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Abstract
The legal aid movement started from the notion of social action. Today, legal aid constitutes a highly commodified field that continues to be dominated by jurists and lawyers. For this reason, the kind of critical reflection that already exists in social work is also required in relation to the notion of legal aid as envisaged by the legal aid movement. Justiciable problems necessarily manifest themselves in a social context. An evolving community, faced with increasingly complex issues, demands a multidisciplinary approach, as it becomes clear that the traditionally deterministic view of professions ought to be abandoned. A ‘socially responsible legal aid system’ therefore presupposes that various disciplines should mutually influence one another. Hence, the jurist and the social worker should not only work side by side, but they should also collaborate and mutually enhance one another's activities and approaches. There is a need for an overarching holistic approach that can reassert the legitimacy of legal aid. Looking at legal aid services in Belgium, one may conclude that a critical reflexive attitude on the part of current legal aid providers is crucial for attaining an effective socially responsible legal aid practice that stretches across the boundaries of different professional groups.
Notes
1 In this article the word ‘jurists’ refers to a person who attained a law degree. The term ‘lawyer’ refers to private practitioners.
2 The existence of social counsellors, socio-legal advisers whose origins lie in social work, is indicative of the connection between the two fields. As their professional designation suggests, socio-legal service providers specialise in social and legal advice and information, assistance and client support. It is a specific professional group that does not occupy a clearly defined position within social work.
3 For details on the research approach see Genn Citation(1999) and Genn and Paterson Citation(2001).
4 With input from evidence-based practice (EBP). If the procedures suggested by EBP have been run without noticeable change or improvement, the individual tends to be identified as the cause; in other words, the client is held responsible for his or her own predicament. EBP thus becomes the answer to the question of what is the essence of social work, a justification for the spending of the budget and, at the same time, a legitimisation of its existence. It is a short-term answer, whereas social work is a long-term project and often invisible, due to the fact that the social identity of people who have lived in poverty for generations cannot be altered within a single generation.
5 On the connection between social work and legal aid, see among others Van der Lans Citation(2010), who demonstrates for the Netherlands that social work has got stuck in a therapeutic discourse focusing on the treatment of psychosocial complaints in the comfort of the consultation room while leaving material assistance to others, including legal experts of the bureau for legal aid and social counsellors.
6 All these factors contribute to the development of an individual into a social being.
7 The author does not specify who these jurists are precisely, but it is apparent from the context that he refers primarily to paralegals.
8 Hall Citation(2008) emphasises that evidence-based practice will contribute to the recognition of social work as a profession, which is questionable from the perspective of critical social work, as such an evolution may induce commodification, thereby reducing social work to a methodology.
9 A recent study (Halliday et al., Citation2009) found that social workers experienced cooperation with magistrates as a constant struggle for recognition and for the acceptance of their value systems in the judicial world. One possible explanation is that their training is perceived to be inferior to a training in law, which builds on a longer tradition, predating the emergence of the welfare state. This in turn results in a difference in terms of perceived status. Furthermore, there is a difference in premise between the two professions: one builds on the ethics of law, the other is founded on the ethics of care. Third, there is a difference in relation to knowledge-building and methodology. The question remains, though, whether this results in a difference in efficiency, or whether it is simply a matter of differences with regard to specialisation, type of service and cost (Moorhead et al., Citation2003).
10 Hence a study on professions should not only consist of critical analysis, but it should also aim to enhance mutual cooperation. It does not suffice to observe that professions exude power and authority, and to further emphasise this aspect in the respective training programmes. Monopolies need to be broken in order to promote a transition towards cooperation. It does not suffice either to observe that professions are culturally and professionally distinct, as, in a risk society with latent uncertainties, this should be acknowledged as a potentiality. Research into professions has a need not for generalising theories, but for qualitative studies into how professions work as a kind of antidote for the power approach in this academic field (Nolin, Citation2008). This, however, requires insight into power-based thought.
11 The social work curriculum includes various law courses, though its scope is of course much wider, as students must obviously also acquire other competences. Still, the law component encompasses all other facets of their profession. Social workers need to be aware of the regulations governing their profession. Moreover, it is not uncommon for them to end up in jobs involving certain legal competences and responsibilities, e.g. probation assistants, social workers with public welfare centres …. Their knowledge of the law also enables them, as intermediaries, to communicate more efficiently with the legal service providers of their clients. Moreover, it enables them to provide legal information and advice to their clients and, if need be, to intervene. In this sense, law in social work is uncharted territory in Belgium (see Gibens, Citation2013). The author refers to responsible law-based action within a social context. This requires a critical attitude vis-à-vis both the institutional framework in which social work functions and the internal relationship between social worker and client. Gibens calls this vertical and horizontal responsibility. Hence the legal frame of reference for social work is not always legitimate, and law-based resolution strategies are not always appropriate. At the same time, critical reflection on the role of law in social work opens up the prospect of social action and change. See also footnote 11 on the law-practice triangle proposed by Braye et al. Citation(2005) as a schematic representation of the application of the law in social work.
12 The SCIE has developed a Law-Practice Triangle, encompassing the rational–technical approach (i.e. “Doing Things Right”), the moral/ethical approach (i.e. “Doing Right Things”) and the structural or rights approach (i.e. “Rights Thinking”) (Braye et al., Citation2005).
13 Protecting the rights of some entails the imposition of obligations on others. The purely juridical approach to basic rights may create the impression that it concerns only individual rights. Raes and Coene Citation(2009) refer to the capabilities approach proposed by Nussbaum. Her philosophical reflections provide a foundation for empowering social work.
14 See also the definition formulated by the International Federation of Social Workers: “The profession of social work promotes social change, problem solving in human relationships and the empowerment and liberation of people to enhance their wellbeing by utilising theories pertaining to human behaviour and social systems. Principles of human rights and social justice are fundamental to social work”.
15 Scholte Citation(2010) describes the social worker as a generalist-specialist and a builder of bridges. Social work achieves more with less: early, moderate and targeted intervention where possible, and according to the principle of stepped care, cooperation with volunteers and low-professionalised occupations, as well as with the network of clients, and connecting of individual and collective interventions.
16 The legal professional relies on legal analysis, implying that he thinks merely in terms of what the law prescribes. In other words, the jurist identifies a problem as justiciable, subsequently analyses it, and then applies the relevant rules and legal interpretative methods. The legal professional or lawyer provides legal advice and counsel, represents the litigant and acts on behalf of the client as an individual faced with a specific legal issue.
17 The authors sketch the collaboration between social workers and jurists working as a team providing socio-legal aid to older people.
18 Excessive specialisation can result in neglect of the client's general context and hence in more abstract and less effective advice.
19 This author discusses collaboration between students of law and students of social work. They take courses together and subsequently perform practicals in the Chance at Childhood programme (CAC). Legal clinics often provide training in a specific area of the law.
20 Under the Charity Model, the organisation of legal aid was entrusted to lawyers. They were not remunerated and it was regarded as a duty of honour to provide assistance to the least wealthy in society.
21 The author calls this a “social work approach”.
22 Norway has a system of legal clinics with students performing intakes at prisons and in refugee centres. There is also a project called ‘Gatejuristen’ (‘the street lawyer’), which seeks out alcohol and drug users at places they frequent to consume their drugs, or to sleep or to get healthcare or other services.