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Citation: 4 Windsor Y.B. Access Just. 73 1984

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BRITISH LEGAL SERVICES AND


SOCIALIST THEORIES OF LAW
William M. Rees*

After briefly surveying the development of the criminaland civil


legal aid and the legal services schemes in the United Kingdom,
Mr. Rees argues, from the perspective of a radical pluralist
critique, that an extensive system of community law centres can
be a meaningful component in the development of a longterm
democratic socialist program. Squarely facing the marxian view
that the law centre movement is merely reformist and serves the
interests of antisocialist forces, he contends that in a
predominantlyconservative culture such as the United Kingdom,
socialism will not arrive in the immediately foreseeable future,
but that law centres can help to create conditions out of which a
more radical consciousness can arise. His shortrun solution,
then, is an extensive system of community based centres that
serve the poor and are funded out of general revenue while
remaining as independent as is practically possible of funding
sources.

Le Service judiciare en Grande-Bretagne


et les theories socialistes du droit
Aprds avoirpass, brievement en revue le dveloppement de l'aide
juridiques et des systemes de services juridiques du RoyaumeUni, M. Rees pretend, de la perspective d'une critique gauchiste
et pluraliste, qu'un reseau Ltendu de centres juridiques
communautairespeuventconstituer une composante utile dans le
d~veloppement d'un programme social-ddmocrated long terme.
S'opposant carrement a la vue marxienne que le mouvement des
centres juridiques n'est que r~formiste et sert les int~rets des
froces anti-socialistes, il pretend que dans une culture pour la
plupart conservatrice, telle que celle du Royaume-Uni, le
socialisme ne se crLerapas dans un avenir imm6diat mais que les
centres juridiques peuvent aider d crder des conditions plus
favorables d la politisationdes espirts. Sa solution d court terme
est donc un rdseau Jtendu de centres d base communautaire qui
servent les pauvres et qui sontfinancsdes revenus g~n~raux tout
en restantaussi inddpendantsdes sources definancementqu'il est
possible dans la vie rdelle.
*

Lecturer in Law, Faculty of Law, University of Durham, England.


A version of this paper was presented to the European Critical Legal Studies
Conference in Copenhagen, September 1982.
(1984), 4 Windsor Yearbook ofAccess to Justice

73

Windsor Yearbook of A ccess to Justice

1984

I. Historical Perspective
Historically legal services were delivered by lawyers in
private practice; the state played little part. The practical
inability of many people to utilise the law was in practice of
little or no concern to the state, despite the existence of long
standing grandiose statements in favour of "equal access to
law" in documents such as Magna Carta of 1215 ("To no one
will we sell, to no one will we refuse or delay, right or justice")
and a Statute of King Henry VII of 1495.' In the twentieth
century Parliament has from time to time recognised that there
is a substantial gap between theory and practical reality. For
example, Parliament enacted Poor Prisoners'Defence Acts in
1903 and 1930, which introduced an incipient criminal legal aid
scheme, and successive Legal Aid Acts, beginning with the
Legal Aid and Advice Act, 1949, which created a civil legal aid
scheme from 1950.2
Although England was the first country to develop a modern
legal aid scheme (and indeed its legislation has been utilised as a
model for a number of "judicare" schemes in other countries),
many would argue that the substantial gap referred to above
still remains.
The English legal aid scheme, which has always been
operated through the private profession, 3 has three
components: the criminal, the civil and the legal advice and
assistance schemes. The criminal legal aid scheme is run by the
courts, though under the general control of the Lord
Chancellor's Office (hereafter LCO).4 The civil legal aid
scheme is run by the Law Society under the authority of the
LCO despite a glaring conflict of interest, since the Law Society
is also the solicitors' trade union. The third element, legal
advice and assistance (the so called "Green Form" scheme), is
also run by the profession and has operated in this form for
almost a decade.5 The major piece of consolidating legislation
See further Earl Johnson Jr., Justice and Reform 2nd ed. (N.J., U.S.A.:

Russell Sage Foundation and Transaction Books, 1978), 3. See also M.


Cappelletti and J. Gordley, "Legal Aid: Modern Themes and Variations"
(1972), 24 Stanford L. Rev. 347.
2

See further M. Zander Legal Services for the Community, (London: Temple
Smith, 1978), and M. Partington, "Great Britain" in F.H. Zemans (Ed.),
Perspectives on Legal Aid: A Comparative Survey, (London: Frances
Pinter, 1979), esp. at 158-166.

Some of the "public sector" law centres, for example North Kensington
Neighbourhood Law Centre, derive some income from legal aid work and
indeed North Kensington has been economically dependent upon it for its
survival. Indeed in 1981-82 249,259 was paid from the legal aid fund to 33
law centres for legal aid work.
4 Responsibility was transferred to the LCO in July 1980 from the Home
Office (S.I. 1980/705) in accordance with the recommendation in para.
11-22 of the Benson Royal Commission on Legal Services, (1979; Cmnd.
7648).

Since the Legal Advice and Assistance Act, 1972, which came into effect in
April, 1973.

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British Legal Services

has been the Legal Aid Act, 1974, which at the start of 1982 had
been amended by at least nine acts and six sets of regulations.
In 1980-1981, the government spent 108 million on legal aid,
which represented a 600 increase in two years. 6 In 1981-82 the
annual expenditure on legal aid ran at the rate of about 135.5
million per annum, rising to 178.3 million per annum in
1982-83. 7
All three aspects of the legal aid scheme have undergone
scrutiny and change over the last several years. A new Legal
Aid Act, sponsored by the Conservative Government, passed
through Parliament. The Government replaced the old scheme,
under which lack of financial means did not prevent defendants
in criminal cases from obtaining legal representation (provided
that the court determined that it was necessary in the interests
of justice), with a system that involves a rigid means test and
weekly contributions similar to that used in the civil legal aid
scheme. 8 The practical consequences of this legislative action
may well be severe for defendants in criminal cases given the
English adversarial court system, which effectively assumes
that both prosecution and defence will be legally assisted and
represented.
Civil legal aid has also been effectively cut back from time to
time. Under the Labour Government's 1949 Act, at least 80%
of the population was eligible for civil legal aid on the basis of
6 See The Law Society's Annual Legal Aid Report for 1980-1, (London:

H.M.S.O., January, 1982).


Source: The Law Society's 32nd Annual Report on the Operation and
Finance of Part 1 of the Legal Aid Act 1974 for the Year 1981-82, Appendix
4B, 58-59, and The Law Society's 23rd Annual Report on the Operation and
Finance of Part 1 of the Legal Aid Act 1974 for the Year 1982-83, Appendix
4B, 94-95.
8 Yet the Government's other provisions in the 1982 Act providing for a
national scheme of duty solicitors in magistrates courts (s. 1) and for appeals
against refusals of criminal legal aid (s.6) have been welcomed by
progressive elements and reformist groups like the Legal Action Group
(LAG). The Government has also provided for legal aid to be made
available to cover representation before Mental Health Review Tribunals.
Further, it has made legal aid available for representation of parents in care
proceedings, which was a long overdue development, having been strongly
advocated for years by informed opinion of all political persuasions. See
CurrentLaw Statutes Annotated 1982 (London: Sweet & Maxwell, 1983) in
which the LegalAid Act 1982 is usefully analysed by Anne Pinks, Assistant
Secretary, Legal Aid, Law Society. The 1982 Act arose out of a Joint
Working Party Report of the Law Society and the Bar on criminal legal aid
entitled "The Profession's Proposals For Change," which was submitted to
the Lord Chancellor's Department in 1981. While most of the Report's
recommendations were incorporated in the Act, it is noteworthy that certain
provisions went further than the recommendations (e.g. s.7 concerning legal
aid contribution orders) while, for example, s.6, as finally drafted, did not
go as far in that, after pressure in Parliament at Committee stage, the
Government introduced an appeal procedure where a magistrates' court
refuses to grant legal aid.

