Welfare,Community and Solidarity

I. Introduction

This short article argues that an understanding of solidarity can open up a new engagement with ideas of welfare in constitutional scholarship. In particular, an account of solidarity can provoke an engagement with ‘‘the memory’’ of the welfare state in conditions of ‘‘late’’ capitalism ¹ and point us towards a different way of thinking about political community. It is as if the debate on welfare proceeds “almost entirely in terms of ordinary, or normal, politics.” ² Radical constitutional scholarship needs to acknowledge that politics as usual is no longer possible. We will outline the argument that co-production theory offers a new model of social life that builds on the realization of core economy rather than alienated market relationships or clientistic dependency on the state.

The article will develop as follows. The first section will examine attempts to ‘‘ground’’ thinking on welfare rights, in particular the “conversation” between “constitutional theory” and “John Rawls’s signature work.” ³ We will also briefly consider other influential positions in welfare thinking from communitarianism, through Dworkin’s notions of resource equality, to associationalism. We will then argue that, whilst many insights can be gained from these different kinds of scholarship, a new starting point is necessary. Welfare was always bound up with the concept of solidarity. ⁴ The term has become difficult to use, largely because of the successful neo-liberal assault on the welfare state. Those ‘‘on welfare’’ are scroungers or ‘‘chavs’’; an underclass who must be disciplined and put back to work. The welfare state itself creates dependency and a sense of entitlement. These somewhat distorted positions have completely skewed the public and academic debate on welfare. Indeed, the neo-liberal ascendancy obscures an alternative line of thinking that sees welfare as rooted in mutual aid. Re-thinking welfare is thus part of a much broader critique of neo liberalism and the social degradation it has created. Finally, apologists for neo liberalism fail to contend with a great deal of contemporary anthropological evidence that describes the centrality of reciprocity and cooperation to human social behavior. This evidence opens the possibility of new thinking on solidarity; particularly when linked to the insights of co-production and core economy.

We cannot pull together all these points in this short article, but, we will argue that solidarity can be linked to an account of the welfare community. The welfare community describes a form of solidarity or mutual concern; a ‘‘being with’’ each other that is an expression of political agency rather than dependency on the state or the privatized atomism of the market. We hope to recover the critical energy of principles that are “highly valued by the … public … [and have] an enduring place in the life of our nation.” ⁵ It is an understanding of social organization where welfare and solidarity are central to the good society.

II. Welfare, Rights and Capitalism

Scholarship on welfare rights has, at its core, a fundamental concern with law’s response to the inequalities of market capitalism. Consider Marshall’s classic argument about the welfare state: ‘‘what matters is a … general reduction of risk and insecurity, an equalisation between the more and less fortunate at all levels – between the healthy and the sick, the employed and the unemployed, the old and the active.’’ Marshall is describing the nexus of rules, institutions, rights and obligation that define the terms of resource ‘‘redistribution’’ ⁶ and put in place ‘‘the substance of civilised life.’’ ⁷ These notions are, of course, “uneasy ones, given a society which on the whole continues to be individualistic, competitive, and market-oriented.” ⁸ One of the standard critiques is that the response to poverty and inequality is best dealt with through legislative action, and that the courts, and indeed, the constitution, should not be concerned with justiciable and entrenched social and economic rights. In arguing that we need to conceive of constitutions as ways of protecting ‘‘society’’ against ‘‘the market,’’ we are in search of the ideas that can clarify and elaborate the classical concern with welfare as precisely this political (and legal) construction of the good society.

There is of course a rich and various tradition of thinking that has long engaged with problems of law, poverty and inequality; and, in particular, the wider politics of ‘‘coming at’’ constitutional theory through this matrix of problems. Frank Michelman’s work has been a particularly important point of reference for the development of this kind of constitutional scholarship. Michelman stressed that “economic inequality … is repugnant to constitutional values” and sought to develop an account of the court’s role in the “minimum protection [of people] against economic hazard.” ⁹ Attempting to place his account of constitutional welfare rights on a firmer footing, Michelman made recourse to Rawls’ theory of justice. Whilst not without his misgivings, ¹⁰ Michelman saw Rawls’s work as offering a broadly acceptable procedural account of social justice. More recently, critics of Michelman have moved away from a general moral theory of welfare rights. Liu, for instance, has relied on communitarian critiques of Rawls, to argue that welfare rights should rest “on socially situated modes of reasoning that appeal not to abstract moral principle but to our society’s own understandings of our fundamental values.” ¹¹

