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 Legal Aid: Modern Themes and Variations*
Mauro Cappelletti
fames Gordley

Part One: The Emergence of a

Modern Theme
Mauro Cappellettit

On one occasion, when the medieval justices of the King of England

went out into the country on General Eyre, one Alice, the daughter of
Piers Knotte, came before the court and begged for help saying that: "Alice
can get no justice at all, seeing that she is poor and this Thomas is rich."
She told the court that she had no one to plead for her, praying: "For God's
sake, Sir Justice, think of me, for I have none to help me save God and
you."' The story of Alice had been repeated countless times in the Western
World in the centuries before her birth; such a story had once moved the
poet Ovid to write: "Curia pauperibus clausa est": The courts are closed
to the poor.2 It has been repeated countless times in the centuries since her
death and has moved reformers around the world to seek remedies The
story has seldom changed, and perhaps it has never been as simply and
eloquently told as by Alice.
This Article will explore the answer the modern world gives to this
ancient problem. There are, of course, more answers than modern nations,
but underlying this diversity are the central themes of a common response.
0 This Article was made possible by a grant from the Italian Research Council and the Agnelli
Foundation of Turin. Although the authors share a common outlook and a common concern, they
have chosen to separate authorship into two parts. Either part can be read separately, despite their
interdependence, and this division reflects the responsibilities and contributions of the authors.
t D.Jur. 1952, University of Florence. Professor of Law, University of Florence and Stanford Uni-
versity; Director, Institute of Comparative Law of the University of Florence.
The author wishes to acknowledge thankfully the assistance of James Gordley as to form, content,
and research in the preparation of his part of the Article. The author also wishes to gratefully acknowl-
edge the help of Geoffrey C. Hazard, Jr., and Stefan A. Riesenfeld for reading and offering advice on
Part One.
x. The story of Alice is taken from 30 Su.T. SoC. 2-3 (1914), and is discussed, together with
similar stories, in Maguire, Poverty and Civil Litigation, 36 HAsv. L. REv. 361, 367-71 (1923).
2. Ovm, III AsoRs viii, line 55 ("Curia pauperibus clausa et, dat census honores: inde gravis
iudex . . . .").
3. See, e.g., ]. ABEILLE, UNE CERcTAmnE R1FOIaME 57-58 (r970); SoeiTY oF LABoum LAWYERs,
JusTicE FoR ALL (Fabian Research Series 273, 1968); Cahn & Cahn, The War on Poverty: A Civilian
Perspective, 73 YALz L.J. 1317, 1331-52 (1964); Cappelletti, La giustizia dei poveri, [r968] FoRo
ITAL. V 114 (1968), reprinted in M. CAPPELLE-rI, PRocEsso E IDEoLoGm 547 (1969); Hiendl, Der
!ustizbeamte als Armenvertreter nach § zz6 ZPO, 83 NJW 1749 (896o).

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.

I. HISTORICAL IDEAS OF LEGAL AssISTANCE

An understanding of modern ideas of legal aid demands at least a cur-

sory view of the older ideas they have supplanted. The ancient Roman
world, the catholic world of the Middle Ages, and the laissez-faire world
of the i 9 th century recognized the problem of providing lawyers for the
poor, grappled with it, and produced distinct institutional solutions which
strike us sometimes as surprisingly modern, sometimes as bizarre. But
whether familiar or strange, these institutions become meaningful when
viewed in the social and economic contexts in which they grew and flour-
ished.
A. The Roman World
Roman law, while a formidable intellectual triumph, displayed in
practice a rather callous disregard of some principles of equal justice that
today seem axiomatic. The legis actio, the earliest Roman procedure to
rise above primitive levels, seems to modern eyes almost designed to defeat
justice rather than uphold it. By this procedure a case was brought before
a magistrate through a series of ritual acts and declarations established
by statute and by priestly lawyers who interpreted it." The parties them-
selves were not represented;' as a result, these ceremonies were largely the
secrets of patrician magistrates who used them to bar the claims of the
plebeian class.' However, in about 250 B.c., a plebeian pontifex Maximus
succeeded in making these secrets public, thus destroying the value of legis
actio as a class weapon and paving the way for the more rational formula
procedure that superseded it.'
Under the formulary procedure, dominant throughout the classical
period of Roman law, the magistrate gained wide powers to define the
issue to be presented for trial before a private adjudicator, the iudex. The
final formula submitted to the iudex could state only claims and defenses
4- W. BUCKLAND, A T=XT-aoOK OF RoMAN LAW FROM AuGUSTUS TO JUMsINIA 607-08 ( 3 d ed.
1963).
5. There were some exceptions to this rule, "but not such as to affect the principle.' W. Bucr.rm
& A. McNAIR, Ro.AN LAw AND COMMON LAW 407 (2d ed. 1965).
6. W. BUCxLAND, supra note 4, at 625-26. See also R. ScHor, DAS AMSENRcy-rr DER DauTscw
CIVILPROZESSORDNUNG 4--5 (1900).
7. W. BUCK.LAND, supra note 4, at 626.
January 197,2] LEGAL AID

the magistrate thought lawful; moreover, it was submitted in writing, thus

allowing more complicated legal issues to be presented 8 The magistrate
steered his way through the new legal sophistication by frequently con-
sulting a concilium of learned jurists These lawyers, however, did not
represent the parties; in the actual conduct of litigation the parties were
represented by advocati or patroni,' who were merely oratores and neither
part of an organized legal profession nor trained lawyers. Throughout a
major portion of Roman history, their services were brought within the
reach of the poor through the clientela system, which flourished during the
Republic and early Empire. = Under this system the weak and impover-
ished attached themselves to a powerful man, a patronus, and in return
for certain services and political support the patron assisted them in many
of their difficulties, including litigation1 The obligation of the patronus
seems to have extended beyond simple legal assistance to include all the
extralegal help necessary to prosecute a case against a powerful opponent
in a Roman courtY
The clientela system may have been not only the most typical but also
the most satisfactory Roman answer to the legal problems of the poor.
Under the Republic a class of advocates who earned their living by accept-
ing fees had already appeared, 4 and the waning of the clientela system
did not see the emergence of an effective alternative for enabling the poor
to pay these fees. Numerous attempts were made under the Republic and
8. Id. at 6o8.
9. ld. at 635.
io. W. Bucc.LAN & A. McNAm, supranote 5, at 408. These legal representatives should not be
confused with the cognitores and procuratoreswho represented a party in a strikingly different man-
ner than the modern attorney. By their appointment they became, in effect, parties to the suit; judg-
ments were given and enforced against them and their principals were bound contractually to reimburse
them for the amount of these judgments. Id. at 407-08; W. BUCKLAND, supra note 4, at 708-I1. An-
other type of representative, who had to appear for a defendant who wished to contest a manus iniectio
iudicati or seizure of his person for an outstanding claim, was the vindex; he was also personally
liable if the cause of his principal failed. W. BucxcsNm, supra note 4, at 618-ig. In view of the dangers
of personal liability, it may be wondered whether any of these kinds of representatives were willing
to place themselves at the disposal of poor men, and one scholar has suggested that before a reform
allowing the poor man to act as his own vindex it was very difficult for the poor to contest such
an action. J. KELLY, Roir N LinoArsoN 83 (1966). In any case, Roscoe Pound has noted that, lacking
any sort of professional discipline, the cognitores and procuratoreswere often habitual and unscrupu-
lous practitioners who plied their trade by deceiving the ignorant and extorting money from the
timid. 5 R. PouND, jIausPRuDENcE 682-83 (1959).
ii. J. KELLY, supra note 10, at 27. The author believes that the prevalence of this institution
accounts for the fact that "we find no serious complaints that advocates' fees prevented the small man
from litigating" during the Republic and early Empire. Id.at 84 n.s.
12. See P. FaOnR Dz LA M.SSELIs-z, L'Assisr sca JutmcLURE (runz HIsmrORiQuE ET PRATIQuE)
14-15 (941) [hereinafter cited as FROTaER]; J. KELLY, supra note io, at 27; Eavizza, Patrocnio
gratudto, 18 ILDioasroITALzA2oI 964,967 (go6-io).
13. J. KELLY, supra note so, at 27, argues that the responsibilities of the patronus may have ex-
tended to supplying his cliens with the physical force necessary to bring an adversary to trial or to
execute judgment.
X4. 5 R. PoUND, supra note io, at 696-98. Kelly notes that during the early Empire the fees of
these advocates may have been within the reach of the less well-to-do, since there are references to
fees being taken in the form of agricultural produce from rustic clients. J. KELLY, supra note 1o, at
84 n.i.
 STANFORD LAW REVIEW [VOL. 24: Page 347

