¹ I gratefully acknowledge the assistance of Ian Willock, Paul Watchman (both of the University of Dundee) and Alan Paterson (University of Edinburgh) in the preparation of this paper, an earlier draft of which was read to the Political Studies Association (UK) meeting at Exeter University in April 1980. I would also like to acknowledge the helpful advice given by the Editor.

² Examples abound in current attacks on Employment Protection and Rent Acts. Thus the Daily Telegraph, 26 September 1979, welcomed the affirmation by Mr James Prior, the Employment Secretary that ‘the Government believes some aspects of the legislation [Employment Protection Act] are actually working against the interests of working people’, while Mr D. A. Trippier, MP, speaking on the Employment Bill said, in the House of Commons: ‘That law is counter-productive because it has never really helped people for whom it was originally designed.’ Hansard, House of Commons Debates, 17 December 1979, Vol. 976, col. 125.

³ See Putnam, Ruth Anna, ‘The Rights of Persons and the Liberal Tradition’, in Honderich, T., ed., Social Ends and Political Means (London: Routledge and Kegan Paul, 1976), p. 102Google Scholar: ‘Rights are the prized possessions of alienated persons’.

⁴ See Cardozo, B., The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p. 66Google Scholar, ‘The final cause of law is the welfare of society.’

⁵ Gilbert, Bentley B., British Social Policy, 1914–39 (London: Batsford, 1970)Google Scholar and Piven, Francis F. and Cloward, Richard A., Regulating the Poor (London: Tavistock, 1971).Google Scholar

⁶ See Parker, R. A., ‘Charging for Social Services’, Journal of Social Policy, v (1976), 359–73, p. 361CrossRefGoogle Scholar: ‘Far from reducing unit costs…there is some evidence that charges increase them’.

⁷ Harris, Ralph and Seldon, Arthur, Over-ruled on Welfare (London: Institute of Economic Affairs, 1979), p. 179.Google Scholar Harris and Seldon go on to argue that the money saved by the State's withdrawal of universal welfare services in health and education would enable the genuine poor to be better cared for, perhaps through negative taxation.

⁸ See Gilbert, , British Social Policy, p. 180.Google Scholar

⁹ See Winyard, Steve, Policing Low Wages (London: Low Pay Unit, 1976).Google Scholar While such window-dressing legislation may be counter-productive from the point of view of G, it may be politically effective in distracting attention from a social problem and hence highly productive from the point of view of governments seeking to avoid criticism.

¹⁰ The empirical evidence for the widespread occurrence of this effect is by no means conclusive; see Marmor, Theodore, ‘On Comparing Income Maintenance Alternatives’, American Political Science Review, LXV (1971), 83–96, p. 87.CrossRefGoogle Scholar

¹¹ See Prosser, Tony, ‘Politics and Judicial Review: The Atkinson Case and its Aftermath’, Public Law, Spring (1979), 59–80.Google Scholar Atkinson, a student, succeeded in the Court of Appeal in overturning the decision of the Supplementary Benefits Tribunal to uphold the use of the discretionary powers under Schedule 1, para. 4 (1) of the Social Security Act (1976) to take unpaid parental contribution into account in calculating the amount of supplementary benefit: R. v. Barnsley Supplementary Benefits Tribunal, ex parte Atkinson (1976)Google Scholar 2 All E.R. 686, D.C. (1977) 3 All E.R. 1031, C.A. This was immediately countered by the provisions of the Social Security (Miscellaneous Provisions) Act, 1978.

¹² For a fuller discussion of the tension between legalistic and pastoral approaches to social work see Campbell, T. D., ‘Discretionary “Rights”’, in Timms, Noel and Watson, David, eds., Philosophy in Social Work (London: Routledge and Kegan Paul, 1978), pp. 50–77.Google Scholar

