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Legal Aid: Modern Themes and Variations*
Mauro Cappelletti
fames Gordley
347
STANFORD LAW REVIEW [VOL. 24: Page 347
The task of Part One will be to review the principal answers given by
former ages, to trace the anachronistic features of these answers that re-
main with us, and to identify the central themes of the modern response
and relate them to the climate of ideas of the modern world. Part Two
will examine the variations on the central themes of the modern response
that are found among the major socialist, civil, and common law nations.
solution of the clientela was perhaps the most effective answer that could
be given2
became a common Italian solution to the problem of legal aid until after
unification in the i 9 th century."
A second somewhat organized solution, which also spread to secular
courts after it received canonical approval in several Church councils,"0
was to command magistrates to forgive the court fees of poor litigants
and sometimes assign a private lawyer to help them gratuitously. French
lords and kings frequently charged their judges to appoint counsel in such
cases, the most notable attempts being those of Louis IX, Charles V, and
Charles VI;8" royal attempts to reduce the poor man's court fees continued
until the Revolution. 2 In England, the maxim that the poor should not
pay for writs was accepted by the time of Henry III," and the tradition
of seeking justice for the poor culminated in 1495 in a statute of Henry VII
requiring the judge to assign them counsel, a statute that was not substan-
tially modified until the i 9 th century. "' A similar system was adopted in
several parts of Italy including Milan, Tuscany, and Naples, after the Mid-
dle Ages had drawn to a close. 5 In Germany, the medieval practice of
assigning poor men counsel culminated in the Reichskammergerichts-
ordnungen of the late i 5 th and the i6th centuries, and was maintained by
the laws of various German states until unificationas
Neither the employment of a poor man's advocate nor the elimination
of court fees, however, can be confused with the modern idea of state aid,
an idea that would not even have been intelligible before the modern state
emerged. Rather, these solutions were the product of the somewhat spor-
adic personal charitable impulses of lords and kings, 7 motivated by a
paternal duty to support the oppressed. 8 A king's provision of counsel for
29. The avvocatura system was still flourishing in several Italian states on the eve of the
Risorgimento. With unification, it was extended throughout Italy by law in x859, but was finally
abolished in favor of a system of appointed lawyers in 2865. D. MAiAFIo, supra note 26, at 14-15.
30. See, e.g., Provincial Council of Tr~ves, 135th Canon (1310); Synod of Toulouse, 4 4 th
Capitulum (x229); Lateran Council, xath Canon (3d Coun. 1179). Not all of these councils pre-
scribed that the judge should appoint a lawyer for the poor man; sometimes the matter was left as a
command to ecclesiastical lawyers to provide their services. FRoTiER, supra note 12, at 21; see R.
ScHoTT, supra note 6, at 17.
31. FRoTIER, supra note 22, at 22-25.
32. Id. at 31-32.
33. 1 F. PoLLOcc & F. MAiTLAND, Tm HIsToRY OF ENGLISH LAW BFFoRE n Tnzm oF EDWARD
1 295 (2d ed. x968).
34. In Forma Pauperis Act, xi Hen. VII, c. x2 (495). This statute became the nucleus of the
in forma pauperis procedure which was not substantially revised until 1883. For an excellent study
of royal efforts on behalf of the poor leading up to the act, see Maguire, supranote x, at 363-72.
35. In the x6th century, the statutes of Milan required the bar (Collegio degli avvocat) to desig-
nate a set of lawyers for the gratuitous defense of the poor; in Tuscany, the gratuita clientela, insti-
tuted in 2767, made the gratuitous defense of the poor an obligation of lawyers as a class; and in
1772, the Grand Duke Pietro Leopoldo assigned this task to the professor of "criminal institutes"
of the University of Siena. D. MaRA&iomr, supra note 26, at 14. These provisions are late instances of
a practice that had spread through other Italian states during the Middle Ages. Ravizza, supra note
12, at 969.
36. See R. ScHor, supranote 6, at 24-30.
37. See D. MAIAFiorI, supra note 26, at 12; Ravizza, supranote 12, at 969.
38. Maguire, supra note x, at 366.
January 19721G LEGAL AdID
the poor did not differ in kind from that of Louis Raoul, a citizen of Nimes
who left a bequest for the purpose. 9 The lawyers who pleaded gratuitously
did so "for God."4 These were attitudes that endured well beyond the
medieval era. In I6io, when Henry IV of France commanded that salaried
lawyers be retained for the cases of the poor, he gave as his reason "une
affection charitable et paternelle envers son pauvre peuple."'
In the Middle Ages, the charitable answer to the problems of the poor
was a vigorous one because it drew its strength from the strongest moral
and intellectual forces of the times, primarily the Christian religious belief
with its emphasis on charity as instrumental to man's salvation. The charit-
able answer drew further strength, however, from the secular courtly
culture of the nobility, dominated by the essentially altruistic ideal of
chivalry, 2 in which the protection of the oppressed was a major theme'
The charitable answer harmonized with this ideal, and the medieval pro-
visions for legal aid asked that a lawyer be appointed "os femes, os pauvres
et os orfelins, ou os faibles genz ou ' cels qui ne savent demander los
droiture"" just as the vows of chivalry required a knight to protect such
people. Similarly, the charitable answer struck a responsive chord with
scholasticism, the dominant intellectual force of the age; the schoolmen
rediscovered the passages of the Digest noted previously, and, under the
influence of Christian ideals, interpreted them as a charitable duty to
provide counsel for the poor 5
Despite its harmony with scholastic thought, chivalric ideal, and reli-
gious sentiment, the medieval answer had the limitations inherent in any
solution whose effectiveness depends entirely on altruism. Because the
charitable desires of one ruler might not pass to the next along with his
crown, relief could end as quickly as it had begun. In France, legal aid
programs seem to have followed a consistent pattern of being established
by one ruler only to fall into disuse and be reestablished by another.48
Similarly, because the ruler's charitable desires rarely extended to the prac-
tical details of organization and administration, the provisions they made
tended to be overly simplistic. Most of the medieval decrees consist of a
few lines commanding that some privileges be given the poor but failing
to specify under what circumstances, to which people, and by what process
they were to be given. A similar lack of concern for practical results is
shown by the frequent appointment of only one advocatus pauperum to
deal with the legal problems of an entire city."' Finally, because the charity
of a lord might not extend to his subordinates, a formidable gap could
emerge between the aid he envisioned and the aid the poor actually re-
ceived. We can see this tendency in the judges of England, who with no
statutory authority allowed the flogging of defendants who received aid
but lost their case, and finally construed the law of Henry VII to apply
only to plaintiffs," and in the lawyers of France, who appear to have
blithely ignored the injunctions of several kings to lend their aid to the
poor."9 And yet these inadequacies should not lead us to ignore the im-
portance of the medieval answer, by which the problems of the poor were
viewed with a spirit of compassion that was notably lacking in the answer
of the Romans.
the new theory the state was viewed as a contract between the people and
their government in which the latter was bound to preserve the former's
"natural rights." These rights were to belong equally to all the governed;
the state was to impose no barrier to their free exercise and was to make
no distinctions among its citizens on the basis of wealth, rank, or priv-
ilege. Justice was seen as a process by means of which the state preserved
each citizen's rights from encroachment by the government or his fellow
citizens; hence the securing of justice received major attention in both
the American Bill of Rights and the French Declaration of the Rights of
Man. It was from this new vision of justice that a new attempt to answer
the legal problems of the poor developed. The vision demanded that courts
of law be equally accessible to all citizens. Attempts to ensure that all citi-
zens could be heard can be seen in the American constitutional guarantee
of the right to counsel 0 and in the French principle of the gratuit de la
justice." However, while the right to counsel and the right to a "gratuitous
justice" have served as a continuing inspiration to those concerned about
the legal problems of the poor, " neither was designed to provide the poor
man with the lawyer he could not afford. Originally, the American pro-
vision simply prevented the state from denying counsel to one who could
afford it; the French provision was designed to eliminate the fees de-
manded of litigants by the judges of the ancien rdgime." Thus, despite the
new vision, lawyers still demanded fees that the poor could not pay." The
national legislatures in the 19 th century faced the task of filling the gap
left by the incomplete revolutionary reforms. To understand the relation-
ship between the resultant legislation and the revolutionary political theory
with which the era began, we must first briefly examine these statutes.
