Some reflections on the relationship between citizenship, access to justice, and the reform of legal aid

Journal of Law and Society

Volumn 31, Issue 3, 2004, Pages 345-368

  Sommerlad, Hilary ^a  

^a LEEDS METROPOLITAN UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 4444272145     PISSN: 0263323X     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2004.00294.x     Document Type: Review

References (195)

1. T. Blair, 'Foreword' in Law Reform for All, ed. D. Bean (1996) at xiii.
2. T.H. Marshall, Citizenship and Social Class (1950) at 10-11 (my emphasis).
3. E.P. Thompson, 'Poverty of Theory' in his The Poverty of Theory and Other Essays (1978) at 286-8.
4. H. Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (1861).
5. B. Fine, 'Marxism and the Social Theory of Law' in An Introduction to Law and Social Theory, eds. R. Banakar and M. Travers (2002).
6. C. Shearing and J. Wood, 'Nodal Governance, Democracy, and the New "Denizens"' (2003) 30 J. of Law and Society at 409.
7. M. Weber, Law in Economy and Society (1968) at 956-1005.
8. E. Durkheim, Professional Ethics and Civic Morals (1957).
9. In other words, 'the internal perspective of legal positivism and the external perspective of socially informed law' are not necessarily antithetical (A. Hunt, 'The problematization of Law in Classical Social Theory' in Banakar and Travers, op. cit., n. 5, at p. 17).
10. R. Abel, 'Law without politics: legal aid under advanced capitalism' (1985) 32 UCLA Law Rev. 474.
11. J. Huffman, 'Is there a case for a feminist critique of the state' (1998) 4 Contemporary Politics 161.
12. K. Renner, The Institutions of Private Law and their Functions (1949); I emphasize potential because I am not suggesting that democratization is inevitable; it is commonplace that the realization of citizenship's democratic potential through the establishment of the welfare state was the product of struggle, much of which was extra-legal, and of a particular historical conjuncture.
13. Fine, op. cit., n. 5. Of course, as de Sousa Santos argues, a plurality of legal sites and forms of law coexist and it is therefore possible for a conservative, restrictive legal formalism to prevail within one, whilst another may be characterized by more democratic, emancipatory legal practice (B. de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation (2002)).
14. Fine, op. cit., n. 5. Of course, as de Sousa Santos argues, a plurality of legal sites and forms of law coexist and it is therefore possible for a conservative, restrictive legal formalism to prevail within one, whilst another may be characterized by more democratic, emancipatory legal practice (B. de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation (2002)).
15. Abel, op. cit., n. 10, at pp. 592-9.
16. J. Habermas, The Theory of Communicative Action Vol Two: Lifeworld and System: a Critique of Functionalist Reason (1987) at 369; and see Hunt, op. cit., n. 8, at pp. 28-9; M. Galanter, 'Justice in Many Rooms' in Access to Justice and the Welfare State, ed. M. Cappelletti (1981) at 147 and 150-1.
17. J. Habermas, The Theory of Communicative Action Vol Two: Lifeworld and System: a Critique of Functionalist Reason (1987) at 369; and see Hunt, op. cit., n. 8, at pp. 28-9; M. Galanter, 'Justice in Many Rooms' in Access to Justice and the Welfare State, ed. M. Cappelletti (1981) at 147 and 150-1.
18. J. Habermas, The Theory of Communicative Action Vol Two: Lifeworld and System: a Critique of Functionalist Reason (1987) at 369; and see Hunt, op. cit., n. 8, at pp. 28-9; M. Galanter, 'Justice in Many Rooms' in Access to Justice and the Welfare State, ed. M. Cappelletti (1981) at 147 and 150-1.
19. M. Foucault, Discipline and Punish (1977). This characteristic of the law has led some critical legal scholars and feminists to suggest that its use can be counter-productive (for instance, C. Smart, Feminism and the Power of Law (1989)).
20. M. Foucault, Discipline and Punish (1977). This characteristic of the law has led some critical legal scholars and feminists to suggest that its use can be counter-productive (for instance, C. Smart, Feminism and the Power of Law (1989)).
21. M. Damaska, The Faces of Justice and State Authority (1986) at 80.
22. H. Jallon, Y. Sintomer, and S. Wright, 'Interview with Nancy Fraser' (2000) 15 Soundings at 23.
23. A. Negri, cited in Fine, op. cit., n. 5, at p. 115.
24. The primary aims of NPM were to introduce fiscal prudence, market values and personal responsibility; C. Hood, 'A Public Management for All Seasons' (1991) 69 Public Administration 3.
25. R. Rhodes, The Hollowing out of the State: the changing nature of the Public service in Britain' (1994) 65 Political Q. 138; A. Barron and C. Scott, 'The Citizen's Charter Programme' (1991) Modern Law Rev. 524; D. Cooper, 'The Citizen's Charter and Radical Democracy: Empowerment and Exclusion within Citizenship Discourse' (1993) 2 Social and Legal Studies 149; C. Crouch, 'Citizenship and Markets in Recent British Education Policy' in Citizenship, Markets and the State, eds. C. Crouch, K. Eder, and D. Tambini (2001); N. Rose, 'The Death of the Social? Re-figuring the Territory of Government' (1996) 25 Economy and Society 327.
26. R. Rhodes, The Hollowing out of the State: the changing nature of the Public service in Britain' (1994) 65 Political Q. 138; A. Barron and C. Scott, 'The Citizen's Charter Programme' (1991) Modern Law Rev. 524; D. Cooper, 'The Citizen's Charter and Radical Democracy: Empowerment and Exclusion within Citizenship Discourse' (1993) 2 Social and Legal Studies 149; C. Crouch, 'Citizenship and Markets in Recent British Education Policy' in Citizenship, Markets and the State, eds. C. Crouch, K. Eder, and D. Tambini (2001); N. Rose, 'The Death of the Social? Re-figuring the Territory of Government' (1996) 25 Economy and Society 327.
