Images of Welfare in Law and Society: The British Welfare State in Comparative

Perspective
Author(s): Daniel Wincott
Source: Journal of Law and Society , September 2011, Vol. 38, No. 3 (September 2011),
pp. 343-375
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 JOURNAL OF LAW AND SOCIETY
VOLUME 38, NUMBER 3, SEPTEMBER 2011
ISSN: 0263-323X, pp. 343-75

Images of Welfare in Law and Society: The British Welfare

State in Comparative Perspective

Daniel Wincott*

Designed by Beveridge and built by Attlee's post-war Labo

government, the welfare state was created during the 1940s. Brit
has been seen - in domestic debates and internationally - as a wo
first: the place where both the idea and the practice of the welfare s
were invented. I draw together comparative welfare state analysis wi
law and society scholarship (previously largely developed in isolat
from one another) - as well as using British political cartoons as a sou
- to develop a revisionist historical critique of this conventional wisd
First, the British welfare state has always been comparativ
parsimonious. Second, the idea of the welfare state seems to hav
origins outside the United Kingdom and this terminology was adopte
relatively late and with some ambivalence in public debate and schola
analysis. Third, a large body of socio-legal scholarship shows that rob
'welfare rights' were never embedded in the British 'welfare state'.

INTRODUCTION

In 1961 eminent social historian Asa Briggs wrote: 'The phrase "w
state" is of recent origins. It was first used to describe Labour Britain a
1945. From Britain the phrase made its way round the world.'1 This acc

* Cardiff Law School, Cardiff University, Law Building, Museum

Cardiff CF10 3 AX, Wales
This article is an updated and developed version of my inaugural lecture for the B
Law and Society Chair at Cardiff Law School. As an 'inaugural' statement, a gen
here is to encourage a stronger dialogue between socio-legal studies and comp
welfare state analysis, in the belief that each has valuable lessons to teach the oth
very grateful to my colleagues at Cardiff, members of the editorial board of the Jou
Law and Society, and particularly to Phil Thomas for many helpful discussions
themes considered here.

1 A. Briggs, 'The Welfare State in Historical Perspective (1961) 2 European J. of

Sociology 221.

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- one of the first systematic analyses of the concept and practice of the
welfare state - remains influential today. Viewed as an artifact of history,
Briggs' article captures something about the 'image' of the welfare state, of
how it was understood at the start of the 1960s. So, contemporary com
mentators and analysts imagined Britain as the original, exemplary, and pre
eminent welfare state, which was leading the world towards the New
Jerusalem. The welfare state also had something like a standard 'Genesis'
story, with Archbishop Temple often credited with the invention of the
phrase in the early 1940s.2 Looking back, the United Kingdom also seems to
have supplied the world with other key elements for welfare state theory,
particularly T.H. Marshall's concept of'social rights of citizenship'.3 Danish
Sociologist Gosta Esping-Andersen - the most influential current analyst of
the welfare state - argued as follows: 'Few can disagree with T.H.
Marshall's proposition that social citizenship constitutes the core idea of a
welfare state'.4 Esping-Andersen went on to propound the (now) standard
social and political theory that 'social rights' in the welfare state should have
'the legal and practical status of property rights' and be 'inviolable'.5
The idea of the British invention of the welfare state in 1945 was not
(only) an example of anglo-centric hubris: this notion has also shaped
general comparative analysis of the welfare state.6 So, for example, its
general historiography has come to be dominated by the idea of a (Golden)
Age of the welfare state.7

2 The key text is W. Temple, Citizen and Churchman (1941); the welfare state
reference is at p. 35. An example of the attribution of the concept to Temple is P.
Gregg, The Welfare State (1967) 3 4. For critical discussion, see P. Hennessy, Never
Again: Britain 1945-1951 (1992) 74, 121; A. Oakley, 'Introduction' in The Politics
of the Welfare State, eds. A. Oakley and S. Williams (1994) 1-17; C. Pierson,
Beyond the Welfare State (1991).
3 See T.H. Marshall, 'Citizenship and Social Class' in Citizenship and Social Class,
T.H. Marshall and T. Bottomore (1992/1950). For a sophisticated argument that
British social analysis has had a disproportionate influence on the conceptualization
of state welfare policies, see P. Flora and A. Heidenheimer, 'The Historical Core
and Changing Boundaries of the Welfare State' in The Development of Welfare
States in Europe and America, eds. P. Flora and A. Heidenheimer (1981) 17-36.
4 G. Esping-Andersen, The Three Worlds of Welfare Capitalism (1990) 21. As well as
being a heavily cited analysis of the welfare state, this monograph is one of the most
influential pieces of contemporary social analysis.
5 id.
6 For example, Janowitz argued that 'British experience can be taken as the prototype
of welfare institutions': M. Janowitz, Social Control of the Welfare State (1976) 32.
See Flora and Heidenheimer op. cit., n. 3 for a critical discussion of these ideas.
7 Christopher Pierson provides an unusually clear discussion of this periodization (op.
cit. n. 2). Sophisticated examples of its use in the context of law and society
scholarship include T. Goriely, 'Rushcliffe Fifty Years On: The Changing Role of
Civil Legal Aid within the Welfare State' (1994) 21 J. of Law and Society 545; also J.
Tweedy and A. Hunt, 'The Future of the Welfare State and Social Rights: Reflections
on Flabermas' (1994) 21 J. of Law and Society 288. The periodization also shapes A.
Gamble, 'Privatization, Thatcherism and the British State' (1989) 16 J. of Law and

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 Conventional wisdom8 has it that this age began in 1945 :y a date with
which to conjure in British history, marked by the election of Clement
Attlee's Labour government, which is widely credited with the construction
of the welfare state. It is, however, much less clear that the immediate
postwar years were the critical genetic moment for the welfare state in other
countries.10
Things looked rather different thirty-odd years later: by 1978, Alan Wolfe
could see only trouble for the welfare state.1' And because sociology was -
or had been - 'a child of the welfare state', this trouble had deep implica

Society 1 as well as the other contributions to that special issue. The 'Golden Age'
phrase is used by, among others, I. Gough, The Political Economy of the Welfare
State (1979); P. Taylor-Gooby, 'The Silver Age of the Welfare State: Perspectives on
Resilience' (2002) 31 J. of Social Policy 597-622; M. Moran, 'Understanding the
Welfare State: The Case of Health Care' (2000) 2 Brit. J. of Politics and
International Relations 135-60; R.H. Cox, 'The Path Dependency of an Idea: Why
Scandinavian Welfare States Remain Distinct' (2004) 38 Social Policy and
Administration 204—19. Less often — if arguably more precisely - the Golden Age
is understood as one of 'welfare state expansion', see M. Ferrera, The Boundaries of
Welfare (2005); P. Taylor-Gooby, 'Ideology and Social Policy' (1994) 30 J. of
Sociology 71-82, and Cox, id. Analysts sometimes use different labels for broadly the
same period and subject matter. So G. Esping-Andersen writes of post-war 'welfare
capitalism' in The Social Foundations of Post-Industrial Economies (1999), while
others discuss the 'Keynesian golden age': see D. Marquand, 'Premature Obsequies:
Social Democracy Comes in From the Cold' (1999) 70 Political Q. 10-18; J. Peck
and A. Tickell, 'Neoliberalizing Space' (2002) 34 Antipode 380-404.
8 A concept popularized, if not coined, by J.K. Galbraith in The Affluent Society
(1958) 6-17.
9 See Pierson, op. cit. n. 2, for an unusually clear and fluent example of this periodiza
tion. Note, however, that some close observers of the British case choose 1948 as the
putative 'start date' for the British welfare state: for example, Richard Titmuss notes
that many British commentators see 1948 as the date at which a complete 'welfare
state' came into being - see R. Titmuss, 'The Social Division of Welfare: Some
Reflections on the Search for Equity' in Essays on 'The Welfare State' (1963/1958)
34-9. Titmuss himself expended considerable effort arguing against the proposition
that the welfare state had been fully created at any stage in the 1940s or 50s.
10 In fact, in his careful comparative analysis, Alex Hicks identified 1945 as the year of
'welfare consolidation' uniquely for the United Kingdom: A. Hicks, Social
Democracy and Welfare Capitalism (1999) 115, Table 4.1. The significance of
the immediate post-war moment in Britain was no doubt heightened by the
(comparatively unusual) total absence of social policy innovation during the 1930s.
This contrasts starkly with the United States' New Deal or the reforms associated
with the Saltsjobaden Agreement in Sweden. More generally, Hicks found
conclusive evidence of 'mid-century welfare consolidation' in fewer than half of
the 17 wealthy democracies he studied. The United Kingdom was unique in
achieving this consolidation in 1945; four other countries (Austria, Sweden, the
Netherlands, and Norway) achieved it in the five years after the war. The 1940s
were undoubtedly an important period of innovation in welfare policy, as were the
1910s and 1930s (id., p. 81, Table 3.1) and also the 1960s.
11 A. Wolfe, 'Analyzing the Welfare State' (1978) 6 Theory and Society 293; Wolfe
attributes the idea to Alvin Gouldner.