In the latter half of the 19 th century, major and comprehensive reforms
in the provision of legal aid emerged throughout the West. The first of
these changes occurred in France in I85I, " with legislation designed to
remove the financial barriers encountered by the poor in the normal course
of litigation.56 This end was pursued by having lawyers appointed to serve
gratuitously in the cases of the poor and by excusing the poor from pay-
ment of fees."7 The process was further refined by an amending act of
1go, establishing a national system of bureaux to make determinations of
eligibility."8 In Italy, unification was followed quickly by the establishment
of a national program of legal aid in 1865." Legal aid was declared "an
obligatory and gratuitous duty" of the legal profession." Again, the heart
of the new system was the appointment of lawyers to serve without pay
and the forgiveness of court costs, an approach preserved in a superseding
statute enacted by the fascist government in 1923."1 The same core element
became the basis of the legal aid program established in Germany by the
Code of Civil Procedure of 1877," which allowed the judge to assign coun-
sel and forgive costs if the litigant could demonstrate his poverty and the
seriousness of his case." Amendments early in the 2oth century allowed
the state to pay for certain expenses of litigation.6
Developments in the common law world during the period were simi-
lar to those of France, Italy, and Germany. In England, the in forma
pauperis procedure was liberalized in 1883 by raising the maximum capi-
tal requirement for receiving aid to £25 from the absurdly low level of
£5 where it had remained since 1495, and by opening the procedure to
all litigants rather than plaintiffs only. 5 The use of the procedure in ap-
peals cases was modernized in 1893.6" In 1914, the system was radically
altered by abandoning the assignment of counsel by judges and eliminating
the requirement that an applicant present a solicitor's letter attesting the
merits of his case. Instead, a Poor Persons' Department was established
56. See P. CATALA & F. TEasu, supra note 52, at 19, 20-21; G. CoRNU & J. FOYER, supra note
52, at 8o-8i; FROTIER, supranote 12, at 44-45.
57. Law of Jan. 22, 1851, arts. 1-2o, [z851] Bull. des Lois 93- Similar provisions were made
for assigning a lawyer to a criminal defendant. Id. arts. 28-31.
58. Law of July 1o, 19ox, [igoi] Bull. des Lois 3 ("assistance judictaire"). For a description
of how the program established by these laws functions today see notes 228-42 intfra and accompany-
ing text.
59. Law of Dec. 6, 1865, no. 2627, [x865] Rac. Uf. 2846.
6o. Id. art. .
61. Law of Dec. 30, 1923, no. 3282, [1924] Gaz. Uff. Supp. No. 117, at 312, 3 Rac. Gen.
Legis. 3388 (Giuffr 1961). For a description of how the program established by this law functions
today, see notes 91-117 infra and accompanying text.
62. ZPO §§ X14-27 (C.H.Beck 1970).
63. Id. § 114.
64. See note 144 infra.
65. Maguire, supranote x,at 38o. See notes 34 & 48 supra and accompanying texts.
66. Appeals (Forma Pauperis) Act of 1893, 56 & 57 Vict., c. 22. There is general agreement
that neither the measures of 1883 nor those of 1893 had much practical effect. See B. AB..-S=rrH
& R. SrEVNs, LAWYE's AND THE CoURTs. A SOCIOLOGICAL STUDY OF = ENGLISH LEGAL SySTEm
1750-1965, at 137-38 (1967); Maguire, supra note i, at 380.
67. The requirement of a letter from a solicitor was an important one, and a leading defect of
the previous procedure since the government made no provision for securing such a letter. Maguire,
supra note x,at 38o. As a result, it has been suggested that the new system of 1914 might have temp-
January 1972]G LE2GAL AID
which used the voluntary and gratuitous services of private lawyers for
investigating applications and for representing applicants in court. 68 In
1925, the government further refined this system by entrusting its ad-
ministration to the Law Society, which established Poor Persons' Commit-
tees to perform these functions." Thus, while the English reform con-
trasts sharply with those of continental nations in its piecemeal course
and in its willingness to entrust its program to a private lawyers' organi-
zation, the end result was much the same: the system depended on the
assignment of lawyers to represent gratuitously persons who met a given
standard of need.
A similar result was obtained in America in a manner that contrasts
less with the continental pattern. In 1892, federal court judges were author-
ized by statute to assign attorneys to represent poor persons with sufficiently
meritorious cases.7" In i91o, the act was extended to apply to criminal as
well as civil proceedings, to defendants as well as plaintiffs, and to appel-
late as well as original proceedings." Thus, during the era of laissez-faire,
all major nations of the West sought distinct national solutions to the legal
problems of their poor; yet the resulting solutions all depended on the
same central elements.
One may now ask to what extent these solutions represent a genuine
departure from medieval concepts and an evolution toward a new idea
of legal aid reflecting the new political thought from which the laissez-
faire era grew. The facile answer would be that they represent no such
departure. These statutes were based on the same mechanism as so many
medieval decrees: the assignment of private lawyers to the needy. They
provided, like their medieval predecessors, that these lawyers should plead
without reward. Certainly, it cannot be denied that the medieval concept
orarily met the legal needs of the poor had the proliferation of divorces since the outbreak of war
not led to a shortage of solicitors willing to handle the growing number of legally aided divorce
cases. B. ABEL-SITH & R. STEvENs, supra note 66, at 142.
68. For an outline of these procedures, see Maguire, supra note i, at 391-98.
69. For events leading up to the establishment of these committees, see B. ABEL-SimTH & R.
STEVENs, supra note 66, at 142-48; Rumi, L'evoluzione dell'assistenza giudiziariain Inghilterra,25
RrssTA Di Dsnrrro PROCESUALE 412, 414-16 (1970). For a review of the effectiveness of the new
procedure, see REPORT OF TmE CoMnTTEE ON LEGAL AID AND LEGAL ADVICE IN ENGLAND AND
WALEs, Czm. No. 6641, at 11-14, 23 (1945); R. JAC soN, Tim MACHMNERY OF JUsflCE IN ENGLAND
338-39 ( 5 th ed. 1967).
70. Act of July 20, 1892, ch. 209, 27 Stat. 252 (codified at 28 U.S.C. § 1915 (x964)). This act
did not excuse the aided person from paying court costs and fees but merely provided that he need
not prepay them or give security for them. Id. § i. Moreover, the judge was not strictly required
to assign coumel to a qualified applicant; the Act provided only "that the court may request any
attorney of the court to represent such poor person, if it deems the cause worthy of a trial . Id.
I..."
§ 4.
74 . Act of June 25, 191o, ch. 435, § r, 36 Stat. 866 (codified at
28 U.S.C. § 1915 (1964)). The
statute is today the basis of in forma pauperis proceedings in the United States, although further
amendments have deleted the phrase "if it deems the cause worthy of a trial" and have expanded its
coverage to noncitizens. For a commentary and criticism of the Act, see Duniway, The Poor Man in
the Federal Conrts, 18 STAN. L. REv. 1270 (1966).
STANFORD LAW REVIEW [Vo1. 24: Page 347
of legal aid as charity was a strong component of all these statutes. One
need only note the2 American judges who termed the American law a
"statute of grace," British historians who feel their own statute bore the
"hall-mark of charity,""3 and French avocats who praise the generosity of
their colleagues who respond to the call of the French program." Indeed,
everyone would admit that legal aid under these statutes depended on the
charity and goodwill of the bar."