27. R. Rhodes, The Hollowing out of the State: the changing nature of the Public service in Britain' (1994) 65 Political Q. 138; A. Barron and C. Scott, 'The Citizen's Charter Programme' (1991) Modern Law Rev. 524; D. Cooper, 'The Citizen's Charter and Radical Democracy: Empowerment and Exclusion within Citizenship Discourse' (1993) 2 Social and Legal Studies 149; C. Crouch, 'Citizenship and Markets in Recent British Education Policy' in Citizenship, Markets and the State, eds. C. Crouch, K. Eder, and D. Tambini (2001); N. Rose, 'The Death of the Social? Re-figuring the Territory of Government' (1996) 25 Economy and Society 327.
28. R. Rhodes, The Hollowing out of the State: the changing nature of the Public service in Britain' (1994) 65 Political Q. 138; A. Barron and C. Scott, 'The Citizen's Charter Programme' (1991) Modern Law Rev. 524; D. Cooper, 'The Citizen's Charter and Radical Democracy: Empowerment and Exclusion within Citizenship Discourse' (1993) 2 Social and Legal Studies 149; C. Crouch, 'Citizenship and Markets in Recent British Education Policy' in Citizenship, Markets and the State, eds. C. Crouch, K. Eder, and D. Tambini (2001); N. Rose, 'The Death of the Social? Re-figuring the Territory of Government' (1996) 25 Economy and Society 327.
29. R. Rhodes, The Hollowing out of the State: the changing nature of the Public service in Britain' (1994) 65 Political Q. 138; A. Barron and C. Scott, 'The Citizen's Charter Programme' (1991) Modern Law Rev. 524; D. Cooper, 'The Citizen's Charter and Radical Democracy: Empowerment and Exclusion within Citizenship Discourse' (1993) 2 Social and Legal Studies 149; C. Crouch, 'Citizenship and Markets in Recent British Education Policy' in Citizenship, Markets and the State, eds. C. Crouch, K. Eder, and D. Tambini (2001); N. Rose, 'The Death of the Social? Re-figuring the Territory of Government' (1996) 25 Economy and Society 327.
30. The Cabinet Office recently defined it as 'shorthand label for what can happen when individuals or areas suffer from a combination of linked problems such as unemployment, poor skills, low incomes, poor housing, high crime environments, bad health and family breakdown' (Cabinet Office, Preventing Social Exclusion: Report by the Social Exclusion Unit (2001) at 2). New Labour's emphasis on the primacy of paid labour has been widely criticized; see, for instance, R. Lister 'Citizenship and Changing Welfare States' in Changing Labour Markets, Welfare Policies and Citizenship, eds J.-G. Andersen and P. Jensen (2001).
31. The Cabinet Office recently defined it as 'shorthand label for what can happen when individuals or areas suffer from a combination of linked problems such as unemployment, poor skills, low incomes, poor housing, high crime environments, bad health and family breakdown' (Cabinet Office, Preventing Social Exclusion: Report by the Social Exclusion Unit (2001) at 2). New Labour's emphasis on the primacy of paid labour has been widely criticized; see, for instance, R. Lister 'Citizenship and Changing Welfare States' in Changing Labour Markets, Welfare Policies and Citizenship, eds J.-G. Andersen and P. Jensen (2001).
32. G. Room, Beyond the Threshold: the Measurement and Analysis of Social Exclusion (1995).
33. P. Townsend, Poverty in the United Kingdom (1979).
34. F. Powell, 'Citizenship and Social Exclusion' (1995) 43 Administration at 22-3; see, too, J. Hills, J. Le Grand, and D. Piachaud (eds.), Understanding Social Exclusion (2002).
35. F. Powell, 'Citizenship and Social Exclusion' (1995) 43 Administration at 22-3; see, too, J. Hills, J. Le Grand, and D. Piachaud (eds.), Understanding Social Exclusion (2002).
36. Crouch, op. cit., n. 21, at p. 117; compare the argument that legally aided clients are generally incapable of evaluating expert services and would in any event be likely to seek a standard which is too high (A. Sherr, R. Moorhead, and A. Paterson, 'Assessing the Quality of Legal Work: Measuring Process' (1994) 1 International J. of the Legal Profession at 141); but see, too, W. Felstiner 'Synthesizing socio-legal research: lawyer-client relations as an example' (2001) 8 International J. of the Legal Profession 191, and R. Moorhead, A. Sherr, and A. Paterson, 'What Clients Know: Client Perspectives and Legal Competence' (2003) 10 International J. of the Legal Profession 5.
37. Crouch, op. cit., n. 21, at p. 117; compare the argument that legally aided clients are generally incapable of evaluating expert services and would in any event be likely to seek a standard which is too high (A. Sherr, R. Moorhead, and A. Paterson, 'Assessing the Quality of Legal Work: Measuring Process' (1994) 1 International J. of the Legal Profession at 141); but see, too, W. Felstiner 'Synthesizing socio-legal research: lawyer-client relations as an example' (2001) 8 International J. of the Legal Profession 191, and R. Moorhead, A. Sherr, and A. Paterson, 'What Clients Know: Client Perspectives and Legal Competence' (2003) 10 International J. of the Legal Profession 5.
38. Crouch, op. cit., n. 21, at p. 117; compare the argument that legally aided clients are generally incapable of evaluating expert services and would in any event be likely to seek a standard which is too high (A. Sherr, R. Moorhead, and A. Paterson, 'Assessing the Quality of Legal Work: Measuring Process' (1994) 1 International J. of the Legal Profession at 141); but see, too, W. Felstiner 'Synthesizing socio-legal research: lawyer-client relations as an example' (2001) 8 International J. of the Legal Profession 191, and R. Moorhead, A. Sherr, and A. Paterson, 'What Clients Know: Client Perspectives and Legal Competence' (2003) 10 International J. of the Legal Profession 5.
