Legal Aid, Politics, and Society

Legal aid is a reflection of the society and culture in which it operates. Moreover, the idea of providing some form of access to justice carries with it a political dimension which manifests itself in different ways.

Political considerations may also affect the narratives that are told about the history of legal aid. Sylvia Schafer shows in her chapter how in France, the history of legal aid was rewritten in the late nineteenth century to fit the political agenda. The law on !'assistance judiciaire of 1851 had been born as a reaction to France’s revolutionary past, in fear of revolutionary claims, and its architects had attempted to tread the fine line “between too little access to justice in the past and too much in the future.” However, after 1870, jurists and lawmakers of the Third Republic began to frame legal aid as a social right, born out of France’s republican tradition, trying to dispel the original reasons behind it but nonetheless haunted by it.

Legal aid can also reflect international politics. As Jin Dong argues in his chapter on China, Chinese legal aid was in part an announcement to the world that China was an international global legal player and part of socialism with Chinese aspects. In the U.S., the right to have the state provide legal counsel in criminal cases in which the individual could not afford a lawyer was very much part of the Cold War. Indeed, Communist countries had seized upon the injustices of the U.S. criminal law system and particularly the treatment of the poor, often poor Blacks. The right to independent counsel paid for by the state was intended to demonstrate to the Soviet bloc and those countries that were in the balance that the U.S. could live up to its ideas of justice.^[37] Legal aid also became part of broader Cold War geopolitical strategies: in the context of the U.S. “Alliance for Progress” to prevent the spread of communism in Latin America in the 1960s, the U.S. began to fund innovative legal aid initiatives throughout the region. In Chile, for example, the Ford Foundation developed a pro­gramme to train Chilean law professors in the new trends of legal education in the U.S. and this resulted in the creation of a pioneer law clinic pro­gramme in Santiago’s Catholic University.^[38] The Ford Foundation was also deeply involved in creating a variety of law related NGOs in China as well as funding a variety of programmes in Chinese law schools, as Dong discusses in his chapter. Indeed, a future work on transnational legal aid might very well focus upon the Ford Foundation which had long provided funding to private legal aid organisations in the U.S.

One of the fascinating questions about legal aid was whether it should be private or funded by the government. Indeed, philanthropes and pri­vate organisations, trying to alleviate some of the hardships that poor, working-class people faced, have played an enormous role in providing legal aid since the late nineteenth century.

Deeply connected to philanthropy, as well as politics and social change, was the role of first-wave feminist organisations which advocated for or engaged in providing legal aid at the turn of the twentieth century. Across the Western world, the women’s movement gained strength in the late nineteenth century, advocating for a wide panoply of women’s rights. Issues and reforms which they embraced ranged from divorce, women’s legal capacity, the right to an education, the ability to engage in a profes­sion, to a host of political rights including suffrage and office holding. However, the women’s movement had a more general philanthropic agenda, as well, trying to combat societal problems of the poor, especially poor women. These first-wave feminists of the nineteenth century had an active international network. European and American women’s rights activists, including some women who were lawyers, were in correspon­dence with each other; they met each other at women’s rights conventions and shared their ideas through periodicals.^[41] Felice Batlan, Hiroki Kawamura, and Marianne Vasara-Aaltonen show in their chapters how, in the late nineteenth century, the women’s movement influenced the estab­lishment of legal aid in the U.S., Germany, and Finland.^[42] The same con­nection can be seen in England too.^[43] Given the international scope of the nineteenth-century women’s movement, one must see these national examples in an international context in which the women’s movement was actively engaged in promoting access to justice for the poor and working class.

Legal aid also comes in other forms than what is traditionally under­stood by the term. Mia Korpiola’s chapter addresses legal advice provided in Finnish newspapers at the turn of the twentieth century. She demon­strates how, in a situation where legal aid was not yet widely available, legal advice columns could fill that gap and provide much-needed answers to pressing legal questions. In fact, newspapers competed with one another to obtain the best legal experts in order to drive their subscriptions. Examples of such legal Q&A columns can be found elsewhere too. For example, a German magazine for clockmakers provided legal advice to its readers in the early twentieth century.^[45] In Britain, between the 1940s and 1970s, the John Hilton Bureau gave legal advice under the auspices of the newspaper News of the World, and other newspapers also had active advice columns.^[46] The Chicago Defender, an important Black newspaper in the U.S., published a “Legal Helps” column in the early twentieth century. It provided its readers with legal advice regarding, for example, commercial practices, domestic life, civil rights, and housing.^[47] Such columns are one example showing us that when the need for legal advice exists, but resources are few, new ways of tackling the problem emerge.

Likewise, in lieu of “traditional” legal aid or legal assistance, other mechanisms may replicate the effect of legal aid: enabling legal advice or representation to those who could otherwise not afford it. Examples include attorneys working on a contingent fee or third parties investing in a legal claim as well as legal expenses insurance. Such insurance began to appear in Europe in the first half of the twentieth century and might be one factor influencing how legal aid is organised in a specific country.^[49] In Sweden and Finland legal expenses insurance became available in the 1960s, and the current legal aid laws in both countries (Sw. rdttshjdlpslag, Fi. Oikeusapulaki) state that public legal aid is generally not available to those who have legal expenses insurance. However, insurance policies often limit the scope of what legal expenses are covered.^[50] In contrast, in the U.S. a variety of rules regarding the legal profession have until recently prohibited activities such as investment in litigation, and legal insurance for ordinary individuals is expensive.