Legal Reconstitution of the Welfare State: A Latent Social Democratic Legacy

Abstract

The great challenge to contemporary political analysis and theoretical reflection is posed by the much discussed "crisis" of the welfare state in the wealthy nations of western Europe and North America, by the attendant dramatic reversals of public policy in several of the leading nations, and by the widespread loss of confidence and political initiative among the welfare state's dedicated partisans (Dunn, 1984). Although it is historically accurate enough to say that "the essence of the welfare state is government protected minimum standards of income, nutrition, health, housing, and education, assured to every citizen as a right, not as a charity" (Wilensky, 1975, p. 1), a broader use of the term seems justified by usage in important parts of the literature (Lowi, 1985), as well as by analytical considerations. The new classes of expenditures and guarantees to which the historical definition refers have been everywhere closely intertwined with regulatory and planning measures, as well as with characteristic developments in the organization of government and the constitution of the political process. As Luhmann has pointed out, the welfare state utilizes law as well as money in the attempt to compensate all citizens for disadvantaged interests (Luhmann, 1981: pp. 25 32). Fiscal problems doubtless have fueled the allegations of "crisis", but the debate is by no means limited to issues directly affecting the public budget. The contemporary attack is aimed against the whole complex of developments associated with the great "thrust"in the direction of the welfare state, which Jurgen Habermas correctly identifies as the central political development of the twentieth century in these nations (Habermas, 1981).