A Shift of Perspective

Although a number of scholarly works examine legal aid from a compara­tive standpoint, they generally address the contemporary state of legal aid, not the historical development of legal aid.

The idea for this book originated at a conference on the history of legal aid, held at the University of Turku, Finland, where scholars from various countries gathered to discuss the topic. Many of us were at first surprised at the similarity of our historical national narratives regarding the develop­ment of legal aid, but important differences also appeared.

Clearly, when it comes to legal assistance, the wheel was not invented again and again from whole cloth. Ideas travelled and were borrowed, sometimes tacitly, sometimes more directly. The idea of legal transplants, a term famously coined by Alan Watson in the 1970s, is valuable for exam­ining the comparative history of legal aid, too.^[30] Two chapters from this book serve as examples. Jin Dong’s chapter gives a sweeping account of China where legal aid, alongside other Western legal institutions, such as law schools and bar associations, was transplanted to a legal system that was traditionally drastically different than the Western legal systems where it originated. Elites in China used legal aid and lawyers’ pro bono work, in part, to demonstrate China’s legal sophistication to an international audi­ence at times when China sought to be part of global markets. An oppos­ing example is introduced in Marianne Vasara-Aaltonen’s chapter on the birth of legal aid in Finland.

In most Latin American countries, legal elites obsessed with modernisa­tion toured Europe and the U.S. and were eager to replicate their legal aid systems. However, by mixing and matching different models and adapting to their specific circumstances, they introduced important innovations in the design of their national legal aid systems: for instance, the Chilean legal aid service was original in that it conflated legal aid and law students’ apprenticeship in what became in practice a state-funded nationwide mandatory law clinic administered by the bar.^[31] In terms of the U.S., the silence in archival documents regarding legal assistance being a possible transplant is resounding and few available sources speak of legal aid as being anything but an American invention.^[32] This silence maps on to the idea of American exceptionalism and the mythology that unlike Europe, the U.S. had fully instituted the rule of law of which legal aid and access to justice was part. This was a message that was fully embraced by the lead­ers of legal aid and the bar. The reality, however, is that German models of legal assistance probably influenced early legal aid societies.

One “grassroots example” of how foreign models of legal aid were intentionally sought stems from the 1950s. A Finnish newspaper reported in 1959 that a Japanese lawyer, Michio Nishi, was touring Europe for five months on a UN scholarship with the aim of acquainting himself with legal aid systems in various countries. Upon his return, Nishi was to report to the Japanese Supreme Court about the organisation of legal aid in Europe. In February 1959, Nishi was in Finland after having already vis­ited England and the other Nordic countries. He told the newspaper that he felt that legal aid in Finland and Sweden, especially, fulfilled its task very well—pointing out, though, that Japan would not simply copy a foreign model; rather, it needed to be adapted to fit Japanese circumstances.^[33] During the 1950s, there were some attempts to develop legal aid in Japan, and Nishi’s European tour fits into this context.^[34]

Even when legal aid was not directly transplanted, it is clear that exam­ples from other countries were actively discussed when legal aid was being developed, as many of the chapters in this book show. Thus, the view of comparative legal history is valuable, and even necessary, to fully under­stand the history of legal aid in various countries.^[35]