The Welfare State
Abstract and Keywords
The social security function of the Welfare State was quintessentially the product of (and a response to) the pressures generated by the development of mass democracies in the advanced economies of the early part of the twentieth century. However, with a handful of notable exceptions, it is only in the last forty years that serious legal scholarship on the modern Welfare State has emerged. Relatively little had been written on the subject prior to 1960 and most of that corpus of work was fundamentally descriptive rather than analytical in nature. This article explores the nature, direction, and future of such scholarship and accordingly has three main sections. The first outlines the development of legal scholarship since 1960 on the principles and operation of the main arm of the Welfare State, namely income maintenance systems, and how that scholarship reflects national welfare structures. The second explores the central themes in that scholarship, and the third highlights the principal issues for future research in this field.
At the outset it must be recognized that the corpus of legal scholarship about the Welfare State remains somewhat limited when contrasted with the extensive literature in other academic disciplines. For many economists, historians, political scientists, sociologists, and scholars of social policy, the Welfare State is at the core of their endeavour. In such disciplines, books and learned journal articles are regularly devoted to analyses of competing conceptions of the purpose, scope, and effectiveness of the Welfare State. Given that welfare spending is the largest single component of public expenditure in most advanced economies, this hive of scholarly activity is hardly surprising. Yet, in contrast, the Welfare State is seen as a marginal area of scholarship by the great majority of academic lawyers. Connections may be made from time to time by scholars in public law and the law of torts—most notably by Atiyah's path-breaking work on compensation systems (Atiyah, 1970)—but the subject is approached from the perspective of the core legal discipline. Thus scholarly writing by jurists which has the Welfare State at its heart is the exception rather than the rule. This disciplinary imbalance is starkly illustrated in the volume edited by Robson (1992) on Welfare Law in the International Library of Essays in Law and Legal Theory: just five of the twenty-five contributions, drawn from the period from 1954 to 1988, were the work of legal scholars.
But what do we mean by the Welfare State? For present purposes, a useful starting-point is the definition provided by the social historian Derek Fraser (1984), whilst (p. 398) recognizing that a range of other conceptions have been developed. Fraser describes the Welfare State as a system of social organization which restricts the operation of the free market in three principal ways. First, the Welfare State designates certain groups within society as in need of protection (e.g. children at risk). Secondly, it delivers services such as education and health care to members of the community irrespective of means. Thirdly, the Welfare State operates a system of transfer payments which serve to maintain an individual's income in times of need, for example, when earnings are interrupted by sickness or unemployment, or as an extra source of financial support during parenthood.
Fraser's paradigm undoubtedly has its weaknesses, not least as it is heavily influenced by the British experience. In particular, his model highlights the role of cash transfer payments whilst, as Titmuss (1968) observed, fiscal measures in the form of tax allowances and reliefs should be seen as a mechanism for delivering welfare (see further below). Moreover, Fraser's typology assumes that the delivery of welfare is predominantly, if not exclusively, the function of central and local government. But Titmuss (1968) also noted the growing importance in the advanced Welfare State of occupational welfare through job-related fringe benefits and pensions. We return later to the intersections with occupational benefits and the tax system in particular and their implications for legal scholarship. The late twentieth century has also seen an increasing shift towards other forms of delivery for welfare. This is particularly evident in the United States, where the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 allowed states to contract out the administration of welfare through the Temporary Assistance for Needy Families (TANF) programme to private organizations.
The coverage of the Welfare State may thus be seen in still broader terms. For Cranston (1985)—one of the few major works of legal scholarship which has sought to undertake a more comprehensive approach—the essence of the Welfare State revolves around ‘government-protected minimum standards of income, nutrition, health, housing and education, assured to every citizen as a political right, not as charity’. Cranston's own study of the legal foundations of the Welfare State concentrated on such minimum standards in so far as they related to rented housing, social welfare benefits, and access to legal services. Seen in this way, evidently choices have had to be made about the coverage of legal scholarship in this chapter. The primary focus here is on income maintenance by cash transfers, or social security. This is the most important common theme in the studies by both Fraser and Cranston and is moreover, in popular discourse, seen as the principal business associated with the Welfare State.
The social security function of the Welfare State was quintessentially the product of (and a response to) the pressures generated by the development of mass democracies in the advanced economies of the early part of the twentieth century. However, with a handful of notable exceptions, it is only in the last forty years that serious legal scholarship on the modern Welfare State has emerged. Relatively little had been written on the subject prior to 1960 and most of that corpus of work was fundamentally descriptive rather than analytical in nature. This chapter seeks to explore the nature, direction, and future of such scholarship and accordingly has three main sections. (p. 399) The first outlines the development of legal scholarship since 1960 on the principles and operation of the main arm of the Welfare State, namely income maintenance systems, and how that scholarship reflects national welfare structures. The second explores the central themes in that scholarship and the third endeavours to highlight the principal issues for future research in this field.
