Legitimation of Social Rights and the Western Welfare State

A Weberian Perspective

Kathi V. Friedman

• Publisher: The University of North Carolina Press
• Year: 2017
• ISBN:
  9781469647869
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This discerning and timely study revitalizes Weber's ideas, applying them to welfare state redistributions and synthesizing them with major issues in political science, law, public administration, social welfare policy, and philosophy. Friedman depicts both the emergence of the welfare state in Britain and the United States and the special problems of legitimizing social rights raised by the need for administration of those rights. Originally published in 1991. A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

Part I

Chapter 1

INTRODUCTION: THE CONTROVERSIAL WESTERN WELFARE STATE

WHAT ARE THE FACTORS that prompt the redistribution of national wealth in contemporary Western nations? What underlying societal values make various methods and degrees of redistribution acceptable to populaces? These questions stand at the center of this inquiry into the Western welfare state.

In Western nations (Great Britain, the countries of Scandinavia and Western Europe, the United States, Canada, Australia, and New Zealand), the welfare state has come into its own since World War II, Great Britain having provided the prototype for the other Western regimes. The welfare state is one in which government assumes responsibility for guaranteeing citizens minimum standards of living in terms of income maintenance, health and nutrition, education, and housing. Though governments throughout time have protected their subjects or citizens in various ways, the welfare state as a distinctive analytic configuration with an accompanying rationale did not emerge until after the war.

I shall compare the welfare state with the nineteenth-century liberal state, which also had a distinctive analytic configuration sustaining a set of accepted political tenets. The tenets underlying liberal rule proscribed government intervention into the play of market forces. It was assumed that a “free” market optimized not only the productive function of the economy, but also the allocative function, that is, the distribution of goods and services. By contrast, the welfare state’s very existence denies this assumption: it is the unique purview of the welfare state to offset adverse effects of market distributions upon citizens’ lives. This rejection of a fundamental assumption of liberal rule has always implied problematic legitimacy for welfare regimes in Western nations, the more so when social legislation was just emerging. On what grounds and by what justifications, therefore, do these regimes redistribute the societal surplus? Part I will be addressed to this query.

In replying to this question, Part I provides a theoretical rationale that explains the legitimacy of the Western welfare state. By any definition of “legitimacy” (see below), it is clear that the welfare state has been accepted by Western rulers and populaces alike, albeit ambivalently. How did the welfare state emerge and grow to its present dimensions in the shadow of the West’s laissez-faire political heritage? Nineteenth-century thinking, in its considerable diversity, contained many fears regarding the direct assumption of responsibility by the state for the well-being of individuals in society. There were fears of political oppression through omnipotent government bureaucracy, of the possible stymieing of needed institutional change, of the destruction of the dignity and moral fiber of individuals, and of the ruination of the productive economy. The birth of the welfare state from such an apparently hostile ambient is a fact requiring explanation. Equally in need of explanation are the conditions that provide the welfare state with varying degrees of legitimacy today.

To explain the emergence, legitimacy, and imminent expansion of Western welfare regimes, I shall draw upon and refine concepts articulated during the 1920s by Max Weber, in his sociology of domination. I shall explicate Weber’s notions of “administration” and “adjudication” as two fundamentally different modes of exercising authority. Weber uses these two constructs as a shorthand method of referring to antithetical modes of rulership, although empirically, rulership entails mixtures of the two principles. Following Weber, therefore, I will indicate how these represent poles of a continuum: the one pole refers to rulership essentially gratuitous in nature, the other allows for the development of the status of citizenship and provides for the possibility of a varied content of citizen rights. Administration is the rule of persons by persons; adjudication is the rule of law. Law is capable of undergoing rationalization; therefore the quality of rulership under law varies as the law grows more rational. Accordingly, I will show the relationship of Weber’s notions of the formal and substantive rationalization of law to the continuing emergence and legitimation of citizenship rights. Social rights, the distinctive type of right associated with the welfare state, represents the most elaborate and recent aspect of citizenship, the other two aspects being, as Thomas H. Marshall (1963) has indicated, civil and political rights.

Setting forth this argument will entail a treatment of the natural law antecedents of “right rule” (that is, the exercise of legitimate authority) in the West. In treating Weber’s construct, rational authority, I shall link its grounds for legitimacy to the natural law tradition, as did Weber. In expanding upon Weber’s work, I shall reconcile the apparent incongruity between the assumptions that legitimize the authority of nineteenth-century liberal and twentieth-century welfare regimes. This will be accomplished by showing the analytic continuity of legitimating principles of rule from the democratic revolutions to the present. Briefly, the unifying thread underlying “right rule” in the West is the notion of the sovereign as the impartial respecter of the dignity of all persons, a fundamental natural law tenet. The welfare state is but the most sophisticated of a series of successive approximations of this ideal throughout Western history. Thus, Part I is concerned with the emergence of the welfare state as a construct, as a concrete reality, and as a sociopolitical phenomenon based within a framework of justification in continuity with long accepted tenets of legitimate rulership in the Western tradition.