But to see only the component of charity in these statutes is to miss the
sharp break they made with medieval traditions. The brief lines expressing
the charitable desire of a ruling lord have been replaced by pages of con-
crete legislative and administrative planning, and by a concern for de-
fining the benefit to be given and the class to receive it. To avoid a com-
plete dependence on the good will of the bar, these acts have either made
the representation of the poor a legal rather than a mere moral obligation,
or they have established some administrative mechanism deemed sufficient
to provide a poor applicant with a suitable attorney. In short, the medieval
task seemed finished when a decree had been issued expressing the pious
intentions of the sovereign; i 9 th century legislators seemed to regard their
task as finished when positive law had been enacted creating a legal route by
which the poor man with a good case could obtain a lawyer. The implica-
tions of this difference are far-reaching. The poor now were brought under
concrete positive law; they no longer were to receive the "mercy" that the
medieval mind carefully distinguished from "justice." By providing a legal
route where, at least in theory, every poor man with a meritorious case could
receive counsel, the new statutes departed from a view of charitas as a
means for the salvation of the giver toward a new concern that the bene-
ficiaries be formally entitled to receive assistance.
The i 9 th century answer to the legal problems of the poor accordingly
was a hybrid solution. It retained older charitable ideas, notably reliance
on services rendered gratuitously by private lawyers, but combined with
them a new attempt to provide a route to legal services guaranteed by the
force of positive law for all members of a defined class of poor. While
legal aid remained conjugate to charity, it nevertheless became akin to a
72. See, e.g., Boggan v. Provident Life & Acc. Ins. Co., 79 F.2d 721, 723 (5th Cir. 1935). In
another case, Chief Justice Fuller, for a unanimous Court, quoted with approval from Moore v. Cooley,
2 Hill 412, 43 (N.Y. Sup. Ct. 1842): "[T]he statute . .. should be construed strictly; for the
pauper comes to litigate entirely at the expense of others. He is neither to pay his own attorneys or
counsel, nor is he liable to his adversary should the suit prove to be groundless. He thus enjoys a
great privilege and exemption from the common lot of men. ...Bradford v. Southern Ry., z95
U.S. 243, 249 (904).
73. B. ABEL-SMiTH &R. STEVENS,supra note 66, at 135.
74. E.g., E. BLANC, LA NouvELLE PROCiDUR CvmE Arss LA PfFOR.M JUDxcIAtRE: CoMIN-
TAIRE DES ORDONNANCaS ET DACRETS DU 22 DCEMBRE 2958, at I66 (1959).
75. See, e.g., FRorsER, supra note 22, at I45; R. JAcKsoN, supra note 69, at 339; Cappelletti,
Poverta e giustizia, [1969] Foso ITAL. V 42, 46; Ervin, Uncompensated Counsel: They Do Not Meet
the ConstitutionalMandate, 49 A.B.A.J. 435, 435-36 (x963).
January 197-2] LEGAL AID
source of his livelihood and reputation. " Secondly, the highly skilled and
financially successful lawyer will tend to avoid matters of little financial
importance, leaving them to the young and inexperienced or to the un-
successful." Finally, a steady diet of nonremunerative work is distasteful
even to the charitably minded, and there will be a tendency to keep the
volume of such work at a low level, whether more formally, through a
demanding admissions procedure, or less formally, through a failure to
publicize the program, or a simple tendency of practitioners to be un-
sympathetic to nonpaying clients. 8
In the i 9 th century, these considerations were slighted because the
equality sought was formal rather than actual: it was enough that all
citizens had a legal path open to them by which they could receive a
lawyer. This formalism was fully consistent with the manner in which
"all citizens" were equally free to enjoy the political rights that the era
79. Under the American statute, this financial pressure led to the encouragement of guilty pleas
incriminal trials, as well as other tactics designed to minimize the time expended by appointed attor-
neys. Note, Adequate Representation for Defendants in Federal Criminal Cases: Appointment of
Counsel under the Criminal Justice Act of 1964, 41 N.Y.U.L. REv. 758, 784 (1966). Similar prob-
lems have arisen under the Italian statute. See M. CAPPELLETTI, supra note 3, at 552; D. MARAtuoi,
supra note 26, at g-2o; Ravizza, supranote 12, at xooo. A variant of these problems appeared under
the English rules: since only lawyers who volunteered their services were assigned to the poor, these
financial pressures produced an acute shortage of lawyers willing to do legal aid work. B. ABaL-SarrH
& R. SrvENs, supra note 66, at 159.
so. Perhaps the most striking example of this tendency is provided by experience under the
French statute. There, the system of appointments by the btonnier of the bar has concentrated the
vast bulk of legal aid work on the inexperienced stagiaires or apprentice lawyers, with consequent
harm to those assisted. J. ABEILLE, supra note 3, at 57-58; z A. JoLy, supra note 52, at 261; 1.
LEmaiRs, supra note 40, at 177-78, 1S; see note 120 infra and accompanying text. A similar ten-
dency has been observed under the Italian statute. M. CAPPELLErTI & J. PEsuLLO, CIVIL PROCEDURE IN
ITALY 64 (1965); Ravizza, supra note 12, at xooo. In the United States, the reluctance of judges to
impose on the time of financially successful attorneys led to dependence on the young and inexperi-
enced. Ervin, supra note 75, at 436; Note, The Representation of Indigent CriminalDefendants in the
FederalDistrict Courts, 76 HAxv.L. REv. 579, 596 (1963).
8. It is, of course, practically impossible to determine the extent to which poor men failed
to turn to attorneys under these statutes because of an unreceptive attitude. We may note, however,
that these statutes had a limited success in reaching substantial numbers of poor men. The American
in forma pauperis statute and similar state statutes have always been woefully deficient in this respect.
Duniway, supra note 71, at 1285; Maguire, supra note I, at 381-9o. In England, on the eve of World
War II, a comparatively small number of applications were even received given the size of the popu-
lation: only 1o,556 in 1939. REPORT OF THE COMMITrEE ON LEGAL Am AND LEGAL ADVxcE IN EN-
GLAND AND WALES, supra note 69, at 45. Moreover, all but a very small fraction of these were matri-
monial matters. See B. ABEL-SMITH & R. STEVENS, supra note 66, at 159 & n.4. The same poor record
characterizes the current French and Italian experience. It appears that in France only 6.6% of ordi-
nary proceedings before the courts of first instance (tribunaux d'instance and tribunaux de grande
instance) received legal aid in 1966, a typical recent year. Calculations based on figures given by
INsTTT NATIONAL DE LA STATISTIQUE CT DES TUDE ACoNoMIQtUEs, ANNuAiE STATisriQUE DE LA
FRANCE 1968, at 129-30. In Italy, in the same year, only .57% of ordinary civil proceedings received
legal aid. See IsTrrtrro CENTRALE n STATISTICA, ANNUARIO DI STATIs-rICHE GIUDIZIRIE 1966, at 3,
27 (1968). By contrast, under the modern English system in which counsel are compensated for their
services, legal aid is now given, by the estimates of one authority, "in more than 5o per cent. of the
more serious cases in all the courts in the country." Dworkin, The Progress and Future of Legal Aid
in Civil Litigation, 28 MOo. L. REv. 432 (x965). See also note 185 infra. The poor results under the
1gth century statutes may be the product of anachronistic admissions procedures, ignorance of the
operations of the system, or even reluctance to apply because of the stigma of charity, as well as of
the brusqueness with which an attorney may treat nonremunerative clients. In any case, the correla-
tion between poor results and a 19th century style program based on gratuitously rendered services
remains clear.
January 1972]A LEGAL AID
valued so highly. These rights were "preserved" when those who were
able to enjoy them were allowed to do so, regardless of how many people
could actually take advantage of them. Thus the right to free speech, the
right to a free press, and the right to own property were guaranteed to all,
not because all citizens could actually express their thoughts in a compar-
able fashion, or print their writings with comparable ease, or own com-
parable amounts of property, but because those with the means could do
so without interference. 2 In this sense, there was an individualistic char-
acter to these political rights, and this character harmonized with the
rugged moral individualism of the age. Those who were too inarticulate,
too ignorant, or too poor to take advantage of their new rights were
morally responsible for their condition; they did not share this responsi-
bility with society. 3
As our century began, the moral and ideological base of the laissez-
faire world was steadily eroding. The old vision of the state as preserver
of the natural rights asserted by its vigilant citizenry became increasingly
unrealistic and was increasingly regarded as a license for untrammeled hu-
man greed. Instead of producing further divergences among nations, how-
ever, this new outlook gave the world the new unity of a common quest,
with common themes of development and common understandings. All
nations, in rejecting the I9 th century vision, began to entrust the state with
responsibility for the social and economic well-being of its citizens. They
have embraced the principle that the state must act affirmatively to redress
social and economic wrong by genuinely and effectively touching the lives
of its citizens instead of merely providing them with formal machinery.