1 The Development of Legal Scholarship on the Welfare State
It is axiomatic that we are all prisoners of our past. Legal scholarship about the Welfare State is no different in that within various countries there is a tendency for such writing to reflect the prevalent and jurisdiction-specific Welfare State model. For example, in the United Kingdom the framework for the modern Welfare State was established by the National Insurance Act 1911, which introduced sickness and unemployment insurance. These schemes in turn formed the basis for the creation of a ‘universal’ British system of social insurance by the post-World War II Labour government, following the recommendations of the Beveridge Report in 1942. However, the first scholarly monographs on the subject of social security law appeared in the United Kingdom only in (relatively) recent years. Thus, the first edition of Calvert's Social Security Law was published in 1974 and the first edition of Ogus and Barendt's The Law of Social Security followed in 1978, the same year as the second (and indeed last) edition of Calvert's book appeared. Both books were structured around a conception of the Welfare State in the terms of Beveridge's ideal vision: in particular, the central role of the contributory system and the primacy of national insurance benefits (such as those established by the 1911 Act and subsequent reforms). General means-tested benefits, such as supplementary benefits, for those marginalized members of society who failed to qualify for one of the main contributory benefits, were relegated to the final chapters of each book. In the United Kingdom at least, most of the early journal literature on social security law adopted the same approach. Thus, throughout the 1960s and the greater part of the 1970s, much of the juristic analysis of social security law which appeared in periodicals was primarily concerned with the mainstream national insurance benefits. Indeed, well into the 1970s social security law was typically seen as a subset of labour law—for many years the Industrial Law Journal was alone in the United Kingdom in providing a regular home to legal scholarship about social security issues. Standard labour law texts of the time typically included a ‘bolt-on’ section devoted to social security, but driven by its relationship to employment status.
Since the late 1970s, the focus of much British writing on the law of the Welfare State has moved away from this preoccupation with the labour market aspects of (p. 400) social security provision. This may be a response to the empirical social research agenda which had identified the problem of family and child poverty in the 1960s and the growing dependence of many low-income families on means-tested benefits. There was also an increasing realization, engineered by feminist scholarship (Wilson, 1977), that the system of contributory benefits, the mainstay of Beveridge's scheme of social insurance, perpetuated the gendered nature of the Welfare State. Typically, women with children failed to build up an adequate national insurance record and so were less likely to be able to establish an independent right to a contributory benefit. If living with a partner, a woman would be regarded as a dependant of the male ‘head of household’. If living alone, she would be reliant on means-tested benefits.
This shift towards a wider conception of the Welfare State was reflected, somewhat belatedly in British academic legal circles, with the establishment of the Journal of Social Welfare Law (or JSWL) in 1978. The JSWL sought to cover a wide spectrum of material relating to law and social policy but with a strong emphasis on applied rather than theoretical issues. The journal's remit, modelled on Fraser's conception of the British Welfare State, was from the outset social welfare and not just social security, and included such matters as education, family law, housing, and juvenile justice. Indeed, the journal's increasing emphasis on the family law and social policy aspects of welfare law led to its renaming in 1991 as the Journal of Social Welfare and Family Law (or JSWFL). The first British academic legal journal to be devoted exclusively to the core activity of the modern Welfare State, the Journal of Social Security Law (or JSSL) did not appear until 1994.
The contents of a typical issue of the JSSL demonstrate how far British legal scholarship in this area has moved from the industrial or labour law model of social security. Extensive coverage is given to means-tested benefits, tax credits, and general disability benefits, whilst the modern-day British equivalent of unemployment benefit, contribution-based jobseeker's allowance, barely merits a mention. A similar approach to the Welfare State, reflecting the reality of the modern benefits system today, is evident in the first substantial new British textbook in the area since Ogus and Barendt, Harris's Social Security Law in Context (2000). Indeed, the most recent edition of Ogus and Barendt itself has been radically restructured to shift the prime focus away from the paradigm of contributory benefits (Wikeley et al., 2002). But it is not simply that such scholarship adopts a broader conception of the scope of social security law; it is also avowedly interdisciplinary in its approach. Harris (2000), for example, engages with the literature from social policy and to a lesser extent from economics in order to set the framework for the book's analysis of social security law. However, the adoption of this broader perspective is challenging for the legal scholar, given that the literature on the Welfare State in these other disciplines is vast, diverse (covering the whole range from highly theoretical to unashamedly empirical studies with everything in between) and indeed, in places, uneven in terms of its quality.