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tions for social analysis.12 If 'the survival of the welfare state is problematic'
he argued 'then so would be the survival of sociology'.13 Wolfe saw the
'disruption of the welfare state' as, amongst other things, an 'ethnomethodo
logical prank', which 'forces investigators to confront the reality that has
shaped their discipline.' In such circumstances, he went on, 'the sociological
project demands more than ever a re-examination of basic premises and
commitments.'14 Wolfe himself did not display much confidence that this
demand would, in fact, be met: the implication of his analysis was that
neither the welfare state nor sociology would survive 'the fiscal crisis of the
state'.15
As far as the fate of the welfare state is concerned, Wolfe appears to have
been remarkably prescient. Like the idea that it began in 1945, the notion
that the welfare state suffered a fundamental reversal in the mid-1970s has
become a conventional wisdom: almost without exception, analysts assume
that the (Golden) Age of the welfare state lasted between these two dates. If
Attlee's Britain seems to have provided the original model welfare state, the
United Kingdom also exemplified the end of the 'Golden Age': together with
Reagan's America, Thatcher's Britain symbolically confirmed the sad fate of
the welfare state after the 1970s. As well as cutting back on social expendi
tures, Thatcher asserted that the welfare state eroded the rugged autonomy of
the individual: far from seeing welfare benefits and social services as
embodying inviolable rights, she emphasized the conditions and duties
attached to them as a means to manage the behaviour of claimants.
Briggs believed that Britain inaugurated the idea of the welfare state,
which then spread from Britain to the world, but the argument may apply
with more force to the end of the Golden Age. The idea of a turning point — a
moment when the welfare state was superseded by some other state-form - is
common across a wide range of social and political analysis, many of which
are not primarily focused on social policy. So, for example, Philip Cerny's
political economy pivots on the replacement of the welfare state by the
'competition state', while Bob Jessop detects the displacement of the
Keynesian national welfare state by the Schumpeterian post-national
workfare regime.16 Perhaps more familiar to (socio)legal scholars, the vast

12 id.
13 id. Of course, not all analysts of social policy adopt this position: some depict state
welfare policies as a product of - or at least strongly shaped by - social science and
policy research. See, for example, Ira Katznelson's description of the expansion of
American social provision during the 1960s under the 'Great Society' as 'social
science and policy analysis ascendant': I. Katznelson, 'Was the Great Society a
Missed Opportunity?' in The Rise and Fall of the New Deal Order, eds. S. Fraser
and G. Gerstle (1990) 188.
14 id., p. 299.
15 id.
P. Cerny, 'Paradoxes of the Competition State' (1997) 32 Government and
Opposition 251-74; B. Jessop, The Future of the Capitalist State (2002).

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literature on the regulatory state is almost invariably premised on the idea
that it superseded the welfare state.17 All these arguments have a broad
comparative sweep and they tend to treat the mid-1970s as a generally
critical moment for all Western democracies.
If Wolfe's argument about the prospects for the welfare state may appear
compelling, the existence of this literature (particularly that directly
concerned with the welfare state) begs a question about his dire prediction
about the fate of sociology - and, more specifically, about social science
analysis of social policies.18 Far from suffering a terminal decline, the
decades since Wolfe's prediction have seen welfare state analysis become
one of the most fruitful and dynamic areas of social science research,
especially in the form of cross-state comparative analysis.19 This research
field is genuinely interdisciplinary, encompassing sociology, political
science, public administration, and social work as well as a range of other
disciplines: not even the economists have managed to remain aloof.20

17 The literature here is much too large to cite exhaustively. Among the most powerful
and influential analyses of this sort are G. Majone, Regulating Europe (1996) in the
context of the European Union and, from a socio-legal perspective, C. Scott,
'Accountability in the Regulatory State' (2000) 27 J. of Law and Society 38-60. For
an interdisciplinary review from a political science perspective, see M. Moran,
'Understanding the Regulatory State' (2002) 32 Brit. J. of Political Sci. 391-413,
and for a rare heterodox perspective written by an influential socio-legal scholar, see
J. Braithwaite, 'Neoliberalism or Regulatory Capitalism?' Regnet Occasional Paper
no. 5 (2005).
18 Equally strikingly, Wolfe's diagnosis of a 'crisis' in sociology (op. cit., n. 11) is
echoed in much more recent work. Nearly two decades on, Nikolas Rose made a
similar point, if in a somewhat broader context, in N. Rose, 'The death of the social?
Refiguring the territory of government' (1996) 25 Economy and Society 327-56.
Rose detected 'identity crisis' in 'sociology' as 'the field of knowledge which
ratified the existence' of 'society' and 'the social'. This crisis arose as a
consequence of the 'death of the social' and the lost 'self evidence' of '[t]he object
"society"' (pp. 328-9). For Rose, of course, 'the social' includes liberal rationalities
of government in such areas as education, health, and welfare - policy approaches
and fields otherwise associated with the welfare state. Rather than being critical,
perhaps the problems that Wolfe and Rose detect are a chronic condition for
sociology?
19 Wolfe's analysis (id.) took as its starting point two early and influential examples of
this comparative welfare state genre - H. Wilensky, The 'New Corporatism',
Centralization and the Welfare State (1976) and Janowitz, op. cit., n. 6 - which he
subjected to coruscating criticism. An indication of the vibrancy of the field is the
reception of the Esping-Andersen monograph (op. cit., n. 4). According to a search
in the ISI Web of Knowledge (April 2011) this monograph had been cited 2,553
times.
20 A total of 613 of the citations to Esping-Andersen, id., were categorized as
sociology, 481 as political science, 395 as public administration, 379 as social
issues, and 313 as social work. Next in rank were 233 citations in economics, a
remarkably high number given the notorious reluctance of economists to reference
work from (most) other social science disciplines.

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 The flowering of welfare state research after the end of the putative
'Golden Age' may mask a deeper problem - first, that the history of the
British welfare state has been widely misunderstood and second that this
misunderstood history serves as an inaccurate foundation for wider
comparative and theoretical analysis of the welfare state in general. The
British misunderstandings start with the birth and early use of the welfare
state phrase itself. Rather than originating with Archbishop Temple, Peter
Hennessy has shown Alfred Zimmern had already used the term in 193421
and that the German term Wohlfarhtsstaat had been in use since the 1920s, if
not earlier.22 More significantly, the traditional accounts of its 'origins' tend
to imply that both the term, and a certain idea of the welfare state, gained a
general currency from the 1940s.23 They disguise the distaste that some of
those now seen as founders of the welfare state felt for the phrase. They help
to exaggerate the extent to which the term was taken up as a positive
description of various social policies and services during the 1940s and
50s.24 Ann Oakley has given a rather different impression about its origins
(in time and space):
[the] term 'the welfare state' ... did not feature much in social policy dis
course in Britain ... until its use on the other side of the Atlantic in the 1950
congressional campaign, where President Hoover declared it 'a disguise for
the totalitarian state'.

21 Hennessy, op. cit., n. 2, p. 121. See, also, Oakley, op. cit., n. 2. Zimmern was the
inaugural holder of the Montague Burton Chair of International Relations at Oxford
University at the time, having previously held the first holder of the original Chair of
International Politics anywhere in the world - the Woodrow Wilson Chair at the
University College of Wales, Aberystwyth. Temple also seems to have owed the
distinction between the welfare state and the power state to Zimmern. David
Edgerton argues that Zimmern defined the welfare state as a liberal 'rule of law'
state, in contrast to the arbitrary predations of central European 'power states', and
that the Oxford English Dictionary misattributed the phrase to Temple: see D.
Edgerton, Warfare State, Britain 1920-1970 (2006) 59-60.
22 Hennessy, id., p. 121, suggests that it may have been a term of abuse during the 1920
relating to alleged failing of the Weimar Republic, while Flora and Heidenheimer,
op. cit., n. 3, p. 19, emphasize the attack on the Wohlfahrtstaat by Chancellor von
Papen in 1932. Oakley, id.; I. Gough, 'European Welfare States: Explanations and
Lessons for Developing Countries' in Inclusive States: Social Policy and Structural
Inequalities, eds. A.A. Dani and A. de Haan (2008) ch. 2; and P. Townsend, '1909
2009: Beatrice Webb and the Future of the Welfare State', lecture delivered on 20
May 2009, available at <http://www.fabians.org.uk/events/speeches/peter
townsend-lecture-text> all date the concept back to Germany in the 1920s. Friedrich
von Hayek traces it further back into German history: see F.A. Hayek, The
Constitution of Liberty (1960) 502.
23 As does Hennessy, id.
24 Indeed, Anthony Giddens, in his The Third Way (1998) 111, has argued that the term
'did not come into widespread use until the 1960s', while Edgerton argues that the
welfare state phrase came into widespread usage in the 1950s - although initially
principally among critics of welfare policies, see n. 21 above.
25 Oakley, op. cit., n. 2, p. 4.

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On investigation it turns out that the idea of Britain as the original and
exemplary welfare state may be a myth, but the grip this idea managed to
gain on the academic imagination only makes the concept itself more
intriguing.
My analysis develops in three further substantive sections, which interro
gate the historical record of the British welfare state in various ways. The
next major section uses standard quantitative indicators of welfare state
effort to assess whether the United Kingdom was a leading and exemplary
welfare state from 1945. Although offering some valuable insights, the
quantitative data available for the period before about 1970s is, unfor
tunately, relatively limited. The second substantive section of the article
relies mainly on an unusual source - political cartoons - which provide what
are literally historical 'images' of the welfare state in Britain during (and
since) its putative Golden Age.
The third form of evidence requires more of an introduction. I take up
Wolfe's invitation to rethink basic premises and commitments of social
science, with a particular focus on images of the welfare state in Law and
Society scholarship. This field of scholarship - and particularly the back
catalogue of the Journal of Law and Society - serves as a source of past
conceptions and understandings of the welfare state. Using it in this way
raises issues about the relationship of law and society scholarship to (other)
social scientific analysis of the welfare state. We shall see that welfare state
issues are a major theme in a good deal of research at the interface of law
and sociology - arguably these issues constitute the central concern for the
law and society movement. Yet, despite both the fact that socio-legal studies
(broadly defined) is premised on the combination of insights, methods, and
theories from a variety of disciplines, and the profoundly interdisciplinary
character of the comparative welfare state literature, there is a strange case of
mutual neglect between these two scholarly traditions. Socio-legal analysis
is more or less wholly ignored in the comparative welfare state literature (as
are other traditions of legal studies)26 and (socio)legal scholars have returned
the favour.27 An aim of this article is to help inaugurate a stronger interaction

26 For example, Charles Reich's highly influential analysis, 'The New Property'
(1964) 73 Yale Law J. 733-87, is very rarely cited by the comparativists.
27 For example, the ISI search reported in nn. 19 and 20 categorized only 22 of the
citations to Esping-Andersen, op. cit., n. 4, as law (and 20 further citations as
criminology). It is worth noting that broadly socio-legal analyses dominate the law
citations, with articles in the following journals featuring: four in the recent journal
Regulation and Governance, two each in the Annual Review of Law and Social
Science, International Journal of the Sociology of Law, and Law and Policy and one
each in the Journal of Law and Society and the Law and Society Review. Other
journals in which a single citing article had been published include the American
Journal of Comparative Law and various American law reviews (Harvard,
Michigan, Minnesota, UCLA, and the University of Illinois). Differences in the
approach to comparison between (other) social sciences and law may provide part of
the explanation for this mutual neglect. For most social scientists, comparison is

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between the two fields of scholarship, but the mutual neglect offers me at
least one advantage here: it means that (socio)legal studies can be used as a
critical source in relation to the comparative welfare state literature, not least
since (socio)legal scholars (particularly individuals with strong links to the
United Kingdom) turn out to have played a pivotal, if somewhat neglected,
role in the development of welfare state theory.
To develop this argument I have to range beyond British socio-legal
studies. Refugees and emigres from central Europe are key figures in this
story, some of whom moved on to the United States after a period in the
United Kingdom. Their analyses will be considered in the context of other
contemporary British academic sources, drawn from social history, social
administration, and scholars associated with the New Left. The interplay
between the law and society movement in the United States and United
Kingdom socio-legal studies is also important. In fact, Wolfe's concern
about the relationship between the welfare state and academic analysis may
apply more fully to the law and society movement in the United States than
other fields of scholarship.28 By contrast, while the welfare state - often in
the form of 'social policy' - provided a core theme for British socio-legal
studies, arguably it was not constitutive of this field.