An essential aspect of this development has been the emergence of new
social rights such as a right to decent housing, to an adequate diet, or to
fair pay. In contrast to the classical, individualistic, or political rights of
the last century, protection of these new rights necessitates effective state
action.8 The emergence of these new rights has sparked a reappraisal
of the need for state action to make the older rights themselves effective
for all.
82. Calamandrei, Introduction to F. RuFsr'N, Dmrrr Di LIBERTA, at xvii (2d ed. 1946).
83. One commentator has criticized the persistence of this attitude in America. He speaks of "a
primitive Social Darwinism which, when combined with the morality of the market place in an
entrepreneurial society, too often regards practical success and failure as functions of morally just
deserts. Those who fail, it is thought, deserve condemnation for their failure, rather than assistance
from its consequences." Solomon, "This New Fetish for Indigency": Justice and Poverty in an Af-
fluent Society, 66 CoLmi. L. REV. 248, 267-68 (1966).
84. See generally M. CAPPELLETn, I diritti sociali di liberta nella concezione di Piero Cala-
mandrei, in PRocMsso a IDEOLOGIE 511 (969); Calamandrei, supra note 82.
STANFORD LAW REVIEW [Vol. 24: Page 347
were to their own: it places legal aid within the modern complex of social
and political rights."0 Although its content and implications are still far
from certain, this new solution can be characterized by three central
themes: legal aid has become a right to be protected by positive law; this
protection calls for affirmative state action; and this action must effectively,
rather than formally, guarantee the right. The new solution can thus be
called a "legal" answer, as distinguished from the "charitable" answer of
the Middle Ages and the "political" answer of the late Roman Republic
and early Empire. By this new answer, for the first time the poor do not
depend on the baser desires of others for power, nor on the nobler desires
of others for salvation. The law itself acts to ensure that access to the law
is effectively available. Historically, we can see this solution as a develop-
ment from the medieval charitable approach, with the 19 th century stand-
ing as a "halfway house" with its half-charitable half-legal solution. Philo-
sophically, it is difficult for us to envision any alternative that would be
consistent with our belief in equal justice for all. If the law is to be open to
everyone on the same terms, the law must be the guardian of its own gates.
However, neither philosophy, nor history, nor the enunciation of this
answer on such an extraordinarily general plane, should obscure its great
imprecision and indefiniteness, qualities it shares with other social rights
and with political rights that have been transformed by the modern age.
Vagueness and imprecision are not only the natural product of an age of
search but also a result of the modern demand that the state act and act
effectively. Such a demand inevitably raises the questions of how the state
must act, how much it must act, and how its action can be made effective.
And these are questions to which the modern answer to problems of legal
aid has no ready response.
This indefiniteness has encouraged several pressures that always have
operated to widen the gap between principle and reality. One such pres-
sure is the natural result of human weakness. It is always easier to espouse
a principle than to pay the social costs of its realization. Another pressure
is the tactics of those who oppose the principle itself but concede token
implementation in order to sap the enthusiasm of the principle's propo-
nents. Yet another pressure is the inertia and confusion of the human
mind, which is often slow to realize the practical demands of an abstract
idea. The result, in the field of legal aid as in the domain of other social
and political rights of our age, has been to mingle modern reform with
anachronisms of a former era. One might almost say that a modern "im-
90. Thus it has been stated that "[t]he traditional philosophy that legal aid is a charity has
given way to the concept that it a political and social right." Pollock, Equal justice in Practice, 45
MrNN. L. REv. 737, 744 (xg6i). A right to legal aid has emerged on the constitutional level in sev-
eral modern nations. See text accompanying notes 214-36 infra.
STANFORD LAW REVIEW [VOL. 24: Page 347
plementation" or "political gap" has arisen to replace the "formalistic gap"
which separated the poor from the benefits theoretically granted them in
the last century. The modern demand for effective action has destroyed
the formalistic barriers and with them our complacency, only to replace
them, it seems, with wide gaps between ringing principle and actual im-
plementation.
The remainder of Part One will examine how far current political and
legal efforts have taken us in closing this implementation gap in the field
of legal aid. The remainder of this section will review the major anachro-
nisms that have thus far eluded political reform and remain in the aid
programs of major modern nations. The next section will explore a modern
legal technique which promises to provide a valuable supplement to legis-
lative action: the technique of modern constitutional adjudication. It is
hoped that these enquiries will show that the legal scholar as well as the
politician has a role to play in closing the implementation gap of our
times: the role of clarifying the demands of the modern answer and ex-
ploring the techniques for satisfying these demands, and thus the role of
attacking the indefiniteness on which this gap thrives. This task of clari-
fication will be resumed in Part Two where the modern answer's meaning
in the contemporary world is analyzed.
to adjust his actions to his legal environment, is excluded from the pro-
gram and thus is available only on a charitable or political basis 0 --another
feature which has been heavily criticized!'
In addition to these charitable elements, the Italian aid system retains
some of the worst aspects of i9 th century formalism. The procedure for
obtaining aid almost seems designed to keep open a theoretical route to
assistance while denying access to that route in practice. One who seeks
aid must provide the president of the "competent" legal aid commission
with a written statement on taxed paper. The statement must contain a
"clear and precise" account of the facts of the applicant's case, the law
entitling him to recover, and the evidence by which he will prove these
facts." These provisions are more worthy of a Kafka novel than a legal
aid program. In Italy, as in other countries, few poor men are qualified to
give a "clear and precise" written account of anything. Even those who
can write with clarity will be at a loss to sift out legally relevant facts, to
discover applicable law, or to describe available and legally admissible
evidence; it is very unlikely that they will even know which legal aid com-
mission is competent to handle their applications. These tasks require some
knowledge of law. It is precisely to obtain help in accomplishing such
tasks that the applicant is applying for legal aid. In view of this sort of
extreme unrealism, one can almost let the levying of a tax on requests for
assistance pass as a final piece of insanity.
The legal aid commissions that receive these applications are established
at each court, although not as a part of the court itself 0° In considering
an application, they allow the adversary of the applicant to appear along
with the applicant himself.' If the adversary appears, the commission
may attempt to conciliate the parties. Of course, the poor and unaided
applicant lacks the legal knowledge which may be necessary to evaluate
the proposed settlement; he may be intimidated into accepting it rather
than antagonize the commission which will judge his right to aid if he
rejects the settlement. If the settlement attempt fails, the applicant argues
97. Some advice is still given by a few surviving charitable institutions. Considerable advice is
provided in return for political allegiance by labor unions and political parties. See Part Two, note
83 infra and accompanying text. Thus in the field of legal advice Italy presents a kaleidoscope, a mix-
ture of political and charitable solutions reminiscent of the Roman and medieval approaches; only
the modern is lacking.
98. E.g., D. MaRAmon, supra note 26, at 25.
o
99. Law of Dec. 3 , 1923, no. 3282, art is, [1924] Gaz. Uff. Supp. No. 117, at 312, 3 Rae.
Gen. Legis. 3388 (Giuffr xg6); see Pizzorusso, Problemi e prospettive dell'assistenza ai -non
abbienti,io DEaroctazA EDirrro 217 (1969).
zoo. They are composed of a member of the judiciary, a representative of the pubblico ministero,
and a lawyer chosen by the president of the local bar. Law of Dec. 30, 1923, no. 3282, art. 5, [1924]
Gaz. Uff. Supp. No. 117, at 312, 3 Rae. Gen. Legis 3388 (Giuffr i96i); see T. VENTURA, APPuNT1
SUL GRATuno PATROCNmo
16 (I96I).
ioi. Law of Dec. 30, 1923, no. 3282, art. 20, [19241 Gaz. Uif. Supp. No. 117, at 312, 3 Rac.
