Legal knowledge and capability
As already discussed, legal problems are common, everyday occurrences faced by people from all walks of life. The following sections describe what people do about their legal problems and what determines whether they achieve effective resolution.
Felstiner, Abel and Sarat’s (1981) influential model of disputing behaviour proposes a few prerequisites before an individual will take action to try to resolve a legal problem. The individual must first recognise the situation as problematic (naming), must then attribute fault or responsibility to someone else (blaming) and must also be aware of a potential legal remedy and be prepared to seek such a remedy despite any perceived risks or negative consequences in doing so (claiming). Thus, the model implies that some legal awareness or legal knowledge is a prerequisite before an individual will attempt to resolve a legal problem. The model additionally implies that while some legal knowledge is necessary, it is not sufficient for action to occur. A myriad of factors may constrain or prevent action. Constraining factors may include shortcomings within the legal system that hinder access to legal information, advice or redress. Furthermore, constraining factors may include various personal characteristics or circumstances, such as social, economic and psychological factors.
There has been increasing interest in the personal characteristics or competencies necessary for an individual to resolve legal problems effectively — that is, in ‘legal capability’. It has been argued that some people lack the capability to solve legal problems alone and may require broader non-legal support in addition to legal assistance in order to achieve legal resolution (Coumarelos et al. 2006; Forell et al. 2005; Genn & Paterson 2001; Mulherin & Coumarelos 2007; Pleasence 2006). The interest in legal capability predates Felstiner et al.’s (1981) model. Galanter (1976) argued that a person’s lack of capability poses the most fundamental barrier to accessing justice. Several authors have delineated the types of competencies that constitute legal capability. These competencies tend to fall into three areas: knowledge, skills and psychological readiness (cf. Jones 2010).(24)
First, basic legal knowledge is proposed to be an essential component of legal capability. Individuals require a basic awareness of the role of the law in everyday solutions. They must have the rudimentary legal knowledge to recognise that their rights or entitlements may have been violated or that they may have a grievance or claim. They must also have sufficient knowledge to realise that there are potential legal solutions, to know when further information or assistance may be necessary and to know where to begin to obtain such assistance (cf. Felstiner et al. 1981; Galanter 1976; Genn & Paterson 2001; Jones 2010; Kirby 2011).
Second, beyond legal knowledge, people must have the necessary skills to pursue legal resolution effectively. At the most elementary level, they must have adequate literacy, language, communication and information-processing skills (Genn & Paterson 2001; Jones 2010; Kirby 2011; Nheu & McDonald 2010). Literacy, in particular, is seen as a vital capacity, without which understanding and invoking one’s legal rights can be very limited (see Maddox 2008; Nussbaum 2000; Sen 2003). In addition, people must have ‘functional literacy’ — that is, the information-processing skills required to locate, understand and act on information or advice in a problem-solving or goal-oriented way (see Nheu & McDonald 2010). More specific skills may also at times be needed, such as the ability to make decisions, keep track of calls and correspondence or manage claims competently (Galanter 1976; Jones 2010).
Third, legal capability requires the psychological readiness to act and persevere until legal resolution is achieved. For example, individuals must have attitudes such as confidence and determination, as well as emotional or psychic fortitude, to see problems through to satisfactory conclusions (Galanter 1976; Genn & Paterson 2001; Jones 2010).
As a step towards understanding and measuring legal capability, legal needs surveys have attempted to quantify the level of legal knowledge in the community by assessing respondents’ legal awareness. Typically, the findings have indicated large gaps in the legal knowledge of the general public or of certain demographic groups. The US surveys consistently showed low levels of awareness of various aspects of the justice system among their disadvantaged respondents. Roughly one-fifth to one-half of respondents were aware of free legal services, and approximately one-tenth to one-half were aware of lawyer referral services (ABA 1994; LSC 2007, 2009). A number of US surveys also reported that many respondents did not realise they were eligible for free legal aid (36–80%; ABA 1994; LSC 2007, 2009). In Australia, the earlier survey by Cass and Sackville (1975) found widespread ignorance and confusion about eligibility for public legal services in the disadvantaged areas surveyed.
Gaps in legal knowledge have also been revealed by general population surveys. Fishwick (1992) found significant gaps in the general public’s understanding of the law and legal services in NSW. In New Zealand, there was high awareness of legal aid (85%), but less awareness of community law centres (48%; Ignite Research 2006). In Japan, only 53 per cent of respondents with a legal problem were aware that the problem had a legal component (Murayama 2007). In Hong Kong, while there was high awareness of legal aid (81–85%), there was less awareness of arbitration and mediation services (50–51%; HKDOJ 2008). In the UK, around two-thirds of respondents who experienced a legal problem were unaware of their legal rights in relation to the problem, and a similar proportion were unaware of the formal legal processes available to deal with their problem (Balmer et al. 2010).
Legal capability and disadvantage
Qualitative and quantitative studies focusing on the legal needs of specific disadvantaged groups have demonstrated low levels of legal capability within these groups, including homeless people, people with a mental illness, prisoners, people with debt problems, marginalised youth and vulnerable workers (Buck, Tam & Fisher 2007; Casebourne, Regan, Neathey & Tuohy 2006; Day, Collard & Hay 2008; Forell et al. 2005; Grunseit, Forell & McCarron 2008; Karras, McCarron, Gray & Ardasinski 2006; Parle 2009). These studies have typically found poor knowledge within these disadvantaged groups about legal rights, legal remedies and the justice system. They have also identified a lack of the skills and psychological readiness required to achieve legal resolution. They revealed poor literacy, language or communication skills; feelings of despair, hopelessness or being overwhelmed; feelings of being unworthy or undeserving of justice; feelings of being afraid, intimidated by or distrustful of the legal system; more pressing basic needs (e.g. accommodation, food or financial needs); and ignoring problems until they reach crisis point.
Using CSJS data, the recent study by Balmer et al. (2010) provided quantitative evidence that disadvantaged groups have lower levels of legal knowledge than other sections of the community. In particular, low income, low levels of education, disability, mental illness and living in rented housing were all linked with less knowledge about legal rights and processes.
Poor literacy within disadvantaged groups is well established in the broader literature. For example, the 2006 Adult Literacy and Life Skills Survey found low literacy levels for a general population sample in Australia, with even lower levels for disadvantaged groups (ABS 2008a). Almost half of the sample scored below the minimum literacy and numeracy standards necessary to meet the demands of everyday life, and around 70 per cent lacked the skills needed to solve non-routine problems. In addition, literacy levels were lower than average for younger and older people, the unemployed, people whose first language was not English, low-income earners and people with low education levels. These findings are in keeping with a recent qualitative study on law reform processes. This study concluded that disadvantaged groups have poor functional literacy — that is, low ability for using information in a goal-oriented way to solve problems (see Nheu & McDonald 2010).
24. The notion of ‘legal capability’ is consistent with Sen’s landmark ‘capabilities’ approach, which applies more broadly to all areas of human development and welfare (Nussbaum 2000, 2011; Sen 1999, 2010).