Thus it remains the case that most scholarship on social security law emanating from British universities is firmly rooted in the technical tradition (Robson, 1992). There may be a number of further reasons for this. First, in some jurisdictions—most (p. 401) notably the United States—federal and state governments enjoy different competencies in delivering welfare programmes (e.g. unemployment insurance is a state responsibility). Consequently, American scholars are more naturally drawn to teasing out theoretical issues rather than concentrating on an analysis of a myriad of detailed regional arrangements. In contrast, the existence of a unitary system of social security across Great Britain, with comparatively little scope for diversity in local provision, has encouraged a focus on the content of such national legislation. Moreover, once jurists adopt that perspective, the rapid pace of change in the statutory provisions governing social security means that their scholarship is typically in responsive mode. Secondly, and compounding this tendency towards technicalism, Great Britain is relatively unusual in having both a well-established specialized system of local social security tribunals and an expert appellate tier at national level (the Social Security Commissioners). The origins of both date back to the original 1911 scheme and the jurisdiction of the latter is almost exclusively confined to points of law (the Commissioners have a peculiar original jurisdiction to determine cases of forfeiture, typically where a widow convicted of the murder or manslaughter of her late husband is denied a bereavement benefit). To a greater extent, therefore, than other common law systems, the British Welfare State has developed its own extensive body of judicial precedent. Yet, unlike in private law, this body of doctrine is wholly parasitic upon the statutory superstructure. In contrast, relatively few social security cases in America proceed beyond the stage of a hearing before an administrative law judge and there is no specialist national welfare court. In Australia, social security appeal tribunals are a relatively recent innovation (dating only from 1980; between 1975 and 1980 they had a purely ‘advisory’ function) and appeals from these tribunals are simply one aspect of the work of the Administrative Appeals Tribunal (AAT). Additionally, the AAT exercises a jurisdiction based on merits review, rather than being confined to points of law. (In addition, owing to a curiosity of the Australian constitutional system, the AAT does not formally exercise a judicial function.) Consequently, in contrast to the position in the other main common law systems, doctrinal analysis of the decisions of the Social Security Commissioners has been assumed by British social security scholars to be one of their core functions.
This positivist influence is apparent in both legal periodicals and books on the Welfare State. For example, for many years the JSWL carried a regular section analysing ‘Recent Social Security Commissioners' Decisions’. Although the JSWFL no longer retains that section, half of each issue of the JSSL is devoted to its ‘Digest’, summarizing both the many changes to social security law by primary and more particularly secondary legislation and Commissioners' decisions. These journals have served a valuable function, given the haphazard reporting of social security decisions in the United Kingdom (indeed, for the greater part of the 1990s, the official series of Commissioners' decisions simply dried up altogether, hindering both scholarship and teaching in this area). As regards books, the major publication on social security law (in terms of both sales and the level of detail in its technical analysis) is the (p. 402) comprehensive Social Security Legislation (Bonner, 2002). This is published annually in three weighty volumes amounting, in 2002, to a total of over 3,200 pages of annotated primary and secondary legislation—not counting the separate volumes on child support and housing benefit law. This positivist bias in British legal scholarship about the Welfare State has resulted in an increasingly close relationship between academics working in the field of social security law and the specialist judiciary in the appeal tribunals and amongst the Commissioners. Since its reconfiguration in the late 1970s, the tribunal system has relied heavily on university law teachers and researchers for the delivery of its in-house training programmes. Moreover, in recent years, academics have been appointed to part-time tribunal chairman or Commissioner posts, or indeed have left the academy altogether for full-time judicial appointments in these jurisdictions. This symbiosis undoubtedly has its advantages, not least in terms of providing a practical judicial insight into the resolution of doctrinal issues and by way of assisting in securing access for empirical research projects. But this focus has arguably been at the cost of an undue focus on doctrine over theory in the British literature.
In the light of these factors, it is no surprise that much legal scholarship about the Welfare State emanating from British jurists is ethnocentric in character (but, in fairness, the same can also be said of the United States: Robson, 1992). For example, we have seen that British legal scholarship in this area is heavily focused on domestic provision of social security. True, the intranational and international impact of European law is acknowledged, both in terms of ensuring equal treatment for men and women in social security under national law and for migrant workers who move round the European Union. Similarly, the profile of the Strasbourg jurisprudence in the domain of social security has inevitably been enhanced by the incorporation of the European Convention on Human Rights into British law by the Human Rights Act 1998. That said, it is rare to see any reference to other forms of international norms relating to social security provision in either the scholarly literature or the case law. It is as though the European Social Charter is implicitly seen as the exclusive province of texts on European human rights law. Certainly, it is rarely referred to in the domestic social security literature, even where British social security legislation has been found to be in breach of the Charter. For example, domestic law imposes a ‘habitual residence’ test, which stipulates that claimants should have completed an ‘appreciable’ period of time in the country before they can qualify for any of the main means-tested benefits. The European Committee of Social Rights has held that such a requirement, applied to non-nationals with a legal right of abode, is inconsistent with the right to social assistance under article 13(1) of the Charter.