BRITAIN IN COMPARATIVE PERSPECTIVE

My first task, then, is to establish the comparative-historical record

British welfare state. Comparing welfare state effort over time a
countries is challenging. While a significant body of qualitative comp
evidence has been built up over recent decades, historically qua
measures have provided the foundation for the generally comp
welfare state literature. Initially, most studies relied on public ex
data collected - and rendered comparable - by the OECD.29 H

widely regarded as a means for the human sciences to develop meth

approximate most closely to those of the (experimental) natural sciences. T
to generalize and explain, including as many 'cases' as possible, wh
comparative legal analysis often appears to be motivated by lesson-drawi
interest of improving the law. It is frequently preoccupied with the spe
particular legal cultures and is heavily shaped by the differences between
law and civil legal systems. These qualities of (comparative) legal scholars
easily make comparative welfare state scholarship appear a somewhat d
endeavour to scholars of law (and society).
28 Wolfe, op. cit., n. 11: see B. Garth and J. Sterling, 'From Legal Realism
Society: Reshaping Law for the last stages of the social activist state (19
and Society Rev. 409-72; and J. Simon, 'Law after Society' (1999) 32
Social Inquiry 143-94.
29 Seminal references include H. Wilensky, The Welfare State and Equality
Wilensky, op. cit., n. 19, as well as D. Cameron, 'The Expansion of t
Economy: A Comparative Analysis' (1978) 72 Am. Pol. Sci. Rev. 1243.

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spending levels are largely epiphenomenal to our underlying concern and
may be misleading: a state which cut benefit levels while unemployment
soared might register as increasing its welfare effort. As Esping-Andersen
put it: 'it is difficult to imagine that anyone struggled for spending per se'.30
Instead, he proposed that the core definition of a welfare state was the degree
to which it 'decommodified' labour power and entrenched social rights of
citizenship. Esping-Andersen developed a summary quantitative index of
decommodification that sought to capture the underlying level of support
offered to citizens facing unemployment or sickness and during retirement,
rather than simply measuring the level of state spending on these policies.
While Esping-Andersen's conceptualization has proven enormously
influential, his own calculation of the decommodification index was only
for a single year (1980) and he did not place the data or detailed method
ology on which he based his calculations in the public domain. More
generally, a good deal of quantitative comparison appears to be driven by the
availability of data, rather than being framed by research questions. The
quality of OECD data improves dramatically for the period after 1980, while
comparative data from before 1960 is scarce. These features of the evidence
base for comparative welfare analysis pose a real problem for any researcher
concerned with the period from 1945 to the mid-1970s. More recently,
however, the difficulties thrown up for researchers by the non-availability of
comparative historical data on state welfare effort have been significantly
mitigated.
First, the Swedish Institute for Social Research - the organization that
collected the data originally used by Esping-Andersen - has made publicly
available some related data collected as the Social Citizenship Indicators
Program (SCIP)31 under the auspices of Walter Korpi and Joakim Palme.
These data include historical evidence on social insurance replacement rates
- a measure of the rate at which in-work income is replaced by social
insurance benefits (for accident insurance as well as unemployment, sick
ness, and pensions) - for the period between 1930 and 2000. For our
purposes, a key feature of these data is that they cover the whole period of
the putative 'Golden Age' of the welfare state. Second, the Comparative
Welfare Entitlements Dataset (CWED)32 collected by Lyle Scruggs offers a
more rounded indicator of Welfare Benefit Generosity (WBG) designed to
operationalize a conception of a state's commitment to welfarism closely
akin to Esping-Andersen's original notion of decommodification. The WBG
index includes measures of waiting times and conditions of eligibility as well

30 Esping-Andersen, op. cit., n. 4, p. 21.

31 W. Korpi and J. Palme, The Social Citizenship Indicator Program (SCIP), Swedish
Institute for Social Research (2007), at <https://dspace.it.su.se/dspace/handle/10102/
7>.

32 L. Scruggs, Comparative Welfare Entitlements Dataset (CWED) at <http://

www.sp.uconn.edu/~scruggs/wp.htm>.

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as replacement rates.33 Although Scruggs has only been able to calculate his
index back to 1970, it nevertheless provides us with a unique perspective on
comparative welfare effort that covers a key phase of recent welfare history
- covering the putative heyday of the welfare state, the critical mid-1970s
years and the period following the 'Golden Age'. We will use data from both
SCIP and CWED to compare the United Kingdom with the average level of
welfare effort in the other 17 OECD states across which welfare state
comparisons are typically made (Figures 1-4).34
Starting with the SCIP data, the first point to make is that United
Kingdom replacement rates are lower than the mean level for the other 17
states, for each of the four areas of social insurance throughout (more or less)
the whole of the 'Golden Age' of the welfare state. The major exception here
is for unemployment benefit rates, which were at about the mean level in the
mid-1940s (although they were immediately surpassed by rates elsewhere)
and at the start of the 1970s. In the mid-1970s, United Kingdom unemploy
ment insurance rates briefly exceeded the mean replacement rate for the
other 17 countries. The replacement rate for pensions was also briefly higher
than the average elsewhere immediately after the Second World War. Our
second point is that, in contrast to the standard account, the immediate post
war period does not appear to be one of significantly increased generosity in
replacement rates in the United Kingdom. While for sickness, accidents, and
pensions, the immediate post-war provision is significantly more generous
than that offered as the war began, replacement rates for all four forms of
social insurance were then stagnant until the start of the 1960s, with periods
during which rates fell (marginally) and others in which they grew extremely
modestly. By contrast, the mean level for the other wealthy democracies
grew more rapidly and in a sustained fashion.
Perhaps the most striking features of these data - at least for sickness,
unemployment, and accident insurance schemes - is the very rapid rise in the
generosity of British replacement rates from 1960 to a peak in the mid
1970s, and the equally rapid fall after 1975. The rise after 1960s largely
closed the 'generosity gap' between the United Kingdom and the other 17
countries - wholly so for unemployment benefit, as we have already noted -
making Britain look like a fairly typical Western democracy by the mid
1970s. But as soon as this convergence was achieved, rates plummeted for
these three areas of social insurance. At the same time, on average, rates
elsewhere stabilized during the 1980s, only to fall back slightly during the

It is worth noting that decisions about how to calculate replacement rates include a
significant measure of judgement - and that the rates calculated by Scruggs appear
rather more stable and convergent than those emerging from the SCIP data-set.
34 As well as the United Kingdom, the following states are typically included in these
welfare state comparisons: Austria, Australia, Belgium, Canada, Denmark, Finland,
France, Germany, Italy, Ireland, Japan, The Netherlands, New Zealand, Norway,
Sweden, Switzerland, and the United States.

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Figure 1. Sickness Insurance Replacement Rates, SCIP, 1930-2000, UK
and Mean for 17 other OECD States

80

70

60

50

40

30

20

10

0 t 1 1 1 1 1 1 1 1 r 1 1 1 1 1
1933 1939 1947 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000

Figure 2. Unemployment Benefit Replacement Rates, SC1P, 1930-

UK and Mean for 17 other OECD States

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Figure 3. Accident Benefit Replacement Rates, SCIP, 1930-2000, UK
and Mean for 17 other OECD States

100

90 UK
Mean 17

80

70

60

50

40

30

20

10

0 1 1 1 1 1 1 1 1 1 1 1 1 1 1 i
1930 1933 1939 1947 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000

Figure 4. State Pension Replacement Rates, SCIP, 1930-2000, UK and

Mean for 17 other OECD States

0 H 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1
1930 1933 1939 1947 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000

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1990s. In sharp contrast to the typical experience elsewhere, these replace
ment rates in the United Kingdom fell back to below their level in 1930 -
and dramatically below that level for accident insurance. (The replacement
rate for pensions in Britain stands as something of an exception to this trend.
It largely mirrors the gradual increase in generosity shown on average by
other 'welfare states', albeit at a slightly lower level.) So the mid-1970s
appear as a sharp turning point for (this aspect of) state welfare provision in
the United Kingdom, a pattern that is not displayed, on average, elsewhere.
But if, for Britain, these data do lend some support to the idea that the mid
1970s can be understood as the end of a distinctive period in welfare history,
it seems to have begun in 1960 rather than 1945. However lustrous they may
have been, I find it hard to persuade myself that a 15-year period can amount
to a Golden Age.
According to the CWED data, the overall image of Britain as a relatively
niggardly welfare state remains the same, while also showing evidence of a
sharp rise in generosity during the mid-1970s. In other respects, however,
these data offer a different picture of the fate of the welfare state in the
United Kingdom after the mid-1970s: they show less evidence of a dramatic
and sustained reversal of welfare generosity during this period.35 Perhaps
because we have annual observations for these data (in contrast to the five
yearly data offered by SCIP for this period) the 1970s high-point is revealed
to be in 1976; benefit generosity fell during the dog-days of the Labour
administration at the end of the 1970s. Unexpectedly, welfare benefit
generosity then seems to have grown to a new high in the first couple of
years under Thatcher, before a short (but sharp) contraction between 1981
and 1982, and a long decline after 1983. According to these data, however,
WBG fell below the previous high achieved in 1976 for only one year - 1988
- during the entire period of Conservative government under Thatcher and

35 It is worth noting that the replacement rate elements in CWED do follow an arc that
is more similar to that described by the SCIP data, for example, for the data on the
United Kingdom. CWED includes replacement rate calculations both for individual
workers and for a working family with two children that go back to the start of the
1970s. Clearly, it is impossible to draw any inferences about the earlier trajectory of
these rates. For the United Kingdom, it is clear that replacement rates were higher in
the mid-1970s than at any time since (the high point for individual replacement rates
was actually 1971, while that for the family rate was 1977) - and that both rates
experienced a dramatic fall between 1981 and 1982. After 1982 both rates continued
to decline under Thatcher and recovered a little during the early 1990s before
declining again in the run-up to the 1997 election. The two rates diverged sharply
during New Labour's first term in office. The family rate increased sharply
immediately after 1997 (albeit at a level that remained below that of 1981 before
Thatcher's sharpest cut) while, under Tony Blair, the individual rate continued its
slow decline. The impact of replacement rates is diluted in the overall indicator of
welfare benefit generosity reported in the CWED. The decline in these rates may
also be partly compensated by increases in generosity in other dimensions of the
index.