39. Crouch, op. cit., n. 21, at p. 117; compare the argument that legally aided clients are generally incapable of evaluating expert services and would in any event be likely to seek a standard which is too high (A. Sherr, R. Moorhead, and A. Paterson, 'Assessing the Quality of Legal Work: Measuring Process' (1994) 1 International J. of the Legal Profession at 141); but see, too, W. Felstiner 'Synthesizing socio-legal research: lawyer-client relations as an example' (2001) 8 International J. of the Legal Profession 191, and R. Moorhead, A. Sherr, and A. Paterson, 'What Clients Know: Client Perspectives and Legal Competence' (2003) 10 International J. of the Legal Profession 5.
40. M. Cappelletti and B. Garth, 'Access to Justice and the Welfare State: An introduction' in Cappelletti, op. cit., n. 15, p. 1.
41. P. Pleasence, A. Buck, N. Balmer, A. O'Grady, H. Genn, and M. Smith, Causes of Action: Civil Law and Social Justice (2004); H. Genn, Paths to Justice (1999); J. Baldwin, Monitoring the rise of the small claims limit: litigants' experiences of different forms of adjudication (1997).
42. P. Pleasence, A. Buck, N. Balmer, A. O'Grady, H. Genn, and M. Smith, Causes of Action: Civil Law and Social Justice (2004); H. Genn, Paths to Justice (1999); J. Baldwin, Monitoring the rise of the small claims limit: litigants' experiences of different forms of adjudication (1997).
43. P. Pleasence, A. Buck, N. Balmer, A. O'Grady, H. Genn, and M. Smith, Causes of Action: Civil Law and Social Justice (2004); H. Genn, Paths to Justice (1999); J. Baldwin, Monitoring the rise of the small claims limit: litigants' experiences of different forms of adjudication (1997).
44. E. Schneider, 'The Dialectics of Rights and Politics: Perspectives from the Women's Movement' in At the Boundaries of Law, Feminism and Legal Theory, eds. M.A. Fineman and N.S. Thomasden (1991).
45. Women's claim to inclusion as citizens was fought out in the law courts; see, for instance, Jex-Blake v. Senatus of Edinburgh University (1873) 11 M. 784.
46. S.E. Merry, Getting Justice and Getting Even: Legal Consciousness among working-class Americans (1990).
47. M. Cappelletti (ed.), Access to Justice, I: A World Survey (1978). Luban too argues that the provision of legal advice to the poor in important civil matters should be a fundamental right and, further, that failure to provide legal assistance impairs the legitimacy of the system (D. Luban, Lawyers and Justice: An ethical study (1988) at 237-66). Cranston makes a similar argument: 'a system of civil justice must be judged by the way it treats those at the bottom of society . . . In reforming the civil justice system our concern must be not only with access to justice, but with equal access to justice' (R. Cranston, 'Delivering Civil Justice: Alternatives to Legal Aid' in Bean, op. cit., n. 1, at pp. 59, 68). See, too, R. Smith, Achieving Civil Justice: Appropriate Dispute Resolution for the 1990s (1996), and Justice: Redressing the Balance (1997); and D. Held, Democracy and the Global Order (1995).
48. M. Cappelletti (ed.), Access to Justice, I: A World Survey (1978). Luban too argues that the provision of legal advice to the poor in important civil matters should be a fundamental right and, further, that failure to provide legal assistance impairs the legitimacy of the system (D. Luban, Lawyers and Justice: An ethical study (1988) at 237-66). Cranston makes a similar argument: 'a system of civil justice must be judged by the way it treats those at the bottom of society . . . In reforming the civil justice system our concern must be not only with access to justice, but with equal access to justice' (R. Cranston, 'Delivering Civil Justice: Alternatives to Legal Aid' in Bean, op. cit., n. 1, at pp. 59, 68). See, too, R. Smith, Achieving Civil Justice: Appropriate Dispute Resolution for the 1990s (1996), and Justice: Redressing the Balance (1997); and D. Held, Democracy and the Global Order (1995).
49. M. Cappelletti (ed.), Access to Justice, I: A World Survey (1978). Luban too argues that the provision of legal advice to the poor in important civil matters should be a fundamental right and, further, that failure to provide legal assistance impairs the legitimacy of the system (D. Luban, Lawyers and Justice: An ethical study (1988) at 237-66). Cranston makes a similar argument: 'a system of civil justice must be judged by the way it treats those at the bottom of society . . . In reforming the civil justice system our concern must be not only with access to justice, but with equal access to justice' (R. Cranston, 'Delivering Civil Justice: Alternatives to Legal Aid' in Bean, op. cit., n. 1, at pp. 59, 68). See, too, R. Smith, Achieving Civil Justice: Appropriate Dispute Resolution for the 1990s (1996), and Justice: Redressing the Balance (1997); and D. Held, Democracy and the Global Order (1995).
50. M. Cappelletti (ed.), Access to Justice, I: A World Survey (1978). Luban too argues that the provision of legal advice to the poor in important civil matters should be a fundamental right and, further, that failure to provide legal assistance impairs the legitimacy of the system (D. Luban, Lawyers and Justice: An ethical study (1988) at 237-66). Cranston makes a similar argument: 'a system of civil justice must be judged by the way it treats those at the bottom of society . . . In reforming the civil justice system our concern must be not only with access to justice, but with equal access to justice' (R. Cranston, 'Delivering Civil Justice: Alternatives to Legal Aid' in Bean, op. cit., n. 1, at pp. 59, 68). See, too, R. Smith, Achieving Civil Justice: Appropriate Dispute Resolution for the 1990s (1996), and Justice: Redressing the Balance (1997); and D. Held, Democracy and the Global Order (1995).