Windsor Yearbook of Access to Justice

1984

the income limits in force in 1950. By 1973, during the latter


period of Edward Heath's Conservative Government, just 40%
of the population was eligible. By 1974 the proportion of
households with children eligible on income grounds was just
23 % (having dropped from 64% in 1964) "with an insignificant
free of
eligible ...
households ...
fraction of ...
contribution." 9 During the time of Labour Governments of the
1970's, the decline was arrested and partly reversed for a
period."0 In late 1979, shortly after Margaret Thatcher's
Conservative Government had taken office, the Lord
Chancellor continued the practice of his Labour predecessor of
annually increasing eligibility limits in line with supplementary
benefit increases. At that time, 70% of the population was
eligible. However, with no increases in 1980 and 1981, the
proportion of the population that was eligible fell to under
60%." ' The Green Form Scheme was particularly affected.' 2
Eventually in April, 1982, marginally more generous
financial eligibility limits for civil legal aid scheme were
introduced. ' The general increase was about 9% while
inflation since the last rise had been 30%. For civil aid the
yearly lower disposable income limit became 1850 (previously
1700) with the lower disposable capital limit 1310 (previously
1200); below these income limits no contribution was
required. The upper disposable income limit was 4440
(previously 4075) and the upper capital limit 2725 (previously
2500); above these levels, people would not qualify for civil
legal aid at all. By April 1983 the yearly lower disposable
income limit had become 1965 with the lower disposable
capital limit almost doubling to 2500, whilst the upper4
disposable limits became 4720 and 4000 respectively.'
When an applicant and spouse live together, their income and
capital are combined unless they have "a contrary interest" in
the civil proceedings. Recent research indicates that over 20%
of those offered civil legal aid decline it because they either
cannot or will not pay the contribution. I5
In the last two decades a substantial interest and concern in
legal services and the legal profession as a subject has arisen. As
Zander has noted, in the fifteen years between 1963 and 1978
there was more interest in the subject of legal services and the
legal profession than in the previous five hundred put
I See Benson Commission, supra, note 4, para. 12-5.
'0 See Benson Commission, Id., para. 12-6.

''Ironically, rising unemployment and increasing mortgage payments and


rents, which are deducted when assessing means for legal aid purposes,
kept the proportion eligible as high as this, with more people falling within
the existing limits than would have previously.
12 See further (1982), L.A.G. Bull., Jan., 5.
'"See (1982), L.A.G. Bull., March, "Law and Practice", 34-5.
14 See LegalAid (FinancialConditions), Regs. 1982 (s. 1. 1982 No. 238), and
Regs. 1983 (s. 1. 1983 No. 617).
'5

See (1982), L.A.G. Bull., April, 1.

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British Legal Services

together, 1 6 and this concern spread almost worldwide. In


Britain it culminated in 1976 with the appointment by Labour
Prime Minister Harold Wilson of a Royal Commission on
Legal Services firstly for England, Wales and Northern Ireland
under the chairmanship of Sir Henry (now Lord) Benson, and
secondly for Scotland under Lord Hughes."I At that time the
legal profession found itself in crisis, being subject to growing,
sustained and informed criticism in Parliament, the media and
elsewhere.'" Just over a fortnight before the appointment of the
English Royal Commission, the venerable Times newspaper
reported in an article by its Legal Correspondent that the Lord
Chancellor and the Secretary of State for Prices and Consumer
Protection were considering ending the solicitors' conveyancing
monopoly as a result of the Attorney-General's response to
Jack Ashley MP's probing question in the House of
Commons.' 9 The Minister of State at the Home Office, Alex
Lyon, publicly stated at the Legal Action Group (LAG) Annual
General Meeting early in 1976 that there was a good case for
creating a national legal service; the Minister also said that he
considered the solicitors' conveyancing monopoly scandalous
and favoured a new Ministry of Justice to administer legal
services. 20 There was therefore at least one Government
Minister willing at that time publicly to declare himself in
favour of change that would have been quite radical in the
British context. 2 ' However, the Labour Government decided to
appoint a Royal Commission rather than engage in positive
reform.
The publication of the Benson Report in 1979 evoked a
highly critical response from both the media and in academic
literature; it is significant that only the Law Society and the Bar
welcomed the document. 2" The conservative report represented
a resounding victory for the forces of tradition and an
endorsement of the existing system of the provision of legal
services. For example, Benson seriously underplayed the
importance of Law Centres and their pioneering work since the
early 1970's in providing a new, distinctive approach to legal
services. Benson's proposals for new Citizens' Law Centres, if
'6

Zander, supra, note 2, 11.

" 1980; Cmnd. 7846.


'8 See e.g. for the details Zander, supra, note 2, 19-21; T.A. Downes, P.R.
Hopkins and W.M. Rees, "The Future of Legal Services in Britain: A
Client or Lawyer Oriented Approach" (1981), 1 Windsor Yearb. Access
Justice 121-127; and P.A. Thomas, "The Royal Commission on Legal
Services" (1981), 1 Windsor Yearb. Access Justice 179, 181.
'9 The Times, January 26, 1976.
20 (1976), L.A.G. Bull., 26.

Mr. Lyon was dismissed from office soon after when James Callaghan
succeeded Mr. Wilson as Prime Minister.
"See e.g. Downes, Hopkins and Rees supra, note 18, Thomas supra, note
18, and P.A. Thomas (Ed.), Law in the Balance: Legal Services in the
Eighties (Oxford: Martin Robertson, 1982).
21

Windsor Yearbook of Access to Justice

1984

implemented, would have effectively emasculated the law


centre movement.2 3 Benson personally acknowledged at the
Press Conference announcing the Report that "we were not as
well appraised as we might have been about developments in
the law centres." Benson devoted just thirteen pages to law
centres and a derisory half page to a national legal service out
of its total Report of eight hundred pages of text.
However, many of the Benson Report's nearly four hundred
recommendations now appear to be of little more than
academic interest. The Conservative Government has not
initiated any Parliamentary debate on Benson in the four years
since its publication, so it has not been formally debated at
Westminster. The Guardian newspaper described this in its
editorial on January 29, 1982 as scandalous.
By autumn 1982 there had appeared to be no prospect that
the Government would respond formally or in any detail to the
report.2 4 Lord Benson himself expressed some disquiet about
23

