A mockery of his misery: preconditions for the effectiveness of the right to have rights

Today access to justice is a fundamental problem because for many non-full citizens (migrants, asylum seekers, marginal people) it has become the only way to claim their fundamental rights: in a global society the chance to stay before a court replaces the formal recognition of rights. Besides being ineffective at covering the real costs of litigation, a major problem with the Italian system of legal aid is extrajudicial legal advice. Access to justice for poor and marginal people is chiefly a matter of knowing one's rights and how to use them. This requires a dedicated service of legal advice. Under this respect the Italian law is not compliant with European regulations which require that legal advice should be provided free of costs to those without sufficient means. A correct reading of the Italian constitution leads to conclude that legal assistance should be based on dedicated government agencies, similarly to what happens for constitutional social rights. The paper argues for a reformation of the Italian system of legal aid on the model of common law systems.