Deconstructing from the negative: a critical historiography of legal [mis]conceptions

As previously noted, it is becoming a convention for legal scholars to include elements of ‘history’ within their texts. Occasionally historicist in tone, nevertheless these reconstructions perform both normative and validating roles to that scholarship whilst constituting a welcome injection of history to the discipline of law.1 However, such accounts of the poor law in welfare texts unfortunately perpetuate misunderstandings of the legal past and continue to mislead and distort aspects of modern scholarship. Chapter 1 considered a recent example drawn from welfare rights theory and others will be touched on below. This raises certain questions: Why are these accounts misleading and from where are they drawn? The previous chapter addressed the first question to provide a doctrinal account establishing the existence of the right to relief and the role of settlement as the legal foundations of poor law. This chapter concerns the second question and addresses the persistence of incorrect views of welfare’s past in legal scholarship, engendered by reliance upon poor law historians’ reconstructions as accurate and complete representations of the law. Those who rely upon such accounts include scholars in the United States who acknowledge the English poor law system as foundational in the establishment of North American welfare systems. This is problematic as welfare debates both in Britain and the United States are grounded within these incorrect legal accounts of welfare’s pedigree. Conventionally, that pedigree does not include recognition of the right to

relief guaranteed by settlement; it is rather reduced to a linear narrative of non-legal poor law, dominated by its post-1834 ideology. In consequence, even John Gillom’s masterly study (2001) of the treatment and experience of ‘welfare mothers’ in Ohio is contextualised within a teleological description of ‘conventional’ negative English poor law history.2 The Foucaultian nightmare world of control and observation he exposes thus has an inevitable quality; it is a logical conclusion to poor law’s negative ‘principles’ reconstructed from his sources, poor law histories. As a result, his study lacks awareness of those legal elements that would support his critical analysis of Ohio’s punitive, modern welfare system, contextualised as it is in an incorrect understanding of the past. Such historicist accounts of ‘undeserving’ (no

rights) poor, relied upon by Gillom and others, reflect continuing negativities towards the poor. These are expressed, for example, in government advertising campaigns to encourage good British citizens to do their public duty and shop their neighbours as ‘welfare cheats’. Meanwhile, insufficient money is expended in funding welfare advisors to ensure that all citizens obtain the benefits to which they are entitled. In summary, this chapter is intended as a corrective to those negative influ-

ences upon welfare scholarship produced by incorrect law in historical reconstructions. In this context, historical readings of poor law have developed conventions and orthodoxies that [mis]understand its legal nature, arrived at by extensive archival study conducted without legal knowledge. This chapter constitutes a critical analysis of those academic writings that either create or perpetuate these inaccuracies in poor law reconstructions. It examines the historiography of poor law to reveal where this occurs, concentrating predominantly on reconstructions concerning settlement and rights. As a full critical historiography would occupy half this book and the writer has produced more elsewhere, this chapter will focus upon those long-established works that are conventionally accepted and cited as authoritative and consider their influence.3 In particular, it revisits a debate concerning settlement whose lack of resolution seems to have discouraged further reconstructions. It is unsurprising that poor law reconstructions fall into error: their legal

subject is no longer in practice or in legal memory. Moreover, there has not been a ‘legal history’ of poor law since P.F. Aschrott’s English Poor Law System Past and Present was published in 1902.4 After all, historians are not lawyers and if they sometimes seek to understand law by throwing assorted statutes into an intellectual mix, this is a logical if not a legal approach. It is therefore understandable if a lack of ‘law-mindedness’ leads some scholars to minimise the power and effect law may have upon human behaviour, both individually and collectively. In summary, although there is an enormous body of scholarship reconstructing welfare’s past, little of it is contextualised within a doctrinal legal framework. As a result, vital ingredients for our understanding of the operation of poor law are missing and many reconstructions of poor law history make fundamental legal errors in their recreations of that past. It is in order to correct some of those errors that what follows constitutes a juristic critique of the work of professional historians of the poor law. To this end, as this work necessitates a re-evaluation of current social histories via a socio-legal analysis, this chapter challenges that absence of accurate legal discussion in the works of historians, all of whom use records generated by aspects of the law of settlement and removal. Settlement’s contemporaries were well aware of the legal status of poor law.

Lawyers wrote poor law textbooks, lawyers worked for the Poor Law Commission and lawyers gave evidence before Select Committees. In their evidence, lawyers explained the intricacies of settlement law, the implications of removals for the poor and indulged in complex and fascinating esoteric

discussions upon settlement technicalities with members of Select Committees. Little of this may be found in poor law reconstructions. In fact analysis of the writings of early twentieth century poor law historians does not reveal any enthusiasm for settlement or understanding of its connection with rights. Sydney and Beatrice Webb, with their interest in public administration, largely understood poor law from their perspective, challenging current administrative solutions to the ‘problem’ of poverty.5 Dorothy Marshall and Ethel Hampson, writing in the 1920s, demonstrate little sensitivity to poor law as law.6 In short, these and other historians are writing as settlement cases are being appealed to higher courts but poor law’s cultural status is largely negative. After the Second World War and the abolition of poor law, the powerful scholarly influence of the administrative concerns of the Webbs continued, but publication in 1963 of Mark Blaug’s poor law research influenced historians to concentrate upon researching poor law as part of wider social and economic history, an approach that continues today.7