Acting on justiciable problems in a welfare state context: Does income matter?

• Published date: 01 October 2022
• Author: Myrte Sophie Hoekstra,Marijke J. Ter Voert
• Date: 01 October 2022
• DOI: http://doi.org/10.1111/lapo.12199

ORIGINAL ARTICLE

Acting on justiciable problems in a welfare state

context: Does income matter?

Myrte Sophie Hoekstra

1

| Marijke J. Ter Voert

2

1

Research and Documentation Centre

(WODC), the Netherlands

2

Radboud Universiteit, Nijmegen,

the Netherlands

Correspondence

Myrte Sophie Hoekstra, Research and

Documentation Centre (WODC), P.O. Box

20301, 2500 EH, The Hague, the Netherlands.

Email: m.s.hoekstra@wodc.nl

Abstract

This paper discusses the effect of income on access to

justice in the context of the Dutch welfare state, which

offers subsidized legal aid to low-income households

and also has a well-established market for private legal

expenses insurance (LEI). We find that access to non-

state legal resources such as LEI is a key determinant

of the liklihood of seeking legal advice, particularly for

middle-income groups whose socioeconomic position is

increasingly precarious. The importance of non-state

legal resources for the middle class demonstrates the

cushioning effect of subsidized legal aid for low-income

households, but also raises questions about how to

safeguard access to justice for households other than

those with the lowest incomes.

1|INTRODUCTION

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 & San-

defur, 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 mecha-

nisms 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

We would like to thank our colleagues at the Research and Documentation Centre (WODC) and the anonymous reviewers of Law &

Policy for their helpful comments on an earlier draft of this article.

DOI: 10.1111/lapo.12199

©2022 University of Denver and Wiley Periodicals LLC.

Law & Policy. 2022;44:367–387. wileyonlinelibrary.com/journal/lapo 367

(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 jus-

tice 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 assis-

tance 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 insurance-

based 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. We focus on the following two research questions:

RQ1. Do income and access to non-state legal resources—in the form of legal

expense insurance and union membership—influence whether someone with a justi-

ciable problem seeks legal advice?

RQ2. Does this relationship vary between different types of legal advisors?

This paper is structured as follows: We first review research on access to justice and

income inequality in different national contexts and relate this to studies of legal aid in the

context of welfare state reform. Next, we introduce the institutional context of the Dutch

welfare state. Our data are derived from two waves of the Dutch Paths to Justice Surveys,

which span the period 2004–2014 and include detailed characteristics of respondents, their

justiciable problems, and their problem-solving strategies. Using logistic regression analysis,

we model the likelihood of seeking legal advice given the existence of a justiciable problem

and consider, in particular, the roles played by income and access to non-state legal

resources. In addition, we ask which characteristics predict recourse to two prominent types

of legal advisors: lawyers and Legal Services Counters. In conclusion, we discuss the implica-

tions of our findings for debates on welfare state reform and access to justice in the

Netherlands and other liberal welfare states.

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