Rethinking the Welfare State: The prospects for ... - e-Library

Legal aid 91
themselves whether they spent their £130 on legal expenses insurance or in some other
way, one suspects that few would opt for the insurance policy. […] Why should the state
make the decision for them?” 79
As the discussion of tax-and-transfer policies in other chapters has shown, the
conventional libertarian position is that if people elect not to spend their own resources
(or, alternatively, the welfare cheque to which they are entitled) on legal services, it is
because these services are not desirable; and whatever is not considered desirable by a
person is not of value to him or her. It is quite possible that individuals would rather
spend their income or welfare benefits on other goods than on legal services.
The justice of forcing people to spend their income on legal expenses insurance, or on
retaining an attorney, in order to insure that the “publicity” requirement of the rule of law
is met, and to preserve the normative legitimacy of the legal system, is debatable. The
matter requires the balancing of the individual’s authority over the disposition of her
resources against the state’s obligation to make the law fair and understandable by all.
Should a person who has squandered the portion of his resources intended for legal
services or insurance and cannot afford legal representation be denied it? Or can the state
legitimately force people to insure themselves, or act as an insurer on their behalf by
using tax revenue to issue vouchers and/or support community clinics? Is the state, at any
point, entitled to decide that an individual has repudiated his right to representation
because he has consistently preferred to spend his income on something else, or does
justice require the provision of a “safety net” that even protects those who have refused to
insure themselves?
These questions are normative in nature, and go to the fundamental role of the state
and the conception of justice. It is telling, however, that not even the United States has
embraced a policy of non-intervention in the provision of basic legal services. It seems
that the symbolic and institutional importance of basic access to the law has exempted
legal aid from the intense criticism leveled at other social programs. Goriely and Paterson
argue that a commitment to universal access to justice “can provide a glimmer of hope to
the poor and some legitimacy to the state.” 80
Design challenges
Qualified consumers
There is good reason in the context of legal aid to means-test the provision of benefits. If
we take the rule of law as the central justification for the provision of legal aid, then there
is every reason to expect that those who through their own “wit or wealth” have the
ability independently to understand the law or have the financial means to obtain their
own legal advice will do so. If they do not, so long as they have the opportunity (through
their “wit or wealth”) to “know” the law and thereby satisfy the publicity requirement, it
is not the role of government to intervene on their behalf to ensure that they do. A
universal entitlement with respect to legal aid services is also unlikely to co-opt the
voices of the politically influential in maintaining the value or universality of the benefits
in any event. This is the case because legal aid is a highly contingent benefit whose value
to those covered depends, to an important extent, on having been charged with a criminal