51. M. Cappelletti (ed.), Access to Justice, I: A World Survey (1978). Luban too argues that the provision of legal advice to the poor in important civil matters should be a fundamental right and, further, that failure to provide legal assistance impairs the legitimacy of the system (D. Luban, Lawyers and Justice: An ethical study (1988) at 237-66). Cranston makes a similar argument: 'a system of civil justice must be judged by the way it treats those at the bottom of society . . . In reforming the civil justice system our concern must be not only with access to justice, but with equal access to justice' (R. Cranston, 'Delivering Civil Justice: Alternatives to Legal Aid' in Bean, op. cit., n. 1, at pp. 59, 68). See, too, R. Smith, Achieving Civil Justice: Appropriate Dispute Resolution for the 1990s (1996), and Justice: Redressing the Balance (1997); and D. Held, Democracy and the Global Order (1995).
52. M. Cappelletti (ed.), Access to Justice, I: A World Survey (1978). Luban too argues that the provision of legal advice to the poor in important civil matters should be a fundamental right and, further, that failure to provide legal assistance impairs the legitimacy of the system (D. Luban, Lawyers and Justice: An ethical study (1988) at 237-66). Cranston makes a similar argument: 'a system of civil justice must be judged by the way it treats those at the bottom of society . . . In reforming the civil justice system our concern must be not only with access to justice, but with equal access to justice' (R. Cranston, 'Delivering Civil Justice: Alternatives to Legal Aid' in Bean, op. cit., n. 1, at pp. 59, 68). See, too, R. Smith, Achieving Civil Justice: Appropriate Dispute Resolution for the 1990s (1996), and Justice: Redressing the Balance (1997); and D. Held, Democracy and the Global Order (1995).
53. Hunt, op. cit., n. 9, p. 24.
54. See M. Foucault, Language, Counter Memory, Practice (1977) at 217; M. Cain, 'The symbol traders' in Lawyers in a Postmodern World: Translation and Transgression, eds. M. Cain and C. Harrington (1994).
55. See M. Foucault, Language, Counter Memory, Practice (1977) at 217; M. Cain, 'The symbol traders' in Lawyers in a Postmodern World: Translation and Transgression, eds. M. Cain and C. Harrington (1994).
56. 35 A. Hetzler, 'Care and Discretion: Welfare States Revisited' (2003) 17 International J. of Law, Policy and the Family at 70; P. Nonet and P. Selznick, Law and Society in Transition: Toward Responsive Law (1978).
57. A. Hetzler, 'Care and Discretion: Welfare States Revisited' (2003) 17 International J. of Law, Policy and the Family at 70; P. Nonet and P. Selznick, Law and Society in Transition: Toward Responsive Law (1978).
58. G. Craig, 'Citizenship, Exclusion and Older People' (2004) 33 J. of Social Policy at 95.
59. See, for instance, essays in J. Carter (ed.), Postmodernity and the Fragmentation of Welfare (1998).
60. J. Locke, Two Treatises of Government (1924).
61. i b i d.
62. M. Somers, 'Romancing the Market, Reviling the state: Historicizing Liberalism, Privatization and the Competing Claims to Civil Society' in Crouch et al, op. cit., n. 21, at pp. 23-48. Her view is paralleled in the argument that the 'reactive' state of the Anglo-American tradition merely provides its citizenry with a legal framework within which they can then pursue their goals (Damaska, op. cit., n. 17, at p. 80).
63. M. Somers, 'Romancing the Market, Reviling the state: Historicizing Liberalism, Privatization and the Competing Claims to Civil Society' in Crouch et al, op. cit., n. 21, at pp. 23-48. Her view is paralleled in the argument that the 'reactive' state of the Anglo-American tradition merely provides its citizenry with a legal framework within which they can then pursue their goals (Damaska, op. cit., n. 17, at p. 80).
64. F. Twine, Citizenship and Social Rights: the interdependence of self and society (1994).
65. The expansion of citizenship necessarily gave rise to a fuller vision of what was entailed in the rule of law; thus, in 1959, the International Commission of Jurists gave the following conceptualization: a dynamic concept which should be employed not only to safeguard and advance the civil and political rights of the individual in free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized. Hegel had anticipated this recognition of the social tensions within a 'thin' version of the rule of law, when he advocated its supplement by welfare measures for the poor (G. Hegel, The Philosophy of Right (1973)).
66. B. Turner, Citizenship and Capitalism (1986); A. Giddens, 'Class division, class conflict and citizenship rights' in Profiles and Critiques in Social Theory (1982) 171 and The Nation State and Violence (1985); A.O. Hirschman, The rhetoric of reaction; perversity, futility, jeopardy (1991). Marshall represented the development of citizenship as an evolution through the stages of civil and political citizenship, culminating in social citizenship, though it has been argued that his analysis did not imply that this process was either inevitable or peaceful (J. Barbalet, Citizenship (1988)).
67. B. Turner, Citizenship and Capitalism (1986); A. Giddens, 'Class division, class conflict and citizenship rights' in Profiles and Critiques in Social Theory (1982) 171 and The Nation State and Violence (1985); A.O. Hirschman, The rhetoric of reaction; perversity, futility, jeopardy (1991). Marshall represented the development of citizenship as an evolution through the stages of civil and political citizenship, culminating in social citizenship, though it has been argued that his analysis did not imply that this process was either inevitable or peaceful (J. Barbalet, Citizenship (1988)).
68. B. Turner, Citizenship and Capitalism (1986); A. Giddens, 'Class division, class conflict and citizenship rights' in Profiles and Critiques in Social Theory (1982) 171 and The Nation State and Violence (1985); A.O. Hirschman, The rhetoric of reaction; perversity, futility, jeopardy (1991). Marshall represented the development of citizenship as an evolution through the stages of civil and political citizenship, culminating in social citizenship, though it has been argued that his analysis did not imply that this process was either inevitable or peaceful (J. Barbalet, Citizenship (1988)).