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Major. Equally, however, on average WBG continued to grow until 1986. As
a result, the gap between Britain and the other Western democracies was
greatest under Thatcher (in 1988 - note that 1987 and 1974 share the
'honour' of having the second largest gap).
Looking across these two data sets, then, it is clear that the trajectory of
the British welfare state after the mid-1970s was distinctive. Overall
evidence that the mid-1970s turned out to have been a decisive moment for
the welfare state is mixed, to say the least. Even for the United Kingdom, the
overall level of welfare benefit generosity was significantly higher
throughout the period after the mid-1970s than it was in 1971 or 1972.
Nevertheless, the United Kingdom does show significant periods of retrench
ment both under the Labour government of the late 1970s (1976-79) and
under the Conservatives (1981-82 and 1983-88). Moreover, on average, as
welfare benefit generosity continued to grow elsewhere well into the 1980s,
the United Kingdom experienced a kind of 'relative decline' in generosity
through this period. In short, according to these data there is little evidence
of decisive reversal for the welfare state as a general phenomenon. That is
not to say that they provide no indication of sharp retrenchment, but such
evidence is limited to particular indicators in specific countries: United
Kingdom replacement rates are a stand-out example. In a sense, then,
although unusual - an empirical outlier - Britain may have served as a model
of welfare retrenchment during the 1970s and early 80s. Indeed, widely seen
as the post-war leader in constructing the welfare state - with the Attlee
administration cast in the role of builders and Beveridge as architect - by the
time Margaret Thatcher came to power, the United Kingdom was
increasingly seen as an exemplar for a general crisis of the welfare state,
and as marking the end of its 'Golden Age'.
Although rather patchy, the data we do have for the twenty-five years
after 1945 raises a further problem with this narrative. While the institutional
achievements of the Attlee administration should not be masked, what
comparative evidence we do have for the period from 1945 to 1960 suggests
that neither this administration nor the Conservative government led by
Churchill in the 1950s managed to achieve a significant increase in the
generosity of key social insurance benefits. Thus, even for Britain, we should
question of whether the 1945 to mid-1970s period can be described
accurately as the Golden Age of the welfare state. At the very least, this
period seems to have begun rather later than is conventionally thought. In the
next section, we will address the question of the welfarist character of the
early post-war decades using different historical source material.

IMAGES OF WELFARE: PAST PERFECT?

I want to start by emphasizing the importance of institutional developme

the promotion of social justice in Britain during the 1940s, especially sin

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would be easy for my argument to be misconstrued. From the moment it was
published, the Beveridge Report36 enjoyed enormous popularity. An
Illingworth cartoon published in the Daily Mail that year illustrates its huge
popularity - as well as suggesting that the mass public mobilization and
common endeavour of the war influenced the mood of the times (see Figure 5).
The enthusiasm with which the Beveridge report was received may have
contributed to the spread and persistence of idea that the concept of the
'welfare state' was peculiar to Britain - or at least had British origins. Its
popularity may also help to make sense of the tendency for commentators to

Figure 5. Illingworth 'Beveridge' cartoon

Reproduced by the kind permission of the Daily Mail and of the National Library of
Wales. First published 2 December 1942.

36 W. Beveridge, Social Insurance and Allied Services (1942; Cmnd. 6404).

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identify Archbishop William Temple's Citizen and Churchman37 as a source
of the phrase 'the welfare state'. But, as we have seen, careful historical
scholarship has concluded that those who designed and constructed the
social institutions and policies in the 1940s did not use this term.38 William
Beveridge himself seems to have disliked the 'welfare state' phrase, which
he associated with a gift-dispensing 'Santa Claus state' and believed
diminished a crucial element of personal responsibility he sought to embed
in social insurance.39
If rarely as hostile to the term as Beveridge, approving use of the welfare
state phrase by British social policy experts was rare during the 1940s and
50s. Key analysts like T.H. Marshall and Richard Titmuss were late converts
to its use and displayed considerable ambivalence about the term. So, for
example, Marshall's lecture on 'Citizenship and Social Class' occupies a
central place in welfare state analysis today, often regarded as a - arguably,
the - defining statement of welfare state theory.40 The irony is that the
phrase 'the welfare state' does not appear in the essay. When he did begin to
use it, Marshall described the term as a dangerous generalization 'cunningly
expressed in tabloid form' that had passed 'into the language of common
speech as [a] familiar truth'.41
Intriguingly, by the early 1960s, as he began to make more extensive use
of the phrase, Marshall had already come identify the welfare state with a
past phase of post-war politics and society, one superseded by the 'affluent
society'.42 This sense - or the retrospective identification of the welfare state
as set of norms and policies that were already fading into the past - is
reflected in other contemporary commentary. In 1965 Dorothy Wedderburn
noted that 'just as the trend has been towards' accepting ' "the welfare state"
as an "essential" feature of capitalist society, so there has been a trend
towards a narrowing of the content of the concept itself.'43

37 Temple, op. cit., n. 2, published in 1941, shortly before the Beveridge report, in
which he sought to distinguish the 'welfare state' from the Nazi 'power state'.
38 Edgerton, op. cit., n. 24; Oakley, op. cit., n. 25. It may also be worth noting Giddens's
claim (op. cit., n. 24) that the phrase was not widely used until as late as the 1960s.
39 See Hennessy, op. cit., n. 2. p. 74; also reflected in a commentary at the National
Archive, at <http://www.nationalarchives.gov.uk/cabinetpapers/alevelstudies/1940
origins-welfare-state.htm>, and M. Powell, 'The Hidden History of Social Citizen
ship' (2002), at <http://www.essex.ac.uk/ecpr/events/jointsessions/paperarchive/
copenhagen/ws6/powell.PDF>.
40 Marshall, op. cit., n. 3. Although made over twenty years ago, Esping-Andersen's
statement of his significance (op. cit., n. 4) is still a good indication of the theoretical
status of Marshall's essay today.
41 T.H. Marshall, 'The Welfare State: A sociological interpretation' (1961) 2 European
J. of Sociology 284.
42 T.H. Marshall, 'The Welfare State: A comparative study' in Sociology at the
Crossroads and Other Essays (1963) - the essay was written in 1961.
43 D. Wedderburn, 'Facts and Theories about the Welfare State' (1965) 2 Socialist
Register 128.

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 Richard Titmuss seems more explicitly critical of the welfare state
concept than T.H. Marshall, apparently preferring to describe the complex of
social provision as 'the social services'.44 Titmuss's early statements on the
welfare state in itself, such as those made towards the end of the 1950s,
sought to expose 'the "welfare state" myth': they also display a sustained
concern with the ambiguity of the term 45 His conceptual reflections on the
welfare state at this time also focus on the repudiation of what he saw as 'the
dominant note' of the post-1948 discussion - widespread criticism of the
system of social services established during the 1940s. In other words,
Titmuss seems to have regarded 'the welfare state' as a term used more by
critics than supporters of these policies. He was particularly dismissive of the
critics' idea that 'that "the welfare state" had been "established" too
quickly and on too broad a scale'.46
Once again, this analysis is reflected in contemporary political cartoons.
Less than a decade after his celebration of Beveridge, in 1949, Illingworth
depicted the welfare state as a flag being nailed to the mast of the British ship
of state, but that mast is the last part of that ship that remains above the
waves, the hull having already slipped beneath the surface of a sea of
bankruptcy (see Figure 6).
In other words, the retrospective image of the late 1940s as a triumphal
period for the welfare state was far from universally embraced at the time; in
1949, the welfare state could be portrayed as an irrelevance, distracting
politicians from the apparently catastrophic fate of the British state. As the
earliest example I found in the British Cartoon Archive that directly used the
specific phrase 'the welfare state', this cartoon lends support to the idea that
the term was promoted by critics of the expansion of 'the social services'.
The image is also an early example of a group of cartoons that link the idea
of the welfare state to a wider conception of the state or public institutions in
Britain. Several of these cartoons depict 'ship of state' type metaphors, while
others offer images of the welfare state as classical institutions or monu
ments of various kinds. I will call all cartoons offering images of this broad
kind 'institutional'. More often than not, as we shall see, they depict the
welfare state in a state of crisis, or at least disrepair.47

44 A phrase used widely by academics during the 1950s, and seemingly also preferred
by Beveridge: see Hennessy, op. cit., n. 2. p. 74.
45 Titmuss, op. cit., n. 9. These essays were first published in 1958. The quotation used
here is taken from the essay added in the 1963 edition, 'The Irresponsible Society' at
p. 219. The other main conceptual discussion of the welfare state in the text comes
from ch. 2, originally delivered in 1955, which includes (at p. 53) direct reference to
the ambiguity of the term.
46 id., p. 35. Titmuss also repudiates the idea that 'the welfare state' was established 'in
the year 1948' (p. 34).
47 Although this is a tendency, certainly not a universal truth: Attlee fares rather better
than most other political leaders in this respect. A 1955 cartoon published as he
stepped down as Labour leader shows him standing on a plinth of achievement, the

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 Figure 6. Illingworth, 'Sinking ship' cartoon

Reproduced by the kind permission of the Daily Mail and of the National Library of
Wales. First published 7 September 1949.

