British Accounting Review (1999) 31, 85–96

Article No. bare.1998.0088, available online at http://www.idealibrary.com on

LAISSEZ-FAIRE, COLLECTIVISMAND 19TH CENTURY

COMPANIES LEGISLATION:A RESPONSE TO WALKER (1996)

STEWART JONESDeakin University, Melbourne, Australia

MAX AIKENLa Trobe University, Melbourne, Australia

This paper responds to a critique by Walker (1996) of our article 1995 (BAR, Vol 27,pp. 61–82) which covered the nineteenth century revolution in government and itsspecific impact on companies legislation. While there are some consistencies in thefindings of both papers, the authors fundamentally differ in their views. This paperclarifies some basic misinterpretations that Walker has made, relating to the purposeand content of our study. Clarification of these issues will assist the historian in amore careful and judicious evaluation of the Walker critique, hopefully bring freshhistorical issues to the debate, and identify some future directions for research.Specifically, we argue that Walker’s critique relates to the broader Diceyan frameworkwhich was not actually utilised in our study. Furthermore, contrary to Walker’sassertions, we argue that laissez-faire was, on balance of historical evidence, a domineeringinfluence on public policy in the mid-Victorian age. Ultimately the laissez-faire/col-lectivism debate needs to be addressed in the context of wider cultural factors/eventsoccurring in 19th century Britain. It can not be evaluated, as Walker has attemptedto do, by exclusive reference to legislative anomalies and paradoxes alone.

1999 Academic Press

INTRODUCTION

The purpose of this paper is to respond to a critique by Walker (1996) ofour article 1995 (BAR, Vol 27, pp. 61–82) covering the 19th centuryrevolution in government and its specific impact on companies legislation.We are gratified that the issues raised in our study have generated such athought provoking review from Walker (1996). Walker’s paper has addedimportant insight into this hitherto unexplored and under-researched fieldof accounting history. A stated objective of our paper was to counteract theview held, wittingly or unwittingly, by a number of accounting historiansthat the 19th century legislative environment could be described as an

0890–8389/99/010085+12 $30.00 1999 Academic Press

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extended era of laissez-faire. To some extent, Walker’s findings are consistentwith J&A. For instance, both studies acknowledge the importance of, andapply a contextual approach to their historical analyses. In addition, bothpapers provide evidence demonstrating that influences other than laissez-faire operated in the 19th century legislative environment. In fact, after aninvestigation of the Companies Act 1879, Walker notes that this particularpiece of legislation could have resulted from a ‘hybrid’ of laissez-faire andcollectivist influences (p. 319).

However, J&A and Walker fundamentally differ in their views: J&A arguethat the 19th century legislative environment can be described in terms oftwo discreet periods, namely laissez-faire and collectivism. Walker arguesthat neither an era of laissez-faire or collectivism existed in 19th centuryBritain, at least in the sense of one period or influence excluding the other.

While acknowledging Walker’s (1996) contribution to the debate, wefeel compelled to respond to some important misinterpretations he madesurrounding the purpose and content of our study. Clarification of theseissues will assist the historian in a more careful and judicious evaluation ofthe Walker critique, hopefully bring fresh historical issues to the debate,and identify some future directions for research.

The remainder of this reply article outlines our reaction to Walker’scritique. Specifically, we argue that (1) the Diceyan framework was usedmore cautiously by J&A than Walker has acknowledged. In the wake ofhistorical criticisms of elements of Dicey’s thesis, we actually avoided morecontroversial and less substantiated aspects of his framework which, in anyevent, were not necessary to the basic arguments of our paper. Hence, anumber of Walker’s criticisms are either misspecified or unfounded; (2)Contrary to Walker’s assertions, laissez-faire was, on the balance of historicalevidence, a dominant social and political influence in the period that wehave described. At the very least, there are two schools of thought on thisissue not just Walker’s (3), ultimately the laissez-faire/collectivist frameworkneeds to be evaluated by reference to wider cultural factors/events in 19thcentury Britain. It cannot be evaluated, as Walker has attempted to do, byexclusive reference to the presence of legislative anomalies and paradoxesalone. This article briefly considers the impact of these wider cultural eventsand identifies directions for future research.