69. B. Turner, Citizenship and Capitalism (1986); A. Giddens, 'Class division, class conflict and citizenship rights' in Profiles and Critiques in Social Theory (1982) 171 and The Nation State and Violence (1985); A.O. Hirschman, The rhetoric of reaction; perversity, futility, jeopardy (1991). Marshall represented the development of citizenship as an evolution through the stages of civil and political citizenship, culminating in social citizenship, though it has been argued that his analysis did not imply that this process was either inevitable or peaceful (J. Barbalet, Citizenship (1988)).
70. B. Turner, Citizenship and Capitalism (1986); A. Giddens, 'Class division, class conflict and citizenship rights' in Profiles and Critiques in Social Theory (1982) 171 and The Nation State and Violence (1985); A.O. Hirschman, The rhetoric of reaction; perversity, futility, jeopardy (1991). Marshall represented the development of citizenship as an evolution through the stages of civil and political citizenship, culminating in social citizenship, though it has been argued that his analysis did not imply that this process was either inevitable or peaceful (J. Barbalet, Citizenship (1988)).
71. For Marshall, social citizenship rights comprise entitlement to tangible social goods such as health care and 'a modicum of economic welfare and security' (Marshall, op. cit., n. 2).
72. T.H. Marshall, 'Citizenship and Social Class' in his Sociology at the crossroads and other essays (1963).
73. G. Esping-Anderson, The Three Worlds of Welfare Capitalism (1990).
74. T.H. Marshall, Social Policy (1965) at 97.
75. J. Harris, 'State Social Work and Social Citizenship in Britain: from Clientelism to Consumerism' (1999) 29 British J. of Social Work at 916.
76. In 1939, cited in M. Spencer, 'Public subsidies without strings - Labour and the lawyers at the birth of legal aid' (2002) 9 International J. of the Legal Profession at 255: a suggestion which, as she shows, did not apply to the majority of lawyers.
77. P. Bourdieu, Language and Symbolic Power (1991) at 42.
78. Marshall op. cit., n. 45, at pp. 93-5 and 101-4.
79. Powell, op. cit., n. 25.
80. Marshall, op. cit., n. 2, my emphasis; and see R. Dahrendorf, 'Citizenship and Social Class' in Citizenship Today, eds. M. Bulmer and A. Rees (1996) 37-9.
81. Marshall, op. cit., n. 2, my emphasis; and see R. Dahrendorf, 'Citizenship and Social Class' in Citizenship Today, eds. M. Bulmer and A. Rees (1996) 37-9.
82. Abel, op. cit., n. 10, and The Legal Profession in England and Wales (1988); T. Goriely, 'Rushcliffe fifty years on' (1994) 21 J. of Law and Society 545.
83. Abel, op. cit., n. 10, and The Legal Profession in England and Wales (1988); T. Goriely, 'Rushcliffe fifty years on' (1994) 21 J. of Law and Society 545.
84. Abel, op. cit., n. 10, and The Legal Profession in England and Wales (1988); T. Goriely, 'Rushcliffe fifty years on' (1994) 21 J. of Law and Society 545.
85. W. Beveridge, Social Insurance and Allied Services (1942); Lord Rushcliffe, Report of the Committee on Legal Aid and Legal Advice in England and Wales (1945) at 2.
86. W. Beveridge, Social Insurance and Allied Services (1942); Lord Rushcliffe, Report of the Committee on Legal Aid and Legal Advice in England and Wales (1945) at 2.
87. On implementation, between 70 and 80 per cent of the population was eligible for legal aid, either on a contributory or a non-contributory basis, since the Rushcliffe Committee took the view that: An outstanding characteristic of expenditure on legal matters is that people may be involved in litigation through no fault of their own, and the costs of litigation may be far beyond their financial circumstances . . . In our view people in this position should be able to get the help they need without being treated as 'poor persons' (Rushcliffe, id.). So although the matters for which legal aid was available were very restricted, and it was not a universal benefit in the same sense as pensions, its architects were clearly conscious of the importance of ensuring that it was not an extremely selective benefit.
88. T. Goriely, 'Law for the Poor' (1996) 3 International J. of the Legal Profession 215; Spencer, op. cit., n. 49.
89. T. Goriely, 'Law for the Poor' (1996) 3 International J. of the Legal Profession 215; Spencer, op. cit., n. 49.
90. Goriely, id., at p. 225.
91. R. Moorhead, 'Legal Aid in the Eye of a Storm: Rationing, Contracting, and a New Institutionalism' (1998) 25 J. of Law and Society 365-87.
92. R. Titmuss, 'Welfare "rights", Law and Discretion' in The Philosophy of Welfare, eds. B. Abel-Smith and K. Titmuss (1987); R. Hambleton and P. Hoggett, 'Rethinking Consumerism in Public Services' (1993) 3 Consumer Policy Rev. 103.
93. R. Titmuss, 'Welfare "rights", Law and Discretion' in The Philosophy of Welfare, eds. B. Abel-Smith and K. Titmuss (1987); R. Hambleton and P. Hoggett, 'Rethinking Consumerism in Public Services' (1993) 3 Consumer Policy Rev. 103.
94. Foucault, op. cit., n. 16.
95. Habermas, op. cit., n. 15; Crouch, op. cit., n. 21, at p. 2.
96. Habermas, op. cit., n. 15; Crouch, op. cit., n. 21, at p. 2.
97. As Turner puts it: The modern matrix of nation, citizenship and masculinity has been changed by the global challenge to national sovereignty, by the transformations of work and warfare in modern societies, and by the transformation of sexuality and parenthood associated with the development of reproductive technology. (B. Turner, 'The erosion of citizenship' (2001) 52 British J. of Sociology at 198.)