under the Empire initially to prohibit and eventually to regulate legal

fees, but these attempts seem to have been ineffective even in reducing
fees to a reasonable level,' to say nothing of bringing legal services within
the reach of the poor. On a practical level, the legal problems of the poor
in post-classical times appear to have been treated with some indifference.
The Digest refers to the practice of having the court assign an advocate
to women, minors, and weak persons,"6 and to those deprived of aid be-
cause of the fear inspired by their adversary; 7 however, it is not clear that
these provisions were intended to help the poor rather than the more
typical victims of the force and fraud which characterized the lawsuits
of the powerful," and in any case they hardly seem to have affected the
lot of the poor masses.
This indifference can be largely attributed to the tendency of Roman
law, despite its striking perfection in so many respects, to allow litigation
to become, in practice, a political struggle in which wealth and power
weighed heavily in the balance. One scholar, after an exhaustive review
of contemporary accounts of Roman lawsuits, concluded that the outcome
was radically affected by the social position of the parties and that the
influence of the powerful was felt by every means from physical force and
bribery to subtle contacts with the presiding judge. 9 He attributes these
practices to a social life conditioned by enormous differences in wealth,
power, and prestige" and to a climate of moral ideas which allowed these
differences to be "thrown as a matter of course into the scales."'" We need
not accept the whole of his conclusion to recognize that despite the triumph
of the Roman legal mind, the ideological and social condition of the Em-
pire produced a political justice. And in such an environment the political
15. 5 R. POUND, supra note so, at 696-98.
16. "Advocatos quoque petentibus debebit indulgere plerumque: feminis, vel pupillis vel alias
debilibus vel his, qui suae mentis non sunt, si quis eis petat: vel si nemo sit qui petat, ultro eis dare
debebit. Sed si qui per potentiam adversarii non invenire se advocatum dicat, aeque oportebit el
advocatum dare. Ceterum opprimi aliquem per adversarii sui potentiam non oportet. DIGESr
1.16.9.5 (Ulpian).
17. "Ait practor: 'Si non habcbunt advocatum, ego dabo.' Nec solurn his personis hano humani-
tatem praetor solet exhibere, verum et si quis alius sit, qui certis ex causis vel ambitione adversarii
vel mere patronum non invenit." DIGEST 3.1.1.4 (Ulpian).
I8. One scholar has praised these provisions as "une protection aussi efflcace que possible des
petites gens" without explaining why he construes them as a protection of the poor rather than of
those affluent persons lacking power or capacity to defend themselves. FRorsER, supra note 12, at 19.
Another scholar addresses this question and concludes that these provisions were designed to protect
the poor; he relies, however, only on such vague terms as humanitas and debilitas, and on the prac-
tice of regulating fees. R. ScaoTr, supra note 6, at 7. Not only is this evidence unconvincing, but
the fact that the provisions mention widows, children, and the mentally deficient but make no men-
tion of the poor, suggests that they were not an ancient poor man's law. The reference to debiles
more readily indicates a protection against the force and fraud which, as one scholar has observed,
characterized the lawsuits of the great. See J. KELLY, supra note io, at 31-68.
g9.J. KELLY, supra note Io, at 6x-68. He concludes that even classical Roman law provided
the litigant with no aid beyond his own physical and political resources in such elementary matters
as bringing his adversary before the court and executing judgment. Id. at i4-3o.
20. Id. at 1-2.
21. id. at 174; see id. at 31-32.
January 1972] LEGAL AID

solution of the clientela was perhaps the most effective answer that could
be given2

B. The Medieval World

Whatever its merits in ancient Rome, this political solution was not
suited to the medieval world.Y The feudal structure of society did not
allow the poor man to shift his political allegiance to whomever favored
his legal claims. Moreover, the moral and intellectual forces of the age,
of which the Christian faith was by far the greatest, provided a different
approach to the legal problems of the poor. Legal aid, like other assistance
to the miserabilespersonaeof Christendom, was a form of charitas.It was
given by the Church and by Christian men as a pious work, in much the
same way as they honored the Peace of God during war, built hospitals
for the sick, or furnished bread during famine"
Much of the legal protection received by the poor came from the spon-
taneous charity of individuals. Some men, such as Saint Yves of Brittany--
"a lawyer and yet not a thief, to the wonder of the people"-were canonized
for their work in representing the impoverished. However, the piety of
the Church, and eventually of temporal rulers, produced two more or-
ganized forms of assistance. One was the advocatus pauperum deputatus
et stipendiatus,an official created by canon law who was employed by the
Church and paid to represent the poor in ecclesiastical courts. 6 The insti-
tution spread to the secular courts in several parts of France,2 and to many
of the free communes of Italy!' Under the name avvocatura dei poveri it
22. Though the political solution of the clientela was the most significant means of providing
aid under the Romans, it was not the only approach attempted. Under the Emperor Valentinian,
in the second half of the fourth century, the office of defensor was created "to defend the towns,
the churches, and the humiliores [lower classes] against the powerful and the public functionaries."
J. ELLus, HIS'roI1 DES INSTITOtrONS. 1-2 L'ANTiQurT 565-66 ( 3 d ed. 1970). The system repre-
sented an attempt by the Emperor to gain the support of the lower classes against the rising power
of what can, in a sense, be considered a decentralized pre-feudal nobility. One of the tasks of the
dejensor was his "role as an advocate of the poor," and frequently the office was held by the local
bishop. This effort failed when, after about half a century, the office fell into the hands of the very
men it was designed to control. Id. at 566.
23. Naturally, the statement in the text must be qualified in consideration of aid given because
of feudal ties. The bond of vassalage required lord and man to support each other in legal disputes
just as they supported each other in war. J. HtuzsGA, The Political and Military Significance of
Chivalric Ideas in the Late Middle Ages, in MEN AND IDEAs, HistoRY, THE MsnDLE AGEs, TE RE-
missANcE 196, 200 (1970). Similarly, a lord could support his serfs in court. FPOrsER, supra note
x2, at 20.
24. For a description of the activities of the medieval Church on behalf of the poor, showing the
close connection between the aid given on legal matters and other charitable assistance, see J. ELLIL,
HiSTOsaa DES IS' rrUIoNs DE L'EvoQUE FRtANQUE A LA RiVOI.UTION 236-4o (5th ed. x967).
25. The famous description of Yves, who became the patron saint of lawyers, was "advocatus
et non latro: res miranda populo."
26. D. MatA riors, L'ASSISTENZA GruniziAmsA Ai NON ABBIENTI 12 (ig6o).
27. E.g., the establishment of an avocat in Nimes in 1459 by Louis Raoul, and in Chamb&ry in
1477 by Am&e VIII. FROTIER, supra note 12, at 25-26. A short-lived attempt to extend this system
to all of France was made by Henri IV in 16ro. Id. at 28-3 o .
28. Ravizza, supra note 12, at 969. It was adopted in Parma (statute of 1233), Vercelli (statute of
1241), Piedmont (Patent of 1351 of Amedeo VI), and Venice. D. MAItAsmo, supra note 26, at 12-13.
 STANFORD LAW REVIEW [VOL. 24: Page 347

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

39. See note 27 supra.

40. J. LEM ARE, LEs RTGLES DE LA PRoFEssIoN D'AvocAT ET LES USAGES Du BARREAU DE PARIS
RECUEILLIS PAR FERNAND PAYEN ET GAsroN DuvEAu 176 (1966). The phrase "pour l'amour de notre
Seigneur" occurs, for example, in the coutume de Beauvoisis of Philippe de Beaumanoir in 1283, and
"pour Dieu" in the ordonnance of November, 1364, of Charles V. FROTiER, supra note 2, at 23,
24-25.
41. Edict of Mfar. 6, 161 o, in FROnTER, supra note 12, at 29.
42. Huizinga has stated that "one tends at times to forget that, next to religion, chivalry was
the strongest of the ideas that filled the minds and the hearts of those men of another age." J.
HtnZINGA, supranote 23, at 197.
43. As Huizinga has noted, "[t]he calling of a knight was altruistic: protection of the op-
pressed, fealty to the ruler, the weal of Christendom." J. HuIZINGA, HistoricalIdeals of Life, in Mm
AN!DIDEAs, Historiy, THE MIDDLE AGES, TrIE RENAIssANCE 77, 86 (1970).
44. "To women, to the poor, and to orphans, or to weak people or those who know not to de-
mand their rights." The phrase occurs in the Livre de justice et de plet of 1209, and similar phrases
are found, for example, in the dying commands of Saint Louis, the will of Louis Raoul, and the
ordonnanceof November, 2563, of Charles IX. FROTIER, supra note 12, at 22, 25, 28. The frequency
of such phrases has been noted by scholars. Id. at 21; Ravizza, supra note 12, at 969. Lending sup-
port to the idea that the chivalric protection of the weak was associated with the charitable provision
of legal services to the poor is the fact that war and lawsuits were identified with each other in the
medieval mind. Huizinga has noted that "a battle differed only in degree from the judicial combat
or the combat of knights in the lists." J. HuiziNoA, supra note 23, at 2oo.
45. See notes 16-18 supra and accompanying text; c. R. ScHOTT, supra note 6, at 15-6.
 STANFORD LAW REVIEW [VOL. 24: Page 347

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.