24

See e.g. Downes, Hopkins & Rees Id., 136-143 and M. Stephens, "Law
Centre and Citizenship. . ." in Thomas (Ed.), Id., 107.
In 1982 Philip Thomas had described the Government's response to Benson
and Hughes as "at the best studied indifference": see Thomas (Ed.), Id., 4.
However, recently the Lord Chancellor's Department did produce The
Government's Response to the Report of the Royal Commission on Legal
Services (1983, Cmnd. 9077). Its publication date of 8 November was too
late for its contents to be analysed in detail in this article. The Lord
Chancellor, Lord Hailsham, had written to Lord Gifford Q.C.,
Chairperson of L.A.G., in February 1983 stating that the response would
be published before the end of July 1983. The further delay was caused by
the Government having a long series of inter-departmental consultations
(as well as some HMSO printing difficulties), see (1983) L.A.G. Bull
October, 2. The Response has been greeted with considerable criticism
from both The Guardian and L.A.G. The Guardian repeated its earlier
editorial criticism in an editorial on 9 November 1983: "The dreary
negative response .... would have been a disappointing affair at any
time. That it should have emerged after a delay of four years is a disgrace.
The Government does not want to establish an advisory committee to
monitor the state of legal services throughout the country. It says the
proposed extensions of legal aid cannot be financed at present. It opposed
standard conveyancing charges on the grounds that they might inhibit
competition. . . At the same time and somewhat illogically, the
Government is against increasing competition between barristers and
solicitors by breaking the barristers' monopoly over advocacy in the higher
courts and the solicitors' monopoly over conveyancing. And after four
years the Government still does not know what it wants to do about law
centres . . . .there is little sign here that the state of the legal profession is a
subject of any great urgency, even of any great interest, in the Lord
Chancellor's Department." L.A.G. has asked why the Government has
refused to respond to 176 out of the 369 recommendations, but instead has
referred them to the Law Society and Senate of the Bar. L.A.G. concludes:
"The Government has not responded to the Benson recommendations.
Instead, it has catalogued the meagre policy record of the last four years,
and indeed, devoted considerable attention to the question of civil
procedure. On the other hand, it has very little to say on the chronic
problems arising from the lack of legal services and the low availability of
legal aid."

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British Legal Services

the Government's lack of speedy action in response to the


Royal Commission, which he fully recognises is not untypical
of Royal Commissions generally. Benson concluded:
I am left with the impression that the Government has
approached the Commission's report with rather less enthusiasm
than the legal profession. It is important that the public and the
profession should feel that there is a thrust emanating from the
Government ...

This thrust is not at present obvious and it has

been the subject of adverse comment in legal circles. I hope the


situation will change, otherwise harm will be done to the whole
purpose of the Royal Commission's work which was to bring
about improvements -

some of them much overdue -

in the

provision of legal services for the public. 25


In contrast, the Government responded more quickly to two
key and useful proposals made by the Scottish Royal Commission, whose report was received much more favourably at large
generally than that of its English counterpart. The response has
been to reject summarily the recommendation for a Legal
Services Commission to develop and administer the public
sector of legal services, namely law centres, advice centres and
legal aid, as well as the recommendation for a new, unified
Government Department of Legal Affairs. The Secretary of
State for Scotland believes "that the present division of
responsibility for legal matters in Scotland

. .

. is appropriate,

that the present system works well and that the establishment of
the [two] new bodies

. . .

would not make for more efficient or

26
more economic administration."
The government did establish an interdepartmental working
party in December, 1979, following Benson's publication, to
consider law centres and other issues.2 7 The work of these civil
servants has been shrouded in secrecy and mystery but it is
understood that at least five departments28 have been involved
and that their conclusions had been placed before Ministers for
decision-making by September 1982.
Two Reports published in late January, 1982 (the 31st
Annual Report on Legal Aid of the Law Society and of the
Lord Chancellor's (independent) Advisory Committee for
1980-1), severely castigated the Conservative government for its
lack of action to improve and extend legal aid and for wasting

25 The Child & Co. Lecture, February 12, 1981 entitled "Reflections of the

Royal Commission on Legal Services." See also Lord Benson's PostGovernment 'Response' in "A Layman's View of Legal Services", (1984),
81 Law Society's Gazette 1250.
26 Written Answers, H.C. Hansard, June 23, 1982, Col. 131.
27 Benson, The Child & Co. Lecture, transcript, 9.
28 The LCO, Department of Trade (now Department of Trade and Industry),
Department of the Environment, the Home Office and the Department of
Health and Social Security (DHSS).

Windsor Yearbook of Access to Justice

1984

public money through unsatisfactory court listing practices.29


The Law Society wrote in uncharacteristically angry and
trenchant terms that "[tihe continued failure to make a move in
virtually any direction in the legal aid field, even when reforms
are almost universally agreed to be desirable, stultifies the legal
aid scheme. It is not just that the last five years have been
largely wasted. There is the effect of immobility on the
originators of ideas. They are likely to give up trying to
improve the system." 3"
Clearly legal services have a very low priority on the political
agenda at present. Yet the law centre movement has grown in
size, organisation and influence in the twelve years of struggle
since the first law centre was created at North Kensington in
West London, 3 despite uncertain long term funding and high
staff turnover in the recent past and at present. When Benson
reported three years ago there were twenty-nine law centres,
and the number has gradually increased. 3 2 In 1981 there were
thirty-nine law centres then serving a total population of about
five and a half million." By September 1982 there were fortyfour affiliated with the Law Centres' Federation with the recent
creation, for example, of two more centres in North-East
England at Stockton and Gateshead. By late 1983 there were
still just 50 law centres. Whilst a year later the number has
increased to 54, Each centre has adopted its own modus
operandi in the light of the needs of the locality which it serves.
The centres are managed by committees which have a majority
of local people representative of the interests of consumers of
It is noteworthy that it has been reliably estimated that approximately 4
million was being spent by the DHSS in 1982 in assessing the means of
applicants for legal aid. A majority of them (74% in 1980-81) are actually
so low paid or unemployed that it transpires that they are eligible for free
legal aid while between one third and one half of nil contributors to legal
aid are receiving supplementary benefit (S.B.). Law Society, 31st Annual
(London: H.M.S.O., 1982), 7 at para. 12.
30 Report on LegalAid,
Id., 6 at para. 10.
3'The Society of Labour Lawyers' Fabian pamphlet "Justice for All",
published in 1968, which, inter alia, strongly argued for the creation of
neighbourhood law centres on the American model, was ultimately quite
influential. Peter Kandler, the first director of the North Kensington
Centre, was a member of the Labour Lawyers and a socialist activist.
32 Some have gone out of existence through lack of funds, sometimes after
clashing with Conservative controlled local authorities, their paymasters
(viz. Wandsworth). SWAPAC, in Merthyr Tydfil, South Wales had been
reliant upon EEC Antipoverty money; when the grant period ended, no
further financial support could be found. SWAPAC in full is South Wales
Anti-Poverty Action Centre.
31 See further J. Cooper, Public Legal Services In Three Countries. A Study
of the Relationship Between Policy and Practice, (Florence: European
University Institute, 1981), esp. Chs. 5-7 for interesting analyses of Brent,
Manchester and Adamsdown Law Centres. See also J.Cooper Public Legal
Services: A Comparative Study of Policy, Politics and Practice(London:
Sweet & Maxwell, SPTL Book Series, 1983), Chs. 6-7.

29

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British Legal Services

the service. The centres concentrate on matters affecting


working class and poor people using a wide range of methods,
though generally emphasising proactive strategies and pursuing
issues collectively. They have research and educational
functions while some, such as Brent, help to establish
cooperatives and community-based employment ventures as
well as other self-help groups. In addition to maintaining an
individual case workload (which most in the law centre
movement consider essential for successful group work),
centres advise local community organisations (such as tenant or
ethnic groups) and assist in the compilation and presentation of
evidence to inquiries, as well as exploring the use of
administrative processes as an alternative to the traditional
judicial process. Law centres are thus concerned to develop far
more than purely legal solutions to problems within their
communities.
The Labour Party Labour's Programme 1982 advocated the
creation of a Legal Services Commission and a national
network of Community Law Centres in the United Kingdom.
This programme has been strongly influenced by the views on
this subject of the Law Centres' Federation ' and the Legal
Action Group." The proposals can be regarded as providing a
reformist, democratic socialist approach to the delivery of legal
services. The rest of this paper evaluates the law centre
movement from the perspective of socialist legal theory.
II. The Socialist Debate on the Delivery of Legal Services
It is useful to examine the models for the delivery of legal
services and in particular to consider socialist models. 3"
Undoubtedly there is gross inequality in wealth and income as

4 The L.C.F. has strongly lobbied the Labour Party N.E.C. Human Rights
Sub-committee concerned with developing democratic socialist policies on
legal services.
" See L.A.G., Legal Services, A Blueprintfor the Future (London: L.A.G.,
1977) L.A.G.'s Evidence to Benson; L.A.G., Legal Services a New Start
(London: L.A.G., 1980) L.A.G.'s Response to Benson.
36 See Newham Rights Centre's Annual Report for 1974-5, Part 3, and
Downes, Hopkins and Rees, supra, note 18, 138-141. The models approach
is more fully developed in a book by P.R. Hopkins and W.M. Rees, Access
to Law: The Future of Legal Services (Hampshire: Gower, 1984)
(forthcoming).

