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

Rethinking the selfare state 78
implicates a particular body of law (whether criminal, family or otherwise) have the
opportunity to understand the full import of the law as it relates to them. If they are
unable to do so themselves directly (because of their own intellectual limitations or
because of the inherent complexity of the law itself), then the state should ensure that
they are advised or represented by someone who does, subject to the caveat that
assistance will only be granted when they lack the resources to acquire these services for
themselves. The lack of resources caveat is due to the fact that the publicity requirement
does not give rise to a state obligation to provide legal advice and representation to all
citizens with respect to all laws and all legal matters. Actual knowledge of the law is not
itself a right (even under the most progressive liberal theory). So long as the publicity
requirement for law is met by everyone having the opportunity to know the law, there is
no a priori reason why it must be met by one means (government-provided legal aid)
rather than another (private procurement of legal services).
The “liberal values” argument and the “rule of law” argument are not mutually
exclusive. Nevertheless, there is good reason to embrace the “rule of law” argument as
the primary justification for supplying legal aid. First, it requires fewer controversial
assumptions about the nature of political rights and duties and the content of equality than
does the liberal values approach. Second, it is able to provide a principled distinction
between legal aid and other essential services. That is, because it is a requirement of the
publicity of law, and not merely another form of equalization payment, we can justify
transfers to individuals who would not receive them but for their interaction with the
justice system. Third, it provides an argument for why some sorts of cases should receive
funding over others that is consonant with the values inherent in the legal system. For
example, complex matters where the law is more difficult to understand should receive,
ceteris paribus, legal aid before matters that are straightforward and eminently
understandable in their entirety because the law in the former case is less likely to satisfy
the publicity requirement for the rule of law in the absence of such aid.
Justice and the equitable distribution of resources
The law plays a considerable direct and indirect role in regulating the distribution of
resources. Employment law affects the access of all persons, including low-income
earners, to gainful employment. Family law often bears directly on the financial
situations and well-being of women and dependent children. Disabled persons “often
require remedies against the unscrupulous who take unfair advantage in their dealings
with them,” 10 remedies which are frequently sought through civil proceedings. Moreover,
in actual practice, access to the legal system often constrains access to other essential
services, since rights to such services are legal in nature. A person wishing to protest the
withdrawal of his social assistance benefits, for instance, must navigate the legalistic
policies of the welfare system, a project which may, in some cases, prove unrealistic
without professional assistance. Immigration status, which often determines a person’s
access to many essential services, is a status conferred by the law, and one which a
citizen may require legal assistance in order to establish or contest. Whether they approve
or disapprove of it, many commentators regard the legal system as, in the words of
former Vice President of the United States Spiro Agnew, “a systematic effort to