Equality before the law and the social contract: when will the United States finally guarantee its people the equality before the law the social contract demands?

• Author: Johnson, Earl, Jr.
• Position: 2008 ABA Section of Litigation Access to Justice Symposium

Introduction I. Equality Before the Law as a Precept of the Social Contract II. Constitutional Enforcement of Equality Before the Law III. What the Foreign Experience Suggests About Defining the Scope of a "Right to Equal Justice" in Civil Cases IV. What Foreign Experience Suggests About the Design of a System Implementing a Right to Equal Justice A. Eligibility Criteria B. Program Governance and Administrative Arrangements C. Delivery Systems V. Drafting a Generic State Statute Implementing a Right to Equal Justice Which Draws on Foreign Laws and Experiences VI. What Foreign--and Domestic--Experience Suggest About the Cost of Implementing a Right to Equal Justice A. Comparative Expenditures on Civil Legal Aid B. Expenditures on Civil Legal Aid Compared with Other Public Expenditures Benefiting the Poor VII. If and When and Why It Hasn't Happened Already Appendix INTRODUCTION

My assignment in this symposium's dialogue about the potential of a right to counsel in civil cases in the United States is to supply a foreign perspective--to suggest what, if anything, the United States might have to learn from what has happened abroad as to this right. In one sense, it would be possible to merely provide a brief overview in a single sentence, and end the article. That sentence would read: Most European and several countries elsewhere in the worm have recognized a right to counsel in many or most civil cases for as long as decades or even centuries--and many of those countries are willing to spend, proportionately, anywhere from three to twelve times as much of their national income as the U.S. currently does on the provision of counsel to their lower income populations in civil cases.

But while that sentence might be an adequate headline and for some readers perhaps a big surprise, it fails to supply the essential details that make the foreign experience so important in the United States. It does not suggest why American courts should pay attention to what has happened in constitutional law abroad. It also does not explain why American legislators should care about how their foreign compatriots have structured the right in their countries or the problems they face and how they have tried to address those problems. Finally, it does not suggest what an equal rights statute might look like if legislators tried to apply those lessons in the context of U.S. civil litigation.

I have been writing about foreign legal aid programs for over three decades, starting with a collaboration with Professors Mauro Cappelletti and James Gordley on the first book-length comparative study of civil legal aid as it evolved in Europe and North America. (1) Over the years, I have written another half dozen articles on the subject. (2) Thus, I don't approach this subject with a clean slate, and not everything in this Article will be brand new. Rather, what follows gathers together themes and information from prior writings and updates. In some instances, it amplifies both the information and the themes, then applies some of the lessons of the foreign experiences to the design of a draft statute that implements a right to equal justice, and therefore a right to counsel when one is needed to satisfy that guarantee.

This Article begins with a discussion of the theoretical underpinnings of a right to equality before the law in civil cases, and how that theory found its way into statutes and constitutional provisions in both Europe and the United States. This is followed by an examination of how courts on the two continents and elsewhere in the world have interpreted the constitutional provisions that emanated from this theory and why those decisions are relevant to courts in the United States. The Article then describes how nations that have the right as a matter of statutory or constitutional law have implemented it. This leads to discussion of a draft generic state statute that would apply some of the lessons learned from the foreign experience to the American context. Finally, the Article will consider the likelihood that American jurisdictions will adopt the right and make the level of financial commitment that so many other nations already have made.

1. EQUALITY BEFORE THE LAW AS A PRECEPT OF THE SOCIAL CONTRACT

   In an article I wrote a few years ago, I argued that the right to counsel found in most European countries finds its basis in the social contract theory that emerged on that continent during the seventeenth and eighteenth centuries. (3) This remains the beginning point for this Article too: because social contract theory was so influential among the principal founders of the United States, it provides the foundation for the position that U.S. jurisdictions have reason to find the European experience persuasive when considering the prospect of a statutory and especially constitutional right to counsel in civil cases. Consequently, a shortened version of that earlier article seems in order.

   As that earlier article pointed out, most European nations were ruled for centuries by kings and emperors, absolute monarchs many of whom claimed the source of their power descended from God, and consequently they possessed a divine right to govern the lesser mortals who populated their countries. (4) But then a group of brilliant political philosophers began to write about a brand new vision--what they called the social contract. (5) As men like Jean-Jacques Rousseau, Thomas Hobbes, and John Locke explained, a government's right to govern did not descend from God in heaven, but from the consent of the governed right here on earth. These philosophers argued that individual citizens surrendered their rights, including their right to settle disputes through the use of force, only in exchange for a sovereign's promise to provide all of those citizens justice, peace, and the possibility of a better life. (6) This fundamental notion came to be called the "social contract"--an agreement among a nation's individual citizens and between those citizens and that nation's government. (7)

   One of the essential terms of that social contract is the guarantee of "equality before the law"--the principle or "precept" that citizens from different economic classes will stand equal in the courts or other forums the government provides for resolving disputes. (8) It is based on the notion that individuals would not give up their natural right to settle disputes through force unless the sovereign offered a peaceful alternative in which they have a fair chance to prevail if in the right, no matter whether they are rich, poor, or something in between. (9) Society, in turn, breaches this term of the social contract if its forums favor one class of citizens over those of another class--the rich over the poor, for example. Members of the disfavored class cannot be presumed to have agreed to submit to an unjust sovereign. Thus, the equal administration of justice among different economic classes is an essential underpinning of any society purportedly resting on the consent of the governed.

   "Equality before the law" would have remained only a theoretical right in Europe, as it still is in the United States, except that during the nineteenth century, nation after nation on the European continent recognized that there was only one way to guarantee the parity among economic classes and adopted statutory rights to counsel in civil as well as criminal cases. France enacted a statutory civil right to counsel in 1851, (0 Italy embodied that right in its procedural laws at the moment of its birth as a nation in 1865, (11) and Germany enacted a right to civil counsel when it became a nation in 1877. (12) The rest of Europe was not far behind. By the end of the nineteenth century or early in the twentieth century, most European nations had created statutory rights to counsel in civil cases. (13)

   At the time they were first enacted, these statutory rights to counsel were virtually costless to the governments creating them. That was because they conscripted private lawyers to represent indigent litigants, requiring them to serve without compensation in return for the privilege of practicing law and earning fees from those clients who could afford to pay. (This was the system commonly used in the United States, too, but only in criminal cases. In those jurisdictions where criminal defendants had statutory or constitutional rights to counsel, the lawyers fulfilling those rights even in federal courts were expected to serve without compensation. (14)) In most European countries, it was well into the twentieth century before governments began paying for the right they had created, and some still do not. (15)

   This social contract's basic precept of equality before the law found its way into the constitutions or basic laws of several European nations. These provisions guaranteed that all citizens were "equal before the law" or in all judicial proceedings had a right to a "fair trial." (16) Social contract theorists, especially John Locke, also influenced those men who were responsible for America's founding documents. Thomas Jefferson ranked Locke as one of the three greatest thinkers in history (17) and as one noted historian observed, "Locke was an intellectual godparent of James Madison, the 'Father of the Constitution."' (18) Thus, it is no surprise that the Preamble to the U.S. Constitution sets forth "To Establish Justice" as one of the nation's four primary goals, (19) nor is it surprising, given the importance of the social contract, that the Bill of Rights guarantees all U.S. citizens "due process" in any judicial proceedings where their "life, liberty, or property" is at stake. (20) And, after the Civil War, the United States also added the analog of the "equality before the law" guarantee that many European countries had already adopted--that is, "equal protection of the laws." As the Supreme Court explained long ago:

   The Fourteenth Amendment, in declaring that no State...