C. The FrenchRevolution and the NationalLegislatures

The medieval era, as historians have long recognized, has no clear
terminal point; the student of art is free to see the birth of a new age in
the Renaissance, the theologian in the revolt of Luther, the student of pol-
itical structure in the rise of the nation-states, and the student of political
thought in the Enlightenment. For purposes of this discussion, a new age
must be dated from the collapse of the nobility whose traditional outlook
was based on chivalric conceptions and from the rise of a state based on
secular principles. Such a change occurred dramatically with the French
Revolution when the repudiation of courtly culture and the espousal of
secular political theory destroyed the forces supporting the medieval an-
swer of charitas.
At the same time, the new political theory of the Revolution, based on
the natural law schools of the i 7 th and i8th centuries, carried the seeds
from which a new answer to the legal aid problem could grow. Under
46. See FRoTIER, supra note 12, at 23-30.
47. See, e.g., id. at 25-26.
48. Maguire, supra note I, at 376.
49. FRoTIER, supranote 12, at 24-25.
January 1972] LEGAL AID

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

5o. U.S. CONST. amend. VL

51. Law of Aug. x6-24, 1790, tit. II, art. 1, 1 COLLECTIOrN COMPLTE DEs Lois 310 (Duvergier
ed. x834) ("les juges rendront gratuitement la justice."). The statute also abolished all privilege
in matters of jurisdiction and provided that all citizens would plead in the same form before the
same courts in like cases. Id., tit. II, art. 16.
52. For current American attempts to extend the constitutional right to counsel to indigent civil
litigants, see notes 239-42 inira and accompanying text; Note, The Right to Counsel in Civil Litiga-
tion, 66 CoLum. L. REV. 1322 (1966); Note, The Indigent's Right to Counsel in Civil Cases, 76
YAE L.J. 545 (1967)- While all French writers recognize that the principle of the gratuit6 de la
justice was not designed to establish a right to counsel, many of them link their discussions or criti-
cisms of legal aid to the principle. See, e.g., P. CATALA & F. TERut, PROCfriust CIvaz zr VotES
D'E9cCTrrIoN i9 (x965); G. CoRNu & J. FoYER, PROC9DuRE CsVILE 78-81 (1958); 1 A. JOLY, PRO-
CtfMlE Creme ET Vows D'ExicUTroN 21 (1969).
53. 1 E. GLAssoN, A. TissmR, & R. MOR.L, Tharri TIcORIQUE ET PRATIQUE D'ORGANIs AMON
JIUDICAIE, DE COMiTENCE ET DR PROC9fURE CvMLE 94-95 (3d ed. 1925); 1 A. JoLY, supra note
52, at 21.
54. P. CATALA & F. TFsut, supra note 52, at 19.
55. Law of Jan. 22, 1851, [1851] Bull. des Lois 93 ("assistance judiciaire").
 STANFORD LAW REVIEW [VOL. 24: Page 347

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

legal right, a curious relationship that Americans described as "privilege"

and Europeans as the legal profession's "nobile officium" or "honorific
duty."
This hybrid answer reflects an ambiguity about the status of legal aid
in the new political theory with which the era began. As noted earlier,
the new doctrine viewed justice as the preservation of the "natural rights
of man" from encroachment by the state or by fellow citizens, thus de-
manding that all men have access to the courts where their rights are pro-
tected. But as the French discovered after a revolutionary attempt to abolish
their bar,"' and as the Americans discovered from similar colonial experi-
ments before their revolution,"' access to the courts can hardly dispense
with the services of lawyers. Yet for the state to have provided these law-
yers - by paying either public or private attorneys to serve the poor -
would have placed it at odds with contemporary conceptions of how rights
were to be protected. The "natural rights of man" were not believed to
require affirmative state action for their protection; they were "natural
rights" because they were prior to the state itself. They were preserved
when the state did not act to infringe them and refused to allow encroach-
ment by the actions of others. As a result, legal aid to the poor was proble-
matic; on the one hand, the poor needed lawyers if they were to enjoy
access to the courts and the right to counsel; on the other hand, providing
a lawyer required the affirmative state action that contemporary political
thought regarded with hostility. Thus the question was bypassed in the
ringing declarations of rights that began the age and was operationally
resolved in the i 9 th century statutes by a hybrid solution. This solution
gave the poor access to the courts by the provisions of positive law pro-
viding them counsel. At the same time, the "charitable" component of the
solution made affirmative state action unnecessary by relying on the gratui-
tous services of the legal profession.
This solution was tenable, however, only because the i 9 th century mind
could be content with a purely formal equality. Actual equality requires
that all citizens have effective access to comparable legal services and can-
not exist in a system in which some legal services are rendered to paying
clients and others are given gratuitously to the recipients of a quasi-charity.
In the first place, in a free market economy, a lawyer will necessarily tend
to concentrate his time, effort, and skill on the remunerative business, the
76. See Bradford v. Southern Ry., 195 U.S. 243, 248 (1904); O'Connell v. Mason, 132 F. 245,
247 (ist Cir. 1904). As interesting modern change is that the Supreme Court now refers to the
benefit conferred by the statute as a "right" rather than a "privilege." See, e.g., Adkins v. E. I. DuPont
de Nemours & Co., 335 U.S. 331, 337 (948).
77. Stoeber, Le Barreau Franfas, in I LEs BARREAOX DANS LE MONDE 192, 196-98 (Union In-
ternationale Des Avocats ed. 1959); J. VINCENT, PsR#cis DE PocIEDuE CVILE 796 (1 4th ed. 1969).
See generally I M. ROuSsELET, HISTOIRE DE LA MAGXSTRATuRE FRAN9AISE DES ORIGINES A Nos JoUtRs
115-55 (1957).
78. z A. CRmousr, THE RISE oF rim LErAL PROFESSION IN AmERICA 331-32 (1965).
 STANFORD LAW REVIEW [Vol. 24: Page 347

