Plenet on legal capability - discussion

Since publishing a legal capability discussion paper Capability Paper (220 KB) at the end of 2009 we have had some interesting and helpful feedback, although it has all been made directly, rather than through the comment box at the bottom of the page. If you have comments, large or small, don't hesitate to add them using the box below.

Blame the victim?

The first and most serious comment has come from two colleagues who separately expressed concerns that the notion of legal capability appears to shift responsibility for dealing with law-related problems to the individual. They felt that the capability approach seems to put responsibility for dealing with the problem on to the individual instead of addressing failures in the justice system or maladministration in government or commerce. Is legal capability just a sophisticated version of blaming the victim?

This is emphatically not the case. The capability approach focuses on the individual for a good reason - because capability provides the best measure of the freedoms and opportunities individuals have in dealing with law related issues. It helps us identify the specific problems that people have in achieving justice – in order that we can do something about it.

Amartya Sen, the Nobel Prize winning economist, developed the capability approach in order to provide a more effective measure of what we mean by a just society. He argues that individuals' capability tells us more about justice in society than economic indicators like GDP or the extent to which we have perfectly just institutions. In measuring access to justice what matters most are real people's actual lives.

The base-line survey of financial capability undertaken by the Personal Finance Research Centre at University of Bristol for the Financial Services Authority provides a good example of how the capability approach can be used to pinpoint gaps and inform strategy.

The survey identified the clusters of people most at risk from a lack of capability and showed that within these groups, individuals could be capable in some areas but lacking in others. These insights were used to inform the FSA's work which sets out to address the gaps in capability which put people most at risk.

But what about external factors - the maladministration of housing benefit for example which causes such major problems for many disadvantaged people? Can the capability approach be used to do something about that?

We've tried to emphasise that legal capability isn't just about problem solving: it's also about active citizenship. We want to see individuals and communities being sufficiently confident to raise issues more publicly, forcing organisations to be more accountable and trying to achieve improvements through the political system.

Should Darren see a solicitor?

The paper included a couple of scenarios designed to explore what legal capabilities are needed to deal with specific situations. One scenario featured Darren who felt he was being discriminated against at work.

Feedback on this included the strongly held view that Darren should immediately see a lawyer. Darren's work problems could have a big impact on his life so he should err on the side of caution and get legal advice.

But how does he reach this conclusion?

He needs to recognise that the law can help him in his situation at work. He has to know where to go to get legal help, have the confidence to do so, and a belief that it will be worth it.

The key question for Darren, or anyone else, is how do they know when they need to get advice?

This is a crucial element of capability and something we've addressed throughout our discussion of legal capability.

'We want to support and encourage self-reliance but a key component of self-reliance is the ability to recognise when a problem is so complex and damaging that it can't be dealt with on a self-help basis and expert help is required.' (See page 8 of the paper.)

How do we ensure that people do get expert help on serious and damaging issues but don't overload advice services with minor problems? Can we provide general guidance on when to get help, or is this an issue that has to be dealt with on an issue by issue basis? This remains an important area of work for PLE and advice services.

Active citizenship

The discussion paper lacks detail on what it means to be an active citizen - reflecting our advice service background where the focus is on resolving individual problems rather than on the broader issue of citizenship.

Ruth Cohen and her colleagues at the Citizenship Foundation have been helpful in filling these gaps. She makes the important point that active citizenship implies an individual going beyond thinking about how the law can help them deal with their own problem to how the law can be used to help other people in the community. Active citizenship means taking that broader view and being prepared to take the initiative in local issues, getting involved in campaigns that may result in changes in the law. Typically these will include environmental and planning issues that can engage the energy and enthusiasm of all sections of the population - particularly young people. In a democracy citizens have the possibility of changing the law. PLE isn't just about using the law it is also about encouraging people to be involved in trying to improve or change it.

Trust in the law?

We also had a response that queried our suggestion that legally capable people should have confidence in the law. Do we really mean this - can we expect people to trust the law given they may have had very negative experiences? After all the law reflects power relations in society and doesn't always meet the needs of disadvantaged groups.

Anyone faced with a law-related issue needs to find out if the law can help them - and if it can't. They also need to have some faith that the system will work for them, that it is worth taking action. The widespread lack of awareness of civil law and scepticism about the legal system means that PLE has a role to play in raising awareness of rights and increasing confidence that the law can be used to achieve justice.

A two-step approach?

The paper argues for a two-step approach to legal capability.

It suggests that in normal everyday life most people aren't very interested the law but do require a basic foundation level of understanding, skills and confidence needed to deal with everyday issues and to prepare them to deal with any problems. If a law-related problem does occur they need to be able to quickly acquire knowledge and gain the higher level of capability needed to deal with that problem. The foundation level equips people to recognise law-related problems, know where to find out more and get help, and thus provides the basis of their response. The higher level of capability requires more specific knowledge but this will be acquired through just-in-time learning. (See page 8.)

No-one has responded to this hypothesis. It would be good to get feedback, particularly on the capabilities needed at the foundation level. What capabilities would we like the average school leaver to have? What should they be able to do?

Martin Jones
Plenet

What do you think ? Join the discussion via the comment box below.