As in Great Britain, much of the legal scholarship about the Welfare State within the other advanced economies typically reflects prevailing welfare ideologies and systems. Within the rest of Western Europe, the origins of the Welfare State are usually traced back to the 1880s and Bismarck's introduction of invalidity and old age pensions and a workers' compensation scheme in the nascent German state. Today, in both France and Germany, the ‘social partners’, in the form of capital and labour, (p. 403) retain a powerful role in the realm of social protection. In both countries, although there are some national and universal schemes, social insurance is organized in large part on a sectoral basis (thus, membership is based on occupational classification, with separate schemes for professionals, civil servants, agricultural workers, and so on), whilst regional administrations have a much enhanced role in the provision of social assistance (see e.g. on France, Dupeyroux, 2001). In several European states (e.g. Spain), there is a joint Ministry of Labour and Social Affairs. These structures continue to influence the shape of legal scholarship on the Welfare State in mainland Europe, where social security law is still seen as closely allied to collective labour law. This tradition is reflected in the fact that the main European network for legal scholarship in this field is the International Society for Labour Law and Social Security. For example, the third (and only social security-inspired strand) of the three principal themes of its 2002 Congress in Stockholm (freedom of movement and transfer of social security rights) demonstrates the parasitical nature of such legal scholarship.
Indeed, this approach, focusing on the Welfare State through the prism of the labour market relationship, has also been central to the development of European Union social policy over the last half century. One of the Union's very first legislative acts (Regulation 3/58) established a mechanism for the protection of migrant workers' social security rights; it was then another two decades before the next major practical initiative in social security protection was to take place. Council Directive 79/7 requires equal treatment of men and women in matters of social security, but again its scope is limited to those benefits which are in some way linked to labour market status. Thus, it has no application to social assistance benefits designed solely to relieve poverty, irrespective of cause. Legal scholarship about the Welfare State on the pan-European level remains locked into this way of thinking. Hence the major topic of juristic debate in the new European Journal of Social Security revolves around the European Commission's controversial proposals for a radical recasting of Regulation 1408/71 on the social security rights of migrant workers (the immediate successor to Regulation 3/58).
A very different picture of Welfare State legal scholarship is apparent in North America, or, to be precise, the United States (Canada's Welfare State is in many respects closer to those that exist in Europe, as reflected in its legal scholarship). The European model of the Welfare State—whether in its predominant Bismarckian form in mainland Western Europe, or in the somewhat attenuated Beveridge version in Britain—is premised on a shared political value of social solidarity. True, both the Beveridge and Bismarckian forms prioritize the worker's ‘earned’ right to contributory benefits over any citizen's access to ‘gratuitous’ means-tested and tax-funded social assistance. Yet the discourse of America's residualist Welfare State has traditionally been even more individualistic, drawing a much firmer distinction between social security (meaning principally disability and old-age social insurance) and welfare (in the narrow sense of means-tested public assistance). According to this value system, the latter connotes ‘the morally inferior status of reliance on income not acquired through effort and exchange’ (Simon, 1986). Indeed, it was not until the Great Depression of the interwar (p. 404) years that the United States introduced a rudimentary form of social security through the Social Security Act 1935. There are aspects of the American literature on the Welfare State which are similar to the technical and labour law approaches commonly found in Europe, for example, much of the writing about the legal aspects of unemployment insurance and workers' compensation. But the best scholarly work from the United States has been by academicians in the field of public law. Their work has tended to operate at a more sophisticated level of theoretical analysis, certainly than that typically found in Great Britain. The reasons for this are, no doubt, in part the converse of those factors discussed above that have resulted in a more technical approach in the latter jurisdiction. It may also, in any event, reflect the greater emphasis on theoretical approaches in American public law scholarship (see Ch. 8). Bearing that intellectual baggage in mind, we now turn to consider the influence of one of the principal American contributions to the jurisprudence of the Welfare State, Reich's concept of new property rights, along with some of the other main themes in this area of legal scholarship.
2 Central Themes in Legal Scholarship on the Welfare State
This section explores three central themes which may be identified in legal scholarship on the Welfare State over the past half-century: the scope of welfare rights; the role of discretion; and the use of law as an instrument of social control. Of these the first and arguably the dominant theme—associated with the work of Reich (1964 and 1965)—has concerned the notion of rights to welfare.