Windsor Yearbook of A ccess to Justice

1984

well as serious and structurally pervasive poverty in Britain.3 7


These problems are growing in the United Kingdom in the
1980's as a result of the government's taxation policies and
commitment to extensive public expenditure cuts combined
with its efforts to begin dismantling the welfare state. This is in
contrast to the false belief in the 1950's that wealth was slowly
but surely being redistributed and that poverty was being
abolished within the United Kingdom.38 The reality is that
poverty is multifaceted while its extent and effects are
frequently seriously underestimated. 39 The question is what
role, if any, does the law have in abolishing poverty, generating
radical social change and achieving a substantially more
egalitarian and socialist society?
One marxist model for the delivery of legal services is derived
from the theory that law is incapable of assisting the working
classes and that their problems can be alleviated only by
revolutionary change in society. 0 On this view, law centres and
the development of legal services generally are regarded as
irrelevant to the task of creating a socialist society. This is
because material conditions of life and the relative positions of
the various social classes are considered to be determined by
relationships with the means of production rather than by the
content or operation of law. Ownership of the means of
See e.g. F. Field, Unequal Britain - A Report of the Cycle of Inequality.
(London: Arrow Books 1974) F. Field (ed.) The Wealth Report (London:
RKP 1979) and the new classic work: P. Townsend, Poverty in the U.K.
(Harmondsworth: Pelican Books, 1979). See also the Reports of the Royal
Commission on the Distributionof Income and Wealth: The Initial Report
on the Standing Reference (1975, Cmnd. Paper 6171); Report Number 4,
The Second Report on the Standing Reference (1976, Cmnd. Paper 6626);
Report Number 5, The Third Report on the Standing Reference (1977,
Cmnd. Paper 6999); Report Number 7, The Fourth Report on the Standing
Reference (1979, Cmnd. Paper 7595). See also R. Layard, D. Piachaud and
M. Stewart, The Causes of Poverty (Background Paper for Royal
Commission Report No. 6 on Lower Incomes). See further the D.H.S.S.,
Family Expenditure Survey placed in the House of Commons Library,
Westminister in late October, 1983 (following a Parliamentary Question
from Mr. E. Ross) and reported in The Guardiannewspaper by D. Hencke,
the Social Services correspondent, on 31 October 1983. The Survey showed
that in 1979, 11.5 million were living on the margins of poverty while by
1981 the figure had dramatically increased to 15 million, over 25076 of the
country's population. In this first two year period of Conservative
Government, households with children living below supplementary benefit
level, the Government's official poverty line, increased by 7301o. The Royal
Commission's work was briefly reviewed in (1980), 7 B.J.L.S. 286 by
C. Sandford.
38 See e.g. C.A.R. Crosland, The Future of Socialism (London: Greenwood,
1956).
3 As Townsend has noted, poverty can be defined objectively in terms of the
concept of relative deprivation. See Townsend, supra, note 37, Chs. 1 and
27 esp.
40 This is the fifth and final model in the spectrum for the delivery of legal
services presented by the Newham Rights Centre, supra, note 36, 49-51.
31

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British Legal Services

production is the most influential relationship because it


allows the ruling class to buy the power of others and to create
surplus value (profit) which is accumulated into capital by the
ruling class. Law is perceived as a system of rules that regulates
relations between members of the ruling class and this protects
that class from the threats of other classes. Under this view,
developments such as public legal services may very well be
counter-productive from the perspective of the working class,
for they make existing conditions marginally more tolerable
while legitimating and masking the fundamental nature of
capitalist society. Legal services may postpone "the
revolution," particularly since more people might be persuaded
(if they think about it at all) that law is equally available to all
in capitalist society. On this marxist view, the creation of a
national network of law centres would be regarded as a minute
concession to buy off demands for fundamental social,
economic and political change and merely as a symbolic means
of capitalist society achieving internal self regulation.
The law centre movement's intellectual response to this line
of argument, as exemplified by the Newham Rights Centre in
1975, was totally inadequate since it was simply dismissive: "It
is not necessary to consider the criticisms of this rather extreme
approach in detail because they rest entirely on 'political' and
'ideological' rather than pragmatic arguments . . . many of
those who accept the marxist analysis will not accept the
conclusion that it leads inevitably to a rejection of increased
legal services for the poor.""'
What then does the marxist perspective contribute to the
debate about the future of legal services? Before answering this
question it must immediately be stressed that there is no single
marxist approach to (or theory of) law. Although a very
considerable amount has been written on the subject of law and
marxism within the British, 2 European and North American

4
42

Id., 51.

See e.g. A. Hunt, The Sociological Movement in Law, (London:


Macmillan, 1978) with its marxist emphasis; the excellent M. Cain and A.
Hunt, Marx and Engels on Law (London: Academic Press, 1979); P. Hirst,
On Law and Ideology (London: Macmillan, 1979); C. Sumner, Reading
Ideologies: an investigation into the Marxist theory of ideology and law
(London: Academic Press, 1979); P. Phillips, Marx andEngels on Law and
Laws (Oxford: Martin Robertson, 1980); N.D.C./CS.E., Capitalism and
the Rule of Law (London: Hutchinson, 1979); H. Collins, Marxism and
Law (Oxford: Clarendon Press, 1982); and the regular marxist
contributions in the B.J.L.S. and LJ.S.L. such as e.g. Cain, "The Main
Themes of Marx' and Engels' Sociology of Law" (1974), 1 B.J.L.S. 136;
R. Kinsey, "Marxism and the Law" (1978), 5 B.J.L.S. 202; Hunt, "The
Radical Critique of Law . . ." (1980), 8 LIJ.S.L. 33; and R. Warrington,
"Pashukanis and the Ccmmodity form Theory" (1981), 9 LIJ.S.L. 1.