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

II. MODERIN IDEAS AND ANACHRONmSMS

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

A. Modern Ideas of Legal Aid

In the face of this development the older view of legal aid as a hybrid-
in some ways like a political right, in other ways like a charity-has ceased
to be tenable. The formal guarantees of the old solution and the stigmati-
zation of the poor as objects of charity are rarely defended today on their
original i 9 th century grounds. Dependence on the gratuitous efforts of
assigned counsel-the hallmark of the i 9 th century solution-has certainly
not been eliminated everywhere; nevertheless, where it remains, its ad-
herents have been thrown back on arguments that raise serious doubts as
to whether it can long endure.
One argument is that compensation of the poor man's attorney by the
state endangers the independence of the legal profession." However, un-
der the comprehensive legal aid program of England, lawyers have been
compensated by the state for twenty years without any serious worries about
professional independence on the part of anyone, least of all the Law So-
ciety.8" A second argument is that the burden of financing legal services
to the poor is too heavy for the state to bear." But this argument obviously
cuts too far, for if the burden is allegedly too heavy for society as a whole
to bear, it is absurd to expect it to be assumed by the legal profession itself.
Moreover, the relatively small cost of the English program suggests that
even a comprehensive system of aid imposes no excessive burden on the
state, 8 and recent American developments suggest that there may be even
less expensive ways for aid to be furnished. 9
The decay of the original ideas supporting the i 9 th century solution,
the inadequacy of the arguments now used to support it, as well as its in-
creasingly rapid extinction throughout the world, are signs of another
major transformation in the answer the world gives to the legal problems
of the poor. The modern answer is as true to its times as former answers
85. This objection has been encountered in local bar attempts to frustrate the American legal
services program. For a description of one of these attempts, see Note, Competition in Legal Services
Under the War on Poverty. ig STAN. L. REv. 579, 586-91 (1967).
86. For a short description of efforts made by the Law Society on behalf of the English legal aid
program, see Pollock, Legal Aid as a Social Service-The Cobden Trust Report, 67 LAW Soc. GAz.
399 (1970).
87. This argument has been of service in sustaining the less-than-adequate aid programs of
France and Italy. See FR TIER, supra note 12, at 1o3; D. MARAFioTi, supranote 26, at 21.
88. In 1968-69, the grant of the British government for legal aid in civil cases was X7,477,591.
In i969--7o it increased to £ 8,ao8,285. LEGAL Am AND ADVICE REPORT OF THE LAW SOCETY AND COas-
mENTsS OF TE LORD CHANCELLOR'S ADVISORY COMMItTEE 1968-69, x9th REP., app. A (1970); id.
1969-70, 2oth REP., app. A (I971). The grant for x967-68 (£6,85o,852) represented only .io% of
the amount England spent on social services in that year. A. PATERSON, A REPORT ON LEGAL Am ASA
SOCIAL SERVICE 22 (1970).
89. The Office of Economic Opportunity has made estimates, based on experiments with
English-style programs, indicating that aid can be furnished at one-third the cost per case by American-
style programs of neighborhood law offices. Schlossberg & Weinberg, The Role of Judicare in the
American Legal System, 54 A.B.A.J. ooo, 1003 (1968); see Voorhees, The OEO Legal Services Pro-
gram: Should the Bar Support It?, 53 A.B.A.J. 23, 26-27 (1967). This estimate, however, does not
do justice to the English system. See Part Two, notes xoo-o5 infra and accompanying text.
January 1972] LEGAL AID

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.

B. Anachronisms in the Modern World

i. Italy.
A typically i 9 th century program, preserved by the fascist government
in I923,"' still remains in force as the legal aid system of Italy. This law
bears the familiar i 9 th century hallmark: legal aid (patrocinio gratuito)
is declared "un officio onorifico ed obbligatorio" of the legal profession,92
meaning that lawyers must act for the poor if called upon to do so" but
receive no fees unless the client prevails and costs are recovered from his
opponent.0 9 ' For reasons suggested earlier,95 the result is a far cry from the
modern demand for effectively equal justice. Italian critics have attacked
the program on the ground that the lawyers actually representing the poor
are generally less committed, less able, and less experienced 9 Moreover,
even this very limited type of assistance is provided only for cases involving
litigation. Legal advice, despite its importance in enabling the poor man
gi. Law of Dec. 30, 1923, no.3282, [1924) Gaz. Uff. Supp. No. 117, at 32, 3 Rac. Gen. Legis.
3388 (Giuffr 1961).
92. Id.art. i.
93. A lawyer may not refuse a case assigned to him without good cause. See, e.g., Luzzatti,
Gratuito patrocinio, in 3 ENCICLOPEDIA FORENSE 1033, 1037 (X958).
94. See. e.g., S. COSTA, MANUALE DI DmiTTo PROCESSUALE CMLE I29 (3d ed. I966).
95. See notes 79-81 supra and accompanying text.
96. See, e.g., D. MARAmio-r, supra note 26, at g-20; Ravizza, supra note 2, at 999-roo0.
January 1972] LEGAL AID

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

most salient charitable features of the current program will be abolished.

The new program would also eliminate most of the current formalism.
The bill allows the applicant to present his request for aid to any member
of the competent commission or to the clerk of the lower court in the
judicial district in which he resides, either orally or in writing on non-
taxed paper;" when the application is submitted to the clerk, he then
forwards it to the appropriate commission. The bill also simplifies the or-
ganization of the commissions." 5 Moreover, it provides that the commis-
sions, in judging the merits of the applicant's case, shall deny aid only
when his claim or defense is "manifestly unfounded.""' 6 This liberal test
prevents the hearing of requests for aid from becoming a preliminary trial
of the case. In contrast to present law, the bill provides a further check on
this tendency by failing to empower the commissions to invite the ap-
plicant's adversary to a hearing on the applicant's financial status and the
merits of the case.
While the bill will eliminate the worst anachronisms of the present
system, it will not bring Italian legal aid entirely into the modern era.
The bill's gravest defect is its complete failure to provide for legal advice
to the poor on matters not involving litigation. A second defect is the
bill's mechanical test of whether the applicant's resources are small enough
for him to receive aid: eligibility is determined by taxable income," with
no provision for partial aid for those whose incomes are just above the
rigid cut-off point. Moreover, such a system allows neither for the fact that
different cases cost different amounts to litigate nor for the fact that per-
sons with the same income may be in vastly different economic positions
because of the amount of capital they have accumulated, the liquidity of
that capital, and the amount of their necessary expenditures. In addition,
the tax rolls reflect a past situation that may not accurately describe cur-
rent income levels. To the extent that the bill ignores such considerations
because it is more concerned with formal-almost mechanical-guarantees
than with practical effects, this defect is the product of anachronistic
thought. Eventually, perhaps, the legislature will turn to a more modern
114. Id. art. 12. If he applies orally, he will receive the help of a member of the commission or
of the clerical staff of the local court in filing his application. Id. Hopefully, this assistance and that
of lawyers who will now have a financial incentive to help the applicant obtain aid will enable him
to provide the exposition of legally relevant facts and means of proof that the new bill requires. Id.
x15. Id. art. 5. These commissions will be established at each Tribunale (superior court of first
instance). The commission will consist of two members of the judiciary and a lawyer chosen by the
bar. Id.
ss6. Id. art. 1 (2). In criminal cases the merits will not be considered. Id. art. i.
117. Id. art. it. To qualify for aid, outside of certain exceptional cases, the applicant must not
be listed on the income tax rolls. A person with no dependents would thus qualify if his income
were less than 960,000 lire, which is about $S6oo.In labor disputes and social security cases, how-
ever, even one listed on the tax rolls receives aid as long as his income is below 2,ooo,ooo lire, slightly
more than $33o0. A disadvantage of this approach is that Italian tax rolls are notoriously imprecise
in assessing actual incomes. For a commentary on reform proposals before this bill was approved by
the Senate, see Pizzorusso, supra note 99.
 STANFORD LAW REVIEW [Vol. 24: Page 347