This extract is in fact from Jones (1958), who receives one footnoted reference in two seminal articles by Reich (1964 and 1965). Thus the fundamental concept underlying the latter's analysis of rights in the Welfare State was not, of itself, original. Jones, however, approached the question from a conventional ‘rule of law’ perspective. Reich's work developed and popularized the idea in legal discourse at a time when governments on both sides of the Atlantic were expanding social security programmes. Moreover, as Simon (1986) has observed, Reich's critical innovation was to (p. 405) blur the distinction between social insurance and public assistance and to extend the concept of rights to the latter type of programme. The notion of rights in social insurance programmes was relatively unproblematic, given the contractual private law analogy—however tenuous in practice—with contributions to a public law insurance scheme. The proposition that benefits by way of public assistance, which had conventionally been seen as mere gratuities, could also be allied to private law norms as a form of ‘new property’ was more radical.
The citizen's significant encounter now is not with the policeman or the criminal magistrate but with the official representing a regulatory authority, an administration of social insurances, or a state-operated economic enterprise. It is this dramatically increased incidence of encounter that sets the task of the rule of law in the welfare state … New expectations progressively brought into existence by the welfare state must be thought of not as privileges to be dispensed unequally or by arbitrary fiat of government officials but as substantial rights in the assertion of which the claimant is entitled to an effective remedy, a fair procedure, and a reasoned decision.
The primary emphasis in both Jones's preliminary sketch and in the more panoramic landscapes by Reich was on procedural rather than substantive rights. At the very least, this reflects the lawyer's traditional concerns with issues of due process. Reich's concept of a ‘new property’ soon had an impact on US public law. In Goldberg v Kelly (397 US 254 (1970)) the Supreme Court accepted that the receipt of welfare was not simply a privilege to be withdrawn at the will of the executive; instead a welfare claimant was entitled to a fair hearing before benefits could be terminated. The ‘new property’ analysis was acknowledged in a footnote to that opinion. But the influence of Reich's work was limited to that of a footnote; indeed, Goldberg v Kelly was arguably the highpoint of this judicial approach. Other landmark decisions in the United States have demonstrated that the ‘new property’ philosophy has had only a limited impact on judicial reasoning, with the result that the notion that a claimant has a substantive right to welfare remains at best fragile. True, in Shapiro v Thompson (394 US 618 (1969)) the Supreme Court had struck down residence clauses in state welfare schemes, that is, those which bar recent arrivals from access to public assistance for a year (redolent of the Law of Settlement which was a central feature of the British Poor Law, whereby parishes sought to remove paupers to their parish of origin). But this was on the basis of the constitutional (and market-driven) right to inter-state travel, not on any principles drawn from the ideology of ‘new property’ (Bussiere, 1997). Furthermore, in subsequent decisions, the Supreme Court declined to acknowledge welfare as a fundamental right (Dandridge v Williams (397 US 471 (1970)) and restricted the due process requirement for a pre-termination hearing (Mathews v Eldridge (424 US 319 (1976)). That said, more recently the Supreme Court has struck down restrictions in California law which had sought to limit welfare payments in the first year of residence to the (typically lower) levels paid in the recipient's previous state of residence (Saenz v Roe (526 US 489 (1999)). This decision, based on the rarely invoked Privileges or Immunity Clause of the Fourteenth Amendment, expresses a more solidaristic concept of entitlement derived from notions of citizenship.
The preoccupation with procedural over substantive rights has also been mirrored in British scholarship on the Welfare State. Throughout the 1970s and the 1980s, scholars—often from outside the narrow legal academy—debated the respective roles of ‘law’ and ‘discretion’ in the Welfare State. From a social policy perspective, there were dangers inherent in the ‘pathology of legalism’ (Titmuss, 1971). On the other hand, the analysis of the philosopher and political scientist indicated that the application of both rules and discretion could generate precisely the same types of (p. 406) problem (e.g. arbitrariness, unpredictability, and intrusiveness) (Goodin, 1986). Much of the British socio-legal scholarship of this period tended to focus on the one feature of the Welfare State in which the two issues of procedural justice and the ‘law versus discretion’ debate came to the fore: the operation of social security tribunals (as in Adler and Bradley, 1976; see also Fulbrook, 1978, a classic study which also exemplifies the labour law roots of social security law in Great Britain). This has remained a recurrent and arguably unique theme of the British scholarship on the work of tribunals, which has always had a strong applied orientation (Prosser, 1977, being one of the best illustrations of a more theory-driven approach). In contrast, although overall there appears to have been relatively little activity by American scholars in the field of dispute resolution in the Welfare State, the study by Mashaw (1983) has been hugely influential in terms of setting the agenda for subsequent research (especially in the United Kingdom). Mashaw's major contribution, aside from developing different theoretical models of administrative justice, was to emphasize the importance of first-tier decision-making within welfare bureaucracies. In Australia, however, although the function and role of tribunals has assumed much greater significance in public law scholarship than in other common law jurisdictions (see Ch. 8), the debate has largely been conducted in an environment in which the claimant's voice is notably absent. Thus, whereas there is a considerable body of socio-legal work on the actual operation of British tribunals, especially those adjudicating claims on the Welfare State, the Australian literature is conspicuous for the fact that there are no major empirical studies examining the operation of social security tribunals. It is, of course, by no means unknown for policymakers elsewhere to seek to implement significant changes to appeals systems by pursuing a managerialist agenda with little regard for the existing empirical evidence as to appellants' perceptions of fairness and justice (Wikeley, 2000).
