Balancing the Scales of Justice

I just became the president of the board of directors of our county’s legal aid corporation.
I’ll try not to let the power go to my head. The legal aid corporation has two attorneys and their staff who provide legal services to the poor in non-criminal, non-profit generating cases. These days the bulk of their efforts seem to be in CHINS type proceedings (Children in Need of Services — parental termination type cases). They also do a fair number of divorces and a handful of whatever else walks in the door, including landlord/tenant disputes, contract disputes, etc.

For me, it once again raises the question of the purpose of donating or subsidizing legal services to the poor. Not just as a matter of my own intellectual curiosity, but also as a way of pitching the organization to potential donors. Tippecanoe County Legal Aid gets a substantial portion of its funding from United Way, but also from direct donations and through its fund raising events (the golf outing being nearest and dearest to my heart).

There is the basic fairness reason, of course. Everybody should have a lawyer. Some folks can’t afford it. Therefore, we should help pay for them to have one. This is enough for your basic do-gooder. But what about those for whom pure altruism isn’t reason enough? That’s when I start thinking about the fundamentals of our legal system itself.

I think it was an Alvin Toffler book where I read law described as “potential violence.” If you don’t abide by the law, ultimately, guys with guns will come and force compliance; either on behalf of the state, in criminal cases or on behalf of other citizens in civil cases. Part of the social contract is that we have all handed our right to do violence over to the State in return for its protection and the expectation that the State will, if necessary, do violence on our behalf to protect our rights. Part of the reason we agree to this bargain is because the alternative is a Hobbesian state of nature where our lives are solitary, poor, nasty, brutish, and short. In such a state, the only property you could truly call yours would be only so much as you could hold by force against the force of others.

“That’s great, Doug, but what about the poor people?” Glad you asked. Part of the trick of our legal system is the fact that, by and large, Government use of violence is needed only rarely. Most people go along with the system without the need for actual force. If the Government had to force compliance with every order, the system would collapse. Most people go along with the system because at some level, even if they lose their particular case, they believe it is more or less fair. That belief unravels if the poor are systematically unable to afford lawyers and simply get steamrolled by the system. This is particularly true in cases involving huge issues to the person’s life such as termination of their parental rights. A judgment for money that can never be collected in any case is one thing; taking away a person’s kids is quite another.

If too many people become alienated from the system, the system starts unraveling. More and more, people reconsider using violence on their own behalf. We start slipping back toward the Hobbesian state of nature.

So, aside from altruism, it’s in all of our best interests to make sure as many people as possible believe in the notion of the basic fairness of our legal system. And, as much as people grumble about it, you’ll notice that most folks will give the legal system a whirl rather than take matters into their own hands when they are unable to resolve the matter through some sort of private agreement. We don’t want that to change.