98. For instance within the (Old) Labour party, a shift occurred from viewing social citizenship as equality of access, to a more social democratic vision which embraced a new 'strategy of equality' sensitive to other forms of inequality, and more comprehensive redistribution (J. LeGrand, The Strategy of Equality (1982); Townsend, op. cit., n. 24).
99. For instance within the (Old) Labour party, a shift occurred from viewing social citizenship as equality of access, to a more social democratic vision which embraced a new 'strategy of equality' sensitive to other forms of inequality, and more comprehensive redistribution (J. LeGrand, The Strategy of Equality (1982); Townsend, op. cit., n. 24).
100. Le Grand, id.
101. Franks Committee, Report of the Committee on Administrative Tribunals and Inquiries (1957) at 9.
102. H. Genn, 'Tribunal Review of Administrative Decision Making' in Administrative Law and Government Action, eds. G. Richardson and H. Genn (1994).
103. Baldwin, op. cit., n. 28; legal representation was allowed in tribunals in 1984; however, the regular demands for the extension of legal aid to tribunals following the Franks Report (op. cit., n. 66) recommendation, were resisted.
104. Baldwin, op. cit., n. 28; legal representation was allowed in tribunals in 1984; however, the regular demands for the extension of legal aid to tribunals following the Franks Report (op. cit., n. 66) recommendation, were resisted.
105. R. Abel, 'The Contradictions of Informal Justice' in The Politics of Informal Justice, ed. R. Abel (1982).
106. The scheme had been extended in 1960 to include provision for advice, and also to cover county and magistrates courts (for criminal matters). and the range of both schemes and expenditure continued to expand during the 1970s, and included the development of the Green Form scheme which, in principle, enabled solicitors to meet the growing demand for social welfare law.
107. M. Loughlin, Legality and Locality: The Role of the Law in Central-Local Government Relations (1996).
108. G. Taylor, 'Challenges from the margins' in A Crisis in Care? Challenges to Social Work, ed. J. Clarke (1993).
109. Richardson and Genn, op. cit., n. 67.
110. A. Negri, quoted in Fine, op. cit., n. 5.
111. E. Lind and T. Tyler, The Social Psychology of Procedural Justice (1988).
112. L. White, 'To Learn and to Teach: Lessons from Driefontein on Lawyering and Power' (1988) 5 Wisconsin Law Rev. 600. For such lawyers their work was part of a wider project to liberate marginalized groups from their internalized oppression (see P. Freire, Pedagogy of the Oppressed (1970)), thereby challenging law's normalization of subordination.
113. L. White, 'To Learn and to Teach: Lessons from Driefontein on Lawyering and Power' (1988) 5 Wisconsin Law Rev. 600. For such lawyers their work was part of a wider project to liberate marginalized groups from their internalized oppression (see P. Freire, Pedagogy of the Oppressed (1970)), thereby challenging law's normalization of subordination.
114. This tradition can be seen as stemming from the Legal Realist vision of a more democratic form of legal practice which emerged during the New Deal period.
115. J. Handler, E. Hollingsworth, and R. White, Lawyers and the pursuit of Legal Rights (1975) 5, quoted in Smith, op. cit. (1997), n. 32, p. 15.
116. J. Handler, E. Hollingsworth, and R. White, Lawyers and the pursuit of Legal Rights (1975) 5, quoted in Smith, op. cit. (1997), n. 32, p. 15.
117. Turner, op. cit., n. 63, at p. 200.
118. P. Wilding, 'The British Welfare State: Thatcher's enduring legacy' (1992) 20 Policy and Politics 201.
119. H. Perkin, The Rise of Professional Society: England since 1880 (1989).
120. D. Marquand, Decline of the Public (2003).
121. P. Minford, 'The role of the social services: a view from the New Right' and A. Gamble, 'The weakening of social democracy', both in The State and the Market, eds. M. Loney, R. Bocock, J. Clarke, A. Cochrane, G. Peggotty, and M. Wilson (1991).
122. P. Minford, 'The role of the social services: a view from the New Right' and A. Gamble, 'The weakening of social democracy', both in The State and the Market, eds. M. Loney, R. Bocock, J. Clarke, A. Cochrane, G. Peggotty, and M. Wilson (1991).
123. It should be noted however that a steady move towards means-tested benefits had been underway since Beveridge (Twine, op. cit., n. 41).
124. T. Lee and J. Childs, 'Comment on Jensen' (1989) Harvard Business Rev. 184; D. Osborne and T. Gaebler, Reinventing Government: How the entrepreneurial spirit is transforming the public sector (1992).
125. T. Lee and J. Childs, 'Comment on Jensen' (1989) Harvard Business Rev. 184; D. Osborne and T. Gaebler, Reinventing Government: How the entrepreneurial spirit is transforming the public sector (1992).
126. For instance, J. Clarke, 'Thriving on chaos? Managerialization and social welfare' in Carter, op. cit., n. 37.
127. A. Gamble, The Free Economy and the Strong State (1988) at 16.
128. See, for instance, Hambleton and Hoggett, op. cit., n. 60; N. Lacey, 'Government as Manager, Citizen as consumer: the Case of the Criminal Justice Act 1991' (1994) 57 Modern Law Rev. 534; W. Lamer, 'The Legacy of the Social: Market Governance and the Consumer' (1997) 26 Economy and Society 373.
129. See, for instance, Hambleton and Hoggett, op. cit., n. 60; N. Lacey, 'Government as Manager, Citizen as consumer: the Case of the Criminal Justice Act 1991' (1994) 57 Modern Law Rev. 534; W. Lamer, 'The Legacy of the Social: Market Governance and the Consumer' (1997) 26 Economy and Society 373.