There has also, I would argue, been a tendency at times for the ‘law versus discretion’ debate to distort the scholarly agenda on the Welfare State, especially in the United Kingdom. This was particularly the case with the Fowler Reviews of the mid-1980s, when Margaret Thatcher's Conservative government launched a major overhaul of social security provision. Legal scholars—the present writer included—focused their attention on the controversial proposal to abolish the statutory right of supplementary benefit claimants to ‘single payments’. This form of benefit was paid to meet the costs of ‘one-off’ lump-sum costs (e.g. the cost of a new cooker or bed) which could not be met from normal weekly benefit levels. In its place, the Social Security Act 1986 introduced the social fund, a system of discretionary loans (and, in limited cases, grants) with a capped budget, unlike the demand-led single payments scheme. As the social fund also involved the abolition of the right of appeal to an independent tribunal, this change challenged two precepts fundamental to the lawyer's mind-set: the twin values of entitlement enshrined in law and procedural justice.
Indeed, on the basis of the pages of the Modern Law Review and Public Law, the reader could be forgiven for thinking that the social fund was the Social Security Act 1986. Yet the social fund accounts for less than 1 per cent of all social security expenditure in Great Britain. (And, in any event, although the social fund remains seriously flawed, discretion (p. 407) has been replaced by formulaic computer-driven assessments of eligibility as a result of the Social Security Act 1998, and the review system for social fund decisions has generally been regarded by analysts as a success.) The major issue in the 1986 Act for the social security system was the government's decision to cut back on the generosity of the State Earnings Related Pension Scheme (SERPS). However, pensions provision has rarely featured prominently in the scholarly legal literature, a neglect that has continued to the present day. This is not just a failing of scholars who specialize in the Welfare State: how many undergraduate public law courses in British universities still make tired references to the Crichel Down affair of 1953? But arguably by far the most significant (and undoubtedly the most costly) example of official maladministration in the latter half of the last century involved the DSS's persistent failure, throughout the 1990s, to provide contributors with accurate information about the implications of the 1986 SERPS changes—a neglect which it is estimated will cost about £12 billion to rectify.
The third recurring theme in legal scholarship around the institutions and practices of the Welfare State is that of law as an instrument of social control. Many of the concerns which dominated public discourse about the poor and the Poor Law in earlier centuries—the need to maintain work incentives, the growth of an ‘underclass’, the problems of lone parenthood—thus remain the fundamental currency of contemporary debates about the modern Welfare State. The ‘social control’ model is especially evident in the US literature (a prime example being Piven and Cloward, 1993). The focus on the operation of the ‘cohabitation rule’ in both the United States and the United Kingdom during the 1960s and 1970s demonstrates the enduring influence of this theme in the literature. The effect of the ‘cohabitation rule’ rule was that a woman who was found to be living together with a male partner ‘as husband and wife’ would be treated as a member of an unmarried couple. If he was in work, she would lose any entitlement to means-tested benefits and be regarded in the eyes of social security law as his dependant—whilst private family law would recognize no obligation of support. The cohabitation rule inevitably raised issues of privacy as well as the proper place for the exercise of discretion in decision-making in the Welfare State. The American courts ruled on challenges to the ‘man in the house’ rules in welfare schemes (e.g. King v Smith 392 US 309 (1968)), as did the Australian and British courts a decade or so later (e.g. Lambe v Director-General of Social Services (1981) 57 FLR 262 and Crake v Supplementary Benefits Commission  1 All ER 498).
The ‘social control’ model also explains (if it has not already been adequately explained by the intellectual roots of the subject in Great Britain) the attention given by scholars to the role of social security law in labour disputes in the 1970s. There is, however, a danger that social control interpretations can ‘degenerate into crude functional-ism, lacking explanatory power’ (Cranston, 1985). Arguably the most valuable analysis to adopt a social control perspective is found in the literature which has explored the legally prescribed boundaries of capacity and incapacity for work for the purpose of entitlement to benefit. An overriding concern of the Poor Law was to differentiate between the ‘deserving’ and ‘undeserving’ poor, a legacy which continues to impact upon contemporary social security policy. As Handler (1990) has argued, ‘the heart of poverty policy (p. 408) centers on the question of who is excused from work’. Some of the most impressive work in this field has drawn on theories of the social construction of disability and incapacity to show how the boundaries drawn in benefit schemes ultimately reflect moral choices about the nature and extent of the social obligation to work (Diller, 1996).