Part II addresses the prime paradox of the contemporary Western welfare state. That paradox is that in order to transmute the ideal of the social right into the concrete reality of the goods and services that raise the citizen’s standard of living, the welfare state, that high-water mark of the adjudicative mode of rule, needs administration. Administration is an indispensable arm of the welfare state because social rights, unlike civil and political rights, require complex programs, policies, procedures of implementation, coordination, eligibility criteria, and so forth to be usable by the citizen. Whereas Part I emphasizes the formal and substantive rationalization of law in addressing the sources of legitimacy for the idea of the social right, Part II returns to the implications for the contemporary welfare state of the differences Weber ascribes to each of “administration” and “adjudication.”

Administration, primevally considered, refers to rulership in which all three government functions (executive, legislative, judicial) are merged and rule is personal (Weber, 1968:64s).¹ The patriarchal household is prototypical. Weber’s adjudicative mode of rule, by contrast, refers to rulership in which the judicial function is separated out from the other two: rather, there exists the idea of a general norm or law that can be applied to the individual case (Weber, 1968:654). Contingent upon the degree of rationality of the law of the political order in question, adjudication can range from “primitive” to “rationalized.” In the ideal case, “adjudication,” “the adjudicative principle,” or “the adjudicative mode of rule” (I use these terms interchangeably) refers to rule by law that has undergone rationalization. Rule is, accordingly, impartial and impersonal. It is this set of connections that forms the framework for this Weberian-based analysis of the Western welfare state in terms of administration, adjudication, and the formal and substantive rationalization of law.

The welfare state is a sociopolitical phenomenon that postdates Weber’s writings (although, to be sure, he anticipated it: 1968:856–59, 870, 882–89), and accordingly, I have gone considerably beyond Weber in the application of these constructs to empirical events. Weber dealt with the construct “administration” in two separate senses; I have shown how these two usages are related, and I have advanced an explanation of the meaning of this relationship for the development and legitimation of social rights. Weber spoke of “administration” both as the primeval form of domination² and as the organization of roles for task implementation, as in “bureaucratic administration.” To be sure, every domination (Herrschaft) needs an administrative staff to carry out commands; in turn, every administration needs domination, that is, a definitive source of authority whose commands it carries out (Bendix, 1962:292). But dominations as well as administrative staffs vary in the degree of their commitment to the rule of law. In Part II (Chapter 7), I show that it is both the character (irrational or rational) and objectives (private, personalized versus public, impersonalized) of the rules and regulations promulgated by administrative officials that differentiate administration as domination (rulership in which all three functions are merged) from administration as organization (role organization for task implementation). This distinction makes a great difference in the manner in which benefits are dispensed by state to citizen and the accompanying effects of such dispensations upon citizenship rights.

Weber uses the term “reglements” or “reglementations” to refer to the type of regulation used by the administrative staffs of patrimonial rulers. Strictly speaking, the “reglementation” issues from the patrimonial ruler and instructs his officials in how to settle disputes among subjects or otherwise administer the affairs of the realm (Weber, 1968: 664, 1006–1110).³ The “offices” originate in the household of the ruler: domination is by administration. Conversely, administration is domination. Moreover, any benefits enjoyed by subjects as a byproduct of the reglementations promulgated by patrimonial officialdom are purely gratuitous. That is, no “right” exists to them (Weber, 1968:644).

By contrast, once rules and regulations begin to undergo a process of rationalization, and once the purposes toward which they are oriented become more and more impersonal (not just the private purposes of the ruler), then “administration” successively becomes organization in the sense Weber meant when speaking of “bureaucratic administration” or “bureaucracy.” Administration that is organization may become associated with domination (that is, the authoritarian power of command), if it is established by a political unit (such as an executive or legislative branch of a regime) to achieve objectives that are not only impersonal, but public.

Thus, administration that is domination orients itself toward “subjects.” Administration that is organization orients itself toward “clients.” But administration that is organization and also associated with domination orients itself toward “clients,” who, in the modern state, are also “citizens.” These distinctions foreshadow one of the major lines of my argument throughout Part II: in the degree that Western regimes have assisted citizens in ways approximating administration as domination, authoritarian (actually, “patronizing” or “feudal”) implications have attached to the aid given. The legitimacy of government assistance suffered, as did the personal rights and integrity of those assisted. By contrast, in the degree that Western regimes have assisted citizens in ways approximating administration as organization, libertarian implications have attached to the aid given.⁴ The legitimacy of government assistance has been reinforced (though not without other problems, which I shall also discuss), as have the personal rights and integrity of those enjoying the benefits of the welfare state.