Illingworth's sinking ship of state illustrates the welfare debate towards

the end of Attlee's term as Prime Minister. In 1961, after a decade of
Conservative government, Vicky depicted the welfare state as a crumbling
classical fa?ade, with Enoch Powell (then Minister of Health) hacking into it
with a pickaxe (see Figure 7).
At least one 'institutional' style cartoon was published during the period
of Labour government in the 1960s - showing Prime Minister Wilson

broadest of which is 'The Welfare State' (cartoon no. 14 in the group images of
Welfare: JLS', in the British Cartoon Archive, at <http://www.cartoons.ac.uk/group/
images-welfare-jls>. Nearly 50 years later, Dave Simmonds in the Observer also
placed Attlee on a plinth of welfare achievements, with Tony Blair set in a
unflattering comparison, as a man of less significant accomplishments, but
preoccupied with his legacy: cartoon no. 69 in the images of Welfare: JLS' group.

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Figure 7. Vicky, 'Men at Work'

Reproduced by the kind permission of the Evening Standard. First published 9 February
1961. Copy supplied by the British Cartoon Archive, University of Kent,
<www.cartoons.ac.uk>.

straining under a global burden, while standing on a cracking 'welfare state'

plinth.4X It may be significant that this institutional motif more or less
vanishes from the archive between the mid 1960s and the late 1970s. During
this period, cartoons about the welfare state feature anonymous individuals
more than representations of institutions or political figures. The figure of
the welfare inspector or 'snooper' appears frequently from the very end of
the 1960s and throughout the 1970s, often - in the style of the seaside
postcard - catching claimants in flagrante.49
Institutional depictions of the welfare state reappeared shortly after Mrs.
Thatcher became Prime Minister. The Conservative party conference in

48 Cartoon no. 26 (published in 1965) in the 'Images of Welfare: JLS' group.

49 See the British Cartoon Archive group, 'Images of the Welfare State: 1940s, 50s and
60s', at <http://www.cartoons.ae.uk/group/images-welfare-state-1940s-50s-60s>.
Cartoon no. 68 and images of the welfare state in the 1970s', at <http://
www.cartoons.ac.uk/group/images-welfare-state-1970s>. Cartoons 1, 12, 13, 18, 19,
and 20. The apparent absence of what I have called 'institutional' depictions of the
welfare state from the mid-1960s to the end of the 1970s is intriguing. I am reluctant
to push this point hard, but it may reflect a certain confidence in the institutional
solidity of the welfare state during these years - or perhaps more accurately, an
anxiety about them at other times.

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October 1979 inspired a Gibbard cartoon in which the welfare state was
(once again) depicted as a sinking ship - on this occasion, broken in two by
the launch of the Thatcherite 'SS Tory Monetarism'. Gibbard drew another
image of the institutions of the welfare state under Thatcherite attack just
under four years later. This cartoon is particularly striking for two reasons.
First, it is unusually sophisticated in conception, distinguishing between the
various public policies (that make up the dam) and the welfare state they
protect (which is depicted - arguably in rather communitarian terms - as a
town). Secondly, both the 'dam' of public policies and the welfare state itself
are shown as largely undamaged - at least until the explosion of Nigel
Lawson's 'bouncing bomb' of cuts - despite the earlier institutional images
of welfare state under attack (from every decade since the war).50
The welfare state became particularly prominent as a subject for political
cartoons during Tony Blair's tenure as Prime Minister.51 While I found 42
welfare-state themed cartoons for the entire period of Conservative govern
ment between 1979 and 1997, New Labour's first term in office generated at
least 112, with an astonishing 76 cartoons published on the subject during
their first year in office. Although fuelled by the travails of Harriet Harman
and Frank Field, this huge output was generally underpinned by a perceived
dissonance of a Labour government proposing welfare reforms that targeted
such vulnerable groups as single mothers. The language New Labour used in
its discussion of welfare reform during the first term was a classic example
of the administration's 'triangulation' tactic: the adoption of traditionally
Conservative (anti-)welfare discourses in order to provide protection against
attack. The trace left by political cartoons suggests that New Labour enjoyed
some success, if the objective was to project itself as an heir to Thatcher, and
as tough on those dependent on welfare. Whether the triangulation tactic was
a longer-term strategic success for New Labour is a different question.
So, after a prolonged period of Conservative government, the first New
Labour government was still typically depicted as attempting to undermine -
or kick down — the welfare state.52 Nevertheless, as in earlier periods,
institutional images of the welfare state continued to (re)appear. Perhaps the
most striking of these is Steve Bell's 1999 cartoon 'Drat, missed' (see Figure
8). Here the welfare state is shown written out in blocks of stone. The letters
do show some cracks, but they look as if they would endure, if left
unmolested. Although the Blairites did mount a bombing raid on the welfare
state, they failed to hit their target. In itself, this image seems to confirm

50 Cartoons nos. 1 and 13 in the 'Welfare State under Thatcher and Major' group, at
<http://www.cartoons.ac.uk/group/welfare-state-under-thatcher-and-major>.
Cartoons nos. 55, 58 (Blair Verbiage), 62, 65 in the 'New Labour and the Welfare
State I' group, at <http://www.cartoons.ac.uk/group/new-labour-and-welfare-state
i>; cartoons 2 (sinking ship), 3, and 7 in the 'New Labour and the Welfare State II'
group, at <http://www.cartoons.ac.uk/group/new-labour-and-welfare-state-ii>.
52 See, for example, cartoons 58, 62, 65, and 74 in the 'New Labour and the Welfare
State I' group, at <http://www.cartoons.ac.uk/group/new-labour-and-welfare-state-i>.

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Figure 8. Steve Bell, 'Drat, missed'

Kiss**

Reproduced by the kind permission of Steven Bell. First published in the Guardian 19
May 1999. Copy supplied by the British Cartoon Archive, University of Kent,
<www. cartoons. ac. uk>.

institutionalist analyses of the (perhaps unexpected) endurance of the welfare

state in the face of significance attacks and on-going wear and tear.53
Placed in the context of a longer history of cartoon images of the British
welfare state, however, this Steve Bell cartoon seems rather different. Rather
than appearing as an unusual product of the post-'Golden Age' period, it
turns out to be rather more typical of depictions of the welfare state more or
less throughout the period since the Second World War. Taken together,
these images suggest something paradoxical about the idea of the welfare
state: perennially depicted as being on the point of collapse, yet enduring -
or at least continually reappearing.

53 The seminal text is P. Pierson, Dismantling the Welfare State? (1994); see, also, P.
Pierson, 'Irresistible forces, immovable objects: post-industrial welfare states meet
permanent austerity' (1998) 5 J. of European Public Policy 539-60; G. Garrett,
Partisan Politics and the Global Economy (1998); D. Swank, Global Capital,
Political Institutions, and Policy Change in Advanced Welfare States (2002); C.
Hay, 'What's Globalization Got to Do with It? Economic Interdependence and the
Future of European Welfare States' (2006) 41 Government and Opposition 1-22;
Taylor-Gooby, op. cit. (2002), n. 7.

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 LAW ... AND SOCIETY

We now turn to the treatment of the welfare state in socio-lega

The first issue at stake here concerns the extent to which students of law
have studied the welfare state, which turns out to be a surprisingly complex
matter. Perhaps unexpectedly, we shall see that legal scholars were among
the first to integrate the term the 'welfare state' into their analyses and
arguments. From the start, however, these analyses were - at least in
significant part - responses to the arguments of economic liberals, especially
those of Hayek. There is a complex intellectual geography to these debates:
many of the key individuals had emigrated to Britain from central Europe,
especially from Germany and Austria, during the 1930s, while during the
1950s and 60s some moved on to the United States. Although Hayek became
hugely influential, these wider debates have been largely forgotten.
Nevertheless, as we shall see, they are connected to the 'law and society'
literature that emerged from the 1960s, by a thin, but important, thread.

1. Emigres and Americans: the rule of law and the welfare state

The career of Wolfgang Friedmann - one of the first scholars to develop an

extended analysis of the welfare state (in his 1951 monograph, Law and
Social Change in Contemporary Britain) - exemplified a trajectory from
central Europe by way of England to the United States.54 One of a group of
academic lawyers who came to London during the 1930s as refugees and
migrants from central Europe,55 Friedmann applied traditions of social and

54 Friedmann passed through the University of Melbourne before ending up in the

United States. Before the emergence of'law and society' as a movement, Friedmann
integrated the concept of the welfare state within a sustained and significant scholarly
analysis of English law, which he later extended comparatively in Law in a Changing
Society (1959). The titles of his texts clearly proclaim Friedmann's ambition to place
law in the context of wider social change. Sections of his 1951 monograph had been
previously published as a short monograph: W. Friedmann, The Planned Economy
and the Rule of Law (1948): these sections - which were largely a riposte to F.A.
Hayek's The Road to Serfdom (1944) - did not mention the welfare state as such.
55 Many of whom, including Friedmann, played a role in the founding and early years of
the Modern Law Review (see his obituary. 'Professor Wolfgang Friedmann' (1973) 36
Modern Law Rev. 1) - perhaps partly due to their surprise at the apparent lack of
interest in legal education they found England. During this period, studying law at
university was not the main route into the legal profession in the United Kingdom and,
even as legal education developed at university level, it remained largely vocational in
orientation: see P. Thomas, 'Socio-Legal Studies in the United Kingdom' in Precaire
Waarden, ed. F. Bruisma (1994) 235, in which he cites Harold Laski describing legal
academics as 'a very inferior set of people who only teach because they cannot make a
success at the Bar', who displayed 'an interesting sense of complete inferiority' to
judges who had, in turn, 'a most amusing sense of infinite superiority'. Likewise,
William Twining described legal academics as 'educationally unsophisticated and
intellectually sterile' in 'Pericles and the Plumber' (1967) 83 Law Q. Rev. 396-426.