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

Post-application procedure follows the pattern in Italy. The applica-

tion is forwarded to an appropriate legal aid bureau." 5 Like the Italian
commissions, the French bureaux have a mixed composition and are estab-
lished at the tribunaux de grande instance and higher courts 3 Like the
Italian commissions, they allow the applicant's adversary to appear and,
if he does so, they try to arrange a settlement;.. 7 there is no more guarantee
than in Italy that the settlement will do justice to the interests of the poor
man. If no settlement is arranged, the bureau will consider the applicant's
state of poverty and the merits of his case, and, if satisfied of both, will
arrange for the appointment of counse 8 and for certain fees and costs to
be forgiven' 9 French commentators have noted that this procedure pre-
sents the danger of encroaching on the functions of a trial. 4 Certainly,
this procedure is open to discrimination against the ignorant and inarticu-
late who cannot adequately present their cases before a bureau and against
those who receive aid but must come into court having disclosed their
case to an opponent.
The barriers of this system account for its use in only about six percent
of ordinary French civil cases, a small percentage, although substantially
higher than the Italian figure.1 4 Despite the failure of numerous reform
proposals, however, the French system, like the Italian, now seems to be
on the verge of modernization.'
135. Law of July io, IgoI, art. 8, [IgOI ] 2 Bull. des Lois 3.
136. The composition of the bureau varies according to the court to which it is joined but in
general represents the judiciary, the bar, and the public administration. Id. art. 3, as amended by
Decree of Dec. 22, 1958, [z959] J.O. ii,6o8, [x959] B.L.D. 58, 65.
137. Id. art. ii. Such settlements are frequent. i H. SOLus & R. Psiutor, supra note 13g, at 969
n.I.
338. Appointments are made by the btonnier of the Ordre des avocats and the president of the
Chambre des avouis. Law of July 3o, I9OI, art. 13, [i9o] 2 Bull. des Lois 3.
139. Id. art.14.
140. See, e.g., FROTrER, supranote 12, at 83-85.
X41. In 3964, 1965, and 3966, the percentage of ordinary proceedings receiving legal aid before
the French courts of first instance (tribunaux d'instance and tribunaux de grande instance) were
6.7%, 6.7%, and 6.6% respectively. Calculations based on figures given by INsnrr= NATIoNAL D L&
STATISTIQuI ET DEs ET-DEs ECONOMIQuEs ANNUAIRNE STATIsTIQuE DE LA FRANCE z966, at 369, 171
(3966); id. 3967, at 164-65 (x968); id. 3968, at 329-3o (1969). Cf. note no supra (the Italian
figures).
X42. After the completion of this Article, a governmental bill to establish a new legal aid system
in France was introduced in the National Assembly on May 28, 1971. This bill was approved by the
National Assembly on October 7, 3973 and, if approved by the Senate, will entirely replace present
legislation. Some of the new features of this reform resemble those of the bill passed by the Italian
Senate on March io, 1971 (see text accompanying notes 133-17 supra): First, the legal aid attorneys
would be paid by the state, although not at the normal rate of compensation; second, aid would be
denied by the bureaux only when a claim or defense is manifestly unfounded; third, eligibility standards
would be defined more objectively than under present legislation. Unlike the Italian bill, however, this
proposed legislation would not grant the aid recipients their free choice of attorneys. On the other hand,
the eligibility standards would be less rigid than the Italian ones and a system of partial aid is to be
included. Assemble Nationale, Bill No. 1770, 4 th Leg., 2d Sess. (97o-7i). Regrettably, this reform
proposal, though an important step forward, is incomplete. It does not necessarily place the aid
recipient on an equal footing with his adversary, nor does it eliminate all the formalistic elements left
over from a former age.
For prior reform proposals in France, see J. ABILLE, supra note 3, at 57-58; FaoxaR, supra
note 12, at 145-46; Delpech, supranote 339, at 272.
January 1972]L LEGAL AID

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

143. ZPO §§ 114-27 (C. H. Beck 1970).

144. Originally attorneys were compensated neither for their services nor for their disbursements.
Law of July 7, 1879, [1879] RGBI. I 176. See also r J. PLANCK, LEtnucH DEs DETrSCHEN Csvm-
PRozEssrEcHTs 170 (1887). A statute of x919 provided for recovery of actual disbursements from
the state. Law of Dec. 18, 1919 [3939] RGBI. I 2113; Hagelberg, Zur Reform des Armenrechts, 49
JW 876 (i92o). In 1923, a statute was enacted allowing attorneys to recover their full fees from the
state. Law of Feb. 6, 3923, [1923] RGBI. I io3; Kilster, Erstattung von Rechtsanwaltsgebithrenin
Armensachen, 52 JW 676 (1923). However, in the same year, a limit was placed on the recovery of
fees: the maximum fee an attorney could recover was the normal fee for a case involving 2ooo marks.
This limit was extremely severe in view of the German inflation. In i925, special fee schedules for
legal aid attorneys were introduced; these fees were reduced in 1928. The fees provided for in these
schedules were below the normal rate of compensation. Law of Dec. 20, 1928, [1928] RGBI. I 411;
Law of July 14, 1925, [3925] RGBI. I 136. Friedlaender, Das Obergangsrechtbeim Ausserkrafitreten
des Armengesetzes v. 14. ]uli 1925 und beim Inkrafttreten des Gesetzes v. 54. fuli 1928, 57 JW 3923
(1928). This system of a special lower fee schedule for legal aid cases is still in use.
145. The following chart shows samples of legal aid fees and normal fees for cases with different
amounts in controversy.
Amount in Controversy Legal Aid Fee NormalFee
(DM) (DM) (DM)
i5,ooo and over 2x6 375 and up
11,500-12,000 195 340
96oo-IO,OOO 183 320
7800-8000 163 295
58oo-6ooo 143 26o
3800-4000 123 195
1800-2000 98 Ito
In matrimonial matters and a few other specified cases, there is a fixed fee of 75 DM for the
lawyer providing legal aid. All of these figures actually understate the discrepancies in an attorney's
compensation. Since he will usually recover three fees, the difference between the legal aid and the
normal fees will be three times as great. Law of July 26, 1957, [1957] BGBI. I 907, §§ 11,123, as
amended through June 1970. Section 31 provides for three fees to be paid the lawyer for his com-
plete services in a normal case, whether or not the case is legally aided.
Rules not substantially different apply in criminal cases. While the statute governing the normal
fees in criminal matters determines them by fixing a lower and an upper limit-for instance, 6o and
720 DM-the fees for an attorney appointed to defend a poor person are set at one and one half of the
minimum. Id. §§ 83, 100(2).
These discrepancies are a source of dissatisfaction and controversy among the German bar and,
recently, 43 local bar associations decided to boycott appointments as counsel in legal aid cases in
the hope of winning higher compensation for these services. Fromme, Verteidiger sein fstr en
Butterbrot?,Frankfurter Allgemeine Zeitung, Oct. 15, 1971, at 2.
 STANFORD LAW REVIEW [VOL. 24: Page 347

been criticized;"" but it does represent a movement away from depen-

dence on services gratuitously rendered.
Disparity in fees received is not the only charitable element remaining
in the German program. Appointment of an attorney rests within the dis-
cretion of the judge in the Amtsgerichte or courts of limited jurisdiction.'
Critics have charged that attorneys are rarely appointed in cases involving
smaller amounts and that the defense of the poor is usually entrusted to
younger law graduates akin to the French stagiaires or to judicial em-
ployees who are not members of the Bar. They have rightly noted that
this practice compromises the principle that all should have able and com-
petent counsel 48 Moreover, except in a few cities, legal advice is available
only through the charitable efforts of groups of private lawyers, 4 a feature
we have noted in France and, at its worst, in Italy.
In addition to these charitable elements, the German system is marked
by a formalism that, outwardly, seems very pronounced. An applicant
must apply to the proper court, outlining his financial position and the
merits of his case. The court itself, rather than a special bureau as in Italy
and France, may then require the applicant to appear at a hearing to
establish the plausibility of his case s° An invitation to the hearing may
be extended to his adversary15 At the hearing itself, the applicant may
be called upon to provide documentary and testimonial evidence corrobo-
rating his case. " ' If the applicant establishes that he cannot pay the costs
of a suit without jeopardizing his family's livelihood and that his case has
a "sufficient probability of success" and is not "capricious," he will be as-
signed counsel. "3 This grant, however, may be revoked during the trial if
the judge decides that the statutory requirements were not or are no longer
met." I