Yet the ‘social control’ school of legal scholarship about the Welfare State remains fundamentally reactive in nature. This stands in marked contrast to the corpus of literature emanating from social policy analysts which has been so influential in recent years in shaping governmental welfare policy. Conservative administrations, especially in the United Kingdom and the United States, were swift to adopt the language of Charles Murray (1984) in identifying welfare dependency as the fundamental problem facing the modern Welfare State, arguing that long-term receipt of benefits eroded individual initiative and personal responsibility. In the United States in particular, ‘workfare’ programmes (with work requirements being linked to the receipt of benefits) became a key instrument of official welfare policy. These ideas were developed by other writers, principally Lawrence Mead (1987) and David Ellwood (1988). Mead's explanation for poverty focused on individual rather than structural reasons: the prime reason for poverty is identified as non-work; the long-term poor lack ‘competence’ in the labour market; ergo official policy should be directed towards enforcing the work obligation. Ellwood's approach shares with Mead and Murray the emphasis on the primacy of the individual responsibility to engage in paid employment. However, Ellwood then advocates that the state should stipulate a minimum wage policy and operate benefits and tax policies to ensure that a family is left with an income above the official poverty line. This analysis has been instrumental in more recent years in the development of in-work benefits and other welfare-to-work strategies by centre-left governments.
3 Contemporary Questions for Modern Legal Scholarship on the Welfare State
There are a number of major challenges which need to be addressed by scholars working on the Welfare State today. This section identifies three such areas. The first is the need to develop the legal literature in relation to the largest part of the Welfare State's activity (i.e. pensions). The second is to respond to significant changes in the administration and delivery of welfare, for example, through so-called ‘activation programmes’ and via the taxation system. The third goal should be to integrate the rich literature on the legal theory of rights in the Welfare State into the applied legal scholarship in the same sphere.
First, much of the literature to date is concerned, directly or indirectly, with social security as a form of income transfer to the socially excluded. The archetypal (p. 409) recipient—the claimant—is the disabled person, the lone parent, or the individual who is either jobless or on the fringes of the labour market. Yet arguably this approach ignores the main business of the Welfare State. Thus between two-thirds and three-quarters of such social expenditure in the United Kingdom takes the form of life-cycle redistribution, whereas only a third (or less) is devoted to poverty relief. In quantitative terms, as Barr (2001) has demonstrated, the Welfare State's key function is as a piggy-bank. The starting-point for Barr's analysis is familiar territory: for the past half-century social policy in the industrialized world has been based on three implicit assumptions: first, that constraints on economic policy were principally domestic; secondly, that employment was binary (an individual was either employed full-time or out of work); thirdly, that the ‘nuclear family’ was the typical (and stable) social relationship. All three assumptions have been undermined. Globalization has limited the extent to which governments can pursue independent fiscal policies; labour markets have become more flexible, with ‘atypical work’ becoming a normal feature of the labour market; divorce and separation have likewise become commonplace. Barr's conclusion is that ‘to a greater extent than previously, people need to be able to carry their welfare state on their back like a snail shell’. For economists, therefore, pensions, being central to individuals' long-term financial security, are the key issue in the modern Welfare State. Yet in much of the legal literature on the Welfare State pensions are invisible. Such scholarship as there is has tended to focus on equality of treatment in pension rights, reflecting the activity in the European Union case law on the point. Other contributions by jurists have tended to be somewhat fragmented, focusing on the trusts law or collective labour law aspects of pensions provision, rather than analysing private and public sector pension regimes in a holistic manner.
