In a democracy, we all need Legal Aid

by Kay Stockholder

Discussions of legal aid and media reports about it are often premised on the notion that legal aid is just one of many social services offered by government. This premise is false.

While inadequate funding of some social services, welfare, health care, and the like, may affect more people’s lives and affect them more drastically than inadequate funding of legal aid, these services are not part of our constitutional structure. In contrast, adequate legal aid is essential to the functioning of democratic government, a fundamental principle of which is that all people are equal before the law, and that all people are equally entitled to fairness and due process.

The principle of equality before the law distinguishes modern democratic states from pre-modern aristocratic states. In its original formulation, this principle did away with judicial systems that were based on legal inequalities, in which different codes of conduct and different systems of penalties applied to different social castes. Aristocrats, clergy, and commoners appeared before different tribunals. An aristocrat convicted of a capital crime was beheaded with swift dignity, while a commoner was gruesomely hung, drawn and quartered in a public spectacle. A commoner convicted of theft could be branded, mutilated, or publicly humiliated in the stocks; punishments never suffered by aristocrats.

The principle of law in a democracy is based on a concept of personhood which demands that no factors of class, social privilege, or status can be relevant to an individual’s relation to the law. All persons are to stand, as it were, socially naked before the power of the state as inscribed in the laws of the land. Of course, this principle has never been fully realized and, try as we might, it probably never will.

As things stand now, there is there is something anomalous about our legal system. On the one hand, the machinery for law-making, social regulation, and law-enforcement are part of public services and are paid for by the tax dollars of all citizens. On the other hand, the legal advice and representation necessary for the individual citizen to be treated fairly before the law is part of private enterprise. Therefore, while we are legally equal, the availability of justice has always been circumscribed by economics. We are accustomed to accepting that the rich are better served by the law than the poor. Our drug laws are enforced more stringently among the poor than the rich; the rich who can afford the best legal services are less likely to be convicted than the poor, and the penalties for the poor are likely to be harsher. There is probably as much white collar crime as there is street crime, but our prisons are full of petty drug traffickers and petty thieves. As a glaring example, had O.J. Simpson been a poor man, without access to a team of the highest paid lawyers in the United States, he would be in prison, whether or not he is innocent. We accept legal inequality in practice as a fact of life in an imperfect world.

This de facto inequality arises from a fact of our life that is, ironically, almost as central to modern democratic society as the principle of equality before the law itself, and that is the principle of a free market and free enterprise. Lawyers are private citizens pursuing their craft, and charging, like others in business, what the market will bear. This does not in principle have to be so; one could imagine a system of universal legal services run along the lines of our medical services. One could argue that our political system requires universal legal services more than it does medical services, since government functions by the agency of the law, while it has no power over sickness and health. However, principles aside, if we must choose between universal medical care and universal legal services obviously we will choose the former. We care more passionately about staying alive and well than about being treated justly; all of us are subject to pain and disease, while many reach their deathbeds with their lives untouched by litigation.

However, though perfect equality before the law may forever elude us, degrees of inequality matter. We should not be careless about having more or less equality just because the rich and the poor will never in fact, as distinct from in law, have absolutely equal access to the machinery of justice. Legal aid systems have been put in place because they give the poor some means to exercise their rights and to defend themselves against the power of the state. Any erosion of legal aid services increases the inequality of persons before the law; an inequality further exacerbated in today’s society in which the rich are growing richer and the poor poorer.

We do not underestimate the financial and conceptual difficulties of providing universal access to justice. Despite those difficulties, as governments feel the strain on budgets for social services of various kinds, they should not think of legal aid as one social service among many. Though legal services do not strike people with such a sense of visceral immediacy as services designed to protect children, or protect minorities, they nonetheless are integral to the integrity of our constitutional system, and to protecting individual and minority rights from the rich and the mighty, as well as from government itself. In the long term, rendering the poor legally helpless allows the agencies of government gradually to grow indifferent about the ways in which they wield their power, and erodes the limits to the ways the rich can in practice deny the rights of the poor. Cuts to legal aid threaten to make a mockery of the foundation principle of our entire legal system.

The Legal Services Society, the Law Society, and individual lawyers should join forces with the Coalition for Access to Justice in order to protect Legal Aid. Our objective is to put pressure on the Government, as a minimum, to restore to legal aid the money collected from the tax on legal services, which has been diverted into the general revenues, and, in addition, to match federal government contributions to legal aid. Your involvement--educating yourself about the issue, speaking up in your community, calling or writing your MLA, or actively volunteering with the Coalition--is an essential part of our efforts to defend the system of justice to which we, as a society, should aspire.

Kay Stockholder, BC Civil Liberties Association

This article was published in the April 1998 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.