DICEY AND THE TRIPARTITE DIVISION OF PUBLIC POLICY

The platform by which Walker launched his critique of J&A (1995) clearlyrests on our supposed reliance on Dicey’s tripartite division of the 19thcentury. Walker (1996, p. 311) states: ‘J&A contend that Dicey’s thesis onthe tripartite division of public policy making in Britain into periods of oldToryism, individualism, and collectivism can be used to explain nothing

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less than ‘a comprehensive theory of legislative change . . .’ (p. 306). Thisissue is vital to Walker’s critique as he supports the view that it represents‘the most vulnerable aspect of Dicey’s work’ (p. 311). Indeed, this aspectof the Diceyan framework has provided the spearhead to the revisionistchallenge of his 1905 treatise, as has been illustrated in a number of studies(MacDonagh, 1958; Parris, 1960; Roberts, 1961; Taylor, 1972). We wouldagree with Walker (1996, p. 307), at least to the extent that no worthwhilehistorical study would accept, uncritically, the entire Diceyan framework orinterpretation of the 19th century. There are clearly aspects of his thesisthat are ‘misleading and unsatisfactory’. However, our paper evidently didnot endorse or employ the full Diceyan framework, and for this very reason.The abstract of our 1995 paper actually stated that we were presenting aframework based on Dicey’s work, and a critical aspect of Dicey’s in-terpretation, which was for the purpose of our own study the most important,the laissez-faire/collectivist issue.

We also agree that the classification of the 19th century into a numberof discreet periods with definite beginning and ending stages is botharbitrary and untenable. In fact, nowhere in our paper have we usedDicey’s tripartite division to explain the development of public policy inBritain, or companies legislation as a particular instance of public policy.The only time the tripartite division appears in our paper is on p. 64,and this was merely to illustrate, in outline form, the basic thesis ofDicey. Our paper focused exclusive attention on laissez-faire and col-lectivism, which presents a single division of British political and socialhistory. Even with reference to the laissez-faire/collectivist issue, we wereaware of the arbitrary nature of divisions and classifications, and attemptedto avoid certain interpretative pitfalls that Dicey has been challenged on.For instance, revisionist historians have often criticised Dicey’s laissez-faire/collectivist dichotomy because of the rigidity of time frames he usedto describe the demise of laissez-faire, and for his apparently contumaciousattempt to rationalise every piece of inconsistent legislation into hisdiscreet classifications. Our paper was receptive to fact that no singleyear or event could represent the demise of laissez-faire as a dominantforce in public policy in Britain. We put the demise of laissez-faire at1868, merely because this year synchronises with a major piece ofcompanies legislation, not because we believe this was the exact yearthat laissez-faire disappeared from the political landscape. In fact, differentsocial, economic and political historians have indicated different datesdemarking the end of laissez-faire as a dominant policy, many of thesedates ranging anywhere between 1865–75 (see, as examples, Midwinter,1968; Court, 1965; Hobsbawm, 1973; Taylor, 1972).

Our paper was also highly conscious of the existence of early andmid-Victorian legislative anomalies, which ostensibly contradict the notionthat the laissez-faire policy was consistently applied by British governments.