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

We are thus confronted with an admissions procedure that appears

even more formalistic than that of France if not of Italy. The applicant is
bound to perform almost all the tasks of a practicing attorney at a pre-
liminary hearing that might resemble the trial. But in practice this formal-
ism has decayed. First, the great majority of applicants negotiate this seem-
ingly tortuous route with the help of lawyers who have agreed to take their
cases ' While this is also true in Italy, the crucial difference is that the
German attorney has a financial incentive to offer his help during these
preliminary stages because handling the case is remunerative even if the
preliminary procedure is not. Second, the written application procedure
is vastly simplified for the applicant by the ready availability of printed
forms."' Third, in actual practice, the decision to grant legal assistance is
made on the basis of the applicant's submissions rather than by the cum-
brous procedure of calling witnesses 5 While some German judges still
do look beyond the face of these submissions and convert the procedure
into a preliminary trial, such behavior is stoutly criticized 5 Finally, ju-
dicial decisions are gradually eroding the power of the court to withdraw
aid once it has been granted.'5
One may of course note that these informal practices have not entirely
eliminated the formalism of the old procedure, just as one may note the
charitable features that remain in the program. Nevertheless, a significant
step has been taken from the anachronistic toward the modern, and the
benefits of this movement have already been marked. In fact, legal aid
now appears to be granted in about one-sixth of German civil cases,'" ' a
record that compares very favorably with those of France and Italy.
155. Stohr, supra note 146, at 8o6-07. An interesting court of appeals opinion has broken with
previous decisions by holding that, under some circumstances, an applicant has the right to legal aid
in the legal aid proceedings themselves. Judgment of Sept. 16, 1968, 22 NJW 243 (1969) (Ober-
landesgericht Cologne).
z56. Stohr, supra note 146, at 802.
157. Id. at 803.
x58. Jacobs-Martini, Das Armenrechtsprifungsverahren,6 NJW 246 (1953). For a recommen-
dation to cut back the court's power to hear witnesses at the preliminary hearing, see BERIcrr DaR
KosmlssomN zat VoatrrTUwNo EIrNR REFORM DER ZrLv.o scs-rrsDAn.rr 269-70 (596i).
x5g. Thus a court may not withdraw aid solely because it has changed its estimate of the aided
litigant's prospects. Judgment of Nov. 5, 1959, 14 MoNxrsscmuFr FRs Dtrscsis REcr 232 (ig6o)
(Oberlandesgericht Cologne). Similarly, at least according to one court, aid may not be withdrawn
during the final stages of litigation. judgment of Apr. 24, 1962, x6 MONATSSCHRIFr FUR DaTrrscums
REcUr 744 (5962) (OberlandesgerichtNeustadt).
x6o. The x958 figures for all courts of Baden-Wirttemberg have been offered as typical: 26,155
aided cases in a total of 135,909 cases. Heimerich, supra note 146, at 1072; Koebel, Zivilrichter und
Armenrecht, 17 N]W 392 (1964). On the basis of data supplied, on February 20, 197o, by the
German Federal Ministry of Justice we have calculated that this proportion of about 20% remains
typical only of some Landgerihte.In 1968, the proportion between the total number of Landgerichte
cases and the number of parties given legal aid was 23.6% in Hamburg, 22.8% in Bremen, 16% in
Nordrhein-Westfalen, 12.3% in Hessen, 11.2% in Baden-Wiirttemberg, 13.2% in Bayern, and i3.5%
in Berlin. In the courts of limited jurisdiction (Anstsgerichte), however, a smaller proportion of cases
receive aid. In the same year, the proportion was only 6.6% in Hamburg, 8.6% in Bremen, 6.9% in
Nordrhein-Westfalen, 6.i% in Hessen, 6.9% in Baden-Wi-rttemberg, 11.4% in Bayern, and 7.2%
in Berlin. Cf. Ruhl, Zur Reform des Armenrechts, [1970] Zrrsc-nuFr FU REesersPoLeruc 274.
 STANFORD LAW REVIEW [Vol."4: Page-347

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

cernible. In America, on the other hand, we see the coexistence of a variety

of programs, most of which must be characterized as anachronistic; some,
however, represent remarkable, although diverse and still isolated, modern
departures.
This contrast in America is illustrated by legal aid in criminal cases,
which, partly for constitutional reasons, is sharply distinguished from civil
legal aid."' Recent federal constitutional developments have extended the
right to counsel to state courts, where the bulk of criminal trials occur, and
have safeguarded the right against formalistic requirements 88 Neverthe-
less, aside from the absence of formalism, counsel is provided in the state
courts on essentially 19th-century principles. A very common practice is
the use of an "assigned counsel system" in which individual lawyers are
appointed by the court on a case-by-case basis; a 1964 survey reported that
this system was the only one used in 29 00 of the 31oo American counties 89
Throughout these programs, counsel infrequently receive adequate com-
pensation for services. 9 The predictable consequences have followed:
critics have attacked the poor quality of defense when counsel serve with-
out adequate compensation as well as the practice of assigning the least
successful and experienced lawyers to poor men's cases 1
Against this gloomy background is the light shed by the Criminal Jus-
tice Act of 1964 applicable to federal trial courts.' The Act provides for
appointment of counsel for the "financially unable" at "every stage of the
proceedings."' 3 The appointed lawyers are compensated for their ser-
vices""* and are appointed from lists prepared by the bar association or from
a legal aid agency' 9 The idea of combining the assignment of private
practitioners with the assignment of full-time public defenders from a
legal aid agency is a significant innovation. Its potentialities have been

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

most fully explored in the District of Columbia where a similar statute

was enacted.' There, public legal aid attorneys, enjoying the same salaries
as other publicly employed lawyers, have been assigned to handle a host
of small or specialized or very long cases that would tax the skill or patience
of the private practitioner, leaving private lawyers to handle other cases
to which their skills are best suited.' Despite this powerful experiment in
implementing modern ideas, however, the Criminal Justice Act has the
grave fault of denying full compensation to private attorneys, who receive
a maximum of $io per hour for time spent out of court, $i 5 per hour for
court time, subject to a maximum total fee of $300 for a misdemeanor case
and $500 for a felony case;. 98 these are, of course, low rates by American
standards. Although the inadequacy of these rates is somewhat alleviated
by the prestige of appearing in federal court,' the predictable complaints
have been heard about the appointment of the young and inexperienced.!9 "
Legal aid in civil cases presents a similar chiaroscuro image. Before
the Economic Opportunity Act of 1964, such aid was available through
federal and-where they existed-state in forma pauperis procedures and
through a variety of state and private legal aid agencies. But in forma
pauperis proceedings were restricted by judges and rarely of use to the
poor,2"' and legal aid agencies were mostly charitable ventures character-
ized by strict eligibility standards," 2 overwhelming caseloads, 0 . and arbi-
trary screening of requests for aid.20 Even at that, in 13o American cities
there were no legal aid offices meeting even the minimum standards of
the National Legal Aid and Defender Association.0
Against this background, the Economic Opportunity Act made funds
available for a national legal services program.0 These funds were prin-
cipally employed in establishing "neighborhood law offices" ' throughout
196. D.C. CODE ANN. §§ 2-2201 tO 2-2210 (ig6i).
197. Pye, The Administration of Criminal justice, 66 COLum. L. REv. 286, 290-92 (x966).
298. 28 U.S.C. § 3oo6A(d) (1964).
199. This prestige apparently also counteracted some of the bad effects of the former system
of uncompensated counsel. Note, supra note 8o, at 599.
2oo. See, e.g., Timbers, Carr, Ainsworth & Gourley, Judicial Perspectives on the Operation of
the CriminalJustice Act of 1964,42 N.Y.U.L. REV. 55, 66 (1967).
2O1. See Duniway, supra note 7X, at 1277-81, 1285.
202. Albert & Weiss, Neighbourhood Lawyers-An American Experiment, 118 NEw L.J. 667
(2968).
203. Note, NeighborhoodLaw Ofces: The New Wave in Legal Services for the Poor, 8o HAtv.
L. REv. 805, 807 (1967).
204. Id. at 8o8-o9; Albert &Weiss, supra note 202, at 667.
205. Pye, The Role of Legal Services in the Antipoverty Program, 31 LAW & CoNTrmp. PRon.
211, 213 (1966).
206. The Economic Opportunity Act of 2964, 42 U.S.C. §§ 2701-981 (1964), authorized grants
of federal funds to approved community action programs. As later amendments to the Act make
clear, legal services programs qualify for these grants. See Economic Opportunity Act of x965, Pub. L.
No. 89-253, § 12, 79 Stat. 973, amending 42 U.S.C. § 2785(a) (2964); 1 U.S. CODE CoNG. & AD.
Naws 959 (1965).
207. Some funds, however, have been allocated to Judicare-a legal aid program following the
English model. Schlossberg & Weinberg, supra note 89.
January 1972] LEGAL AID

the United States managed by salaried full-time lawyers and providing

both assistance in litigation and legal advice. These offices provide aid on
a radically new theoretical basis that stresses decentralization, geographic
dispersion into poor communities, integration with the life of the surround-
ing neighborhood, and assistance on political and economic as well as legal
problems.20 8 This program can be attacked on several grounds but cer-
tainly not as an anachronism, and so a review of the program is beyond the
purposes of this Part20 If we look for anachronism we find it not in the
program but in the financing that has been provided. In view of American
resources the funds spent on the legal services program can only be re-
garded as trivial.21 As a result, caseloads have become vastly dispropor-
tionate to those of the private practitioner and have raised concern over
the quality of services provided.21 Many communities have no office at
all, and even where offices are available lawyers have been forced to turn
away numbers of potential clients simply because of a shortage of time. 1
C. The Western Pattern
We must end our survey at this point without proceeding to discuss
legal aid under socialist law. 13 Our survey has revealed the existence in the
West of a pattern of struggle towards the realization of the principle that
the state must affirmatively and effectively guarantee the right of all to
competent legal assistance, wherever and in whatever form it is needed.
It is against this principle that anachronistic features stand out in relief
and have been open to attack from critics throughout Europe and Amer-
ica. It is submitted that a major cause of the effectiveness of these criticisms
as a spur to reform has been their ability to reveal that however vague and
indefinite a truly modern answer to the legal problems of the poor may
be, one can nevertheless identify concrete circumstances that are incom-
patible with it.