Gen. Legis. 3388 (Giuffr i96i). The law does not forbid legal representation of either party at this
hearing. See T. VENTURA, supra note zoo, at 27.
STANFORD LAW REVIEW [Vol."4: Page 347
the merits of his case and his state of poverty with his adversary. He must
demonstrate his state of poverty from certain tax documents and a certifi-
cate from his mayor.' ° In addition, in civil cases, he must prove "the
probability of a favorable outcome."'03 The latter requirement means not
simply that he must show his case is worth trying but that when his case
is tried he will probably win,.. a feature that has been attacked by Italian
critics as an encroachment on the functions of the trial.0 5 If the applicant
persuades the commission, a lawyer will be assigned to him and certain
fees and costs forgiven'0 The legal aid recipient can then litigate against
an opponent who has had the advantage of seeing his case.
The severely criticized cumbersomeness of this procedure' means that
in actual practice an applicant cannot negotiate his way through it without
the gratuitous services of a lawyer who is under no obligation to render
them.' Lawyers eschew these preliminaries since in all probability the
originating attorney will be assigned to represent the client who obtains
legal aid.' As a result, the Italian system is used in only a minute fraction
of civil cases," and the poor man is left to the mercy of legal speculators.'
It has been charged that in some areas the legal aid commissions them-
selves have ceased to exist except on paper." 2
Fortunately, decades of criticism may soon culminate in a large-scale
reform of the system. On March io, 1971, the Senate approved sweeping
changes that will become law if approved by the other chamber of the
legislature. The proposal replaces reliance on the gratuitous services of the
legal profession with a program in which aid will be given by private
lawyers who will receive their normal fees from the state. A party en-
tided to aid will be allowed to choose his lawyer freely within reasonable
geographic limits."' Thus if the bill becomes law, as it probably will, the
102. Law of Dec. 30, 1923, no. 3282, arts. 15 & 16, [1924] Gaz. Uff. Supp. No. 117, at 312, 3
Rac. Gen. Legis. 3388 (Giuffr ig6i). The statute emphasizes that the "state of poverty" which must
be shown to receive aid does not mean an absolute state of destitution but a relative condition of being
unable to afford the expenses of litigation. Id. art. x6.
103. Id. art. 15. In criminal cases, the merits of the case are not considered. Id.
104. S. COSTA, supranote 94, at 128; T. VENTURA, supra note oo, at 9.
io5. See, e.g., Vigoriti, "Fumus boni iuris" e dirtto d'azione e di difesa (art. 24 Cost. e art. r5,
n. 2, legge sul gratuito patroCinio), 21 RIVIsTA DI DsIT'rO PROCESSUALE 284 (2966).
xo6. Law of Dec. 30, 1923, No. 3282, art. 11, [1924] Gaz. Uff. Supp. No. 117, at 312, 3 Rae.
Gen. Legis. 3388 (Giuffr i96i).
207. See D. MARAliors, supra note 26, at 2o; Cappelletti, supra note 3; Pizzorusso, supra note
99, at 217-23.
108. M. CAPPELLIFTrI & J. PERILLO, supranote 8o, at 64.
1o9. Id.
iio. In 2966 and 2967, typical recent years, only .57% and .49% respectively of ordinary civil
proceedings received legal aid. Calculations based on figures given by IsnTuTro CENTRALE Di STA-
TISTICA, ANNUARIO DI STATISTICHE GiuDIziARE 2966, at 3, 27 (x968); Id. 1967, at 3, 27 (2969).
xii. D. MARAPIOTr, supra note 26, at 25.
222. Id. at 22-23.
13. Proposed Law No. 323, Institution of State Aid for the Poor, arts. 2, 15 (approved by the
Senate of the Republic on Mar. 20, 197). The state also assumes the cost of witnesses, experts, and
officials of the court Id. art. 2.
January 1972]L LEGAL AID
and flexible approach in which an applicant who can pay some but not
all of the costs of his suit can be partially aided.
France.
2.
The legal aid system in France has the same basic characteristics as the
current Italian system. While the French program of 1851 has been amend-
ed periodically, it still bears the imprint of its i 9 th century origin. As in
Italy, lawyers are assigned to the cases of indigents who qualify for aid
and are neither compensated for their services nor allowed, under normal
conditions, to refuse an assignment.18" As in Italy, the result has been to
deny the poor effective representation. Legal aid assignments impose a
major burden on the bar.. and the bar has met this burden by thrusting
it on the young stagiaires,apprentice lawyers in the first years of prac-
tice.' Critics have attacked the imposition of such a burden on lawyers for
whom paying business is of such paramount importance and the unfair-
ness of providing the poor with representatives who are less expert than
other members of the bar and are under the greatest financial pressure.i
As in Italy, moreover, this program provides assistance only in litigation,
whereas legal advice is given on a wholly charitable basis 2 Finally, and
even worse than in Italy, no lawyer is appointed in litigation before courts
such as the tribunauxd'instance in which legal representation is permitted
but not required by law.'
These charitable elements are coupled with an application procedure
scarred by the formalism of the last century, although the scars are by no
means as deep as in Italy. The French applicant may apply for aid to his
mayor or to the office of the minist~re public at the court of his domicile,
118. In cases before the superior courts of first instance (tribunaux de grande instance) and
courts of appeal, the aid recipient is entitled to the services of both an avocat and an avoui. Law
of July io, 19o, art. 13, [1901] 2 Bull. des Lois 3. All members of the bar are required to serve
when appointed. J. LamAms, supranote 40, at 382. In 1958, the practice of allowing them to recover
fees only from the losing opponents of their clients was slightly liberalized by allowing their fees to
be recovered from the damages received by their client if these damages would put the client in a
position that would have barred him from aid. Decree of Dec. 22, x958, [1959] J.O. 11,6o8, [1959]
B.L.D. 58, 65.
i9. i H. SoLus & R. PERROT, DROIT JUncIAMnE PRIVk 961 (I96i); Delpech, Assistance Judi-
claire, in i DALLoZ, IUPRTon= n PRocikDuRE CvnE FT COMMERCIALE 272 (1955).
120. FRoTiER, supra note 12, at io5-o6; x A. JOLy, supra note 52, at 261. Herzog has expressed
the optimistic opinion that the custom of appointing young staglaires has been abandoned. P. HEzzoc,
CVIL PROCEDURE iN FANCE 548 (1967). Presumably he is referring to a 1961 decision of the Bar
Council of Paris to try to spread assignments over the entire bar. Despite this decision, as Lemaire has
noted, "the greatest part of this burden still falls upon the stagiaires." J. La.aEm', supranote 40, at
182.
121. J. ABEiLLE, supranote 3, at 57-58; FROTE R, supra note 12, at 145; IEA. JOLY, supranote
52, at 261; C. LtAocmE-FwAvxN, LA MAC-MNE JtDICAIE 81-82 (1968).
122. For a description of the free consultations given under bar auspices, see J. IamruR, supra
note 40, at 198-2oo. These consultations have certainly not reached masses of legal problems; in 1964-
65, legal advice was given in Paris in only 1,836 cases. Id. at 199-2oo. For a criticism and proposal
for reform, see J. ADErLLE, supra note 3, at 57-58.
123. Law of July xo, i9o, art. 13, [1901] 2 Bull. des Lois 3; see P. HERoG, supra note 120,
at 548 n.77.
January 1972]L LEGAL AID
instead of searching out the competent legal aid bureau by himself. 4 His
application may be made orally or in writing, on nontaxed paper 2 He
is required to supply specific tax documents and a description of his means
of support. 25 This financial statement can be treated in an arbitrary man-
ner because there are no clear eligibility standards 27 and no investigative
2
machinery for ascertaining the accuracy of an applicant's statements
The mayor does not certify the truth of an applicant's account; at most,
he may file a declaration expressing his suspicions.' As a result, fraudu-
lent applications are a widespread problem, 3 and the bureaux consider-
ing applications by nebulous standards may be tempted-liberal as they
generally are -to weed out requests that have not been expressed in a
plausible way or that have been branded by the uninvestigated suspicions
of a local mayor.