Secondly, and drawing on Barr's emphasis on individualization, the notion of a homogeneous, monolithic Welfare State can be seen very much as a twentieth-century construct which appears increasingly difficult to sustain in the modern era. For example, governments across the globe are placing much greater emphasis on ‘activation programmes’ for those outside the labour market. Initially, and especially during the 1980s, such programmes were typically instigated by right of centre governments and were confined to the long-term unemployed, involving greater emphasis on monitoring compliance with eligibility criteria (e.g. that claimants be available for and actively seeking employment; see, on the Canadian experience, Campeau, 2001). In more recent years, there has been a qualitative change in the nature of these initiatives in two respects. First, claimants who previously would have been seen as outside the labour market have been included within their scope—most notably lone parents. This is exemplified by the Clinton administration's Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and the Blair government's introduction of ‘work-focused interviews’ for lone parents. These developments have taken place along side efforts to improve child support collection rates as part of a ‘stick and carrot’ welfare-to-work strategy. Secondly, governments have attempted to transform the role of front-line staff in welfare bureaucracies from passive (p. 410) administrators of benefit schemes to case managers seeking to facilitate the claimant's eventual escape from the ‘dependency culture’. Closely associated with this phenomenon has been a trend towards imposing greater conditionality on benefit entitlement, drawing on the thinking of Murray (1984) and Mead (1987). Reflecting how far we have moved from Reich's analysis, the argument is that receipt of benefits brings with it responsibilities as well as rights. For example, at the time of writing, the British government appears to be actively considering measures such as the withdrawal of the ‘universal’ child benefit from parents who fail to prevent their children's persistent truancy, and of housing benefit from those tenants whose families engage in ‘anti-social behaviour’. Today, therefore, the ‘new property’ ideology appears increasingly static and unable to respond to these modern developments in social security. Instead, welfare contractualism or reciprocity, rather than entitlement based on citizenship, is seen as one of the core values of the Welfare State. The challenge for contemporary legal scholars is to work through the implications of these developments. In particular, the legal architecture of the traditional Welfare State dispute-resolution process, based on claims adjudication by merits review tribunals, may require modification to accommodate the new way of delivering welfare (Carney, 1998).
In addition, returning to Titmuss's (1968) analysis of the scope of welfare, the increasing importance of fiscal measures as a means of furthering governmental social policy objectives needs to be recognized. Australia, Britain, and the United States have all seen a shift towards the tax system as a means of delivering welfare. In the United States, the Clinton administration introduced and rapidly expanded the Earned Income Tax Credit at the same time as traditional welfare programmes were cut back, in keeping with the analysis by Ellwood (1988). Both Australia and Britain have also seen similar initiatives with the introduction of the Family Tax Payments scheme and tax credits respectively. At the very least, the traditional boundaries of scholarship on social security law will have to be redrawn to reflect these changes. For example, British scholars will have to recognize that social security law is not just a study of the legal aspects of the work of the Department of Social Security (renamed in 2001, with a telling ideological resonance, as the Department for Work and Pensions). Instead, and especially with the advent of the Tax Credits Act 2002, the role of the Inland Revenue has become central to the British Welfare State.
Finally, we have already seen that a central theme of much legal scholarship in social security has been the role of welfare rights. Typically, welfare rights are seen in the context of citizenship theory developed by scholars of social policy. Yet, there is a rich literature on social justice in the realm of moral and political philosophy which is also of relevance (e.g. in the work of Dworkin and Rawls). Dworkin's principles of egalitarian justice would certainly support the argument that it is entirely appropriate to attach conditions to the receipt of benefit. The Rawlsian Theory of Justice, on the other hand, would appear to allocate primary goods unconditionally through the Difference Principle. Leaving aside these overarching theories of justice, there has been a great deal of work specifically on the philosophical justifications for a basic income (see e.g. Van Parijs, 1992). The work of many social security scholars is (p. 411) remarkable for the absence of connections with this theoretical literature. At the very least, there is scope for an analysis of the growing trend towards conditionality or reciprocity in benefit entitlement in the context of these theoretical models.
The last section outlined some of the fundamental issues facing contemporary and future legal scholarship on the Welfare State. Many of the policy developments in the advanced Welfare States, whether in the common law world or not, share common themes—activation programmes for the jobless, greater emphasis on fiscal welfare and private pension provision, ‘streamlining’ of decision-making and appeals systems. However, legal scholarship in this area remains obstinately ethnocentric. At the same time, this branch of academic research faces a number of serious challenges in the early part of the twenty-first century. The most pressing is the sheer question of survival. Few British law schools have treated the Welfare State as a central issue for their research mission or as a core part of their undergraduate curriculum. Certainly, in the United Kingdom at least, only a minority of law schools offer either social security or more generally welfare law as part of the regular diet for undergraduate law degrees. Typically, the average law student and future practitioner's exposure to social security and the Welfare State will perhaps be little more than a passing reference to the role of tribunals in public law courses. Given the centrality of the Welfare State for the experience of the modern citizen, this says much about the practitioner-based paradigm of the standard law degree. Those British academics who remain active in researching and writing in the field—and have not taken up full-time appointments in the specialized tribunal judiciary—are all well known to one another and could comfortably fit into a small seminar room. The acute shortage of academics working in the field necessarily places a greater burden on those who are active in the area, so leaving less capacity to deal with the issues discussed in this chapter. These problems may be especially acute in the United Kingdom, but appear to be evident in other jurisdictions too. The ever-present danger is that legal scholarship on the Welfare State, in seeking to keep pace with the rapid developments in governmental activity, becomes ever more positivist in nature, eschewing any normative perspective.
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Professor Neville Harris's invaluable comments on a draft of this chapter are acknowledged.