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legal analyses learnt in Germany to his analysis of Britain: he may also have
brought the idea of the Wolfarhtsstaat with him. 'English lawyers', Fried
mann noted, displayed a 'traditional reluctance' ... 'to analyse and
rationalise the effect of social changes on contemporary law' despite the
fact that 'what could once be regarded as more or less technical "lawyers
law"' had become matters 'of urgent economic and social policy' and,
relatedly, that fields of activity had shifted from 'the common law domain'
to 'statutory regulation'.56 While hardly unrelated to social policy develop
ment, Friedmann asserted that 'this transfer of emphasis and responsibilities'
cannot 'simply be attributed to a kind of "parvenu" intrusion of the modern
regulatory and welfare state policies into the sacred domain of judge-made
law.'57 Welcomed by some,58 Friedmann's analysis was roundly attacked by
others: for example, Hayek dismissed his claim that 'the incompatibility of
planning with the rule of law ... is a myth'.59
Friedmann enjoyed a successful career, which culminated in his moving
to a Chair at Columbia University, New York, in 1955, and the texts con
taining his analysis of the welfare state were well received.60 Nevertheless,
his approach in these analyses do not seem to have had a strong direct impact
on either subsequent welfare state scholarship in Britain or the development
of the 'law and society' movement that was gathering momentum (par
ticularly in the United States) during the 1950s and 60s. When, from the late
1950s, a significant body of literature began to develop on the welfare state
in itself in Britain, largely produced by students of social administration,
social historians, and socialist critics, it reflected upon - and often
reproduced - the assumption that Britain was a leader in the theory and
practice of this set of policies and norms.61

56 Friedmann, op. cit. (1959), n. 54, pp. ix, 30.

57 id., p. 31.
58 Reviews of Law in a Changing Society were generally positive: see (1960) 13
Political Research Q. 1081 and (1960) 23 Modern Law Rev. 585. The latter review
described Friedmann's earlier work, Law and Social Change in Contemporary
Britain, as 'a widely welcomed book' - of which Roscoe Pound published an
extended review article, 'The Rule of Law and the Modern Social Welfare State'
(1953) 7 Vanderbilt Law Rev. 1-34.
59 Hayek, op. cit., n. 22, p. 243. Hayek also disparaged Friedmann personally,
describing him as a 'less-well-known' member of a 'group of socialist lawyers',
identified elsewhere (p. 241) as being made up of 'socialist lawyers and political
scientists gathered round the late Professor Harold J. Laski'.
60 For example, Law in a Changing Society was published in a second edition in 1972.
61 Although Friedmann had worked at the London School of Economics, the main
academic centre at which analyses of British 'social administration' were developed
during the 1950s and 60s, the leading 'theorists' of the British welfare state largely
ignored his analyses during this period, despite their being published significantly
before studies of welfare state in sociology or social administration that have come
to be treated as seminal, such as Briggs, op. cit., n. 1. The same can be said of debate
about the welfare state in socialist intellectual circles during the 1950s and 60s: see
J. Saville, 'The Welfare State: An Historical Approach' (1957-8) 3 New Reasoner

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 The main impact of Friedmann's work was indirect, and acted pre
dominantly through the emergence of a debate about the relationship
between the rule of law and the welfare state conducted in the United States.
The key figure in these debates, Friedrich von Hayek, moved from the LSE
to the United States five years before Friedmann, joining the Committee on
Social Thought at the University of Chicago in 1950. A debate whose
empirical focus was mostly the British welfare state was largely conducted
between emigre central Europeans and American legal scholars. Pound was
critical of Hayek, albeit largely in passing, in his lengthy review of
Friedmann's Law and Social Change in Contemporary Britain.62 Building
on Pound as well as Friedmann, Harry Jones - a colleague at Columbia -
developed a sustained critique of Hayek's conception of the rule of law.63
Jones sought to construct a conception of the rule of law that was compatible
with the welfare state. He concluded his article as follows:

In the welfare state, the private citizen is forever encountering public officials
of many kinds: regulators, dispensers of social services, managers of state
operated enterprises. It is the task of the rule of law to see to it that these
multiplied and diverse encounters are as fair, as just, and as free from
arbitrariness as are the familiar encounters of the right-asserting private citizen
with the judicial officers of the traditional law.64

For Jones, Pound, and Friedmann, The Road to Serfdom played a key role:
all developed their analyses of Rule of Law in the welfare state in opposition
to it. But Hayek did not engage with the welfare state as such in this text.
Instead, its focus was on the implications of economic planning for freedom
and the rule of law. Of course, during the 1940s and 50s, many would have
seen the planned economy and the welfare state as two sides of the same coin.
Ironically, however, when Hayek directed his attention to the welfare state -
in The Constitution of Liberty65 - he argued that this concept marked the
decline of socialism. So, by 1960, Hayek was arguing that the 'great change'
of 'the last decade' is that socialism — defined as the idea 'that all economic
activity might be directed according to a comprehensive plan toward some
ideal of social justice' - had 'collapsed': it 'has not merely lost its intellectual
appeal; it has also been abandoned everywhere by the masses'.66 Hayek

5-25; D. Thompson, 'The Welfare State' (1958) 4 New Reasoner 125-30; and
Wedderburn, op. cit., n. 43. An exception that tests this particular rule is a single
reference in Titmuss, op. cit., n. 9, p. 46 (first published 1958). Equally, however,
Friedmann's work appears to have been largely neglected by subsequent socio-legal
scholars.
62 Pound, op. cit., n. 58; Friedmann, op. cit., n. 54.
63 H. Jones, 'The Rule of Law and the Welfare State' (1958) 58 Columbia Law Rev.
143—56, paper originally delivered to a colloquium at the University of Chicago in
September 1957.
64 id., p. 156.
65 Hayek, op. cit., n. 22.
66 id., p. 254.

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accepted that 'some of the aims of the welfare state can be realized without
detriment to individual liberty', but noted that 'unlike socialism, the
conception of the welfare state has no precise meaning.'67 For him, 'the
danger' to liberty 'from socialism of the frankly collectivist kind' was
relatively easy to repudiate: 'it was possible to argue that the tenets of the
socialist were simply false', but the advent of the welfare state 'greatly altered
the task of the defender of liberty and made it much more difficult.'68
Ultimately, then, Hayek still saw grave dangers to liberty - largely conceived
in terms of a particular vision of the rule of law — in the welfare state,
particularly if it 'aims at "social justice".'69 In this sense, then, the main lines
of the arguments of Hayek's critics also remain intact.
For our purposes here, it is worth underlining the fact that one of the most
significant and sustained debates on the welfare state during the 1950s was
conducted mostly by academic lawyers, none of them of British origin, on
the intellectual terrain of the rule of law. The initial marking out of this
terrain - by a harsh critic of socialism and social justice - was fiercely
contested. While Hayek's influence grew dramatically after the mid-1970s,
the rest of this debate seems to have been largely forgotten. But that is not
the end of the story. Jones drew on Friedmann and Pound but, in turn, his
argument that the welfare state:
must be regarded as a source of new rights and that such rights ... must be
surrounded by substantial and procedural safeguards comparable to those
enjoyed by the traditional rights of property

influenced Charles Reich, whose analysis of'The New Property' had a major
impact within the law and society movement in the United States and on
United Kingdom socio-legal studies.70

2. Law and society in Britain and the United States

Perhaps more than for sociology in general, there are good reasons to suggest
that the American law and society movement was a child of the welfare state
- in particular, of the 'Great Society' and 'War on Poverty' initiatives.
Identifying this as a period of the 'social activist state', powerful analyses

67 id., pp. 259, 257.

68 id., pp. 258, 259.
69 id., p. 260.
70 The quotation is of Reich's gloss on Jones (Reich, op. cit., n. 26, p. 786). Reich had an
enduring impact on socio-legal analyses of the welfare state in the United Kingdom,
but while 'largely forgotten', it is not accurate to say that all the analyses on which he
drew have been wholly neglected. For example, while Ian Loveland draws heavily on
Reich, Harry Jones appears to be the earliest source for his conception of an
'adjudicative ideal' in the welfare state. See I. Loveland, 'Welfare Benefits,
Administrative Discretion, and the Politics of the 'New Urban Left' (1987) 14 J. of
Law and Society 474-5 and I. Loveland, 'Square Pegs, Round Holes: The "Right" to
Council Housing in the Post-War Era' (1992) 19 J. of Law and Society 341.

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depict the American law and society movement as structurally linked to its
fate.7' For example, Jonathan Simon defined his problematique as 'the path
of interdisciplinary legal knowledge "after society'", that is, 'after the
passing of a moment when the governance of liberal societies was heavily
invested in the social'.72 He went on to argue that the dependence of the law
and society movement on the 'social activist state' was 'functional not
ideological':
The growing engagement of the federal government in re-constructing
institutions deeply embedded in social structure such as local courts, police
departments, state prisons systems and schools ... made social science
knowledge critical to law and opened up vast new spaces for social research.
Thus, while many of the most capable proponents of law and society work
were always deeply skeptical about the effectiveness of reformist
interventions, they were also deeply dependent on them.71

While 'law and society' developed strong institutional roots in American

academic life, the decline of the 'social activist state' led to a blurring of its
focus - and large-scale financial support for it dried up.
While there is no doubt, that the 'social activist state' supplied important
structural and functional supports for the law and society movement, equally
we should not neglect the interplay - even dialectic - between these material
factors and the ideas and ideals, some of which emerged from the interface
between law and sociology during this period. Alongside such commentators
as Michael Harrington and Dwight MacDonald, legal scholars like Charles
Reich helped to shape the spirit of the times.74 Reich saw the growth of
'government largess' as posing a severe threat to 'individuality'.75 Only by
turning government benefits into 'rights', Reich argued, 'can the welfare
state achieve its goal of providing a secure minimum basis for individual

71 See Garth and Sterling, op. cit., n. 28; Simon, op. cit., n. 28.
72 Simon, id., p. 144. 'Society' and 'the social' appear rather broad: Simon defines the
social as 'the set of discourses and practices that have produced "society" as a
knowable target of governance.' His application of these ideas in the United States
turns on the concept of the 'social activist state', which he dates to the 1950s and 60s
(p. 144); he also sometimes mentions the 'liberal state' which he dates to the 1960s
and 70s (p. 145). This concept is clearly closely bound up with the expansion of the
American welfare state during those decades, especially the Great Society and War
on Poverty.
73 id., p. 145. During the 1950s and 60s, Simon argues:
foundations, academics and politicians all invested in law and society as an
integral part of ... the assertion of governmental authority in vast new areas of
civil life [which] was believed by many to require the production of a new
knowledge about law which was neither doctrinal nor purely theoretical (p. 144).
74 M. Harrington, The Other America: Poverty in the United States (1962); D. MacDonald,
'Our Invisible Poor' New Yorker, 19 January 1963, at <http://www.newyorker.com/
archive/1963/01/19/1963_01_19_082_TNY_CARDS_000075671>; Reich, op. cit.,
n. 26.
75 Reich, id., p. 733.

