse. To remedy the grave injustice in the unjust application of that doctrine, the study proposes the counterbalancing defence of ignorance of inaccessible law is an excuse and makes the appropriate law-reform recommendation for an international human rights legal framework that can promote its universal recognition and application in the global system of criminal justice. That framework should be such that can create and enforce, within the limits of international law, the international human rights obligations of all governments worldwide to provide the required adequate access to their public legal information.

Keywords: Human right of free access to public legal information (Theoretical framework), Right of free access to law (Theoretical framework), Huricompatisation customary law ascertainment, New doctrine of ignorance of inaccessible law is an excuse, Theory of legal certainty (Lon Fuller’s theory of legality), Duty-right relationship between the state and the people (The rule of law)

Links to All the 8 Chapters in Volume 1

Chapter 1 | Chapter 2 | Chapter 3 | Chapter 4 | Chapter 5 | Chapter 6 | Chapter 7 | Chapter 8

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