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

III. LEGAL ASSiSTANcE AND MODERN CONST1TUTIONALISM

One line of attack on the modern gap between rights proclaimed and
rights effectively guaranteed lies through the legislature. A second line
of attack, less used but potentially very fruitful, lies through the process
of constitutional adjudication. This process, as it has operated in America
for some time and has begun to operate in large parts of Europe, "posi-
tivizes" certain fundamental rights by reducing them to written laws with
force superior to ordinary statutes and assures their observance by judicial
review.21 An increasing number of nations taking this approach have
accorded constitutional status to a right to some form of legal aid 1 Again,
a great obstacle to closing the gap between principle and practice has been
the indefiniteness of what this modern right operationally requires. In
addition, this constitutional approach faces the difficulties of any judicial
attempt to remold functioning institutions. As we shall see, these obstacles
have been partly, but not wholly, overcome.
A. The Tools for the ConstitutionalTask
Our review should begin by noting what might be called a modern
nation's basic tools for judicially guaranteeing a right to legal aid. Two
basic pieces of equipment, of course, are a written constitution and a
judicial system entrusted with the power to preserve it. England lacks both
of these tools, and France, to a great extent, lacks the second. This does
not mean, however, that there can be no constitutional pressure for imple-
menting the right to legal aid in these two countries.
The flexible and unwritten British constitution operates by rendering
some judicial and parliamentary actions far more difficult than others; in
particular, it would be constitutionally offensive and hence very difficult
for Parliament to deny those rights that are believed basic to a fair trial.
These rights are naturally imprecise, but are expressed, to a greater or lesser
extent, in the concept of "natural justice" that has been articulated by
British courts. 16 Whatever else is meant by natural justice, it has been
consistently interpreted to include the principle of audi alteram partem21T
which encompasses the equality of the parties before the court and the
right of each party to be heard." To be sure, these judicial standards of
214. M. CAPPELLETTI, JIDICIAL REvrEw T'HE CONTEMPORARY VoRa.D ix-xii (1972); Cap-
pelletti, Judicial Review in Comparative Perspective, 58 CALIF. L. REv. r017, 1017-20 (2970).
215. See notes 224-36 infra and accompanying text.
216. The doctrine of natural justice has been said to "perform a function, within a limited field,
similar to the concept of procedural due process as it exists in the United States, a concept in which
[it] liefs] embedded." S. DE SMIH, JUDICIAL RE iEW OF ADMINISTRArIVE ACTION 135 (2d ed.
I968). Unlike the American concept of due process, however, its principal use isnot to restrain the
legislature but to review the procedure of administrative courts.
217. See id. at 161-67; J. MITCHELL, CONSTITUTIONAL LAW 295 (2d ed. 1968).
218. See S. DR SanT, supra note 216, at 179-202; S. C.AxRAvERTz, NATURAL JUSTICE OR FUN-
DAMVSENTAL PRINCIPLES OF JUDICIAL PROCEDURE 201-50 (2d ed. 1967).
January 19721G LEGAL AdID

natural justice are not part of constitutional interpretation as it is known

in other countries, they are not binding on Parliament in any sense, and,
even at that, they have not been construed to include a right to legal aid.
They are merely an indication that the flexible British constitution places
a value on the equal right of parties to be heard, a value that may affect
the way Parliament deals with legal aid.
In France, on the other hand, there is a written constitution but little
judicial machinery for ensuring its observance. 1 Perhaps the closest equiv-
alent to judicial review, as it is known in other countries, is the power of
the Conseil d'Etat to review administrative decrees for conformity with
the constitution and with "general principles of law."2 Among these gen-
eral principles is a droit de ddfense, a right to defend oneself before the
court. However, it is not at all clear that this right entitles one to a
lawyer, still less that it encompasses legal aid.2 Moreover, despite the
use of such general principles to overturn administrative decrees, it is ex-
tremely doubtful that they can be invoked to overturn a statute. 23 Ac-
cordingly, respect for such general principles may affect the legislature
and the executive when they deal with matters such as legal aid that have
a close connection with the ability of parties to defend themselves. But in
France, as in England, the absence of the basic tools of modern constitu-
tionalism has prevented the "positivizing" of fundamental rights into legal
standards to be clarified and enforced by judicial decision.
In countries that possess both a written constitution and an effective sys-
tem of judicial review, another tool is obviously needed before problems
of legal aid can be judicially attacked: there must be authority in the con-
stitution for the protection of a right to aid. The most general source of
authority is an overall guarantee of a fair hearing, a right to be heard, or
equality before the law. From such sources alone a right to some forms
of legal aid has been found to exist in Germany. The chief provision relied
upon to establish this right is the guarantee of equality before the law."'
Three additional provisions have been drawn upon to support this right:
219. M. CAPELLETrI, supranote 214, at 2-6, i6--9.
220. See Syndicat g~n&al des ing&iieurs-conseils, June 26, 1959 (Conseil d'Etat), [I959] D.
Jur. 541. See generally F. BATAu.Laa, La CONSEIL D'ETAT JUaE CONSTr"UTXoNNEL (3966).
221. See Tery, Conseil d'Etat, June 2o, 19z3, in Las GaaNs ARaRAs DE LA JulRspRuDENcE An-
zmnriATmsrva ii6, iz8 (4th ed. M. Long, P. Weil, & G. Braibant x965); Dame Veuve Trompler-
Gravier, Conseil d'Etat, May 5, 1944, in id. at 271, 272.
222. See generally Motulsky, Le droit naturel dans la pratique jurisprudentielle:Le respect des
droits de la difense en procedurecivile, in 2 MhLANGa5 aN L'HONNaUR DE PAUL RouBiaR 175 (196i).
223. On the one hand, in Syndicat des propri&aires de for~ts de canes-lieges d'AIg&'ie, Feb. 7,
1958 (Conseil d'Etat), in L'Actualit Juridique, Jurisprudence 130, 340 (3958), the Conseil upheld
an administrative action which violated "general principles" but was within an enabling statute. On
the other hand, in Lamotte, Feb. 17, 1950 (Conseil d'Etat), in LaS GRANns ArsafRs DE LA JURIS'RU-
DErNE AaMINIrsaTxvE, supra note 221, at 325, the Conseil upheld judicial review of administrative
action, a right considered part of these "general principles," despite the clearly contrary wording of a
statute.
224. GRuNDGEs aTz art. 3 (Ger.); Judgment of June 17, 1953, 2 BVerfG 336, 340-41.
 STANFORD LAW REVIEW [Vol. 24: Page 347

