Legal Aid - History

History

Legal aid has a close relationship with the welfare state and the provision of legal aid by a state is influenced by attitudes towards welfare. Legal aid is a welfare provision by the state to people who could otherwise not afford access to the legal system. Legal aid also helps to ensure that welfare provisions are enforced by providing people entitled to welfare provisions, such as social housing, with access to legal advice and the courts. Historically legal aid has played a strong role in ensuring respect for economic, social and cultural rights which are engaged in relation to social security, housing, social care, health and education service provision, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. Jurists such as Mauro Cappelletti argue that legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement of economic, social and cultural rights. His views developed in the second half of the 20th Century, when democracies with capitalist economies established liberal welfare states that focused on the individual. States established themselves as contractors and service providers within a market based philosophy that emphasised the citizen as consumer. This led to an emphasis on individual enforcement to achieve the realisation of rights for all.

Prior to the mid 20th Century literature on legal aid emphasised collective enforcement of economic, social and cultural rights. As classic welfare states were built in the 1940s it was assumed that citizens had collective responsibility for economic, social and cultural rights and the state assumed responsibility for those unable to provide for themselves through illness and unemployment. The enforcement of economic, social and cultural rights was to be collective, through policies rather than individual legal action. Laws were enacted to support welfare provisions, though these were regarded as laws for planners, not lawyers. Legal aid schemes were established as it was assumed that the state had a responsible to assist those engaged in legal disputes, but they initially focused primarily on family law and divorce. In the 1950s and 1960s the role of the welfare state changed and social goals were no longer assumed to be common goals. Individuals were free to pursue their own goals. The welfare state in this time expanded along with legal aid provisions as concerns emerged over the power of welfare providers and professionals. This led to increasing calls in the 1960s and 1970s for the right of individuals to legally enforce economic, social and cultural rights and the welfare provisions they as individuals were entitled to. Mechanisms emerged through which citizens could legally enforce their economic, social and cultural rights and welfare lawyers used legal aid to advice those on low income when dealing with state officials. Legal aid was extended from family law to a wide range of economic, social and cultural rights.

In the 1980s the role of the classic welfare state was no longer regarded as necessarily positive and welfare was increasingly provided by private entities. This led to legal aid being increasingly provided through private providers, but remained focused on providing assistance in court cases. Citizens were increasingly regarded as consumers, who should be able to choose among services. Where it was not possible to provide such a choice citizens were given the right to voice their dissatisfaction through administrative complaints processes. This resulted in tension, as legal aid was not designed to offer advice to those seeking redress through administrative complaints processes. Tensions also began to emerged as states which emphasised individual enforcement of economic, social and cultural rights, rather than collective enforcement through polices, reduced funding for legal aid as a welfare state provision. Individual enforcement of welfare entitlement requires the kind of legal aid funding states emphasising collective enforcement were more likely to provide.