What sense do we make of these arguments? Rights remain an important reference point for our argument, but our focus in this article is developing a political position that is prior to and informs any substantive thinking on rights. It is also not a question of rejecting Rawls or the communitarians, but of adapting themes in their work that are useful to our project. We will return to these points in part III of this article. One last point: despite their influence, we do not find Dworkin’s resource equality arguments convincing. Even taking in good faith all the caveats about insurance and regulation, his model of resource equality does not take sufficient cognizance of the structural and systemic features of inequality. For instance, Dworkin assumes that people “enter the market on equal terms.” ¹² This is far from reality and suggests a kind of pristine social space in which the market operates. The market is inseparable from a process of historical development which effectively creates social divisions and inequality of resources. Furthermore, Dworkin’s concern with talent and ambition also fails to ‘‘capture’’ forms of inequality that appear at a more basic level. Dworkin seems to be motivated by a kind of bogey-man argument about welfare. One of his main assumptions is that a welfare state has to be centralized and under the control of bureaucrats. This allows him to make a distinction between a market that directly determines the relative costs of the decisions that people make, and schemes of welfare where these decisions are somehow made in an indirect and less efficient way by officials. As we will show below, this is not a sustainable way of understanding the welfare community.

We also need to make reference to associationist thought and the championing of grass roots organization in and against welfare institution. ¹³ Although this might not have been read as relevant to constitutional accounts of welfare, it has carried forward from the New Left’s radical desires for different forms of social organization. Consider, for example, Frug’s quest for the ‘‘forms’’ that will ‘‘articulate popular participation.” ¹⁴ Realizing these potentials is underpinned by an argument about freedom; more specifically a concept of “public freedom” ¹⁵ that relates to how people mobilize the resource to realize their own lives. This is not underpinned by the concept of negative freedom. Public freedom is a way of nurturing “the ability to participate actively in the basic societal decisions that affect one’s life.” ¹⁶ Frug’s associationalism is thus aimed against the professional control of the resources that prevent individuals from being able to “determine [their] own political future.” We will appreciate that these concerns communicate with the important critique of the alienating qualities of state welfare, and the need to develop methods of co-production that are outlined in the section below. However, before we develop some of the themes from these different approaches to welfare, we will outline what we consider our foundational concept: solidarity.

III. Solidarity and the Welfare Community

Solidarity can be thought of as a form of ‘‘common life.’’ ¹⁷ Common life is defined formally by a network of rights and duties that make for ‘‘mutual attachment between individuals.’’ ¹⁸ Solidarity has an underlying normative element: a normativity that can be linked to those institutions that define ¹⁹ the ‘‘common ground’’ between individuals. The welfare community requires ‘‘common institutions’’ meeting ‘‘common needs’’ and providing a source of ‘‘common enjoyment’’ so that accidents of birth and family are not definitional of an individual’s life chances. ²⁰

Recovering solidarity as the basis of the welfare community requires a critique of the welfare state. Building on the themes in Frug’s account of public freedom, Hirst has argued that the welfare state ‘‘appropriates to officials and bureaucrats things that the common people have in the past done for themselves.’’ ²¹ If we leave to one side the rather vague expression ‘‘the common people,’’ we can appreciate Hirst’s point. Most people are now content simply to pay taxes and to refuse any real engagement with a common life. We can link this point to the alienating qualities of welfare provision that have been so well deployed by the paternalists and the neo liberals. For us, however, the problem is that citizens are effectively rendered passive by the services that they consume and become ‘‘objects of administration.’’ ²²

A great deal of creative thinking has been undertaken to elaborate these ideas, and to conceive of the provision of welfare in terms of co-production and public participation in core economy. Co-production theorists offer a new way of thinking about the design and delivery of public services. They argue that people must take control over their lives, rather than become passive recipients of professionally mediated welfare. Within the limits of this article we cannot engage with the re-working of production, distribution and exchange that can be found in the work of new economy and core economy theorists such as Coote and Franklin. ²³ Core economy can be explained in starkly simple terms as a way of making ‘‘better use of people’s uncommodified time and capabilities. Core economy stresses the need to reduce dependencies on money for buying the means of getting things done.’’ ²⁴ As with co-production theory, it finds its inspiration in social networks and human capacities.

This approach is not anti state (for this, and other reasons, it cannot be confused with David Cameron’s idea of the Big Society). It is aware that the state cannot be removed from the picture, and must be used to regulate economy and oversee welfare provision. It is also clear minded about the reality of mixed welfare delivery involving state, voluntary and private operators. In place of the rigid and top-heavy structures of collective provision, solidarity can be related to the involvement of groups in the design, delivery and consumption of welfare services. User involvement provides forms of governance which the state cannot achieve. Indeed, making welfare providers, public or private, more accountable to members ‘‘ensures a first line form of policing of service delivery by members and reduces the load of inspection and rule setting on the state.’’ ²⁵ Instead of being both the provider and regulator of welfare, and thus confusing provision and regulation, the state can assume its role as a ‘‘guarantor’’ of the quality of the services non state agencies are providing.

This argument can be linked to a second point. The marketization of welfare provision means that there are now consumers rather than clients of welfare services. Consumer interest in efficient and fair services can assist in the policing of private welfare providers. This is a potentially radical agenda, given the increasing reliance on private companies and a failure of clarity over their accountability and control. To the extent that welfare services are another product on the market, empowered consumers will simply choose not to make use of poor services.