130. See, for instance, Hambleton and Hoggett, op. cit., n. 60; N. Lacey, 'Government as Manager, Citizen as consumer: the Case of the Criminal Justice Act 1991' (1994) 57 Modern Law Rev. 534; W. Lamer, 'The Legacy of the Social: Market Governance and the Consumer' (1997) 26 Economy and Society 373.
131. T.H. Marshall, The Right to Welfare and other essays (1981) at 141-2.
132. D. Oliver and D. Heaton, The Foundation of Citizenship (1994).
133. C. Willett, Public Sector Reform and the Citizen's Charter (1996) 5; Oliver and Heaton, id.
134. C. Willett, Public Sector Reform and the Citizen's Charter (1996) 5; Oliver and Heaton, id.
135. Z. Bauman, Postmodernity and its Discontents (1997) at 14.
136. The reforms have been narrated and analysed elsewhere; for instance, Smith, op. cit., n. 32; Goriely, op. cit., n. 57; J. Shapland, A. Otterburn, N. Canwell, C. Corre, and L. Hagger, Affording Civil Litigation (1998); H. Sommerlad and D. Wall, Legally aided clients and their solicitors: qualitative perspectives on Quality and Legal Aid (1999); R. Abel, English Lawyers between Market and State (2003) ch. 7.
137. The reforms have been narrated and analysed elsewhere; for instance, Smith, op. cit., n. 32; Goriely, op. cit., n. 57; J. Shapland, A. Otterburn, N. Canwell, C. Corre, and L. Hagger, Affording Civil Litigation (1998); H. Sommerlad and D. Wall, Legally aided clients and their solicitors: qualitative perspectives on Quality and Legal Aid (1999); R. Abel, English Lawyers between Market and State (2003) ch. 7.
138. The reforms have been narrated and analysed elsewhere; for instance, Smith, op. cit., n. 32; Goriely, op. cit., n. 57; J. Shapland, A. Otterburn, N. Canwell, C. Corre, and L. Hagger, Affording Civil Litigation (1998); H. Sommerlad and D. Wall, Legally aided clients and their solicitors: qualitative perspectives on Quality and Legal Aid (1999); R. Abel, English Lawyers between Market and State (2003) ch. 7.
139. The reforms have been narrated and analysed elsewhere; for instance, Smith, op. cit., n. 32; Goriely, op. cit., n. 57; J. Shapland, A. Otterburn, N. Canwell, C. Corre, and L. Hagger, Affording Civil Litigation (1998); H. Sommerlad and D. Wall, Legally aided clients and their solicitors: qualitative perspectives on Quality and Legal Aid (1999); R. Abel, English Lawyers between Market and State (2003) ch. 7.
140. The reforms have been narrated and analysed elsewhere; for instance, Smith, op. cit., n. 32; Goriely, op. cit., n. 57; J. Shapland, A. Otterburn, N. Canwell, C. Corre, and L. Hagger, Affording Civil Litigation (1998); H. Sommerlad and D. Wall, Legally aided clients and their solicitors: qualitative perspectives on Quality and Legal Aid (1999); R. Abel, English Lawyers between Market and State (2003) ch. 7.
141. R. Smith, 'Legal Aid on an Ebbing Tide' (1996) 23, J. of Law and Society at 570: in his discussion of the 1996 Conservative government's White Paper, Striking the Balance: the future of Legal Aid in England and Wales, Smith notes that despite the language of consumerism which continued to frame the reform, the press campaign surrounding its release reassured that 'for the first time . . . legal aid will have a fixed budget' (id.).
142. C. Dyer, 'Once it was bad luck, now it's get a lawyer and sue' Guardian, 17 October 1998, 6.
143. R. Cranston, 'Delivery of Legal Services to ordinary Americans' (1994) 44 CaseWestern Law Rev 531; L. Friedman, 'Lawyers in Cross-cultural perspective' in Lawyers in Society: Comparative Theories, eds. R. Abel and P. Lewis (1989).
144. R. Cranston, 'Delivery of Legal Services to ordinary Americans' (1994) 44 CaseWestern Law Rev 531; L. Friedman, 'Lawyers in Cross-cultural perspective' in Lawyers in Society: Comparative Theories, eds. R. Abel and P. Lewis (1989).
145. Abel, op. cit., n. 93, at p. 287; as he remarks, 'when poor people begin to assert legal rights with greater frequency . . . we hear complaints about "litigiousness" and a "rights explosion"' (id., p. 611).
146. Abel, op. cit., n. 93, at p. 287; as he remarks, 'when poor people begin to assert legal rights with greater frequency . . . we hear complaints about "litigiousness" and a "rights explosion"' (id., p. 611).
147. Gary Streeter, Under-secretary at the LCD, consistently deployed stigma as a strategic weapon in the attack on legal aid, for instance, describing legal aid lawyers and clients as 'state funded rottweilers' (in 'Streeter Confirms Legally-aided Litigants are Rottweilers' (1996) 146 New Law J. 1378).
148. J. Ditch, 'The Undeserving Poor: then and now' in Loney et al, op. cit., n. 83; J. Macnicol, 'In pursuit of the Underclass' (1987) 16 J. of Social Policy 24.
149. J. Ditch, 'The Undeserving Poor: then and now' in Loney et al, op. cit., n. 83; J. Macnicol, 'In pursuit of the Underclass' (1987) 16 J. of Social Policy 24.
150. D. Green, 'Foreword' to C. Murray, 'Underclass': the Crisis Deepens (1994).
151. Abel, op. cit. n. 93, at p. 284; and see G. Bevan, T. Holland, and M. Partington, Organizing Cost Effective Access to Justice (1994).
152. Abel, op. cit. n. 93, at p. 284; and see G. Bevan, T. Holland, and M. Partington, Organizing Cost Effective Access to Justice (1994).