Windsor Yearbook of Access to Justice

1984

contexts in the last decade, relatively little has been published


specifically on legal services and the legal profession from what
might be termed explicitly orthodox (or mainstream) marxist
perspectives.43 However, notable contributions have been made
by Peter Alcock 4 4 , Maureen Cain4 5 and Rick Abel. 46 The latter

two writers have been at pains to emphasise that it is very


important for sociolegal researchers and sociologists of law to
study rich people's law as well as poor people's law without
which the nature and reality of capitalist society cannot be
understood. 47 Further, they have specifically argued that what

most lawyers do in their everyday professional lives needs to be


carefully researched and examined; it is not enough to limit
such studies to the few lawyers who serve the poor.
One explanation as to why marxist writers have written
relatively little on legal services as such is that they tend to
belong to the sociology of law school (the theory builders)
rather than to the sociolegal studies school of thought, which
includes social policy and reformist oriented researchers who
empirically study the law in action. Theory builders are
concerned to understand "the nature of social order through a
study of law ... The goal is not primarily to improve the legal
system, but rather to construct a theoretical understanding of
that legal system in terms of the wider social structure" 4 . The
empiricists tend to focus on the gap between law "in the
books" and "in action", as illustrated by research on legal aid
and legal services. 49 Developments in legal services are seen by

But the anarcho-marxist or libertarian revolutionary perspective espoused


by Zen Bankowski and Geoff Mungham in their important, polemical
book Images of Law (London: R.K.P., 1976) is considered separately in
deiail infra.
44 See P.C. Alcock, "A Study of Legal Aid and Advice in England and
Wales", M. Phil. thesis, Sheffield City Polytechnic, 1976 (unpublished)
and "Legal Aid: Whose Problem?" (1976), 3 B.J.L.S. 151 together with
the substantially similar unpublished paper "A Re-appraisal of the Legal
Aid Problem." Alcock's work is considered in detail infra.
See e.g. "Necessarily Out of Touch: thoughts on the social Organisation of
the English Bar" in P. Carlen (Ed.) The Sociology of Law Sociological
Review Monograph23 (Staffordshire: Univ. of Keele, 1976), 226-250; and
4

"The General Practice Lawyer and the Client: Towards a Radical


Conception" (1979), 7 I.J.S.L. 331-353 (in the special I.J.S.L. number No. 4 - on the Legal Profession).

See notably Abel's editorial introductions in (1977), It and (1978), 12 Law


and Society Rev., and "Redirecting Social Studies" (1980), 14 Law and
Society Rev. 305 esp. at 306-308 and 320-329, which analyses are implicitly
informed by a "critical", marxist-orientated perspective. See also his
"Socializing the Legal Profession" (1979), 1Law and Policy Quarterly 5.
41 See Cain, "Rich Man's Law or Poor Man's Law" (1975), 2 B.J.L.S. 61.
48 On the distinction between the two schools see e.g. further C.M. Campbell
and P. Wiles (1976), 10 Law and Society Rev. 547, 553.
V the work of e.g. Zander, Brooke, Bridges and Byles.
Viz.
46

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British Legal Services

marxist theoreticians as marginal, not central, to their


understanding and critique of society.
In this context it should be appreciated that there are two
important aspects to the marxist perspective. The first is the
critical function, which provides a critique of reformist
arguments on legal services and is explanatory of the existing
order in society. The second is the positive function of
providing some alternative strategy to the pluralist-reformist
perspective on legal services. The second function is
prescriptive and can be undertaken once the first function has
been performed.
What then can law do for revolutionaries? De Sousa Santos
has argued that law does not play an important role in the
revolutionary strategy, which is to destroy the capitalist state by
confrontation, establish the dictatorship of the proletariat 5"
and maintain a transitional period before communism is
established. 5 ' It must be appreciated that, as De Sousa Santos
has emphasised, 52 there are a number of marxist theories
against law with perhaps the most notable example being the
work of the Soviet jurist, Pashukanis, which has become the
object of much revived interest in recent years by scholars. 53
Further, the dominant strategies in the working class movement
historically have not necessitated a marxist theory of law. 54 De
Sousa Santos argues that a sophisticated marxist theory of law
is only needed by a working class strategy based on the
supercession of the reform/revolutionary dichotomy as used
historically, which implies the non-bourgeois use of bourgeois
legality and the development of instances of alternative socialist
legality. 5 He believes that it is imperative to revise the concept
of dual power discussed by Lenin and Trotsky and adapt it to
the strategic prospects of socialist revolution in Europe today.56
He contends that in order to develop a "theoretical foundation
for such strategic reorientation in the field of law and the
state," there must be developed, "a more analytical, more
In the 1970's the French Communist Party, an exponent of
Euro-communism, rejected the strategy of the dictatorship of the
proletariat and refers now to scientific socialism rather than MarxismLeninism. See further C. Journes, "The Crisis of Marxism and Critical
Legal Studies: A View from France" paper presented to British Critical
Legal Studies Conference, U.K.C., April 1981 and published in (1982), 10
LJ.S.L. 2.
s'See B. de Sousa Santos, "Popular Justice, dual power and socialist
strategy", ch. 10 in N.D.C./C.S.E., supra, note 42.
52 Id.
53 See e.g. Warrington, supra, note 42, and E.B. Pashukanis, Law and
Marxism: A General Theory, C. Arthur ed., trans. by B.Einhorn (London:
Ink Links, 1978).
5
4 Supra, note 51, 111.
55
51, 152.
56 Supra, note
Supra, note 51, 156.

50

Windsor Yearbook of A ccess to Justice

1984

consciously materialistic mode of determination . . . more


to

sensitive

strategy.

."

than

the

base/superstructure

metaphor.5" De Sousa Santos puts forward as an example of


dual power (albeit in weakened form), the Pasargada law
centres which involve a community based elected organisation
(the Residents' Association) in Rio, Brazil, a country under
fascist political rule. 8 It is argued that this example is not part
of a revolutionary strategy nor does it take place in a
revolutionary situation; on the contrary it exists under
extremely difficult conditions of struggle. Thus such dual
power may be the necessary prehistory of a confrontational
dual power. De Sousa Santos concludes that when the
"overthrow of the class state is out of the question; 9 a realistic
socialist strategy must start from the redefinition of the state
itself. .

.,

strategies of dual power must then be organised in

those sectors where conditions are most favourable." ' 6 The


strategic objective therefore is to raise the contradictions in
specific sectors to a point at which "bourgeois legal and
political forms and instruments become unreproductive of class
of
controllable
limits
the
beyond
domination
dysfunctionality.

"6

II!. The Alcock Perspective


Alcock's contribution to the legal services debate fits firmly
into the critical, theoretical type; its objective is to direct the
debate toward a fuller appreciation of the social situation.
Alcock strongly states that it was not the purpose of his work to
contribute policy recommendations to the ongoing debate of
the 1970's about how to solve social problems, 62 in which case
he would have offered a prescribed course of action, the value
of which ultimately could have been assessed in its
implementation. He considers that the latter approach, which
that is "theoretically
he rejected, is "functionalism"
incorrect ' 63 because it assumes that society is harmonious, that
its problems are clearly defined and that they are capable of
solution. Alcock simply contends that policy solutions to
problems in legal aid are inappropriate when the legal system is
I
Id.,
See further E.O. Wright, Class, Crisis and the State, (London: New
Left Books, 1978).
5 Supra, note 51, 160-162. It is noteworthy that British law centres are
generally under local "democratic community" control (at least in theory,
if not in practice).
59As in our judgment is the position in the U.K. today.
6 0
Supra, note 51, 163.
61

Id.

62 "A Study of Legal Aid and Advice in England and Wales", Conclusion at
63

156, supra, note 44.


Id. Alcock is particularly critical of the work of Abel-Smith, Zander and
Brooke exemplified in their joint work Legal Problems and the Citizen
(London: Heinemann, 1973).

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British Legal Services

predominantly designed and used by only one part of society.


