Welfarism in Law

A good example of welfarism is workmen’s compensation. The individual Case Studies in the project have shown that the victims of most accidents from boiler explosions, train accidents, and machinery in factories were employees. Yet the law considered that these injuries resulted from risks that employees had voluntarily accepted in return for the wages paid for working in those modern industries. Although the employee could, in theory, sue the employer in tort if he could show the employer was at fault, the worker rarely dared to do so. In practice, many employers organised their own schemes (often funded by insurance) to pay their own injured workers. But not all employers did so, and this did not cover people visiting the factory (e.g. delivery boys). First the German legislature in 1884 and then most other European legislatures in the late 1890s introduced an insurance-based system of compensation for those injured at work. Workmen and their employers paid contributions into a fund, and then a worker injured at work would obtain compensation. He would not have to prove that the employer had been at fault.

Another illustration of the importance of these principles were the German Constitution of 1949 and the French Constitution of 1946, both of which incorporate some economic and social rights for individuals and principles of social solidarity. Such ideas are also reflected in the Charter of Rights adopted by the European Union in the Treaty of Nice (2000), a document for which the United Kingdom obtained an ‘opt-out’.

It is possible to see the same sorts of welfarist argument in some judicial decisions. The Teffaine (1897) decision in France introduced a presumption of fault in the case of accidents caused to the victims of exploding boilers at work (here on a barge). Saleilles’ views were adopted to create strict liability towards passengers on boats and trains in 1911 and 1913. The arguments of Josserand were also influential in creating strict liability for motor accidents in Jand’heur (1930), but, as a judge, Josserand limited the scope of strict liability in the case of medical injuries in Mercier (1936).