Legal Aid in the Nineteenth and Twentieth Centuries

By the mid-nineteenth century, what might be called modern legal aid began to be discussed in pockets around the Western world. For example, in 1851, France passed a law on [’assistance judiciaire, state-provided aid for poor litigants.

This demand for organised legal aid was spurred by a new middle class, novel understandings of the obligations of the state, a liberal ideology seeped in a belief in the rule of law, and a fear of poor and working-class people’s activism. Moreover, certain types of problems, conflicts, and dis­putes came to be understood and defined as “legal problems” that required some sort of legal advice. Yet what might be considered a legal problem that needed legal advice and who might receive it or give it was historically contingent and, at times, contested.

New types of problems also arose reflecting changing conditions and modernity. For example, industrial workplace accidents were one common reason for requiring legal aid, which can be seen in Belgium, as Bruno Debaenst shows in his chapter.^[17] In Finland, the question of legal aid in connection with railroad accidents was frequently discussed in workers’ newspapers, specifically referring to examples from other countries.^[18] Yet, in the U.S., legal aid organisations often did not take cases of industrial accidents, for fear of stepping on the toes of private lawyers, who would take such cases on a contingency basis.^[19] Other common types of cases included wage disputes, landlord-tenant issues, and a variety of marital problems, including the more ready availability of divorce.

Another significant and common turning point in legal aid occurred in the twentieth century: states were building social safety nets and welfare structures. Regulations and benefits concerning education, social services, unemployment, and the like were passed in order to protect (or perhaps appease or even control) the poor and working class. In some countries, such as the U.S., the availability of government benefits, such as pensions for widowed mothers, created the additional need for legal assistance to access such benefits.^[20] Most dramatically, as demonstrated in Hiroki Kawamura’s chapter on Germany, the availability of a vast number of state benefits including social insurance created a wide-spread demand and need for legal assistance which was met by a variety of types of legal aid provided by municipalities and a wide array of private organisations.

Legal aid has often been connected to the ideal of equal access to jus­tice. Whether the catalyst for organising legal aid is a genuine moral or philanthropic concern for the poor, or the hope to appease the poor, the idea in both cases is to level out differences in access to justice. However, it must be recognised that historically that goal was never fully effectuated. On the one hand, insufficient resources have consistently limited the avail­ability and scope of legal aid; on the other hand, some segments of the population may have been intentionally left out. Medieval and early mod­ern discussions on “deserving” and “undeserving” poor have already been mentioned. In some countries such as the U.S., the most vulnerable peo­ple such as poor Black people were often intentionally prevented from accessing legal aid as part of white supremacy and structural racism. Across countries, we see that the provision of legal aid was rationed and that a great deal of time and energy of the architects and the providers of legal aid went to determining who was not entitled to it. Moreover, as some of the chapters in this book show, legal aid, at its worst, could be used by the bar and the state in the most cynical of ways.

However, the late 1960s and 1970s brought about new momentum to the idea of access to justice.^[21] The civil rights movement in the U.S., stu­dent and worker activism around the world, and the rise of second-wave feminism highlighted political, economic, and social injustices. Within legal scholarship, the Critical Legal Studies movement, for example, emphasised how law upheld society’s inherent biases against marginalised groups.^[22] In this context, legal aid took on heightened meaning and, in some countries, became part of a broad human rights agenda. A number of countries, including, for example, England, France, Belgium, Italy, and the Nordic countries, passed new legislation concerning legal aid during the 1970s and early 1980s.^[23] In the late 1960s, in the U.S., the federal government began funding legal aid offices for the first time as part of its “war on poverty,” generating significant controversy within the bar.^[24] In some countries this movement was short-lived, but in other countries such as Germany and Belgium, it led to the creation of a right to an attorney in civil as well as criminal cases. Moreover, legal scholars themselves became more interested in studying and writing about legal aid.^[25]