¹³ Kahn-Freund, Otto, Labour and the Law (London: Stevens, 1977), p. 1Google Scholar, points to ‘The inherent contradiction between the requirements of the public welfare and the spirit and the possibilities of the common law’. Industrial peace depends on ‘a balance of collective forces of which our common law knows nothing’. Statute law was not conspicuously more successful in the case of the Industrial Relations Act, 1971. For a discussion of the ineffectiveness of the law in preventing industrial accidents, see R. M. Titmuss, Social Policy (London: Allen and Unwin, 1974), p. 82. The harmful effects of imposing strict liability on employers who default in terms of the Factory Act 1971 are mitigated by the use of discretion by inspectors; see Carson, W. G., ‘Some Sociological Aspects of Strict Liability and the Enforcement of Factory Legislation’, Modern Law Review, XXXIII (1970), 396–412.Google Scholar A somewhat similar phenomenon is claimed to arise when legal requirements limiting the introduction of drugs on grounds of safety reduce the range of medicines available to the public, the preservation of whose health is the objective of the legislation. See Teff, Harvey and Munro, Colin R., Thalidomide: The Legal Aftermath (London: Saxon House, 1976), pp. 124ff.Google Scholar This contention is disputed by Teff, and Munro, , p. 147.Google Scholar

¹⁴ See Black, Virginia, ‘The Erosion of Legal Principles in the Creation of Legal Policies’, Ethics, LXXXIV (1973–1974), 93–115, p. 93Google Scholar: ‘certain special edicts that impose discriminating restrictions on the formerly undiscriminated against, so that the disadvantaged may be raised to a par, create new inequities themselves and hurt those they are meant to help’. This is a version of Titmuss's thesis that stereotyping ‘paradoxically widens rather than narrows class relationships’: ‘On the Social Division of Welfare’, in Essays on the Welfare State, 3rd ed. (London: Allen and Unwin, 1976), p. 45.Google Scholar

¹⁵ See Karn, Valerie, ‘How Can We Liberate Council Tenants?’, New Society, 29 03 1979, 738–40, p. 739Google Scholar: ‘Unthinking moves to make renting more like owning could deprive council tenants of one of their few remaining advantages’.

¹⁶ Partington, M., Landlord and Tenant (London: Weidenfeld and Nicolson, 1975), p. xxviGoogle Scholar ff. See Pennance, F. G., ed., Verdict on Rent Control (London: Institute of Economic Affairs, 1978).Google Scholar This is a constantly reiterated comment on the history of rent restrictions in the private sector. See Gilbert, , British Social Policy, p. 139Google Scholar: ‘The effect of the [Rent and Mortgage Restriction Act of 1915] was to make unsubsidized building of working-class houses virtually impossible’. There seems little doubt that the effects of the 1974 Rent Act in giving security of tenure to the majority of those living in rented accommodation has been to accelerate the decline in private rented accommodation and to discriminate against newly married couples or cohabitees, students, divorced or separated persons starting out on a career, e.g. nursing, for whom owner-occupancy or council house renting is not an open option. See Reynolds, Lyn, Some Effects of the 1974 Rent Act in London (London: Middlesex Polytechnic, 1978).Google Scholar A similar phenomenon is the plan to sell off council houses to their existing tenants, thus reducing the stock of housing available to housing authorities.

¹⁷ See the Daily Telegraph leader, 26 09, 1979Google Scholar: ‘Among the many valid criticisms levelled against so-called employment protection provisions imposed by successive governments, particularly the last, is that they destroy far more employment than they create or protect’. The Employment Bill at present before Parliament is intended ‘to have the purpose of reducing the burden placed on employers, especially small employers. This burden, perceived and real, has been a deterrent to the employment of more people’, Hansard, 17 12 1979, Vol. 976, col. 123.Google Scholar

¹⁸ Thus fair rents policy has been said to bring about social polarization by leading to high rents in ‘desirable’ areas thus driving out poorer tenants. See Nevitt, A., Housing and Taxation Subsidies (London: Nelson, 1960).Google Scholar In general housing policy appears to provide most subsidy for the better-off council tenants and owner-occupiers.

