Legal aid's logics

• Date: 01 September 2008
• Published date: 01 September 2008
• Pages: 177-201
• DOI: https://doi.org/10.1016/S1059-4337(08)45005-6
• Author: Grace Park,Randy Lippert

LEGAL AID’S LOGICS

Grace Park and Randy Lippert

ABSTRACT

In the Canadian province of Ontario government-funded legal aid

underwent significant change in the 1990s in ways that mirror the

trajectory of other governmental programs typically referred to in the

governmentality literature as a shift to neo-liberalism. Through an

analysis of interviews with lawyers and programmatic texts closely linked

to legal aid practices this chapter reveals that legal aid is shaped by

neo-liberal and pastoral rationalities. The implications of these findings

both for legal aid research and governmentality studies are discussed.

INTRODUCTION

In the 1990s the Canadian province of Ontario experienced dramatic

changes in government-funded legal aid. The program underwent reduc-

tions in funding coupled with the creation of an arms-length body – Legal

Aid Ontario (LAO) – to oversee its delivery. Drastically reducing state

expenditures while establishing a new quasi-public organization that

promises to govern legal aid’s remnants ‘‘at a distance’’ (Rose & Miller,

1992) from the state seems to especially befit the new arrangements of rule

evident across policy domains. Such mutations seem to mirror the trajectory

of myriad governmental programs examined by governmentality scholars in

Studies in Law, Politics, and Society, Volume 45, 177–201

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ISSN: 1059-4337/doi:10.1016/S1059-4337(08)45005-6

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recent years typically represented as reflecting the welfare state’s end and

neo-liberalism’s arrival.

This chapter examines legal aid in Ontario with close attention paid to the

governmental logics (or governmentalities) that constitute and shape it and

whether these rationalities of rule defy neat categorization as neo-liberalism.

Our key interest here is to discern whether and how certain governmen-

talities make LAO possible. To this end, we consider the rise of neo-

liberalism first by briefly discussing legal aid’s development in Ontario and

then by exploring its contemporary presence in legal aid. We argue that

legal aid is shaped by neo-liberalism but also pastoral rationality, and that

an assumed wholesale shift to the former inevitably obscures legal aid’s

complexities. In this configuration, legal aid and its key target, the legal

subject, is seen to be constituted in complex ways that include targeting

lawyers’ subjectivity as a site of overlap between these rationalities.

Especially in revealing pastoral rationality’s presence, these findings have

significant ramifications for understanding contemporary legal aid and for

governmentality studies.

GOVERNMENTALITY STUDIES

In the Foucaultian-inspired governmentality literature, programs are seen

to address the myriad problems of government (Dean, 1999, p. 16).

Programs attempt to ‘‘make the objects of government thinkable in such

a way that their ills appear susceptible to diagnosis, prescription and cure

by calculating and normalizing intervention’’ (Rose & Miller, 1992,

p. 182). Governmentalities come to be translated into programs. Widely

discussed in this growing body of empirical work is a shift from liberal

welfare rationality – typically understood as welfare state arrangements –

to neo-liberalism in various domains (see Dean, 1999;Rose, 1999). Neo-

liberalism – sometimes called ‘‘advanced liberalism’’ in governmentality

studies (see Rose, 1999) – refers to a broad set of changes that contrast with

liberal welfarism at the level of moralities and language (Rose & Miller,

1992, p. 198) and which is introduced with new governmental technologies.

Programs consistent with neo- (or advanced) liberalism are exemplified

by strategies to create markets or to ‘‘marketize’’ existing relations of

rule (Dean, 1999) as well as through a new reliance on audits (Rose,

1999). Particularly pertinent to legal aid are related attempts to govern

domains through individual choice, entrepreneurship, and partnership

GRACE PARK AND RANDY LIPPERT178