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This issue has always been a major bone of contention with the Diceyaninterpretation. What we actually stated in our paper was (1995, p. 66):‘. . . it is pointed out that while the laissez-faire policy was prevalent inthe mid-Victorian legislative environment, it was by no means consistentlyapplied . . . even the most fanatical individualists of the 19th centuryadmitted that State intervention was essential in many special cir-cumstances’. (Italics added here). We then go on to describe legislativeanomalies to laissez-faire since the 1830s in terms of two distinct possibilities:(1) an increasing demand for government administration to maintain andperpetuate the ‘laissez-faire’ state, and (2) the growing embryo ofcollectivism could be identified in these early Acts (pp. 66–67). Our papertherefore acknowledges the possibility that collectivism had evolutionaryorigins or antecedents in early and mid-Victorian social and economiclegislation, and does not suggest a definite solution to the issue. Thispoint brings us to another grievance of Walker. Walker, (1996, p. 307),in rejecting the Diceyan framework, notes that Dicey has been challengedfor viewing laissez-faire and collectivism as dichotomous polarised currentsof thought or policy in the 19th century. Naturally, this reinforces thearbitrary nature of classifying the age into discreet periods. Walker (p.307) rightly emphasises Perkin’s observation of an ‘evolutionary transitionor continuum from laissez-faire to state intervention.’ However, Walker(p. 307) goes further and states that we have also adopted the ‘polarised’view. Our paper indicates that we have not described laissez-faire andcollectivism as necessarily polarised dichotomous forces. In fact, a carefulreading of our paper suggests that we would support the advent ofcollectivism as a complex evolutionary development. Our dissatisfactionwith this element of Dicey’s thesis was amplified in our paper, we noted:‘. . . Dicey has been deservedly criticised by revisionists for restricting hisobservations to a narrow range of constitutional and legal developments’(p. 66). It was for this reason that our discussion referred to an extensiveliterature, extending well beyond Dicey’s constitutional treatise, whichsupports the growth of collectivism as ensuing from a diverse nexus ofsocial, political and economic currents/events. In the context of theadvent of collectivism, we referred to, as examples, the impact of Britishsocial conditions since the later 1860s, the fundamental changes in thephilosophical, intellectual and political landscape in the same period, notto mention the impact of the collapse of British industrial supremacy inthe last three decades of the century (see pp. 67–68). Needless to say,these cultural factors can only be effectively explained in an evolutionarycontext. This issue will be discussed further in the next section.

Finally, Walker’s presumption that we had adopted the entire Diceyaninterpretation, almost word for word, follows into his argument that wehave ignored Dicey’s own interpretation of commercial and corporatedevelopments in this period (see pp. 308–309). Walker’s digression here is

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somewhat misleading and superfluous. In terms of their limited liabilityprovisions, the 1855 and 1856 Acts could be interpreted to embrace laissez-faire and collectivist currents of opinion. However, Walker appears to haveoverlooked the major point of our finding. Dicey only discussed the 1855–56Acts in a restrictive setting. He did not, for example, discuss companyaccounting and other issues, which would be of central interest to theaccounting historian. The substantive company accounting issue which ourpaper addressed related to the observation that these Acts completelyabandoned the mandatory auditing and disclosure requirements of theprevious 1844 Act! We noted (1995, p. 70) that when the Limited LiabilityActs (1855–56) discarded all accounting provisions ‘Disclosure and auditingprovisions were made a matter of contractual freedom to be decided by thedirectors and the shareholders’. We pointed out that even the earliersafeguards relating to prospectuses and a minimum paid-up-capital wereunceremoniously abandoned. As most accounting historians have notedat different times, the 1855–56 Acts were unashamedly laissez-faire incharacter.1

DID AN ERA OF LAISSEZ-FAIRE ACTUALLY EXIST IN 19THCENTURY BRITAIN?

Notwithstanding the above, Walker (1996) goes further and embracesthe full revisionist argument (cf. Parris, 1960) that an era of laissez-fairenever actually existed in the 19th century. Walker’s (1996, pp. 312–319)own case study of the 1879 Companies Act suggests that this particularpiece of legislation was characterised by a ‘hybrid’ of laissez-faire andcollectivist forces (p. 319). This view is consistent with the revisionistargument that laissez-faire and collectivism were not separate opposingforces or periods, but influenced public policy simultaneously throughoutthe 19th century (Parris, 1960, p. 35). In noting the revisionist argument,Walker (1996, pp. 306–307) even attributes to us the statement ‘thatmost historians have affirmed the Diceyan model’. Actually, our articledid not state this. What we stated (p. 65) was that the post-revisionistliterature has ‘tended to reaffirm many of Dicey’s basic conclusions’,which should be interpreted here to mean the laissez-faire/collectivistissue, not the broader Diceyan model. The broader Diceyan modelclearly contains a range of issues, analysis and supposition, neitherintroduced nor necessary to the basic arguments of our paper. In fact,to our knowledge, most histories of the period appear to describe, makereference to, analyse or debate 19th century public policy/State interventiondevelopments in terms of the laissez-faire/collectivist concepts which, aswe all know, were first expounded by Dicey. We also said in our paperthat most historians agree that the last three decades of the century were

