Conclusion

I want to try to make my argument in this chapter as clear as possible by con­cluding on a personal note rightly found rare in academic writing and for which I apologise. I have nevertheless been led to do this because of criticisms of previ­ous statements of my views.

I am a socialist whose political views are, I hope, a not unmediated but certainly clear enough reflection of his having been born in 1958 into a working class, min­ing community in the north-east of England. My family, most of the friends of my childhood and adolescence, and myself have been greatly enriched by the British welfare state. A necessary condition of my now being an academic writing this chapter was my being provided with a very heavily subsidised grammar school, undergraduate and postgraduate education by the welfare state. In all my work, including this chapter, I wish to defend the welfare state. But the contemporary welfare state extends far beyond the essentially Beveridgean bounds within which it is legitimate, and it is now besmirched, one might even say characterised, by interventions based on utterly slovenly economic and political arguments. These are given effect by government action which cannot respect legality otherwise it could not give them effect, and they require coercive transfers at a scale which is unacceptably restrictive of the economic freedom of common citizens. The way to defend such a welfare state is to shrink it. I believe that the compensation culture is the major obstacle to doing this. One constituent of the compensation culture is selfishness, but by far the more problematic constituent is the impulse to do good in the sense of conferring benefits on others without properly considering the cost of doing so. The compensation culture does not arise from a bilateral relationship between the claimant and those who ultimately must pay.

The quality of the appellate reasoning following Hedley Byrne is abysmal. I have feared for as long as I have believed I have been able to form a judgement about this, perhaps now some 30 years, that teaching students legal reasoning by taking them through this stuff as if it was law is bound to lead to disrespect of the value of legality.^[627] I continue to believe it does, though, of course, there are far worse culprits at work in contemporary law schools. But what the law of negligence and these other culprits make clear is that in the maximalist welfare state the, as it were, prohibitory function of respect for legality has been very much diminished.^[628] The great sense in Dicey is that there are some improving government actions that can be done only at such a cost to legality that they should not be done. Dicey has had to be ridiculed in order to allow the administrative law of the welfare state to greenlight precisely actions of that sort.^[629] The public/private hybrid of the tort of negligence is judicial lawmaking by the courts which is the equivalent of much administrative lawmaking by the government, that is to say, in an important sense, not the making of law at all, except that, because it is legislated in court, negligence achieves what one would have thought very difficult by being gener­ally much poorer, despite the normally infinitely higher quality of those doing the lawmaking. It is here that I am pleased to be in fundamental agreement with Beever, of some of whose views I have implicitly been critical: negligence as it now is goes far beyond what is possible if the regulation of the relevant relationships, inevitably ultimately a matter of coercion by the state, is, as it should be, a matter of lawful^[630] institutionalisation of fundamental private rights.^[631]

But, without going further into the matter, Beever's approach is based on sev­ering legal right from economic, moral reasoning, and this fails to capture the intimate intertwining of economy and law in ‘the system of natural liberty' that is the basis of the legitimacy of liberal democratic society and which it should be our general aim to actualise.^[632]4 The policy behind Hedley Byrne is economically irra­tional, and it is for this reason that it is morally wrong and the law of the attempt to give it effect is absurd.