Alcock's thesis does not promulgate "economic determinism"
as do some avowed marxist studies.6" The thesis of his
emergence study of the 1949 legal aid legislation is that the
different economic, ideological and political practices, which
produced through their
were relatively autonomous,
interconnections social phenomena which were not totally
dependent upon any one of them; ultimately the structure of
these interconnections was dominated by economic needs and,
when the latter produced antagonistic classes, by the
antagonisms between them. The argument is that the different
groups involved in the production of legal aid (particularly the
LCO, Treasury, Law Society and MP's) were dependent upon
the continued operation of the legal system as it had evolved
and so were concerned to avoid any contradictions which might
cause its destruction. Legal aid is one of the vehicles utilised to
overcome these contradictions.
Alcock correctly judges that legal aid was largely the product
of the powerful economic position and political power of the
legal profession. 65 It was therefore firmly based on private
practice, not on salaried lawyers, and on control by the legal
professional body itself, not by users. Legal aid was produced
to justify the operation of the legal system, which was primarily
concerned with ruling class and property interests. It justified
the legal system by giving the appearance of making access to
the legal system available to all. Alcock stresses that in reality
equal access could not be achieved without fundamentally
changing the legal system and the society in which it operates.
Alcock notes that the internal contradictions of the legal aid
system in operation were heightened when the working classes
attempted to use the limited remedies available to them
regularly; crises in the scheme were provoked which forced
changes to the scheme. The legitimating role of legal aid was
apparent to Alcock in the 1970's and is still there in the 1980's.
For Alcock the fundamental question is not whether legal aid
should be more widely available, but whose interest it serves.
Alcock's theoretical framework is derived from Marx's
"Grundrisse", 66 the methodological insights of which were
incorporated in "Capital." 67 Thus Alcock set out to
understand legal aid in a particular historical conjuncture by
examining the operation and interrelation of its major
determinants and their immediate social position.
64

Alcock drew upon (and learnt from) the thinking of N. Poulantzas. See
particularly his "On Social Classess", [1973] New Left Rev. 41 and 78 esp.

65

66
67

The President of the Law Society stated in the (1945) Law Society Gazette
that the Rushcliffe Committee entirely adopted the basic principles of the
society's own evidence to it.
(London: Allen Lane, 1973).
(London: Lawrence & Wishart, 1970 ed.).

Windsor Yearbook of Access to Justice

1984

Although Alcock's analysis has much to commend it, and his


is properly highly critical of the strict consensual form of
functionalist thinking,6 8 he is a little over-simplistic in his
criticisms of those pluralists who accept that there is a
fundamental conflict of interest in society. But this may be little
more than a definitional or terminological difference between
us. Alcock describes this latter school as the pluralist,
functional conflict frame and does not recognise the existence
of a radical, pluralist frame of reference. The radical
pluralists 69 are not properly described as functionalists but they
are at the same time not accurately classified as marxists. 0 The
radical pluralists do not, for example, abstract the legal system
from its social basis and do not argue that the law is
independent from, neutral and above the conflicts of interest in
society. The radical pluralists specifically reject the "checks
and balances" line of argument which asserts that no single
interest group can dominate society's leading institutions. The
radical pluralists certainly do not believe that legal aid - if
only correctly assembled - will restore real equality and
legitimacy to the legal system, which is how Alcock
characterises the functionalist perspective. The radicals also do
not fall into the functionalist trap of attempting to redefine
working class interests in order to demonstrate that in fact there
is an unmet demand for lawyers.

68 Supra, note 44, 61 etseq.


69 For a fuller discussion of the radical pluralist frame of reference in the

industrial relations context, see W.M. Rees, "Frames of Reference And the
Public Interest", Ch. 13 in Lord Wedderburn and W.T. Murphy (eds.),
Labour Law and the Community: Perspectives for the 1980's (London:
I.A.L.S., University of London 1983). See also Hopkins and Rees, supra,
note 36.
70 A. Fox, "Industrial Relations: A Social Critique of Pluralist Ideology" in
J. Child (ed.) Man and Organization (London: George Allen and Unwin,
1972)185-233; A. Fox, Work, Power and Trust Relations(London:Faber&
Faber, 1974) esp. Ch. 6; K.W. (now Lord Wedderburn), The Worker And
The Law (Hammondsworth: Penguin, 2nd ed., 1971), 405; Wedderburn,
"Labour Law and Labour Relations in Britain", (1972) 10 B.J.I.R. 270,
275; Wedderburn, "A Comment on the Employment Bill 1982" (1982) No.
5 New Socialist (May/June) 17; Wedderburn, The New Politics of Labour
Law (Durham: University of Durham Industrial Relations Group
Occasional Paper Series No. 1, 1983); J.H. Goldthorpe, Industrial
Relations in Great Britain: A Critique of Reformism Ch. 12 in T. Clarke
and L. Clements (eds.), Trade Unions Under Capitalism (Glasgow:
Fontana/Collins, 1977); and A. Fox, "The Myths of Pluralism and a
Radical Alternative" Ch. 9 in Clarke and Clements, op. cit. reprinted from
A. Fox, Man Mismanagement (London: Hutchinson, 1974), 10-25.

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British Legal Services

IV. The Anarcho-Marxist Perspective


Bankowski and Mungham's highly stimulating Images of
Law"' examines the relationship of law and capitalist economy
by focussing upon poor peoples' law and the developments in
legal services in the 1970's, such as law centres, duty solicitor
schemes and legal education. We have called their perspective
anarcho-marxist because it draws upon both anarchist and
marxist thinking. The influence of anarchism is particularly
seen in their choice of the book's last words - "seize the
time ' 7 - written in block capitals and their approval of R.P.
Wolf's In Defence of Anarchism7 3 and the theme of mass
democracy. Bankowski and Mungham explain the legal services
and poor peoples' law movement in terms of the material
interest of lawyers. As Lloyd and Freeman have noted,74
mainstream marxists would explain the movement in terms of
capitalist society, utilising the materialist conception of history.
On the more orthodox view, lawyers would be perceived, as
merely responding to the needs of capitalism rather than
constituting a primary motivating force themselves.
Bankowski and Mungham have argued that law, which is
part of the paradigm of domination, oppression and
desolation, cannot change capitalist society. For them the
extension of legal services represents coercion in disguise; the
power of the capitalist state will only be increased by such
developments. 5 For the working class to use law in capitalist
society "can only exacerbate feelings of powerlessness." For
Bankowski and Mungham the motivations of lawyers are based
upon economic self-interest even when they appear to be acting
altruistically. Their considered path to salvation lies in a
libertarian revolution which alone can transform society. The
liberal or radical law movement's desire to "bring the law to
the people" merely increases the poor's submissiveness to law
by encouraging the notion that people lack power and cannot
themselves take action to improve their lot as they need
professional experts to help them. "Law can only be
understood in terms of the material base of society and its
ideological function (apart from its overt repressive one) is to
legitimate authority and so deny the propertyless class their

7' Supra, note 43. For a critique of their analysis of legal education see W.M.
Rees, "Clinical Legal Education" (1975), 9 J.A.L.T. 125 and S.J.
Murgatroyd & W.M. Rees, "The Radical Estate? . . . . . (1977), 11
J.A.L.T. 151.
72Id., 139.