¹⁹ The relationship between considerations of need and desert is discussed in Campbell, T. D., ‘Humanity before Justice’, British Journal of Political Science, IV (1974), 1–16.CrossRefGoogle Scholar

²⁰ The inequitable results of the growth of occupation-related benefits has been noted by Donnison, David. ‘Social Policy since Titmuss’, Journal of Social Policy, VIII (1979), 145–56.CrossRefGoogle Scholar

²¹ It is, perhaps, a little pretentious to describe such lightly sketched positions as ‘ideal types’ in Max Weber's sense (cf. The Methodology of the Social Sciences (Glencoe, Ill.: Free Press, 1949), pp. 42–4, 89–106).Google Scholar They are in fact closer to caricatures. My purpose is, however, to illustrate the logic of counter-productivity arguments rather than render this trio of ideological stances generally convincing as the central reference points of modern political debate. None of the labels is intended to be pejorative.

²² This position corresponds very approximately to that exhibited by such ‘anti-collectivists’ as F. A. Hayek, Milton Friedman and Enoch Powell. See George, Vic and Wilding, Paul, Ideology and Social Welfare (London: Routledge and Regan Paul, 1976).Google Scholar

²³ This position runs together the views of the two groups identified by George, and Wilding, as ‘reluctant collectivists’Google Scholar (e.g. Beveridge and Keynes) and ‘Fabian Socialists’ (e.g. Tawney, Crosland and Titmuss). See George, and Wilding, , Ideology and Social WelfareGoogle Scholar, Chaps. 3 and 4. My Reformists resemble more nearly the latter than the former group.

²⁴ This represents a more extreme position than that adopted by George, and Wilding, 's ‘Marxists’Google Scholar; Miliband, Laski and Strachey. See also Gough, Ian, The Political Economy of the Welfare State (London: Macmillan, 1979).Google Scholar

²⁵ See George, and Wilding, , Ideology and Social Welfare, p. 103Google Scholar: ‘when capitalism reaches the point where it cannot fulfil people's rising aspirations, it will reach its final crisis point which may either necessitate repressive measures or lead to its downfall’.

²⁶ See Pinker, Robert A., Social Work and Social Policy (London: Chelsea College, University of London, 1978), p. 16Google Scholar: ‘The idea of a welfare right defined exclusively in terms of social justice could only properly fit into a body of professional knowledge and practice which visualized social services as defences against an essentially predatory economic system. Carried to extremes, that philosophy of welfare would end by converting social services into predators on the economic system, undermining the will to produce and thereby prejudicing still further our chances of social survival.’

²⁷ See Hulmos, Paul, The Faith of the Counsellors (London: Constable, 1965) pp. 28 ff.Google Scholar

²⁸ See Hart, H. L. A., ‘Bentham on Legal Rights’, in Simpson, A. W. B., ed., Oxford Essays in Jurisprudence, 2nd Series (London: Oxford University Press, 1973).Google Scholar

²⁹ A similar coalescence of jurisprudential presuppositions may be seen in the Reactionary and Radical positivistic conception of law, which they regard as a means of social control analytically tied to the notion of physical coercion. Such a view underlies both the counter-productive critique of obstructionism put forward by the Reactionary and the Radical's rejection of law as a continuing aspect of communal society. A general discussion of the counter-productive effects of criminalizing certain types of behaviour is contained in Ball, Harry V. and Friedman, Lawrence M., ‘The Use of Criminal Sanctions in the Enforcement of Economic Legislation’, Stanford Law Review, XVII (1965), 197–223. Cf. p. 210Google Scholar: ‘It is easy to see why the “use” of criminal sanctions…may actually impede the attainment of the ends supported by public policy and morality… The difficulty with the use of criminal sanctions in child support cases is the impeding effects of exposing the violator to the apparatus of the criminal law; its repressive and cumbersome techniques may interfere with the goals of persuasion, negotiation, and voluntary compliance on the part of the erring father.’ See also Kadish, Sanford H., ‘Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations’, University of Chicago Law Review, XXX (1968), 423–49.Google Scholar

³⁰ See MacCormick, D. N., ‘Rights in Legislation’, in Hacker, P. M. S. and Raz, J., eds., Law, Morality and Society (Oxford: Clarendon Press, 1977), pp. 189–209.Google Scholar

³¹ See Rawls, John, A Theory of Justice (London: Oxford University Press, 1971), pp. 152 ff.Google Scholar

³² See Titmuss, Richard M., Commitment to Welfare (London: Allen and Unwin, 1968), pp. 132–3.Google Scholar