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

5
Legal aid
Introduction
Essential legal services, despite their overwhelming significance to those who, for
example, are confronted directly by the coercive power of the state in the criminal law
domain, are not funded or provided universally by any government in the developed
world. Instead, legal aid in most jurisdictions consists of a patchwork quilt of legal
clinics, duty counsel initiatives and voucher or certificate programs.
The need for legal aid, unlike the need for “universal goods” such as health care and
education, is a highly contingent one that is relatively constrained in ambit—only a
minority of the population will ever need criminal defence counsel, legal representation
at an immigration or custody hearing, or need to contest the cessation of social assistance
benefits, services which are generally recognized as basic and essential. Most citizens’
encounters with the legal system take the form of personal or commercial transactions
and other private litigation, which, while important, can hardly justify the designation of
legal aid as a universally essential service.
Yet there is reason to believe that the complete withdrawal of the government from the
provision of basic legal services to needy persons would likely be disastrous. If the
government abdicated its responsibility for legal aid and attempted to rely only on
optional, private insurance markets, for instance, the adequate supply of private insurance
would be undermined by the existence of adverse selection problems, since persons who
were more inclined to commit crimes would seek insurance to cover the anticipated costs
of representation (or to afford better representation than they would otherwise have
access to). 1 On the other hand, persons who were unlikely to violate the law would
probably not purchase insurance, or would be willing to buy insurance only at a very low
premium.
Since there would be no easy (if any) way for insurers to determine reliably whether
someone is a high-risk or low-risk individual, the insurance market would fail or would
supply such a limited range of coverage that people would have to self-insure to a great
extent—a strategy that would be insufficient in the case of complex, serious and lengthy
matters, given the extremely high costs of legal advice and representation in such matters.
In addition, given society’s dedication to the rule of law and the intuitively offensive
nature of convicting someone who has not had the benefit of competent legal advice and
representation, it would be extremely difficult for governments to remain committed to a
policy of not directly ensuring some basic legal advice for an accused who was without
counsel because of lack of insurance.
Like any other public service, however, legal aid can be provided by a wide variety of
instruments, ranging from a staff of government-employed public defenders to the
issuance of vouchers or certificates redeemable for a fixed amount and/or type of legal