Be that as it may, the applicant faces another hurdle not clearly im-
posed by the statute: 8 ' it has become the universal French practice to grant
aid in civil cases only when the applicant can demonstrate that the merits
of his case are sound.'2 One result of this practice can be to subject the
applicant to archaic notions that aid should be given only to the "deserving
poor." For instance, there has been discrimination against applicants in
divorce cases.' 3 Another result is to require the applicant to present evi-
dence showing the strength of his case 34 Thus, as in Italy, the receipt of
aid may be contingent on the applicant's ability to perform what is actually
a lawyer's task: the presentation, even if in outline, of the merits of a legal
claim.
124. Law of July io, i9oi, art. 8, [igoi] 2 Bull. des Lois 3; see i A. JoLY, supranote 52, at 26o.
25. Law of July io, IgOI, art. 8, [I90i] 2 Bull. des Lois 3-
126. Id. art. io.
127. The French bureaux proceed by an informal balancing of the applicant's estimated re-
sources against the estimated costs of his case. i G. ILAvrRT, TRArrT-FORMULAIRE DE PROCADURE
GiNgRALE (Civws., CoztiaRcLMa, Pi-N.ALE ET ADMIISTRATIVE) 149 (9th ed. 1967); Delpech, supra
note i19, at 273.
128. The bureau is required by statute to collect all the information necessary to decide if aid
should be granted. Law of July io, I9OI, art. ii, [i9oi] 2 Bull. des Lois 3. However, its standard
procedure for adding to its stock of information is to make further inquiries of the applicant for aid.
Delpech, supra note ii9, at 277. The bureaux lack the personnel for independent investigations.
Pelletier, Legal Aid in France, 42 NOTRE DAME LAw. 627, 635 n.44 (1967).
i29. FROTIER, supra note 12, at 76, 8o; Delpech, supra note ii9, at 274.
130. 3 E. GLAssoN, A. TssmaR, & R. MOREL, TmiTIE THAORiQUE ET PERAIQUE D'ORGANI3SATION
JUDICIAIRE, DR COPLTENCFa ET Da PROCDURE CIVILE 182, 184 ( 3 d ed. 2929); i H. SoLus & R. PER-
ROT, supra note 22g, at 976; Delpech, supra note i9, at 284.
231. There has been a great deal of discussion as to whether or not a few rather ambiguous
statutory references entitle the bureaux to review the merits of an applicant's case. See 3 E. GLASsoN,
A. TISSER, & R. MOREL, supra note 13o, at 182-83; R. MOREL, TRAITi ELfMENTAIRE na PROCEDURE
CIVILE (ORGANISATION JUDICAIRE--CoMPTENCE-PROCDURE) 540 (2d ed. 1949); 1 H. SOLus & IL
PERROr, supra note i9, at 969-71.
132. P. CATALA & F. TaRR9, supra note 52, at 21; FROTTER, supranote 12, at 68; Delpech, supra
note i19, at 273. As in Italy, the accused in criminal cases receives aid without regard to the merits of
his case. Cf. 2 P. BOUZAT & J. PiNAaTEL, Tmurf DE DROIT PNAL ET D CRBUSNOLOGIE 1289 (2d ed.
1970).
133. 1 H. SoLus & R. PERROT, supranote 119, at 976-77.
134. See FRonER, supra note 12, at 76.
STANFORD LAW REVIEW [Vol.24: Page 347
3. Germany.
When we turn from Italy and France to Germany and England we
find aid programs that have departed substantially from the i 9 th century
model. Nonetheless, traces of an earlier century remain in both systems,
particularly the German.
In Germany, the law of I87743 remains in force and has provided the
trunk on which modern features have been grafted. Starting in i919, a
series of amendments has provided for state compensation of attorneys
handling legal aid cases, initially for their actual disbursements and even-
tually for their fees 4 These reforms, however, are but half completed,
for the rate of compensation generally falls well below that for normal
litigation. In cases involving more than i6oo DM the fees received in legal
aid cases are set by a sliding scale which permits only abnormally low
fees to be recovered 4 Not unnaturally, the unequal compensation has
146. E.g., Heimerich, Das iberlebte Armenrecht, [ig6o] DR BETRIEES-BERATER 1071, 1072.
An American investigator found that this discrepancy in fees was a target of criticism in interviews
he conducted with numerous German professors, judges, and attorneys. Stohr, The German System
o1 Legal Aid: An Alternate Approach, 54 CALrF. L. REv. 8oi, 8o8 (1966).
147. ZPO § i6 (C. H. Beck 1970).
148. See, e.g., Hiendl, supranote 3, at 1749--50.
149. While Public Advisory Boards have been established in some cities such as Hamburg and
Berlin, legal advice is normally available only through voluntary boards established by local lawyers'
associations. FederalRepublic of Germany, in i THE INTERNATIONAL LEGAL Am AssociATo.1, DIREc-
TORY OF LEGAL Am AND ADVICE FACILITIES AVAILABLE THRouosour THE WORLD (1966); Klauser &
Riegert, Legal Assistance in the Federal Republic of Germany, 2o BuoFALo L. REv. 583, 599-600
(19711)-
150. ZPO §§ xi8a, 126(1) (C. H. Beck 1970). Whether the applicant is heard orally or in
writing, he must be given an opportunity to be heard. Judgment of Oct. 1I, 3966, 2o BVerfG 280,
282; GRuNnoDsETZ art. 103, para. I (Ger.).
151. ZPO § ii8a (C. H. Beck 1970). The Code requires the court to hear the adversary "unless
this appears inappropriate for special reasons."
152. Id.
353. id. § 114(). For a critical discussion of this provision, see Dubler, Burger ohne Rechts-
schutz?, [i969] DER BETRIEBs-BERATER 545, 545-46.
154. ZPO § 121 (C. H. Beck 1970).
January 1972] LEGAL AID
4. England.
If the German program can be characterized as one that has been slowly
abandoning i 9 th century ideas, then the program of England is one in
which modern ideas have been suddenly embraced, and, in part, imple-
mented. Rather than graft modern features onto an older legal aid pro-
gram, the English abolished their previous programs and embarked on
an entirely new course with the Legal Aid and Advice Act of i949.161
Now the applicant who qualifies for aid may choose his lawyer freely
from a panel of practitioners who have announced their willingness to
accept such cases."' The compensation for legal aid services, provided by
a state fund administered by the Law Society, has been sufficient to make
the work attractive to the average practitioner and, consequently, almost
all practitioners participate in the program."' A reminder of the last cen-
tury, however, remains in provisions fixing the rate of compensation at
only 9o percent of the fees permitted in normal litigation 6 Aid is avail-
able in courts of limited jurisdiction on the same basis as in other courts,
but it is generally not available in proceedings before special tribunals 6
Moreover, legal advice is available under the program from solicitors
chosen freely by the applicant 6 The few charitable elements that remain
in the aid system are generally of minor importance. For example, aid is
denied the poor in certain cases-such as defamation and breach of promise
of marriage-where reputation is at stake.6 7 In addition, there is some
scholarly authority for denying aid to litigants who are motivated by
x6r. Legal Aid and Advice Act of 1949, I2 & 13 Geo. 6, c. 51.
162. Id. § 6.
163. In a survey conducted by an American investigator, 96% of a random sample of English
solicitors expressed the view that the fees allowed under the plan are adequate for the services
rendered. Utton, The British Legal Aid System, 76 YALE L.J. 371, 376 (x966).
164. E. MoExRAN, PRAcrsTCA. LEGAL AID 7 (1969). Naturally the io% reduction below normal
fees represents a much higher proportionate reduction in profits.
165. Legal aid was extended to the County Courts considerably after the passage of the x949
Act. STAT. INSTR. 1955, No. 1775, c. 14. To say that legal aid is available on the same basis in these
courts can, of course, be misleading since the small amount involved in a County Court case is a
ground for refusing legal aid under § 1(6) of the 1949 Act, requiring that aid be given reasonably.