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a period of ‘collectivism’, qualified in this instance to mean ‘enhancedState intervention into the economy’ (p. 65). This is hardly contestable.In fact, even the most ardent of all revisionist historians, Parris (1960,p. 36), acknowledges that there was a marked change in the tone ofsocial and economic legislation after 1870. A mere cursory reading ofthe sheer quantity of statutes passed after 1870 indicates a significantincrease in government involvement in social and economic affairs. Parris’arguments seem to be focused more over the cause of the change, notwhether the change itself actually occurred.2

Walker’s view that a laissez-faire era did not even exist in the 19thcentury does not equate with the balance of historical evidence. Weacknowledge that Walker has cited work contrary to our own findings.Nevertheless, as our 1995 paper attempted to show, there are a numberof important studies, not just those emanating from the general historyliterature, which support the notion that an era of laissez-faire wasdominant in the mid-Victorian era. One widely cited study is from theeconomic historian Crouch (1967). This study is worth special mentionbecause Crouch’s primary task was to employ an analytical framework,which would hopefully reconcile and explain conflicts in the revisionistliterature.

Specifically, Crouch attempted to (1967, p. 199) ‘. . . re-establish theperiod from, say 1825–75 in Great Britain as the era during which theclassical liberal attitude toward state intervention in the body economiccame nearest to realization.’ Crouch goes so far as to say that the so-calledlaissez-faire era was even more ‘free from socialist influences’ than evenDicey was prepared to admit (p. 214). He observes, as did Parker (1990),that much of the misapprehension about whether a laissez-faire era reallyexisted is because historians have failed to recognise a distinction betweenthe application of ‘crude’ and ‘refined’ forms of laissez-faire. This point maybe particularly important because much of the confusion in the literature,as noted by Walker himself, relates to what constitutes, in terms of definitionand parameters, laissez-faire itself. Crouch argues that revisionist historianssuch as Brebner, Parris and Roberts have evaluated the 19th centuryrevolution in government from the ‘crude’ laissez-faire philosophy, not fromthe stand-point of the classical liberal economic position, or the ‘refined’laissez-faire position. In fact, it appears that no recognised classical economist,political or social theorist had ever adopted or endorsed a pure laissez-fairephilosophy in the nineteenth century (Paul, 1979). Nor have historians suchas Dicey ever argued that a ‘crude’ form of laissez-faire existed in the mid-Victorian age, rendering the basic revisionist argument a possible ‘redherring’.

Taylor’s (1972) review of the laissez-faire/collectivist debate also deservesspecial mention because his task was to assess the diversity of debate onthe topic and, in a similar vein to Crouch, explain some of the more

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fundamental divergences of opinion. He concluded that the more generallyaccepted view of the British 19th century was that an era of laissez-faire didindeed exist roughly in the period described by Dicey (1825–75). He writes(1972, p. 64):

. . . nineteenth-century England may be said to have come closer to experiencingan age of laissez-faire than any other society in the last five hundred years . . .it was, until at least 1870, and arguably for a further twenty five years beyondthat, the strongest impulse influencing the shape and character of governmentaleconomic policy.

Further: ‘There can be no question but that laissez-faire played a major partin the thought-pattern of nineteenth-century Britain’ (p. 53). This was trueeven in social policy, where legislative inconsistencies with the laissez-fairepolicy are usually most apparent. ‘Even in those areas of social policy,however, where State intervention was least inhibited by considerations ofeconomic individualism, the limitations of governmental action are readilydiscernible’ (p. 55).

