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Giddings, Jeff --- "The Transformation of Legal Aid: Comparative and Historical Studies edited by Francis Regan, Alan Paterson, Tamara Goriely and Don Fleming" [2001] AltLawJl 38; (2001) 26(2) Alternative Law Journal 102


The Transformation of Legal Aid: Comparative and Historical Studies

edited by Francis Regan, Alan Paterson, Tamara Goriely and Don Fleming; Oxford University Press, 1999; 305 pp; $135 hard cover.

While a great deal gets written about legal aid systems and services, there are few resources that effectively draw together knowledge and research from a range of countries. In bringing together material from (in alphabetical order) Australia, Canada, England, France, Germany, Ireland, the Netherlands, New Zealand, Scotland, Sweden, the USA and Wales, this book makes a valuable contribution to our understanding of legal aid.

The book is divided into three parts: historical studies, comparative studies and emerging themes. This works quite well although there is inevitably overlap between the matters raised in each part. The book is aimed at legal aid scholars and is quite heavy going in places but that is mainly due to the subject matter rather than the writing styles of the contributors.

The introduction to the book is, frankly, a disappointment. Essentially, the six- page introduction briefly summarises each of the chapters. The value of the comparative material would have been significantly enhanced by a more comprehensive discussion of the themes raised by the various contributions. The lack of material designed to bring together the historical and comparative studies makes it more difficult for the book to live up to its promise.

Two of the four historical studies in Part One concern the USA. Justice Earl Johnson has written a very interesting chapter seeking to explain why the history of legal aid in the USA differs from that of other countries. Civil legal aid spending in the USA is very limited and has been declining since 1980.

Johnson writes in a very engaging style, noting the major impact of legal aid services established to provide assistance to people in rural communities who had traditionally had little opportunity to assert their legal rights. This work gained legal aid some very powerful antagonists in the form of the agribusiness sector which worked very hard to undermine legal aid.

The other USA-focused historical account tracks the demise of the Legal Services Corporation in a chapter sub-titled 'It's ideological stupid!'. John Kilwein asserts that the experience in the USA is different as legal aid cuts are primarily driven by ideology rather than fiscal conservatism. The chapter is very thoroughly researched but I found the tone rather patronising. As an Australian reader, it seemed to me that it could have been titled 'It's America. stupid!'.

Frederick Zemans and Aneurin Thomas contribute a chapter likely to be of interest to Alt.LJ readers. It looks at the prospects for community legal/law centres, focusing on Austra­ lia, Ontario and England. Zemans and Thomas note the success of centres in Australia and Ontario and suggest that those centres will survive and perhaps thrive in the face of current challenges, especially if the following circum­ stances are present (see pp.85-8):

(a) clinics should have networks of sup­ porters within their communities, the legal profession, government bureaucracies and the governing bodies of legal aid programs;

(b) legal aid systems should maintain a clear division of labour between the private profession and the clinics;

(c) funding sources should be stable and secure (we wish!);

(d) independent community management should be retained;

(e) legal aid plans should have specific administrative structures dedicated to clinic issues; and

(f) community clinics should adopt new management techniques, including quality assurance pro­ grams, performance measures and strategic planning.

Tamara Goriely considers different models of the role of law within a welfare state, in this instance Britain. She charts the move from a focus on collective enforcement of social rights to individual enforcement and then the 1990s shift to consumerism. Consumerism sees a new focus on complaint services. 'It is too legalistic, too court-dominated, and concentrates too heavily on individual case-work at the expense of education and reform activity' (p. l 08).

In the first chapter in the comparative studies part of the book, Erhard Blankenberg considers differences in the amounts spent on legal aid in various developed countries. He asserts that the prosperity of the welfare state and the success of legal professional groups in defending the profession are the main factors influencing legal aid spending. Blankenberg also outlines the very interesting history of legal aid in Germany where, at the end of the 19th century, unions, churches and community groups developed legal aid offices to provide free legal advice. The chapter also includes a section providing comparisons of legal aid provision in various countries.

Cyrus Tata considers research issues regarding jurisdiction-based comparisons of criminal law legal aid. Tata suggests that jurisdiction should not be central to such comparisons because of the range of aspects of a criminal justice system which can vary between countries. Tata identifies the key influence on expenditure on criminal law legal aid is the way in which cases are processed through the criminal justice system as a whole; whether there is an emphasis on diversion away from court, whether most cases are pro­ cessed through the lower courts and so on. Tata refers to the need to consider sociological rules and processes such as inter-agency and intra-agency relationships and professional knowledge.

Mel Cousins focuses on two Catholic countries, France and the Republic of Ireland. Both countries continue to have limited legal aid systems. Cousins analyses the development of legal aid in terms of various factors including:

• social and economic structures,

• religion,

• the legal system ('[t]here appears to be no relationship between the population density of lawyers in a country and the amount spent on legal aid'), and

• the key actors involved.

In a valuable chapter, Francis Regan also considers why legal aid services vary between societies. He considers the legal aid systems in terms of their emphasis on promoting either self-reliance of citizens or dependence on professionals. 'Self-reliance easily degenerates into neglect if, for exam­ple, legal problems are of such complexity that people are unable to deal with them on their own. At the same time dependence on professionals runs the danger of undermining people's capacity competently to respond to their own legal problems' (p.181). Regan identifies the importance of considering the complete range of legal aid services offered by a system, including both 'in litigation' (ie. court-based) and 'outside litigation' (that is, advice, community legal education etc) ser­ vices. Further, Regan highlights the need for both types of services to operate in conjunction.

In the emerging themes part of the book, several matters dear to the hearts of legal aid administrators are considered. Jon Johnsen reviews issues related to studies of legal needs. Johnsen refers to two essential features of 'legal needs', legal expertise and 'need condition' (the human state to which the need relates). Further, Johnsen distinguishes legal needs and legal problems (which a person can resolve themselves). A thought-provoking model of legal problem processes is also outlined. It is too detailed to set out here.

Alan Paterson and Avrom Sherr discuss issues related to ensuring the quality of legal aid services. The benefit of this chapter is that it documents the global experience in relation to efforts to ensure service quality. Paterson and Sherr refer to service quality having become a significant issue due to the erosion of legal professional autonomy and the reactive nature of legal professions.

In the final chapter, Don Fleming considers the response of Australian legal aid authorities to multi-party actions. Fleming's review would have benefited from further data (for example, Victoria Legal Aid did not supply any data) but is still valuable in setting the scene for further research in this area.

My concerns with the book relate to matters that are not covered. Foremost here is the unfortunate lack of any significant incorporation of feminist perspectives of legal aid history and policy making. The same concern exists in relation to indigenous perspectives not being included. The place of alternative dispute resolution in legal aid and the legal system more generally is also not considered in detail.

I found this book very interesting, particularly with the coverage of legal aid systems from a wide range of nations. It should make a useful contribution to debate and policy making in this area but I suspect that the price may limit its accessibility.


Jeff Giddings teaches law at Griffith University.

©2001 Jeff Gidding


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