Some Reflections on the Relationship between Citizenship, Access to Justice, and the Reform of Legal Aid
| DOI | http://doi.org/10.1111/j.1467-6478.2004.00294.x |
| Published date | 01 September 2004 |
| Date | 01 September 2004 |
| Author | Hilary Sommerlad |
JOURNAL OF LAW AND SOCIETY
VOLUME 31, NUMBER 3, SEPTEMBER 2004
ISSN: 0263-323X, pp. 345±68
Some Reflections on the Relationship between Citizenship,
Access to Justice, and the Reform of Legal Aid
Hilary Sommerlad*
The reflexive, reciprocally constitutive relationship between law and
society makes a substantive right of access to justice pivotal to the
content of citizenship. It is therefore arguable that the establishment of
legal aid, however limited in practice, was fundamental to the
expanded citizenship which the post-war settlement sought to achieve.
However this social form of citizenship has been attenuated by the
reconfiguration of the state and the neo-liberal reconstruction of the
public sector. Yet at the same time, the concepts of citizenship and
social exclusion have become key discursive mechanisms in this
reconstruction, including in the New Labour reform of the legal aid
sector. This paper considers the various meanings attributed to the
concepts of citizenship, social exclusion, and access to justice through
the optic of the history of policy changes in legal aid. The impact of
globalization and economic restructuring on social citizenship is
explored, both in terms of the experience of recipients of public goods
like legal services, and the professionals who supply them. The
commensurability of the New Labour Community Legal Service (CLS)
model with other models of justice is discussed. The conclusion briefly
returns to the theme of law's `citizen-constitutive' role and considers
the potential of the CLS for combating social exclusion.
INTRODUCTION: LAW AND SOCIETY: A QUESTION OF
CITIZENSHIP
Legally enforceable rights and duties underpin a democratic society, and access
to justice is essential in order to make these rights and duties real (Tony Blair)
1
345
ßBlackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden, MA 02148, USA
* School of Law, Leeds Metropolitan University, Leeds LS6 3QS, England
I am grateful for the helpful suggestions of Richard Moorhead and Peter Sanderson as to
how this article could be improved.
1 T. Blair, `Foreword' in Law Reform for All, ed. D. Bean (1996) at xiii.
The civil element (of citizenship) is composed of the rights necessary for
individual freedom ± liberty of the person, freedom of speech, thought and
faith, the right to own property and to conclude valid contracts, and the right to
justice. The last is of a different order from the others, because it is the right to
defend and assert all one's rights on terms of equality with others and by due
process of law (T.H. Marshall)
2
The importance assigned to access to justice by Blair and Marshall rests on
an implicit recognition of law's role not only as a primary technique of
governance but also as a significant constituent of social forms, and
practices. Evidently, law cannot play this socially constituent role, for
instance as a site of conflict, a crucible in which socio-economic struggles
are waged and processes reshaped, without being shaped in turn by society.
To paraphrase E.P.Thompson, law is imbricated within the mode of
production and productive relations; it contributes to the self-identity both of
rulers and ruled; it affords an arena for class struggle within which
alternative notions of law are fought out.
3
This reciprocal, interactive, and yet dissociative relationship between law
and society is expressed in the transformation of citizenship from a pre-
modern ascriptive status to one based on the autonomous legal subject, free
to sell and buy labour.
4
At the same time, this foundation of modern society
in generalized commodity production by free workers resulted not only in
the institutionalization of universal legal rights and duties but also in socio-
economic interdepe ndence, producing soc ial rights and dutie s which
mirrored these actionable rights.
5
The dialectic between these individualized
and socialized faces of citizenship is reproduced in the private/public
distinction which underpinned modern society.
6
In other words, even whilst modern citizenship may be seen as imbued
with the logic of commodity relations, the egalitarian and universal rhetoric
of capitalism transformed it into a political and social concept which is
pivotal to the liberal state, and which came to represent an ideological and
social space to some degree separate from the market and yet derivative of
law as an autonomous normative order. Theorists have approached this
expression of the relationship of modern law and society in various ways: for
instance Weber understood it as part of the shift to rational bureaucratic
authority, which provided a form of democratic legitimation
7
and protection
346
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. W ood, `Nodal Gover nance, Democra cy, 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.
ßBlackwell Publishing Ltd 2004
To continue reading
Request your trial