Given that many writers support the notion that an era of laissez-faireactually existed in 19th century Britain, how can we explain this anomalywith Walker’s own thesis? This could be an issue relating to thehistoriography of the problem itself, a matter, incidentally, explored byTaylor (1972, p. 54). Taylor provides a different slant from Crouch toexplaining apparent anomalies in the literature. He notes that manyDicey critics, particularly revisionists who have discarded the notion ofa laissez-faire era, fell into the specialist category of administrative historians(e.g., Brebner, 1948; Parris, 1960). This is in contrast to socio-economicand political historians, such as A.V. Dicey, who have focused on trendsin social and economic thought and policy, rather than on changes ingovernment bureaucracy and administration. As previously mentioned, itis apparent in fact why administrative historians are invariably Diceycritics. A theory of laissez-faire ostensibly cannot account for the ever-expanding bureaucracy of government itself since the 1830s. Nor can itbe easily reconciled to the growing sophistication of governmentaladministrative procedures and the self-perpetuating tendencies of ad-ministrators and of the ‘system’ itself. While these historians were accuratein their observations, Taylor (1972, p. 54) appears compelling in pointingout that the machinery of government itself is the means by which policyis fulfilled or implemented, and does not, necessarily, constitute thesubstance of policy itself. It was Dicey himself (1905, p. 306) who hadasserted that: ‘. . . sincere believers in laissez-faire found that for theattainment of their ends the improvement and the strengthening ofgovernmental machinery was an absolute necessity’. Importantly, Taylor(1972, p. 55) adds:

. . . it also remains true that the persistence or decline of the laissez-faire idealis to be judged primarily by the content rather than the form of policy andadministration.

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Ultimately, we believe the laissez-faire/collectivist argument needs to beevaluated in the broader context of British culture and history, not just interms of legislative developments and anomalies. In fact, a diverse literaturelends support to the notion that there were several coinciding cultural events/variables (interpreted here to embrace all manner of social, economic andpolitical issues) that may have motivated and sustained an era of laissez-faire until approximately 1870. Some of the more significant of these culturalinfluences are briefly sketched as follows:

The Pervasive Influence of Philosophical and Spiritual Concepts of MoralIndividualism

These moral concepts were most influential in the early and mid-Victorianage, and embraced values such as self-help, philanthropy, economic in-dividualism and liberty, privacy, individual worth, and independence. Thesewere entrenched ‘middle class’ values that created a moral conditioningopposed to State intervention and conducive to the basic precepts of laissez-faire (see, as illustrations, Smiles, 1859; 1870; 1880; Wingfield-Stratfield’s1932; Grisewood, 1966; Young, 1949; Himmelfalb, 1968, pp. 275–299;Houghton, 1959). Arguably, the laissez-faire policy of State simply mirroredthe contemporary popular morality.

The Influence of the Democratic Reform Movement

When the Great Reform Act was passed in 1832 (which transferred thefranchise from the landed aristocracy to the upper middle classes), thenew inheritors of political power were largely middle class industrialists(see Wright, 1970) who were, arguably, already wedded to the basicprecepts of laissez-faire: individual liberty, economic individualism andself-help. It is also noteworthy that while the parliamentary representationof the rising industrial middle classes remained small in this period(relative to the landed aristocracy), their political influence has beenshown to have been quite pronounced (see Guttsman, 1965, pp. 34–59;pp. 75–108). Furthermore, the Parliamentary Reform Act of 1867extended the franchise to all the middle classes (the franchise wasextended to the working classes in 1884). One practical consequence ofthe democratic reform movement was a development in the two partysystem of government, competition amongst politicians for political power,and a growing public demand that politicians have regard, for whatevermotives, to the wider population in various legislative enactments (Cowling,1967; Wright, 1970). There is probably a strong connection betweenthese developments and the growing proliferation in social collectivistlegislation after 1870.

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The Social Conditions of England

Urban poverty and all manner of social degradation associated with thegrowth of factories, industrial concentration and urban population ex-pansions first received wide public attention in Britain in the years between1866–1906 (Keating, 1976, p. i–iii). Historians and contemporaries havedemonstrated that wide spread revelations of the disturbing social conditionsof England created a strong social reaction against the principles of laissez-faire. Furthermore, many historians have noted that the publicity given tothe social conditions of England from the late 1860s prompted much neededsocial and economic legislation, and may have significantly influenced thepolitical psyche and discourse of leading politicians of the day towardsState intervention, including David Lloyd George, Joseph Chamberlain andBenjamin Disraeli (see, as examples, Boyd, 1914, pp. 161–166; Bunbury,1957; Jones, 1968; Schultz, 1972; Paul, 1979, pp. 279–283; Chapter II &III)).