Supra, note 44, Ch. 1 at 30; Wolff's book was published by Harper & Row,
New York, 1970.
14 See Introduction to Jurisprudence(London: Stevens, 1979), 754 where it is
argued that Bankowski and Mungham misinterpret the materialist
conception of history.
71 Supra, note 43, 29.
13

Windsor Yearbook of Access to Justice

1984

power." The issue is not how to use law protectively, but how
to build proletarian power so that society can be reorganised
fundamentally. In this task law is irrelevant. People will
organise and achieve their own liberation. Further, the
socialisation of production will remove the problems of
capitalism. The state and law will then begin to wither away.
Post revolutionary society would be based on a system of
workers' councils which would generate leaderless mass
democracy. "Although law will wither away, there will still be
the difficulty of running a free but relatively complex
society"."6 "Legality will in some sense reappear to ease the
problem of clashing diversities." '7 7 "Law will be the product of
socialised decision-making and control, and man as a socialised
being will be free, even though he disagrees with individual
decisions."78

Bankowski and Mungham do not explain how different law


in their revolutionary society will be free from law as we know
it today in capitalist society, but it will in their view ultimately
wither away. They do, however, refer to "socialist legal
institutions" which presumably would deal with problems of
clashing diversities. Their work is polemical; they point to an
alternative but they do not describe in detail how the alternative
is to be implemented, since their alternative is the unfinished.
To describe the future precisely would be to deny what they
affirm, namely that people must create their own future.
People must seize their lives and transform themselves and the
world.
Disappointingly, Bankowski and Mungham's more recent
Essays in Law and Society,79 which they edited, did not develop
a conflict/marxist or revolutionary perspective in a coherent
way in relation to legal services despite the fact that the first
part of the book is entitled "Legal Culture, the Legal
Profession and the Process of Trial." More recently,
Bankowski and Mungham have been more concerned with law
and lay participation which in part is directly concerned with
the subject of legal services. Indeed, they have contributed
usefully and critically on the concepts of participation,
community, and community activism.8 0 They, however, exhibit
a tendency to over generalise from the particular and to make
bald assertions such as: "Quite often . . . the arrival of the

community activist is a sure sign that 'community' is dead, for


when it thrives he [sic] is, quite simply, not needed." 8 '

76

Id.

77 Id.,
78

31.

id.

Published in London by R.K.P., 1980.


80 See e.g. "Law and Lay Participation", [1978] European Yearbook in Law
79

and Sociology 17.

'Supra, note 79. 27.

British Legal Services

Vol. 4

How is the Bankowski and Mungham perspective as


exemplified in Images of Law best classified in the minds of
writers from the left? Bankowski and Mungham themselves
claim that they are providing "a dispassionate look at law from
a marxist point of view." Cain has more accurately described
the work as using "an overlay of marxist language on a
foundation of libertarian humanism."82 Hunt, another leading
marxist theoretician, has called their position polemicist,
libertarian, anarchist 83 and has described it as "the pessimism
of legal nihilism" and as "profoundly depressing." 8 Hunt
regards their position as "a somewhat crude and simple
expression of 'economism' and as unacceptably resting upon a
uni-functional conception of law; in short, Images of Law is
"legal insurrectionism '"85 since "only a strategy which storms
the bastions of capitalist power (state and law) can purport to
justify revolutionary credentials." Yet the very " 'militancy' of
that text leads to passivity." '8 6 Alcock and Harris are much
more sympathetic to Bankowski and Mungham's position than
is Hunt and, although they share their general perspective, they
differ from it in several regards.87
Grace and Wilkinson offer a particularly useful critique of
Bankowski and Mungham's position.88 They make a practical
response to the argument that to "take law to the people" is to
widen the domination of law, which may have the effect of
diverting or co-opting more effective forms of action. They cite
the examples of a person illegally evicted from their home and
of a welfare recipient whose benefit is revoked, and ask
whether the assistance of an agency which can help to reverse
such decisions could be regarded as domination. Grace and
Wilkinson's reply that "[o]ne might be forgiven for imagining
that it would be regarded as anything but domination." 8 9 In
contrast, Bankowski and Mungham would argue instead that
the poor must await the creation of "institutions, forums and
ways for people to air their grievances, in which welfare
M. Cain, Review of Images of Law (1976), 3 B.J.L.S. 286.
83 A. Hunt, "The radical critique of Law" supra, note 42, p. 37. Hunt calls it
82

a "position" rather than "an argument": it "constitutes a set of asserted


axioms". They are also criticised as being very "eclectic in their borrowings
from Marx". Dr. Alan Hunt himself is a prominent member of the British
Communist Party and is on the editorial board of the excellent monthly
periodical, Marxism Today, the C.P.'s "theoretical and discussion
()ourna".

84 Id.,
8IId.,

86

40.
41-42.

Id., 44.

87 See P. Alcock and P. Harris, "Welfare Law and Order", CriticalTexts in

Social Work and the Welfare State, (London: Macmillan, 1982).

88 In chapter 4 of C. Grace and P. Wilkinson, SociologicalInquiry and Legal

Phenomena (London: Collier Macmillan 1978), esp. at 168-172.

89 Id., 170.

Windsor Yearbook of A ccess to Justice

1984

officials can be held accountable. In other words to create the


possibilities whereby people can function without lawyers to
create and to realise their own potential". 9" Grace and
Wilkinson lace their critique with heavy irony: "Doubtless the
legions of the poor who will read the book will be pleased to
learn that the authors refrain from foisting on them the form
that such institutions should take." 9 '
Yet the critics are raising an important point here:
Bankowski and Mungham's "role as a vanguard is limited
strictly to the realm of ideas". 92 What role should the marxist
intellectual take in this context? Bankowski and Mungham are,
in fact, little more than armchair theorists." Bankowski and
Mungham offer very little practical (or indeed realistic) advice
as to how their concept of revolution might be achieved,
although they leave responsibility for it to the disadvantaged.
Their strategies appear mainly to rely upon making court trials
overtly political events along the lines of the Angry Brigade and
Chicago Trials. Yet Bankowski and Mungham's constituency is
not the working class and the poor but the groves of academe in
reality, and at a time when students have become significantly
more conservative and more overtly self-seeking and careerist
in their orientation. Bankowski and Mungham are not and have
not been "political activists" as such in the last decade.
Grace and Wilkinson rightly criticise Bankowski and
Mungham for not adequately differentiating in their analysis
between duty solicitor schemes and neighbourhood law centres
in the sense of recognising that these two legal services
innovations stand within competing traditions.9" Duty Solicitor
schemes function under the auspices of the private profession
and through solicitors in private practice: they "are constructed
to resolve the problem of access to lawyers

. . .

but within the

confines of an unquestioning stance to law, individualised


representation and private profit". 95 In contrast law centres,
staffed by both salaried lawyers and non-lawyers working
collectively, function in the voluntary public sector with a selfconscious commitment to act for groups of working class
people affected by common problems so that they are regularly
involved in community and politically orientated work. 96 Grace

90 Images ofLaw, 73.

9'Supra, note 88, 171.


Ild.

Clive Grace has left Oxford academic life to work full-time in the Law
Centre movement. He has worked at Adamsdown Community Centre,
Cardiff and is currently at one of the most effective British Law Centres at
Brent, London.
9 Supra, note 88, 169.
13

95 Id.

96

For which they were condemned by Benson and which put their very
existence at risk.

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British Legal Services

and Wilkinson conclude that for Bankowski and Mungham, "a


difference is drawn in terms of motives of personnel but not in
terms of their effects and consequences". Thus, in our view
Bankowski and Mungham's economistic arguments are too
crude and take inadequate account of what radical lawyers
have been achieving, particularly in law centres, with their new
style of relating to clients.
In conclusion, we would state that the anarcho-marxist
arguments are flawed with faulty logic and internal
inconsistencies which have been well documented by their
critics. But they have produced an enormously important
contribution to and influence upon the legal services debate by
their questioning stance.
V. Marxism, Reformism and Action
Many marxists maintain that the creation of a base for
revolution involves the objective of "intermediate structural
change" as distinct from reformism. 7 Cain argues that "the
distinction between reformism and intermediate structural
change is no more absolute and timeless than any other. It is for
the classes in struggle to ensure that the forms and the practices
of law which they generate achieve their class function. It is not
possible to scrutinise a pronouncement and identify whether or
not it is reformist . . .A legal pronouncement with the object
of buying off opposition, may well, in struggle, be put to good
revolutionary use." 98 Cain also argues rhetorically that:
"revolution as distinguished from reformism is not a matter of
exhorting someone (else) to take over the factories. Revolution
is practice in the context of immediate possibilities. Revolution
is today. . . to equate legal struggle with reformism is to doom
all generations to impotence. The only revolutionary
standpoint is an optimistic one"."
Mungham sees the work of Cain and Hunt's "Marx and
Engels on Law" as an elaborate attempt to argue for the
potential of law as a means of transforming society.' 0 0 Cain
and Hunt correctly note that neither Marx nor Engels
constructed a theory of law as such but only provided directions
for such an elaboration. Cain and Hunt therefore set
themselves the task of developing a theory of law and state and
a theory of politics so that an effective strategy for day to day
political action is developed, which does not fall into either
reformism or legalism. They argue that the theory must
acknowledge that people are capable of changing their world.
9 See further e.g. M. Cain, "Optimism, Law and the State: A Plea for the
Possibility of Politics", [1977] European Yearbook in Law and Sociology
20, 40.
98 Id.
99

Id., 41.