A host of related issues enter into the general relationships noted above, and I will elaborate briefly upon them. First, I mentioned that the rules and regulations of administrative staffs may undergo rationalization. When Weber speaks broadly of the “formal and substantive rationalization of the law,” he is referring to the civil or the statute law.⁵ Its character can be ranked on a continuum ranging from law that is formally or substantively irrational to law that is rational both formally and substantively (Weber, 1968:653–58). The regulations of administrative units can also be ranked on a continuum from irrational to rational. Contemporary scholars (Selznick, 1969; Jowell, 1975) use two specifying concepts, “legalization” and “judicialization,” as measures for movement along this continuum.⁶ “Legalization” refers to the degree to which an agency will use definite rules and standards when its staff is making its determinations involving a case. “Judicialization” refers to the degree to which the determination made by the staff is open to appeal.

Accordingly, the reglementation would be the ideal typical irrational regulation. Because it is the expediently issued word of the patrimonial ruler to his staff, it is characterized by the lowest levels of legalization and judicialization that can be expected to be found within the realm of administration. By contrast, today’s administrative agencies or units associated with Western regimes make and apply rules and regulations characterized by much higher degrees of legalization and judicialization—they use rules that are far more rationalized than the reglementation that is their analytic progenitor. The authoritative promulgations of today’s administrative agencies, that is, the rules they apply in dealing with the public,⁷ are known by the label of “administrative law” (Landis, 1966; Shapiro, 1968).⁸ Thus, the reglementation and rationalized administrative law⁹ represent two poles of a continuum of directives made and applied by administrative staffs throughout Western history.

It should be clear by now that if there are two major continua (the rationalization of the civil or statute law and the rationalization of reglementative-administrative law¹⁰) that bear upon the rights of modern citizens and the ways the state dispenses assistance, one major aspect of this analysis has to be the relationship of these two continua to one another. Indeed, it has not been until modern times that these two continua have differentiated themselves from one another, thereby necessitating a consideration of their relationship: “These conceptual distinctions are necessarily remote from the nature of pre-bureaucratic, especially from patrimonial and feudal, structures of authority” (Weber, 1968:998). For,

there was once a situation in which such a distinction was not made at all. Such was the case when all law, all jurisdictions, and particularly all powers of exercising authority were personal privileges, such as, especially, the “prerogatives” of the head of the state. In that case the authority to judge, or to call a person into military service, or to require obedience in some other respect was a vested right in exactly the same way as the authority to use a piece of land. … It was a kind of political authority which was not essentially different from that of the head of a household, or a landlord, or a master of serfs. Such a state of affairs has never existed as a complete system, but, in so far as it did exist, everything which we legally characterize as falling within the sphere of “public law” constituted the subject matter of the private rights of individual power-holders and was in this respect in no way different from a “right” in private law. [Weber, 1968:643–44]

By contrast, “it was left to the complete depersonalization of administrative management by bureaucracy and the rational systematization of law to realize the separation of the public and the private sphere fully and in principle” (Weber, 1968:998).

What this means for the present analysis is that during the time when law was reglementation,¹¹ when no private rights existed for subjects, all favors or benefits subjects enjoyed were gratuities. Through the continuing development of the adjudicative principle, however, approximations of civil law emerged and guaranteed the rights of subjects and, finally, of citizens (this is the subject of Chapter 2). At first these rights were narrow in scope and unequal in content (particularized); after the democratic revolutions they were wider in scope and equal in content (generalized). Thus, the formal and substantive rationalization of the civil or statute law can produce benefits that are “rights” just as the issuance of a reglementation can produce benefits that are only “gratuities.” This leaves open the question of what to label the benefit a modern citizen enjoys when that benefit is the outcome of the making and application of rationalized administrative law. I have labeled that category of benefit the “entitlement,” and I fully describe its meaning and relationship to gratuities on the one hand, and the social right to benefits, on the other, in Chapters 7–10 of Part II.

To recapitulate, if the modern Western welfare state assumes responsibility to redistribute the societal surplus according to a set of principles (humanitarian, ethical, and so forth), it can hardly accomplish the monumental task of redistribution to the millions directly through the passage of statutes. Rather, statutes give legal form to abstract principles underlying redistribution and then delegate to administrative apparatuses the multifarious tasks associated with actually making the transfers.¹² This fact opens up a whole new set of relationships between citizen and sovereign in the modern state, which is also a welfare state. I, the citizen, stand in a “legally relevant” (Weber’s term) relationship to sovereign political authority not only in terms of civil or statute law, but I, the claimant, client, or applicant stand in a newly emerged legally relevant relationship to sovereign political authority as represented by the redistributive administrative agency, and this relationship is governed by administrative law. A question and its corollary arise: what is the relationship ...