153. Legal Aid Act 1988.
154. See for instance, Sherr et al., op. cit., n. 26; Goriely, op. cit., n. 54; Smith, op. cit., n. 32.
155. See for instance, Sherr et al., op. cit., n. 26; Goriely, op. cit., n. 54; Smith, op. cit., n. 32.
156. See for instance, Sherr et al., op. cit., n. 26; Goriely, op. cit., n. 54; Smith, op. cit., n. 32.
157. This 'franchising scheme' required firms to adhere to a set of practice management standards and comply with standard quality measures of their work (the transaction criteria, or checklists).
158. D. Irvine, 'The Legal System and Law Reform under Labour' in Bean, op. cit., n. 1, at p. 5.
159. id., p. 8.
160. Blair, op. cit., n. 1, at p. xiv.
161. Bevan et al., op. cit., n. 101.
162. Moorhead, op. cit., n. 59.
163. Abel, op. cit., n. 10, at p. 598.
164. B. Loader, 'Welfare direct: informatics and the emergence of self-service welfare?' in Carter, op. cit., n. 37.
165. Genn, op. cit., n. 28.
166. R. Moorhead and P. Pleasence (eds.), After Universalism: re-engineering access to justice (2003) at 2.
167. Even prior to the abandonment of a redistributive tax regime and the goal of universal provision, access to the law was in practice limited both in terms of its availability and quality; thus, in 1998, Moorhead described lawyers as acting as covert gatekeepers of access to justice: '. . . social rationing decisions are being made in an implicit, uncoordinated, and private fashion as practitioners seek to maximize their economic interests (op. cit., n. 59, at p. 377).
168. id., at p. 373.
169. J. Elster, Local Justice: How institutions allocate scarce goods and necessary burdens, (1992); and see P. Selznick, The Moral Commonwealth (1992) at 421-2.
170. J. Elster, Local Justice: How institutions allocate scarce goods and necessary burdens, (1992); and see P. Selznick, The Moral Commonwealth (1992) at 421-2.
171. As has been argued in terms of general civil litigation: T. Goriely, 'The Access to Justice Act 2000: assessing its impact on legal aid', paper presented to SLSA Conference, 15 April 2003.
172. Elster, op. cit., n. 119, at p. 182.
173. See J. Gibbins, 'Postmodernism, poststructuralism and social policy' in Carter, op. cit., n. 37, for discussion of 'mediaization'.
174. Genn, op. cit., n. 28.
175. Hence Tony Blair's comments about the legal aid gravy train, made at the 2003 Labour Party conference.
176. See discussion of the 'relativity of performance' and its effects on the pricing of lawyers' services in G. Hadfield 'The Price of Law: how the market for lawyers distorts the justice system' (2000) 98 Michigan Law Rev. 972-5.
177. For discussion both of the complexity of evaluating legal services and the distortions the ability of the few to pay high prices produces in justice, see id.
178. M. Power, The Audit Society: Rituals of Verification (1997); for an application of Power's analysis to the legal aid sector, see H. Sommerlad, 'The implementation of quality initiatives and the New Public Management in the legal aid sector in England and Wales: Bureaucratization, stratification and surveillance' (1999) 6 International J. of the Legal Profession 311.
179. M. Power, The Audit Society: Rituals of Verification (1997); for an application of Power's analysis to the legal aid sector, see H. Sommerlad, 'The implementation of quality initiatives and the New Public Management in the legal aid sector in England and Wales: Bureaucratization, stratification and surveillance' (1999) 6 International J. of the Legal Profession 311.
180. Further, the costs to real quality that resulted from measuring efficiency in this narrow way led to abandonment of narrow output measures like ISO 9000 by industry.
181. Crouch, op. cit., n. 21, p. 115.
182. Crouch's account (id.) accords with Abel's claim that services must be universal (or near universal) if a high standard is to be achieved (op. cit., n. 10).
183. H. Sommerlad, "'I've lost the plot": An Everyday Story of the "Political" Legal Aid Lawyer (2001) 28 J. of Law and Society 335-60; it is argued that private practice solicitors are continuing to leave the CLS (see Citizens Advice, Geography of Advice: an overview of the challenges facing the Community Legal Service (2004)), although the LSC contends that this exodus is now stabilizing.
184. H. Sommerlad, "'I've lost the plot": An Everyday Story of the "Political" Legal Aid Lawyer (2001) 28 J. of Law and Society 335-60; it is argued that private practice solicitors are continuing to leave the CLS (see Citizens Advice, Geography of Advice: an overview of the challenges facing the Community Legal Service (2004)), although the LSC contends that this exodus is now stabilizing.
185. Somers, op. cit., n. 40, at pp. 24-5.
186. H. Dean and M. Melrose, Poverty, Riches and Social Citizenship (1999) at 156-7.
187. id.; and see C. Lasch, The Revolt of the Elites and the Betrayal of Democracy (1995).
188. id.; and see C. Lasch, The Revolt of the Elites and the Betrayal of Democracy (1995).
189. G. Procacci, 'Poor Citizens: Social Citizenship versus Individualization of Welfare' in Crouch et al., op. cit., n. 21, at p. 58; Titmuss, op. cit., n. 60.
190. G. Procacci, 'Poor Citizens: Social Citizenship versus Individualization of Welfare' in Crouch et al., op. cit., n. 21, at p. 58; Titmuss, op. cit., n. 60.
191. Neither should this paper be interpreted as a paean to the past system or denial of the existence of poor lawyering.
192. Shearing and Wood, op. cit., n. 6, at p. 416.
193. Cain, op. cit., n. 34, pp. 40-1; and see Merry, op. cit., n. 31.
194. Cain, op. cit., n. 34, pp. 40-1; and see Merry, op. cit., n. 31.
195. Held, op. cit., n. 32, pp. 53-4 (my emphasis).