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

Rethinking the selfare state 76
assistance from private legal service providers. Our objective in this chapter will be to
consider the advantages, if any, which a tied demand-side subsidy program offers over
the alternatives, and to examine the design challenges encountered by voucher initiatives
in this policy area.
The rationales for government intervention
It is crucial to note that the normative rationale invoked to justify the provision of legal
services and the actual range of legal services provided are intrinsically linked. Positive
egalitarian positions which hold that equal access to justice in all its forms is a basic right
will necessarily entail demands for a far more comprehensive menu of publicly provided
legal services than will the minimalist libertarian position that the state should avoid
interfering in the lives of its citizens to the greatest extent possible. In other words, the
legal services that a state deems “essential” correlate not to some universal objective
standard, but rather to the grounds on which the provision of legal services is justified in
the first place.
Thus, for instance, the Legal Action Group (LAG) in Britain, which places heavy
emphasis on the “equal” qualifier of Great Britain’s policy of “equal access to justice,”
argues that “[t]he ultimate policy aim must be that anyone with a legal problem has equal
access to its just conclusion so that disputes are determined by the intrinsic merits of the
arguments of either party, not by inequalities of wealth or power.” 2 Consequently, the
LAG recommends the inclusion of several forms of civil litigation as an essential legal
service, as well as for extensive alternative dispute resolution to remove the financial
barriers to justice presented by the cost of taking matters to trial. 3 As Griffiths points out,
this argument contains two hidden premises: that “legal services are a kind of wealth,”
and that the state’s goal is to remedy inequalities in wealth by redistribution, to the
greatest extent possible. 4
This justification will not be acceptable, however, in a more libertarian state, where
income redistribution is not seen as a legitimate governmental objective. Such a state is
more likely to emphasize guarantees of procedural rather than substantive equality, with a
corresponding and more modest scale of public legal services. Luban, for instance,
considers that since political legitimacy in such states is grounded on the notion of
“equality-of-rights-not-fortune,” the primary purpose of access to legal services is to
assure the basic equality of legal rights. 5 This argument is consistent with the influential
doctrine of Rawlsian liberalism which holds that formal equality (fairness in procedure)
as opposed to substantive equality (equality of outcome) should be the guiding principle
of the just society. 6 Other positions (e.g. civic republicanism and communal liberalism)
exist along the spectrum between the fairly radical stances of egalitarians and libertarians.
Such normative nuances account, in large part, for the variety of legal aid policies in
place around the world, and make the comparison of different systems more challenging.
There are three broad notions, however, present to varying degrees in most programs
of justification for government intervention in the provision of legal services: the
importance of equal access to the justice system from the point of view of liberal values
and social solidarity; the necessity of access for the survival of the rule of law itself; and
the role that the justice system plays in establishing and maintaining patterns of resource