'OSee Mungham's Review of "Cain and Hunt" in (1980), LJ.S.L., 202.

Windsor Yearbook of A ccess to Justice

1984

Yet Mungham is unclear how the path of reformism is to be


prevented, as might be expected from one espousing a pure, full
blooded revolutionary viewpoint in his own writings. Cain and
Hunt's method of presenting "Marx and Engels" on Law was
originally to include a subcategory called reformism. However
this was dropped when it was discovered, contrary to their
expectation, that neither Marx nor Engels developed a
distinction between valuable and futile attempts to generate
material changes by working for legal changes. Cain and Hunt
interpret Marx and Engels as considering the achievement of
legal change to be a crucial, political objective. They argue that
Marx was committed to agitating for single changes in society
supported by law and was a firm advocate of reformism in
particular instances provided that such activity is located in an
appropriate theory of political action. Lastly Cain and Hunt
specifically see their readership as including the radical lawyers
of the neighbourhood law centres, who are "working to
promote legal change and to find ways of using the law for the
benefit of the underprivileged and for whole communities" so
that their radical perspectives might also more readily
appreciate the value of marxist theory. ,o,
VI. Conclusion
Our own judgment leads us to the inescapable conclusion
that in the British context, the only practical road ahead in the
forseeable future to the creation of a socialist society is the
gradualist reformist one. It is noteworthy that the British
Labour Party has recently moved significantly to the left with
some prominent members emphasising the importance of
extra-Parliamentary action. The mainstream British working
class movement has for many years been preeminently
associated with the Labour Party and its parliamentary road to
socialism.' 2 In terms of numbers of supporters and members,
the Communist Party (with only about 15,000 members), the
Socialist Workers' Party and the Workers' Revolutionary
Party have only relatively small power bases. Members of these
parties have fought elections (perhaps simply with the
objectives of gaining publicity and raising political
consciousness) but with no significant degree of success in
terms of popular support. A revolutionary situation has not
developed in the post World War Two period in Britain. The

'0' See their "Preface", supra, note 42, xiv-xv.


'" 2 Yet see e.g. B. Hindess, The Decline of Working Class Politics (London:
MacGibbon & Kee, 1971) for analysis of the drop in Labour Party
membership; the numbers have dropped even further in recent years: see
Report to Labour Party Conference, September, 1982. By 1982 there were

no more than a quarter of a million members whereas in 1975 the official


figure was 674,905.

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British Legal Services

British working class is deeply conservative' 3 and it is highly


unlikely (to say the least) that it would support revolutionary
change in the foreseeable future, even though it is now being
faced with the most reactionary Conservative Government
within living memory. Any attempt to create confrontational
revolutionary socialist change in Britain would be met by force
from the Government using the army and the police to crush
any such insurrection. It can be readily envisaged that a strong,
right wing, repressive backlash would follow.
The marxist perspective in its explanatory dimension
provides useful theoretical insights which help our general
understanding of British society and in particular the debate
about legal services today. However, a positive formulation of
cathartic revolution as an alternative to socialist reformism
represents little more than an empty rhetorical "theoretical
construct" as applied to the British context. In practical terms
we would favour the creation of a national legal service as one
element of an elected radical Labour Government's democratic
socialist programme. Such a Government would be committed
to creating egalitarianism by progressively reducing the
differentials between the highest and the lowest paid, the
abolition of patronage and privilege, and the inheritance of
wealth and power as well as to achieving equal access for all to
good housing, education, medical treatment and legal services.
The national legal service could help in the creation,
development and maintenance of a free socialist society: its
task would not be to bolster and protect the capitalist state.

103 This is exemplified by the Marplan Opinion Poll on the eve of the 1982
Congress of the T.U.C. summarised in The Guardian on September 7th,
1982. Much more importantly and significantly the result of the June 1983

General Election underlines this conservatism. See further Professor Ivor


Crewe, "The disturbing truth behind Labour's rout - 5 Key Factors in
the Flight from the Left", The Guardian newspaper, 13 June 1983, 5,
based upon the B.B.C./Gallup survey of 4,141 interviews in a quota
sample plus weighted, booster samples. See esp. Tables I and 5 excerpted
infra.

Windsor Yearbook of Access to Justice

1984

There are a number of models which a national legal service


might take.'1 4 Our preferred approach would be to have a
national network of initially at least a hundred community
centres which would be substantially controlled by lay elected
local management committees, but which would come under
the umbrella of a Legal Services Commission responsible for
research, providing guaranteed financial support for centres,
for planning priorities and encouraging experimental
programmes. Similar standards could then be applied in centres
nationwide as well as a career structure for centre workers
developed (ensuring recruitment and retention of qualified and

Extract from Table 2


Voting by social class: 07o of 3 party vote in 1983 and change in that share
since 1979:
Semi-skilled
Party

& Unskilled
Manual

Skilled
Manual
1983

1979-83 1983

1979-83 1983
-3
-11
+14

Con.
Lab.
Lib. SDP

Trade
Unionists

Unemployed

1979-83 1983

1979-83

+1

32
39
28

-14
+12

In 1983 in total the Labour share of the vote went down by 9.3076, which is
the sharpest drop suffered by a major party at an election since 1945.
37% of Labour's 1979 vote switched votes. Labour came third among new
votes, taking just 1707o of their vote. Amongst unemployed 18-22 year
olds, 47% chose not to vote at all.
"The 'Two' Working Classess": % of 3 Party Vote 1983
"New"

"Old" Working Class

Working Class

Owner
Occupiers

Private
Sector
Worker

Lives
in
South

Council
Tenants

Sector
Worker

Lives in
North
(England/
Scotland)

Lab.
+1

Con.
+16

Lab.
+38

Lab.
+17

Lab.
+10

66

36

45

34

38

Public

Con.

Lab.
Lib./
SDP
Con./Lab.
majority
Category as

07oof all
Manual
Workers
0 4

43

For an examination of the different possible models see further Hopkins


and Rees, supra, note 36.

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British Legal Services

experienced staff, which is currently problematical for the law


centre movement).'0 5 This scheme, if implemented, would
certainly be no panacea and presents certain dangers (which
might be appropriately expressed as corporatist and
bureaucratic). Nevertheless it represents realistically the best
hope for the survival and development of the British law centre
movement. It would be important to ensure that the present
system of accountability to the grass roots is sustained and
developed and that substantial power will remain at the local
level of delivery of legal services. Indeed, security of financing
should help to strengthen local democratic community control.

o These suggestions are broadly in line with Labour's Programme,(London:


Labour Party, 1982), 184.