Law and the Welfare State
| DOI | http://doi.org/10.1111/j.1467-9299.1953.tb01753.x |
| Date | 01 March 1953 |
| Published date | 01 March 1953 |
Law
and
the
Weljixre State
By
~~FESSOR
w.
A.
ROBSON
In
reviewing Professor Friedmnnn’s recent book, Professor Robson
comments
upon
the
present
state
of
Public Law
in
this country and the
remedies available to the citizen against public authorities.
T
is only rarely that
a
book on law published in this country is of interest
Professor
Friedmann’s
Law and Social Chmge
in
Contemporary Britain1
is such a book,
although it is also one which every lawyer should read.
The theme of the book is the relation between law and the social, political
and economic transformation which has produced the welfare state. Legisla-
tion is the formal instrument by which the principal changes have been brought
about
;
but the author surveys the whole field of law in order to focus dis-
cussion on those parts of it which have either been adapted to current trends
or failed to respond to contemporary needs. He explores some of the lesser
known highways and byways, and also examines the attitude of the judiciary
and
the climate of legal opinion
in
which cases involving social policy are
decided. In reading the book we should bear in mind that disputes which
come before the
Courts
are only the pathological disturbances which occur
at the margin. Law should be conceived in its widest sense as prescribing the
formal relations between individuals, between groups, between institutions,
between public authorities and citizens.
The point of departure of such a study must be-and is-the rejection of
the distinction that is sometimes made between lawyers’ law and political
law.
This
alleged distinction usually conceals an assumption that when the
law is conservative it is non-political
;
and that when
it
is progressive it
is
political. Almost
all
substantive law has in truth a political aspect as well
as
a purely juridical aspect, although the extent to which the former is dynamic
or
controversial varies immensely.
Dr.
Friedmann shows that in this country
the law has been roused from its slumbers and has become a major agent of
social change. He considers, indeed, that the legal development of con-
temporary Britain goes far to belie the views of Renner and other continental
jurists, who regard the law as the citadel
of
conservative and capitalist forces.
Britain today, he observes, is a social democracy whose principles are largely
accepted by the major political parties, and our law reflects this transformation
(p.
33).
Indeed, there is a danger that we may exceed the practical limits of
what can be accomplished by legal methods. In the United States, for
example, there
is
a strong belief that Communism can be excluded
or
defeated
by
repressive legislation
;
while in Britain the laws dealing with taxation,
prices, death duties and
so
forth sometimes pay scant regard to economic
realities.
In the
19th
century the political belief in
Zaissez faire
was reflected in the
legal doctrines
that
every man has a right to carry on his trade
or
to dispose of
his
labour as he wishes
;
and
it
was assumed that freely negotiated contracts
Foreword
by
the Rt.
Hon.
Sir Alfred Denning.
17
to a wide circle of readers outside the legal profession.
I
‘Stevens
&
Sons,
322
pp.
37s.
6d.
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