Acting on Justiciable Problems in a Welfare State Context: Does Income Matter?

Equal access to justice is widely seen as a core component of good governance and the rule of law (Organization for Economic Co-operation and Development [OECD], 2019). Previous studies have documented the unequal distribution of access to civil justice along lines of class, intersecting with other social categories such as race and gender (e.g., Albiston & Sandefur, 2013; Currie, 2009; Daniels & Martin, 2009; McKeever et al., 2018; Mulherin & Coumarelos, 2007; Reich et al., 2016; Rhode, 2003; Sandefur, 2008). A continuing concern in the access to justice literature is unequal access to lawyers or other forms of legal advice and assistance. The unequal distribution of financial resources and costs is seen as one of the mechanisms through which such inequalities emerge. However, studies on the relationship between income and the use of legal assistance have yielded mixed results. While some studies suggest that there is no relationship between income and the use of lawyers or legal assistance (Kritzer, 2008), others conclude that there is, depending on whether subsidized legal aid or alternative payment mechanisms are available (Pleasence & Balmer, 2014). We seek to contribute to this discussion by relating the literature on (unequal) access to justice to studies on welfare state reform and retrenchment. In doing so, we highlight the role of welfare states in facilitating access to justice regardless of income and critically examine the effects of welfare state reform and retrenchment on the middle class in particular. While legal aid has generally not received explicit consideration in welfare state studies, its establishment has arguably been crucial to the development of welfare states, as it underlies the enforcement of other social rights (Sommerlad, 2004). Consequently, the shift from universal legal aid towards more limited provisions combined with a larger role for market and other non-state actors, which has been identified in the Netherlands as well as in other European countries (e.g., Hammerslev & Rønning, 2018; Kilian, 2003; Organ & Sigafoos, 2018; Regan, 2003), is potentially concerning. Limiting access to legal aid not only affects whether individuals are able to claim their rights on a particular issue but is also both a sign and a cause of a broader societal transformation from collective safety net provisions to the individualization of rights and responsibilities. Our research is situated in the context of the Dutch welfare state, where access to legal assistance and, in particular, to subsidized legal aid, is a recurring topic of political and public debate. Although low-income groups are entitled to subsidized legal aid and additionally have access to free and low-threshold legal information and advice from Legal Services Counters, critics argue that budget cuts threaten to erode the civil rights of poor and vulnerable citizens (Jeltes, 2019; Veraart, 2019). Furthermore, income limits on subsidized legal aid exclude the middle class, a group that occupies an increasingly precarious position in the labor market (Engbersen et al., 2017; Salverda, 2016). As a result, a large section of society is dependent on the private market, where legal aid is likely to be more expensive and (in the case of insurancebased schemes) may not cover all areas of law (Barendrecht et al., 2014; Scholte et al., 2017). In this paper, we assess the implications of these developments by looking at the combined role of income and access to non-state legal resources in the use of legal advice in general and in the consultation of different types of legal advisors that are part of the Dutch subsidized legal aid system.