The point that we want to stress is as follows: making these insights useful for a way of thinking about the relationship between welfare and the political community requires arguments that ground solidarity in social ontology. Our claim, sketched out here rather than rigorously defended, is that the constitutional, political and legal theory of welfare needs to start from this position. There are of course a multitude of problems. An ontology of solidarity might appear inappropriate in the context of a plural, multicultural society. Secondly, solidarity can be confused with concepts such as brotherhood and fraternity that are too exclusive as accounts of community. To defend this thesis, then, we can only offer some brief comments.

Solidarity does not suggest some inclusion into an essential community that erases the very real differences that constitute social being. Our notion of solidarity requires only an understanding of social existence as characterized by a life cycle that moves from childhood, to adulthood and old age. Social existence is also characterized by experiences of risk, sickness and misfortune. Solidarity describes an ‘‘existential’’ community of those who experience a common fate and whose association organizes resources towards common ends. The welfare community stands against the shocks and misfortunes that define us as human beings. Perhaps solidarity is rooted in a sense of our vulnerability as human beings, our ‘‘being alongside’’ each other and a political agreement that resources are directed towards meeting the exigencies of this shared condition. In the public sharing of resources we create the terms of our social existence with each other. As one of the greatest social theorists of welfare, R.M. Titmuss stressed: welfare is not a simple idea. It needs creativity and political will to put it into action. Walzer’s assertion that ‘‘if we did not provide for one another … we would have no reason to form and maintain political communities’’ ²⁶ echoes this articulation of welfare and solidarity. Questions about resource use and distribution will always involve conflicts and competing claims. These difficult and fraught practical issues do not suggest that the concept of solidarity itself is flawed; rather they suggest the need for a broader debate about social wealth and its distribution. ²⁷

Developing this theme requires a re-reading of Rawls that jettisons much of his transcendental enquiry and the ‘‘veil of ignorance’’ (and thus comes at welfare rights in a way distinct from Michelman). In crudest summary, this approach would offer a broad or generous reading of the difference principle, rooted in a notion of solidarity. ²⁸ It would return to themes that run through Rawls, and can be traced back to the work of the democratic socialists. Thus, Tawney spoke of a ‘‘common culture’’ and spoke of state intervention to ‘‘deliver education, health [and], social security.’’ Hardly surprisingly, the assertion of communal provision relates to notions of ‘‘the common good.’’ Furthering the common good required the removal of impediments to the achievement of individual flourishing; and the belief that the flourishing of one required similar conditions for all.

So, a radical constitutional theory of welfare must commit itself to the critique of the capitalist market. Market capitalist economy is ‘‘a diremption from non-economic institutions in a manner that negates both social control over economic institutions and moral behaviour within them.’’ ²⁹ Building on this position means asserting that an economy is dependent upon and located within social relations: ‘‘there remains all that goes into the bonds between individuals, all that comprises their relationships – public and private, social and intimate.’’ ³⁰ A useful starting point for analysis is Goodwin’s pithy statement that ‘‘while markets can be a part of the solution to many human needs, they rarely can be the whole solution.’’ ³¹ This is because markets need to be regulated: ‘‘markets need boundaries, rules, and safeguards against their internal tendency toward concentration of power and their lack of internal motivation to work for the wider good.’’ The sense of the ‘‘wider good’’ has to be imposed upon the market through political or social means; if necessary through the power and resources of the state; or indeed, states acting together internationally; a kind of ethical coalition of the willing.

Our argument returns us to the roots of the welfare state as a political construction that comes out of progressive and socialist thought and action. In Britain, the welfare state ³² was the creation of organized political power. From 1945 until it lost office in 1951, Clement Attlee’s Labour Government put in place the fundamental structure of the welfare state ³³ and a new way of understanding what it meant to be a member of a political community. ³⁴ Whilst there were many profound problems and compromises, and ‘‘state welfare’’ must be criticized, the vision of the welfare community must be defended. In particular, critical questions must address the renewal of traditions of mutual aid that could be combined with co-production thinking to stress the active creation of welfare. Welfare is a specific political construction, rooted in a critique of market economy. Welfare is a political invention by forces strong enough to mandate a constitution and articulate a vision of the good society.

IV. Conclusion

Welfare ‘‘immunises’’ ³⁵ the community against capital and its logics of market exchange. Critical scholars of welfare have long argued that welfare capitalism is contradictory and prone to crisis. We want to suggest a new approach: the tensions of welfare capitalism are neither resolvable nor fatal. ³⁶ They are the conditions of a progressive re-engagement with the question of the ends of political, constitutional and economic organization. Thinking this position through requires us to revisit certain important themes that relate to the role of the control of capital and the provision of welfare as a condition for a functioning market. Perhaps we are at a moment where the politics of privatization and unregulated markets have begun to unravel, in the same way that the so-called ‘‘social democratic’’ consensus did in the early 1970s. The time is ripe for new thinking on welfare and a critical engagement with the memory of the welfare state.