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well-being and dignity in a society where each man cannot be wholly the
master of his own destiny.'76 This analysis was an innovative contribution to
the theory of the welfare state.
The idea that social or welfare 'rights' should have the status, in 'legal
and practical terms', as 'property rights' has become a standard assumption
of welfare state theory, generally attributed to T.H. Marshall.77 However,
while property was undoubtedly relevant to Marshall's analysis, the idea of
'property rights' was not one of his basic categories. His 'social rights' were
contrasted with other aspects of the life of the (political) community (or
state) - that is, with civil and political rights.7S By contrast Reich's analysis,
published more than fifteen years after Marshall, was the major early
statement to treat welfare 'rights' as a form of property. The analysis was
closely linked to - and helped to reinforce - the 'welfare rights' movement
in the United States, which in turn was bound up with the law and society
movement. Significantly, both Marshall himself and (more forcefully)
Richard Titmuss - another key figure behind the intellectual development of
the British welfare state - expressed reservations about the concept of
welfare rights, at least in the form emerging from the United States, as
analysed and inspired by Reich.79 This indication of trans-Atlantic differ
ences in the how the welfare state was conceived, with British experts in
social administration at its heart, brings us neatly on to our analysis of United
Kingdom socio-legal studies.
As well as differing from the American position, the question of the
relationship between the welfare state and socio-legal studies in the United
Kingdom is also rather complex. After Friedmann's pioneering studies,
further legal analysis of the welfare state began to emerge during the 1960s.80
The welfare state has played an important role in scholarship that is explicitly
aligned with 'law and society' and/or socio-legal studies, but the functional
relationship described for the United States was never as strong or direct in
the United Kingdom. Public investment in socio-legal studies arrived rather
later, when the Social Science Research Council funded the Centre for Socio
Legal Studies at Oxford University in 1972. Important developments
predated this investment, such as the unit established at Bedford College,
London dedicated to the analysis of law in a social science context.81 The

76 id., p. 786.
77 Esping-Andersen, op. cit., n. 4, p. 21.
78 Marshall, op. cit., n. 3.
79 T.H. Marshall, 'The Right to Welfare' in his The Right to Welfare (1981) 83-94
(based on a lecture originally delivered in 1965); R. Titmuss, 'Welfare "Rights",
Law and Discretion' (1971) 42 Political Q. 113-32. Marshall endorsed the Titmuss
analysis in 'Afterthought on "The Right to Welfare"' in Marshall, id., p. 95.
80 See, for example, H. Street, Justice in the Welfare State (1968).
81 For an analysis, see P. Thomas, 'Socio-Legal Studies: The Case of Disappearing
Fleas and Bustards' in Socio-Legal Studies, ed. P. Thomas (1997) and Thomas, op.
cit., n. 55.

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creation in 1974 of this Journal was a further crucial moment in the
institutional consolidation of United Kingdom 'law and society' research.
Nevertheless, many (even within the fold) were critical of the limited
scope and theoretical weakness of British 'law and society' research. An
influential article by Colin Campbell and Paul Wiles noted the limited
volume of such scholarship in the United Kingdom and decried its weak
theoretical basis.82 Moreover, they saw law and society as two distinct
activities - socio-legal studies and the sociology of law. Campbell and Wile
argued that socio-legal studies was a limited, largely empiricist enterprise
dominated by scholars from a legal background and closely linked to the
objectives of government. There was a connection to the welfare state here,
in that the governmental objectives putatively served by socio-legal studie
were widely described as 'social policy'.83 What Britain really lacked
according to Campbell and Wiles was (is?) a deep and theoretical tradition o
the sociological analysis of law.84 Others took a more ecumenical view: in
the inaugural editorial for this journal, Phil Thomas rejected 'the notion that
socio-legal studies is ... an arena in which the lawyer solves the problems o
social policy on his own terms'.85
Neither legal scholarship nor law and society expertise seems to have
played as central a role in development of the United Kingdom welfare state
as it did in the United States. Instead, the main source of expert knowledg
involved came from social administration, particularly at the LSE, which
was the dominant form that the study of society took in British academi
until sociology departments became more widely established during the
1960s. Thus, where the American law and society movement was often
regarded as a blend of law and sociology, British socio-legal studies mixed
law with social policy86 (the immediate successor to social administration)
Where academics became engaged in political action — such as through th
Child Poverty Action Group established in 1965 - those initiating these
developments tended to be scholars of social administration and sociology
together with some medical experts, rather than lawyers.H7

82 C. Campbell and P. Wiles, 'The Study of Law and Society in Britain' (1976) 11 Law
and Society Rev. 547-78.
83 As Thomas notes (op. cit., n. 81, p. 9), 'at that time' many commentators used this as
a 'pejorative term'.
84 Campbell and Wiles, op. cit., n. 82.
85 P. Thomas, 'Editorial' (1974) 1 Brit. J. of Law and Society 1.
86 Of course, influential early 'sociological' studies of legal phenomena resulted from
collaborations between (socio-)legal scholars and academics based in departments
of Social Administration - such as B. Abel-Smith and R. Stevens, Lawyers and the
Courts (1967). More recently, the balance of influence of these disciplines on socio
legal studies has shifted, with law becoming increasingly dominant: see Paddy
Hillyard's lament, 'Invoking Indignation: Some Reflections on the Future Directions
of Socio-Legal Studies' (2002) 29 J. of Law and Society 645-56.
87 See <http://www.cpag.org.uk/>.

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 The Journal of Law and Society publishes a wide range of international
material: nevertheless, given its editorial base, it can be treated as something
of a journal of record for United Kingdom socio-legal studies. At the very
least its back-catalogue opens a window on the subject's history since 1974.
While this record shows that the welfare state has been one of the core
themes of British scholarship,88 it does not indicate that a structural link
existed, of the sort identified by Simon for the United States.
A concern with 'Poor Man's Law', debates about the 'rights' of poor
people, and questions of sex equality and gender have all run through the
Journal since its earliest days.89 Certain other themes - such as the role of
the state in corporatist economic arrangements - appeared in the early years,
but then faded.90 But a consistent theme in the Journal has been the question

88 It is worth emphasizing that I am using the back catalogue of the Journal to offer a
reflection of the concerns animating socio-legal studies, with something of a bias
towards Britain. While a journal of this kind mainly reflects the body of material
submitted to it, I am aware that, to a degree, its content also reflects editorial policy
and that the patterns of submissions can be influenced by, for example, patterns of
research funding. Nevertheless, the consistency of welfare state related articles is, 1
think, significant. As well as the articles cited below, see D. Garland, 'The Birth of
the Welfare Sanction' (1981) 8 Brit. J. of Law and Society 29; J. Mesher, '1980
Social Security Legislation: The Great Welfare Chainsaw Massacre' (1981) 8 Brit.
J. of Law and Society 119; Goriely, op. cit., n. 7; C. Scott, 'Accountability in the
Regulatory State' (2000) 27 J. of Law and Society 38; T. Prosser, 'Regulation and
Social Solidarity' (2006) 33 J. of Law and Society 364 ; L. Gostin, 'From a Civil
Libertarian to a Sanitarian' (2007) 34 J. of Law and Society 594.
89 Examples include D. Leat, 'The Rise and Role of the Poor Man's Lawyer' (1975) 2
Brit. J. of Law and Society 166; A. Oakley, 'Sex Discrimination Legislation' (1975)
2 Brit. J. of Law and Society 211; P. Byrne andj. Lovenduski, 'Sex Equality and the
Law in Britain' (1978) 5 Brit. J. of Law and Society 148; D. Owen, 'Battered Wives:
Some Social and Legal Problems (1975) 2 Brit. J. of Law and Society 201; M.D.A.
Freeman, 'Violence against Women: Does the Legal System Provide Solutions or
Itself Constitute the Problem?' (1980) 7 Brit. J. of Law and Society 215; J. Pahl,
'Personal Taxation, Social Security and Financial Arrangements within Marriage'
(1986) 13 J. of Law and Society 241; N. Lacey, 'Legislation against Sex
Discrimination: Questions from a Female Perspective' (1987) 14 J. of Law and
Society 411; P. Bean, 'Mental Health Act 1959 - Some Issues Concerning Rule
Enforcement' (1975) 2 Brit. J. of Law and Society 225; P. Fennell, 'Mental Health
Review Tribunal: A Question of Imbalance' (1977) 4 Brit. J. of Law and Society
186; P. Bean, 'The Mental Health Act 1959: Rethinking an Old Problem' (1979) 6
Brit. J. of Law and Society 99; L. Gostin, 'Contemporary Social Historical
Perspectives on Mental Health Reform' (1983) 10 J. of Law and Society 47; P.
Fennell, 'Law and Psychiatry: The Legal Constitution of the Psychiatric System'
(1986) 13 J. of Law and Society 34.
90 J.T. Winkler, 'Law, State, Economy: The Industry Act 1975 in Context' (1975) 2
Brit. J. of Law and Society 103; W.B. Creighton, 'The Bullock Report - The
Coming of Age of Democracy' (1977) 4 Brit. J. of Law and Society 1; A. Page,
'Public Law and Economic Policy: The United Kingdom Experience' (1982) 9 J. of
Law and Society 225; N. Lewis and P. Wiles, 'The Post-Corporatist State' (1984) 11
J. of Law and Society 65.