Representation of the poor in debt cases is very rare in the County Courts. THE CONs mER CoUNcIL,
JusTICE OUT OF REACH 15 (1970); see Kaplan, An American Lawyer in the Queen's Courts: Impres-
sions of English Civil Procedure,69 MICH. L. REv. 821, 838 n.37 (s971).
The more significant ground for criticism of the program, however, is its unavailability in pro-
ceedings before special tribunals. See, e.g., A. PATERSON, supra note 88, at 44-51, 67; SocmrY OF
LABOUR LAWYERS, supra note 3, at 13-14, 6o; Dworkin, supra note 81, at 444-45. In 197o, however,
legal aid was extended to the Lands Tribunals. STAT. INSTR. 1970, No. 761.
166. Advice is sought by turning directly to a solicitor taking part in the program who personally
assesses the applicant's financial means. In addition to the statutory program, the Law Society has
established a supplementary program whereby limited amounts of advice are available to all without
regard to financial means. One of the greatest shortcomings of the advice program is its limitation
to oral advice, which precludes the drafting of wills or contracts. Legal Aid and Advice Act of 1949,
§ 7(2), 22 & 23 Geo. 6, c. 51. The compensation for solicitors which is so severely restricted as to
make their efforts virtually charitable, is another inadequacy. E. MOERAN, supra note 164, at 14.
x67. Also excluded are actions for the loss of the services of a woman in consequence of her
seduction and for the inducement of one spouse to separate from another. Legal Aid and Advice Act
of 1949, sched. 1, 12 & 53 Geo. 6, c. 51.
January 1972] LEGAL AID
spite and who wish to sue over a quarre. 8 Such provisions are anachro-
nisms possibly reflecting a Victorian distinction between the good and the
bad poor;... however, they are but small anomalies in a large and com-
prehensive system and have been strongly attacked' 7
The application procedure is also relatively free from i 9 th century
formalism. A poor man applies for aid by filling out an application form
outlining his means and the facts of his case and submits it to one of the
legal aid offices located throughout the country."" The principal difficulty
he encounters is ascertaining the legally relevant facts. This hurdle is over-
come in theory by the availability of legal advice for filling out applica-
tions. " 2 It is solved in practice by the lawyers' willingness to assist appli-
cants since the lawyers know that these cases will become paying busi-
ness.' a A new proposal by the Law Society, if enacted, will allow lawyers
to perform up to /J25 of legal services for anyone who requests them,,'
and this plan should clear up any remaining problems experienced in pre-
paring applications.
When an application is received, the legal aid office empanels a Certi-
fying Committee composed of practicing solicitors and barristers who have
volunteered for the task, and the Committee determines whether aid
should be granted.'75 No formal hearing is held, and, at the time of the
Committee's initial decision, neither the applicant nor his adversary is
allowed to appear' Neither the adversary nor any other person beyond
the legal aid office and the Committee is informed of the facts submitted
by the applicant.'77 If the Committee concludes that a solicitor would
normally advise litigation under similar circumstances, it will grant the
applicant a legal aid certificate, provided that a favorable report on his
x68. This is one interpretation that could be placed on the concern of some commentators that
aid be denied to "the man with a chip on his shoulder." See E. MOEEAN, supra note 164, at 38; E.
SAcHs, LEGAL Am 82 (395r).
369. On the distinction, see B. ABEL-SuiTr & R. STEVENS, supra note 66, at 135.
170. See, e.g., Dworkin, supra note 81, at 445.
17r. See THE LAw Soci-ay, LErAc Am HADaooK 277, 223-24 (3d ed. x966) (Legal Aid and
Advice Schemes §§ 8, 9).
172. Cf. id. at 308.
173. The overwhelming majority of applications is now made through solicitors rather than in
person. E. MoERAN, supra note :64, at 76.
174. For a full description of the plan, see The Law Society's £25 Scheme, ri9 Naw L.J. 752
(1969). Since the plan involves yet another set of means standards, it may add to the complexity of
the aid and advice program. See Brooke, Report o1 the Advisory Committee on Legal Advice and
Assistance, 33 Moo. L. REV. 432, 436 (1970). Such fairly minor objections aside, the proposal has
been received favorably and only financial worries prevent its implementation. See The Government
Announce Further Improvements in the Legal Aid and Advice Schemes, 67 LAw Soc. GAZ. 363
(1970); LEGAL Am AND ADvica REPORT OF THE LAW SocxiTY AND COMmENTS OF THE Loan CHAN-
CeaLot'S ADVISORY CosITEraE 1969-70, supra note 88, at 38-39.
175. See Tim LAw SoCIETY, supra note 171, at 222-26 (Legal Aid and Advice Schemes §§ 8-18).
376. The applicant, but not his adversary, is allowed to be represented or to appear himself at
appeal proceedings following the refusal of legal aid by a local certifying committee. The Legal Aid
(General) Regulations, STAT. INSTR. 3971, No. 62, § o(4).
377. In fact, anyone disclosing such information is subject to a fine of up to £ioo. Legal Aid
and Advice Act of 1949, § 14(3), 72 & 13 Geo. 6, c. 5i.
STANFORD LAW REVIEW [Vol. 24: Page 347
means is received from the Ministry of Social Security.Y'8 The Ministry has
sole responsibility for this task and performs it using the same procedures
it employs for applicants for various welfare benefits 7 Once in receipt
of a certificate, the applicant can turn to any solicitor or barrister enlisted
in the legal aid program.
Despite these modern features, the English program has drawn heavy 8
criticism because of its rather unrealistic limits on financial eligibility. 0
Strictly speaking, this is not the fault of the program, which on the con-
trary was designed to make aid available not only to those who were
utterly unable to pay for it but also to those who could pay only a portion
of the costs of a lawsuit. 8 Thus while some applicants are granted aid
without charge, others are asked to pay contributions toward the cost of
their case which vary according to their means. But it is true that inflation-
ary pressures have steadily lowered the effective financial limits of the
program 82 and that the British government has made nominal efforts
to counteract this tendency' 83 It is submitted, however, that this should
not be considered an anachronism of the system but rather of governmental
thinking on the best way to cut costs during a financial crisis. Even re-
putedly conservative English sources have suggested the extension of aid
to the lawsuits of the middle classes as the eventual goal of the program "
In any case, despite the current restrictive financial limits, the modern
features of the system have shown impressive results. In recent years, aid
has been obtained in a very large number of civil cases; 8 . according to
one commentator, half of the more serious civil cases in English courts are
supported by legal aid 8
5. The UnitedStates.
In Europe we found that anachronisms under attack in some countries
were fading or had disappeared elsewhere: a unitary trend is clearly dis-
178. The test of what a solicitor would advise his client under normal circumstances has been
evolved in response to the Act's requirement that aid be given only when it is reasonable to do so.
See id. § i (6); Pollock, supra note 86, at 400.
179. Legal Aid and Advice Act of 1949, §§ 4(5), 4(6), 12 & 33 Geo. 6, c. 52.
i8o. See, e.g., E. MoERAN, supra note 264, at 12-13; Dworkin, supra note 81, at 446.
x8i. See Legal Aid and Advice Act of 2949, § 3, 12 & 23 Geo. 6, c. 51.
182.See A. PATRsoN, supra note 88, at 21-22.
183. The most recent of these efforts has been a slight increase in the limits for financial
eligibility. See The Government Announce Further Improvements, supra note 174, at 363.
284. E.g., Legal Aid, 67 LAw Soc. GAz. 366 (1970); see Dworkin, supranote 8i, at 446.
185. In the fiscal years 1968-69 and x969-7o, respectively, 146,833 and x6o,797 legal aid
certificates were granted in civil cases in England and Wales. LEGAL Am AND ADviCE REPORT OF a
LAw SOCIETY AND CommsENTs OF T=m LoRD CHANcELLoR's ADvisoRY Comrrrra x968--69, supra
note 88, at app. A.; id. 2969-7o, at app. A. In the High Court, in the years 1966, 1967, and x968,
there were 53,681, 61,293, and 66,463 parties receiving aid out of 218,171, 238,047, and 244,T90
civil proceedings, respectively. JUDicIAL STA TSTIcs-ENGLAND AND WALES, 1966, CvIL JUDiciAL STA-
TISTICS 3, 50; id. 1967, at 3, 50; id.2968, at 3o, 74. The proportion is over 25%. For reasons stated,
very few people receive aid in the County Courts. See note 265 supra.
z86. Dworkin, supra note 81, at 432.
