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

Legal aid 77
distribution. When looking to these rationales we should ask not only whether they are
able to justify state funding to legal aid, but also whether they are able to address such
questions as: why should some sorts of matters receive funding but not others; and how is
legal aid funding different from other state support to the needy, including access to other
basic services (like dental services, plumbing, automobile repairs etc.)?
Liberal values and social solidarity
Liberalism respects the equal freedom and dignity of individuals. In addition, the
adversarial system of justice that exists throughout the common law world is based on a
liberal respect for individual autonomy. That is, the state’s role in a trial (in the person of
the judge) is limited by the system’s faith in the ability of parties to represent their own
interests adequately. Rather than paternalistically intervening to determine the “truth of
the matter” between the opposing parties, the judge in the adversarial system allows each
party to present their own case, and arrives at a judgment that is based (in theory)
exclusively on the submissions of the parties, the evidence adduced and the applicable
law. Despite this prima facie preference for party autonomy, however, a state that is
committed to liberal values will seek to ensure that each party has access to adequate and
roughly equal legal representation. That is, if the parties are for whatever reason radically
unequal in their ability to represent their case (or even worse, in their ability to
understand the relevant law), then a liberal state will seek to intervene to help ensure
relative equality in this regard.
Moreover, in the context of a pluralistic society which not only tolerates but positively
encourages a diversity of moral points of view, the common commitment to fairness or
justice—construed as the granting of equal consideration to all perspectives and parties—
may be one of the only common values shared by all members of society, and hence an
important source of social solidarity in societies where such solidarity does not already
exist due to ethnic, cultural or religious differences, or the lack of a moral consensus.
Consequently, equal access to the legal system can be seen as a substantive guarantee of
an abstract civic value (justice), one essential to societal cohesion. As Michael Ignatieff
observes, “It may seem strange to confess a love for something so seemingly legalistic
and desiccated as rights. Yet […] rights create and sustain culture and by culture we
mean habits of the heart. Rights create community. [And] [d]efending your own rights
means being committed to defending the rights of others.” 7 This commitment entails
extending to all citizens the means of asserting those rights under the rule of law, instead
of through the alternatives of sedition and violence, which can guarantee only the most
artificial form of social solidarity: the kind assured by coercion.
The rule of law 8
The rule of law argument for the provision of legal aid is based on the Hobbesian notion
that the publicity of laws is required for the rule of law itself. 9 This view begins from the
premise that the rule of law requires that all those subject to the law be able to learn and
know its content. This does not require that the state must ensure that everyone is in fact
aware of and comprehends the full range of laws to which they are subject. It simply
requires that those who are actively engaged in an activity, proceeding or transaction that