Steven Gibens

Socially responsible legal aid in Belgian society: time for a thorough rethink?

The legal aid movement started from the notion of social action. Today, legal aid constitutes a highly commodified field that continues to be dominated by jurists and lawyers. For this reason, the kind of critical reflection that already exists in social work is also required in relation to the notion of legal aid as envisaged by the legal aid movement. Justiciable problems necessarily manifest themselves in a social context. An evolving community, faced with increasingly complex issues, demands a multidisciplinary approach, as it becomes clear that the traditionally deterministic view of professions ought to be abandoned. A ‘socially responsible legal aid system’ therefore presupposes that various disciplines should mutually influence one another. Hence, the jurist and the social worker should not only work side by side, but they should also collaborate and mutually enhance one anothers activities and approaches. There is a need for an overarching holistic approach that can reassert the legitimacy of legal aid. Looking at legal aid services in Belgium, one may conclude that a critical reflexive attitude on the part of current legal aid providers is crucial for attaining an effective socially responsible legal aid practice that stretches across the boundaries of different professional groups.

Towards a more effective legal aid. The Belgian case in comparative perspective

This article attempts to establish how legal aid systems in countries neighbouring Belgium cope with their citizens’ legal aid problems, as well as how their systems are organised and funded by their governments. Legal aid does not even seem to be comprehensive and generous in all the countries compared. From the comparative analysis of the five countries, it would appear that the more funding there is, the more systems can be defined as generous and comprehensive: in other words, where there is a political will to provide the necessary budgets. As legal practitioners undeniably play a role, this complicates the process of achieving a balance between budget restrictions and decent fees. Questo articolo cerca di accertare come i sistemi di gratuito patrocinio in Belgio e nei paesi circonvicini provvedano a sovvenzionarli e come siano organizzati e finanziati dai governi. Il sovvenzionamento del patrocinio per i meno abbienti sembra essere completo e generoso in tutti i Paesi considerati. Dal punto di vista comparativo, sembrerebbe che quanto piu i sistemi sono finanziati tanto piu possano definirsi generosi e completi: in altre parole, cio accade quando vi e la volonta politica di fornire i fondi necessari. La presenza inevitabile degli avvocati complica la ricerca di un equilibrio fra restrizioni di bilancio e onorari accettabili.

Legal aid in Belgium: the absence of a tradition?

In Belgium, legal aid was and still is mainly the responsibility of the legal profession. It is up to this group to provide legal advice and to represent citizens seeking justice before the court. History has shown that advocates regard themselves as the experts in this particular line of jurisdiction, citing their law degrees combined with a vocational training and the disciplinary rules installed by the Bars as evidence of their suitability. For decades the legal profession would not tolerate any interference in their practices, nor in the organisation of the means of access to justice by the poor. They regarded themselves as the only professional group equipped to handle the legal problems of the poorest rung in society. Such a belief was perhaps understandable in the nineteenth century when social problems were solved by charity. At that time, citizens were favoured by legal aid. There were no formal rights and the organisation of legal aid differed from local bar to local bar. After two world wars, politicians directed liberal society towards a social democracy and as the social security system expanded, more people became entitled to enjoy the advantages of the system. Social problems could be solved by the social security system. Legal problems, often connected with social problems, remained the jurisdiction of the legal profession and the latter did not want to change the manner in which access to justice was organised. No attempts were made by the legal profession to channel legal aid into welfare state provisions. In spite of the attempts made by progressive lawyers and advocates to change the legal aid system, most notably in the 1970s, and in spite of public approval for these efforts, politicians were not willing to alter the system. It is only in the last decade that some changes have been made. In 1993 the Belgian constitution recognised legal aid as a fundamental right and in 1998 an act on legal aid was promulgated. Since the implementation in 2000 of the 1998 Legal Aid Act, people on lower incomes have been entitled to an advocate free of charge. This is a formal right and legal criteria are based on equal eligibility (merits and means tests). This change should have been regarded as a mere formal update of a legal aid system that should in fact have existed for many years. The legal aid act INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION, VOL. 13, NO. 1, MARCH 2006