January 1972]L LEGAL AID
187. While the sixth amendment to the federal Constitution establishes a right to counsel in
criminal trials, no comparable protection has been found constitutionally requisite in civil cases.
I8. E.g., Gideon v. Wainwright, 372 U.S. 335 (1963) (criminal defendants in felony cases
must be furnished counsel). Miranda v. Arizona, 384 U.S. 436 (1966) (clear warnings of the right
to counsel must be given suspected persons when taken into custody).
189. I L. SILVERSTEIN, DEFENSE OF THE POOR IN CRIMINAL CASES IN AMERICAN STATE COURTS
15 (s965). A number of the remaining counties use a public defender system. While interesting in
principle, and adopted in large cities where many criminal cases are heard, this system is not so wide-
spread, and even in the counties where it is used the number of public defenders is usually too small
to provide adequate representation.
o
19 . See Introduction, United States of America (1967), in 2 Tsm INTERNATIONAL LEGAL
AID ASSOCIATION, DIRECTORY OF LEGAL AID AND ADVICE FACILrrIES AVAILABLE THROUGHOUT TME
WVORLD (1966); Note, supra note 8o, at 6oi; Note, supra note 79, at 783; Comment, Attorney and
Client-Compensationof Trial Counsel Appointed for Indigent Defendants, 49 CALIF. L. REV. 954,
958-59 (196i).
191. E.g., Comment, supra note 19o, at 962; see Ervin, supra note 75, at 436; Note, supra note
8o,at 596-97; Note, supra note 79, at 784.
192. 18 U.S.C. § 3oo6A (1964).
193. Id. §§ 3oo6A(b), 30o6A(c).
194. Id. § 3oo6A(d).
195. Id. § 3oo6A(b).
STANFORD LAW REVIEW [Vol. 24: Page 347
2o8. See generally Albert & Weiss, supra note 202; Cahn & Cahn, supra note 3; Hazard, Social
Justice Through Civil Justice, 36 U. Cm. L. Rev. 699 (1969); Pye, supra note 205; Note, supra note
203.•
209. For a comparative review of the program, see Part Two, text accompanying
notes 78-131
infra.
2io. In the fiscal year ending in June, I966, $27,00o,ooo was spent in funding i6o legal aid
programs, 9o% of the funds coming from federal sources. Voorhees, supra note 89, at 24. Although
the American economy is over 8 times the size of the British and the American population is almost
4 times as great, American legal aid expenditures are less than 2 times as high. See note 88 supra.
21r. Note, supra note 203, at 825-27. In 1967, the average OEO lawyer handled 5oo new cases
a year. Stumpf & Janowitz, Judges and the Poor:Bench Responses to Federally FinancedLegal Services,
21 STAN. L. RLv. 1058, 3O59 (1969). By contrast, about 50% of the private practitioners in New York
City handle fewer than 50 cases a year and only 2% handle over 5oo. Note, supranote 203, at 807.
212. See Matthews & Weiss, What Can Be Done: A Neighborhood Lawyer's Credo, 47 B.U.L.
REV. 231, 241 (1967); Wexler, PracticingLaw for Poor People, 79 YALE L.J. 3049, 1055 (1970).
2x3. The Socialist approach to legal aid is not dealt with in Part One because, whatever its
inadequacies, it cannot be considered anachronistic. Therefore, a review of legal aid in the socialist
nations is in Part Two, text accompanying notes 3-17 infra.
STANFORD LAW REVIEW [VOL. 24: Page 347
tion."23 Yet even this very specific injunction has gained force, particu-
larly in the eyes of commentators,236 from more general rights to a fair
hearing and to equality before the law.
B. ConstitutionalDoctrineand StatutoryPlan
Even if the formal equipment for constitutional interpretation is avail-
able, the scope of possible change is, as a practical matter, dependent on
the already established programs of legal aid. Here is a basic paradox: the
less effective a state program is in providing aid, the harder it is for a court
to develop it along constitutional lines since the court is brought closer to
having to cut a new program from whole cloth. An unfortunate example
is offered by Italy, where the Constitutional Court, confronted by the
contrast between the anachronistic aid program and the liberal constitu-
tional guarantees, in effect, threw up its hands in disgust and allowed the
aid program to escape constitutional attack 3 The Court stated: "To con-
sider, in theory, such means [for providing aid] as insufficient, or of mini-
neal efficiency, with respect to the scope expressed in the Constitution, is
not to say that they are unconstitutional, and thereby to deprive the poor
of even that assistance which they now have."238 '
Some courts instead grappled with the difficulty, and developed con-
structive solutions by reworking the tools the legislature has provided;
hence the dependence of constitutional doctrine on statutory scheme. Be-
cause of this dependence, gaps may emerge in the constitutional protec-
tion of the right; not all parts of operating programs can be easily re-
molded to serve constitutional needs. An example of such a gap may be
the failure of the United States Supreme Court to extend the indigent's
right to counsel to civil as well as criminal cases. To be sure, the American
sixth amendment guarantees the right to counsel only in criminal trials.
Nonetheless, the due process clause of the fifth amendment speaks without
qualification of life, liberty, and property. The due process clause of the
fourteenth amendment has been interpreted not only to extend the right
to counsel to state criminal trials but also to prohibit the states from col-
lecting court fees from the poor in some civil cases. 39 Finally, the equal
235. ITALIAN CoNsr. art. 24, para. 3.
236. E.g., Denti, I poveri e la giustizia, 16 RVsrA Di DnuTno PRocEssuALE 285 (I96i); Vigoriti,
supra note 105.
237. Judgment of June x6, 197o, No. 97, 32 Rac. Uff. Corte Cost. 103, 12970] Foro Ital. I 1848;
judgment of Dec. 22, x964, No. 114, 2o Rac. Uff. Corte Cost. 373, 9 Giur. Cost. 163 (1964). For a
critical review by a leading authority, see Mortati, Appunti per uno studio sui rirnedi giurisdizionali
contro comportarnentiomissivi del legislatore, [19701 FoRo ITAL. V, 153, 276-77.
238. Judgment of Dec. 22, 1964, 2o Rac. Uff. Corte Cost. 373, 378-79, 9 Giur. Cost. 1163, 1176
(x964).
239. Gideon v. Wainwright, 372 U.S. 335 (1963) (due process clause extends right to counsel
to state criminal trials); Boddie v. Connecticut, 402 U.S. 371 (r971) (due process clause prevents a
state from collecting court fees for filing and service of process from indigent plaintiffs in divorce
proceedings).
STANFORD LAW REVIEW [Vol. 24: Page 347
denied the attorney of his choice when the attorney's political affiliations
created a danger that the trial would be used for political purposes.!"
Nevertheless, such decisions cannot obscure what on balance has been an
impressive growth in constitutional doctrine. To judge this growth by its
short-term effects would be to condemn it because it cannot create modern
legal aid programs out of thin air. It would also be to search in the wrong
places for the strengths of the constitutional process. The process must work
gradually, reshaping the materials provided by statute and eventually pre-
serving the fruitful products of reform. From this very constancy and
gradualness stems the power of the constitutional process to shape the
future. Eventually, aided by this process, the higher law of the modern con-
stitution may become the guarantor of laws that make the modern right
to legal aid fully effective.
If such a point is ever reached, the modern world will have given a
truly "legal" answer to the legal problems of the poor, who will no longer
have to depend upon the powerful, as they did under the "political" answer
of the Romans, nor upon the merciful, as they did under the "charitable"
answer of the Middle Ages. At that point, the prayer of Alice, with which
this story began, will be answered by effective action as a matter of right,
and the right itself will be preserved and guarded as a matter of funda-
mental law.
256. Judgment of Dec. I6, x958, 9 BVerfG 36.