the guarantee that "everyone shall be entitled to a hearing in accordance

with the law";22 the right of recourse to the courts "should any person's
rights be violated by public authority";22 and the general statement that
the German Republic is "a democratic and social federal state." 2 Simi-
larly, in the United States, the right to some forms of legal assistance other
than the provision of counsel has been drawn from the general guarantees
of equal protection of the laws and due process of law. 28
In a number of countries, such broad guarantees have been read in
conjunction with more specific provisions in order to strengthen the right
to legal aid. Thus, again in the United States, the sixth amendment to
the federal Constitution, specifically guaranteeing the right to counsel in
criminal trials, has been interpreted to require that counsel be provided in
federal courts if the accused cannot afford a lawyer.2 The general four-
teenth amendment guarantee of due process of law extends this protection
to state courts.30 A similar use of the general in conjunction with the spe-
cific has been made in interpreting the European Convention on Human
Rights. While the Convention is not a national constitution, it is well
qualified to perform similar functions: it is binding law in several states
and of higher normative force than ordinary law in some of them, and it
is authoritatively interpreted by its own supranational court. 31 Under the
Convention a right to legal aid in criminal cases is specifically guaran-
teed. 22 Thus supported, the general protection of "a fair hearing" in civil
and criminal cases.. has been interpreted to require legal assistance even
in some civil proceedings. 3 Finally, the Italian Constitution specifically
requires that "poor persons shall, by appropriate institutions, be assured the
means to plead and to defend themselves before any judicial jurisdic-
225. GRUNDGESETZ art. 103, para. I (Ger.). See Judgment of Jan. 22, 2959, 9 BVerfG 124, 131-
32 (dicta).
226. GRUNDGESETz art. 2g, para. 4 (Ger.). Cf. Judgment of Jan. x2, i96o, io BVerfG 264, 268
(dicta).
227. GRUNDGSETz art. 20, para. I (Ger.). See Judgment of June 6, x967, 22 BVerfG 83, 86.
228. See notes 249 & 251 infra and accompanying texts.
229. Johnson v. Zerbst, 304 U.S. 458 (1938).
23o. Gideon v. Wainwright, 372 U.S. 335 (x963).
231. Apart from the Convention's international force, which is the same for all member states,
a number of these nations recognize the Convention as a source of domestic law. Its status as domestic
law varies from those states where it is superior to the Constitution-for example, the Netherlands-
to those where it has constitutional force-for example, Austria-to those where it has only the force
of ordinary law-for example, Germany and Italy.
232. EUROPEAN CONVENTION FOR THE PRoTI cNo oF HUMAN RIGHTS AND FUNDAMENTAL. FREEz-
DOMS, art. 6, para. 3(c).
233. Id. art. 6, para. I.
234. E.g., Application No. 2857/66 (X v. Federal Republic of Germany), May 22, i969, 29
COLLECTION OF DECISIONS OF THE EUROPEAN COMMISSION OF HUMAN RIGHTS 15, 26; Application No.
2804/66 (Giinther Struppat v. Federal Republic of Germany), July i6, 1968, 27 COLLECTION OF
DECISIONS OF THE EUROPEAN COMMISSION OF HUMAN RIGHTs 61, 73. Both decisions held that legal
aid must be provided in civil cases whenever it is necessary in order to place a party on a substantially
equal footing with his adversary. But cf., e.g., Application No. 3944/69 (X v. Federal Republic of
Germany), Mar. 26, 1970, 33 COLLECTION OF DECISIONS OF THE EURoPEAN CoMMISssION o Hum"
RIGHTS 5, 6-7.
January 1972]L LEGAL AID

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

protection clause of the fourteenth amendment applies to both civil and

criminal cases and has been used to attack less significant kinds of discrimi-
nation against the poor in criminal trials.2 " As a result, it is difficult to
see the restriction of the right to counsel to criminal trials as dictated by
the Constitution." 1 It is easier to explain the restriction by noting that
when the Court required counsel to be appointed in criminal cases, it could
rely on numerous state programs to perform this task. 42 On the contrary,
if the Court had extended this protection to civil cases, there would have
been no comprehensive or potentially comprehensive operational programs
that could have furnished a similar "bridge" to implementing the right 3
The absence of such programs to depend upon must be seen as a cause of
judicial caution.
Another type of dependence on existing legislation is shown by the
way the statutory program of legal aid may affect the constitutional status
of other barriers between the poor man and litigation, such as the rules
requiring the posting of security for court costs in Germany and Italy. In
Germany, where legal aid is available on a comparatively modern basis,
it has been held that such rules do not offend the broadly worded constitu-
tional guarantee of recourse to the courts,"' because legal aid is available
to take care of such difficulties. 4 In Italy, where a similar rule was held
to violate a very similar constitutional provision,4 the court rested its
decision explicitly on the delays of the Italian legal aid program in pro-
viding relief from costs. 47
C. The Forceof ConstitutionalDoctrine
It would be a great mistake, however, to assume that the dependence
of constitutional adjudication on existing statutory programs renders it
powerless to protect the right to legal aid. Most obviously, the constitu-
tional process has a very powerful role to play in consolidating and pre-
serving gains made through the legislature. Moreover, the constitutional
process can go beyond this passive task of preservation to the active work
of remolding an existing program and clarifying the right to aid.
Perhaps the best evidence that such an active task can be performed
240. E.g., Draper v. Washington, 372 U.S. 487 (I963); Griffin v. Illinois, 351 U.S. 12 (1956).
In both cases, failure to provide the indigent defendant with a free transcript for his appeal was held
a denial of equal protection.
241. See generally Note, The Right to Counsel in Civil Litigation, supra note 52; Note, The In-
digent's Right to Counsel in Civil Cases, supranote 52.
242. See Comment, supranote i9o, at 958-59.
243. There were, of course, in forma pauperis proceedings in numerous states, but they certainly
could not have borne the burden of securing counsel in all civil cases.
244. judgment of Jan. 12, x96o, io BVerfG 264.
245. Id. at 268.
246. judgment of Nov. 29, 396o, No. 67, io Rae. Uff. Corte Cost. 289, 5 Giur. Cost. 1195 (196o).
247. Id. at 294, 5 Giur. Cost at 32or.
January 1972] LEGAL AID

successfully is provided by the frequent advances that have been made in

the provision of legal aid as a result of constitutional decision. In the United
States, Gideon v. Wainwright' 8 furnished at least a degree of legal pro-
tection to many who had had none before and spurred the reform efforts
that produced the Criminal Justice Act. Other federal decisions have re-
quired that an indigent be provided with free transcripts of his trial for use
on appeal, and, in one instance, free psychiatric aid in presenting a defense
of insanity."" The right to free counsel itself has been extended to the
earliest encounters between the accused and the authorities. 50 Most re-
cently, the Supreme Court held that a state may not require indigent plain-
tiffs to pay fees to commence divorce proceedings. 5' The German Con-
stitutional Court has declared that the right to be provided with a lawyer
at state expense is not limited to criminal trials; it extends to civil pro-
ceedings, even to those in which the court has the duty to consider evidence
on its own motion.2 In Italy, while little has been done so far to make the
right to counsel effective for the poor man, rules demanding security for
costs as a condition of litigation and rules requiring payment of taxes be-
fore litigation of the merits of a tax claim have been held to be unconsti-
tutional. 52 Finally, the European Convention has been interpreted to pre-
serve the civil litigant's right to a lawyer whenever his claim or defense
raises a serious legal dispute, rather than a disagreement over the facts
alone.5 Thus an Austrian intermediate appeals procedure was held con-
trary to the Convention when the public prosecutor, but not the attorney
for the accused, was allowed to be present in court. 5"
These examples indicate that while the forces of constitutional change
move slowly, they may often have fruitful results. Naturally, not all re-
sults have been equally promising. Particularly unfortunate is the decision
of the German Constitutional Court that a legal aid recipient could be
248. 372 U.S. 335 (1963).
249. Griffin v. Illinois, 35r U.S. 12 (956) (free trial transcripts); Bush v. McCollum, 231 F.
Supp. 56o (N.D. Tex. 1964), aff'd, 344 F.2d 672 (5th Cir. 2965) (free psychiatric aid).
250. Miranda v. Arizona, 384 U.S. 436 (I966).
251. Boddie v. Connecticut, 401 U.S. 371 (1971).
252. Judgment of June x8, 1957, 7 BVerfG 54.
253. Judgment of Mar. 31, x961, No. 21, 11 Rac. Uff. Corte Cost. 191, 6 Giur. Cost. 138 (1962)
(rule of solve et repete in tax cases held unconstitutional); judgment of Nov. 29, ig6o, No. 67, i0
Rac. Uff. Corte Cost. 289, 5 Giur. Cost. 1195 (196o) (requirement of posting bond for court costs
held unconstitutional).
254. Application No. I013/61 (X & Y v. Federal Republic of Germany), Mar. 1o, 1962, 5
Y.AnvooK or Tim EsmoraFs CONVENTION oN Hmit, ARIGHTS 158 (1963) (holding that it is not a
violation of the right to a fair hearing to prohibit representation in cases before German labor courts
so long as no serious legal disputes are involved).
255. Application No. 596/59 (Pataki v. Austria), Aug. 3o, 1959, & Application No. 789/6o
(Dunshirn v. Austria), July I, x96o, Decision of the Committee of Ministers, Sept. 16, 1963, 6 YAR-
BooK oF THE EURoPEAN CoNvErrboN ON HUmAN RIGHTS 714 (x965). Of course, all these cases under
the Convention concern the right to counsel rather than to legal aid. However, since the Convention
provides for a right to legal aid, one implication of the decisions is that such a right may extend
to the proceedings in question. See notes 232-34 supra and accompanying text.
 STANFORD LAW REVIEW [Vol. "4: Page347

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.