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of the 'rights' of those receiving benefits and services from the welfare state:
from supplementary benefit appeal tribunals and judicial attitudes towards
social security, to housing and medical (especially mental health) policies.91
Where 'rights' in the welfare state are at stake in British socio-legal studies,
Charles Reich rather than, say, T.H. Marshall, seems to provide the
theoretical touchstone for most of the period during which the Journal has
been published.92 Whether or not individual articles fully endorse Reich's
analysis, in retrospect, they contain strikingly consistent criticism of the
British welfare state for failing to provide adequate protection of the putative
'rights' of those claiming welfare benefits and using social services of
various kinds.93 Although he is rarely mentioned in this literature, the (now)
standard theory of comparative welfare state studies literature has a distinctly
Reichian tone. Measured against this yardstick - that the welfare state is
defined by 'rights' to welfare benefits and social services that have 'the legal
and practical status of property rights' and are 'inviolable'94 - the analyses
presented in the Journal of Law and Society make it impossible to sustain the
otherwise widespread view that the British welfare state once enjoyed a
Golden Age characterized by robust welfare rights.
Despite it being a remarkably fertile subject for social, political, and
(socio)legal analysis, surprisingly little critical attention has been paid to the

91 C. Smith, 'Judicial Attitudes to Social Security' (1975) 2 Brit. J. of Law and Society
217; T. Prosser, 'Poverty, Ideology and Legality: Supplementary Benefit Appeal
Tribunals and Their Predecessors' (1977) 4 Brit. J. of Law and Society 39; J.
Mesher, 'The Merging of Social Security Tribunals' (1983) 10 7. of Law and Society
135; G. Stewart, R. Lee, and J. Stewart, 'The Right Approach to Social Security:
The Case of the Board and Lodging Regulations' (1986) 13 J. of Law and Society
371; Loveland, op. cit. (1987), n. 70; H. Bolderson, 'The Right to Appeal and the
Social Fund' (1988) 15 J. of Law and Society 279; I. Loveland, 'Policing Welfare:
Local Authority Responses to Fraud in the Housing Benefit Scheme' (1989) 16 J. of
Law and Society 411; A. Flunt, 'Rights and Social Movements: Counter-Hegemonic
Strategies' (1990) 17 J. of Law and Society 309; Loveland, op. cit. (1992), n. 70; J.
Tweedy and A. Hunt, 'The Future of the Welfare State and Social Rights:
Reflections on Habermas' (1994) 21 J. of Law and Society 288; P. Larkin, 'The
Criminalization of Social Security Law: Towards a Punitive Welfare State' (2007)
34 J. of Law and Society 295; A. Fletcher and N. O'Brien, 'Disability Rights
Commission: From Civil Rights to Social Rights' (2008) 35 J. of Law and Society
520; N. Harris, 'Conditional Rights, Benefit Reform, and Drug Users: Reducing
Dependency' (2010) 37 J. of Law and Society 233.
92 See, for example, Prosser, id.; Loveland, id. (1987); Loveland, id. (1992). Marshall
appeared in the Habermasian analysis of the welfare state and social rights by
Tweedy and Hunt, id., while Larkin, id., cited both Reich and Marshall. It is worth
recalling the almost total neglect of Reich in the comparative literature on the
welfare state.
93 Loveland's analysis (id. (1987), p. 490) of the 'New Urban Left' is a revealing
exception here.
94 Esping-Andersen, op. cit., n. 4, p. 21. This conception was discussed above, at p. 344.

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basic concept of the welfare state itself,95 an idea that is rarely set in proper
historical context. We largely lack analysis of the circumstances in which the
concept of the welfare state emerged and gained currency (what might be
called the 'historical sociology of concept formation' for the welfare state),96
and the subsequent history or genealogy of the welfare state is equally
neglected. By drawing together concepts and arguments from (socio)legal
studies and the comparative welfare state literature, this article has sought to
make a modest contribution to filling these gaps. From a more historio
graphical perspective, this article has also shown, 1 believe, that comparative
analysts of the welfare state have a considerable amount to learn from law
and society scholars. I hope that it will also convince students of socio-legal
studies that there is some value in the comparative and historical literatures.

CONCLUSIONS

A well-established conventional wisdom regards Britain as the worl

original welfare state, which had illuminated the path forward to we
statehood for other countries. Here we have seen a different picture. First
language of the welfare state was only widely adopted in Britain after it
been used in Germany and the United States. Second, as in those ot
countries, the early adoption (if not all the early use) of the phrase was a
weapon against the institutions, policies, and norms associated with
welfare state. Third, during the first fifteen or twenty years after 1945
British state remained more niggardly in many aspects of its welfare ben
than almost all other wealthy democratic countries. Fourth, there is
significant evidence of dissent and disquiet about the welfare s
throughout this period, including in the record left by political cartooni
Fifth, from the period around the mid-1970s - when we might have expe
British welfare state at its most generous and inviolable - onwards,
legal scholars have found systematic evidence that welfare benefits

95 But see J. Veit-Wilson, 'States of Welfare' (2000) 34 Social Policy & Adm
stration 1-25; D. Wincott, 'Reassessing the Social Foundations of Welfare (St
Regimes' (2001) 6 New Political Economy 409-25; D. Wincott, 'Slippery Conc
Shifting Context' (2003) 37 Social Policy & Administration 305-15; D. Bel
'The Politics of Social Policy Language' (2011) 45 Social Policy & Administrat
1-18. One core concept - social citizenship - has become the subject of
voluminous literature, but one which largely reflects - even entrenches
conceptual problems (especially of anachronism or 'presentism') with which
current analysis engages. For a partial exception, an analysis from which I
drawn inspiration, see M. Somers, Genealogies of Citizenship: Markets
Statelessness, and the Right to have Rights (2008).
96 See Somers, id., p. 60. Of course, Somers's own work provides vital elements of
kind of a genealogical approach, especially for the concept of citizenship in
United States context.

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services did not enjoy the status of robust 'rights'. This analysis points
towards a paradox: historically, the 'idea' of the welfare state has been
closely associated with the British experience, but Britain is - and has
always been - atypical.
The notion that the British welfare state led the world during the post-war
period may also have had political consequences. Critics could blame the
perceived decline of Britain on its role as a leading welfare state (whereas
had the relative generosity of state welfare provision really be a major
burden on economic performance, comparatively niggardly Britain should
have been at a significant advantage). The conventional wisdom about its
exemplary character may have contributed to imposition of swingeing cuts
on what was already one of the least generous welfare states in the Western
world, particularly after Mrs. Thatcher became Prime Minister. Repudiation
of 'old social democracy' and its post-war welfare state was also the core
proposition offered by New Labour.97 Pivotal to this politics was a critique
of the passive welfare state of pre-Thatcher, old-style social democracy -
and the attempt to offer an 'active' 'social investment state' in its place.
The United Kingdom's current Conservative-led coalition offers an
intriguingly different perspective on the history of the welfare state. David
Cameron, together with his advisers on welfare reform, have displayed a
considerable interest in the past of the welfare state, and offer a surprisingly
revisionist historical perspective on it. They have sought to downplay the
years between 1950 and 1979, seen as a period during which the welfare
state largely 'stood still' and failed to live up to the challenges of health costs
and pensioner poverty, before being fatally compromised by the growth of
unemployment.98 This analysis allows David Cameron to wrap himself in
the mantle of the 'founding values of Beveridge's welfare state' and call for
a return to the simplicity of 'the welfare state when it began'.99 For all
Cameron's disarming celebration of Beveridge, the analysis presented in this
article suggests that there are real dangers for the welfare state in this
celebration of the 1940s. Instead, with due respect to Cameron and Field,
although the 1960s and 70s were a period of real welfare state expansion,
many of the problems of British social policy result from the weakness and
stalling of this growth, not its effloresence.
The argument developed here also has implications beyond the United
Kingdom. The abstract or general idea of the welfare state has been subject

97 Here New Labour drew heavily on the popularization of scholarly debates by such
public intellectuals as Anthony Giddens.
98 See F. Field, 'The Welfare State - Never Ending Reform' at <http://www.bbe.co.uk/
history/british/modern/field 01 ,shtml> (last revised 10 March 2011). Although a
Labour MP, Field became the Conservative-led coalition's 'Poverty Czar' in May
2010.
99 D. Cameron, 'PM's Speech on Welfare Reform' (17 February 2011), at <http://
www.numberl0.gov.uk/news/speeches-and-transcripts/2011/02/pms-speech-on
welfare-reform-bill-60717>.

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to undue 'Anglo' influence: it has been heavily based on (a particular
reading of) British history. So when - from the mid-1970s - the British
welfare state began to decline and then came under a sustained ideological
and political attack, peculiar features of the idiosyncratic British experience
were easily perceived as general trends with broad implications. In the face
of considerable evidence to the contrary, then, the mid-1970s came to be
seen as a turning point for the welfare state in general. The neglect of 'the
history of ideas' for the welfare state has allowed ahistorical concepts of a
general Golden Age of the welfare state100 to congeal into a kind of
epochalist101 conventional wisdom, which is very widely held by social,
legal, and political analysts.102 It has also influenced political actors and
policy makers, predisposing them to see the fate of the welfare state as one of
inevitable decline. Not just in Britain, then, but also more generally,
misunderstandings of its history seem to have helped to reshape the welfare
state, often weakening it in the process.

100 Some scholars who embrace the general idea of an 'Age of the Welfare State'
disagree about its content or the period of time to which it refers: for example, P.
Flora (ed.), Growth to Limits: The Western European Welfare States Since World
War II - Vol. I: Sweden. Norway, Finland, Denmark (1986) describes the Golden
Age as running from 'the early 1960s to the mid-1970s', rather than the standard
1945 to mid-1970s periodization (p. xii). This analysis does beg the question of
whether a period of little more than a decade can be properly described as an 'Age'.
Braithwaite, op. cit., n. 17 offers an innovative and iconoclastic critique of the
content of various phases in the recent history of the state, without departing as far
from the conventional 'epochalist' turning points.
On epochal generalization, see P. du Gay 'The Tyranny of the Epochal: Epochalism
and Organizational Change' (2003) 10 Organization 663-84; also, T. Osborne,
Aspects of Enlightenment (1998).
102 Such as the references cited in nn. 7, 16, and 17.

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