British Industrial Supremacy after 1870

It is well known that the middle decades of the century represented thehey-day of British industrial supremacy, prospering as it did on the principlesof economic individualism and free market competition (see Porter, 1987).The well documented decline in British industrial supremacy to the handsof foreign competitors from Germany, Belgium, America and elsewhere didnot occur until the last three decades of the century (Court, 1965; Porter,1987). Faith in conventional economic wisdom of free market policies andlaissez-faire appeared to be seriously challenged in these years (see Court,1965, p. 240; 1962, pp. 319–341). It is quite possible that the faltering ofBritish commerce, along with the other variables considered above, hadcomplex public policy ramifications. Once again, our point is that the laissez-faire/collectivism debate cannot be dismissed without adequate research intothese and other critical events in British history.

CONCLUSIONS

Walker’s critique of our paper has imported added complexities and insightsinto this controversial field of history. However, Walker’s study is for themost part a critique of the broader Diceyan thesis, which, in any event, hasalready been challenged in the revisionist literature. A more careful reviewof our study would reveal that we have neither used nor relied on the fullDiceyan framework as expounded in his 1905 treatise and other works. Forexample, our 1995 paper clearly does not utilise the tripartite division ofBritish history, nor do we accept uncritically other aspects of the Diceyan

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interpretation. We do, of course, rely on the notion of an era of laissez-faireand collectivism. Even on this issue we have clearly not relied on Dicey’swork exclusively. There are numerous studies that explicitly or implicitlyaccept the notion of a laissez-faire era in the 19th century.

Not only has Walker (1996) provided a conspicuously one-sided critiqueof our paper, he has provided no framework of his own which can besubjected to corroboration or rebuttal. He even sees fit to censure ourstudy for adopting a generalist framework to explain companies legislationof the period. In fact, our methodological procedure was consistent withthe stated purposes of our study (1995, pp. 61–63). Our purpose wasnot to espouse a comprehensive framework for legislative change per se,but to ‘outline a theory of legislative change which both complimentsand extends on the work of Parker, (1990)’, including his analysis ofCrouch (1967) (p. 64). In his adaptation of Crouch’s generalist frameworkof legislative change, Parker (1990) succeeded in explaining possiblemotives or purposes behind different companies legislation. However, thetiming and sequence of legislation remained largely unexplained. Weconsidered it both methodologically appropriate and necessary to developa generalist framework of analysis, as did Dicey (1905), Crouch (1967)and others, to encapsulate both the large number of legislative casescovered and the six decade time span of our study (approximately1840–1900). We were explicit in stating that our purpose was to examinecausation ‘at the level of social and political interpretation’ (p. 62), ahigher level of abstraction than contextual events underlying separatepieces of legislation. Clearly, for the purpose of our study, a comprehensivearchival-based investigation of events, suggested by Walker (1996, p.320), would have been an inappropriate and impracticable methodologicalprocedure. Furthermore, we support the notion that historical events canand should be viewed, analysed and interpreted at different levels ofhistorical and methodological abstraction, not exclusively at the archival-based level of analysis. In order for the historian to gauge the longer-term continuity and progress of events, institutions and ideas over periodsof time, the value and importance of generalist frameworks and referencepoints are self-evident in the management of historical complexity.

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1. In fact, Dicey, for one reason or another, did not specifically focus on the widerdevelopment of companies legislation in the context of public policy changes in 19thcentury Britain, possibly because he was covering a vast amount of other social andeconomic legislation. Dicey did not state, or imply anywhere in his 1905 treatise thatcompanies legislation should be considered an exception to the general pattern ofdevelopment he outlined. More importantly, it was a major purpose or task of our 1995paper to apply the Diceyan framework (at least at it relates to laissez-faire and collectivism)to companies legislation. If Dicey had already done this for us, our paper might havebeen obsolete.

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2. Parris denies that collectivist ideas or philosophies were consciously adopted by policy-makers and politicians after 1870, not that legislation was becoming increasing collectivistin this period.

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