Individualization and the Delivery of Welfare Services: Contestation and Complexity
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Contents:
The remarkable clarity of this passage demonstrates a thoroughly anti-patrimonial politics. To suggest that, in becoming part of a public collectivity that acquires lawful agency in the form of sovereign power, the individual must surrender the private right of self-government rejects not just the feudal conception of authority in terms of private power but also the liberal understanding of freedom in terms of a pre-existing right of self-government.
Indeed so. As he suggests, these two distinct conceptions of liberty lead to quite different conceptions of the state, and it must follow, of public law [39]. Liberal thought justifies state authority in terms of liberty understood as an already-constituted mode of being. State authority, then, is limited to formal recognition and protection of a pre-existing state of affairs. In this framework, any elaboration of state authority, as occurs especially with the historical transition from a patriarchal household society to a modern differentiated society, must appear problematic.
For instance, when the employment relationship is no longer contained within a patrimonial household economy, but is placed within the relationships of civil society, now understood in its modern, rather than early modern sense, as a sphere of private associational action, the question of how the employment relationship is to be constituted appears as something that has to be dealt with.
For the social liberal thinker it makes sense for the state to consider the employment contract as something other than a purely contractual or privately transacted relationship, as a relationship that needs to be situated within political society in the early modern sense of the word [40]. For the liberal thinker the employment contract as a privately transacted relationship should be respected by the state, and the bias is against state interference in this relationship.
In this conception, the test of state authority considered as both potestas and potentia is how it is or continues to be constitutive of freedom, understood as a shared and relational mode of being. Thus what I called at the start the conventional account of the development of the state in the epoch of the rise of the social is driven essentially by a liberal, if not a liberal-patrimonial, point of view or value orientation. The only point I need to make here is that there can be an alternative account that develops the early modern conception of the state and freedom.
Precisely because the early modern anti-feudal thinkers are so profoundly aware that a state of non-liberty is the historical condition their thinking is designed to ethically problematise , their claim that liberty is a right of nature as Hobbes has it is ethical in import. It is not a claim about human nature, but a claim about the potential of being human for living a free life. Since this claim comes into being as an ethical response to an already existing historical state of affairs that denies liberty, its character is historical rather than ontological.
Hegel follows this line of thinking in associating the development of the principle of subjective freedom with the historical phenomenology of Christianity [41]. On this matter there is a profound equivocation in liberalism. Liberal thinkers tend to ontologise freedom or liberty by making it a characteristic of the human as such [42]. In this way, freedom as an ethical claim cedes place to freedom as a naturally given condition.
Instead of being thought of as immanent to a politically constituted mode of association, freedom becomes immanent to a civil society now understood in the modern sense of a transactional sphere of individual conduct, that is, as a set of relations that are structured in terms of their instrumental value for natural persons. Liberals accept that this private ordering of relationships is not self-sufficient. These rules concern, as Oakeshott puts it, adverbial conditions of conduct, adding to conduct the quality of conformity to law [45].
And yet liberal thinkers abandon any idea of a public collectivity.
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They are deeply suspicious of attributing substantive features to the public or political association the state that supposedly enable the freedom of those who come under its jurisdiction. Instead, liberal thinkers attempt to give the rules or conditions of such association a formal and substantively empty character this is political association thought of as societas , a term that Loughlin borrows from Oakeshott. Otherwise they fear that they run the risk of prescribing the content of free action, or more precisely, the logic of the situation is that someone will have to decide the content of free action, which must necessarily represent the return of the arbitrary will.
Liberals are thus compelled to offer a formulation that posits the rules or conditions of free conduct as distinct from the exercise or practice of free conduct. This then leaves the liberal thinker in a quandary. Even if he is clear that free conduct is not possible except as it enjoys such conditions or rules, he has to make free conduct appear to precede or reside outside these conditions or rules, whereas, on the early modern conception, an understanding both political and juridical of the status of being a free person has to inform the exercise of freedom [46].
For the liberal way of thinking, the idea that the state might act on behalf of personal security understood as a condition of holding the status of a free person must lead in an illiberal direction. Thus, if state action on behalf of personal security is inherently problematic, it is because such action will be driven by considerations other than those which bear on the question of subjective right. As I understand it, his argument goes like this.
For Loughlin this is not without problems. First, such rights, if they are enshrined in constitutional law, must be interpreted, and there can be no ultimate criterion for determining the basis of such interpretation [48]. The full passage reads:.
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In modern constitutional settlements, the basis of rights theories has dramatically shifted. Rights are no longer conceived as defining a zone of individual autonomy freed from governmental interest. Rights are now conceived to be part of the objective organizational principles of the constitutional order that has been instituted.
Rather than being treated as pre-political rights that specify the limits of government, constitutional rights emerge from and obtain their realization only through the constitutional order that authorizes the office of government. Loughlin thus evaluates the development of the late modern and especially the administrative state of the twentieth century using the liberal conception of rights. Liberal thinkers consider themselves anti-feudal because of their attempt to find a mode of ordering relationships that is free from the domination of the arbitrary will. This mode is the transactional relationship that is oriented in terms of how individuals themselves decide what it is they want and value, and where the transactional relationship acquires a legal quality through how the rule of law ensures its propriety [57].
As we have seen, within this frame of thinking, any substantive determination on the part of the public authority of what enables individual freedom comes under suspicion. In its reliance on formally ordered transactional relationships, liberalism is unable to show how personal security the early modern conception of freedom is possible within privately ordered and asymmetrical relationships of power e. In the private domain of an individual, action is structured either as formal norm such as the formal legal rules that constitute freedom of contract or as decision.
From this vantage point any substantive use of public authority to constitute the status of a free being comes under suspicion. In this frame of reference, we lose sight of the early modern idea of sovereign power as a system of public office. The nature of public office cannot be thought of in terms of the conjunction of formal constitutive rules and private decision.
This is so for two reasons: first, the nature of things public has substantive ethical features that bind those who serve in public office; secondly, it is the nature of such service to require the public official to assume an ethical persona whose field of action is quite distinct from that of a private individual. Let me take these two points in turn. I interpret Kriegel to be saying that if individuals are not to be left in thrall to the vicissitudes of privately ordered power, then their status as free beings has to be constituted by means of public authority or sovereign power.
This status is an artificial construct.
Individualization and the delivery of welfare services: contestation and complexity
This persona is just that, one aspect of individual conduct that obtains in relation to two situations: the issue of the standing or status of the individual in relation to other individuals; and the issue of the standing or status of the individual in relation to public authority. In both cases, the persona requires of the individual that she assume the obligation to obey both the letter and the ethos of the law in requiring her to know what it is to be a free being who is capable of recognising others as free beings too.
As the early moderns insisted, office cannot be the private property of those who hold it.
Thus Bodin rejects seigneurial rule because in such a condition the subject cannot be free:. It is in this conception of lawful government that we find the idea of law. Quality and individualization in wraparound team planning. From this vantage point any substantive use of public authority to constitute the status of a free being comes under suspicion. In the state of nature, personal security is merely the object of a desire, an aspiration of the individual, but never a reality. His reference to the doctrine of salus populi or the good of the people as the normative referent for the early modern idea of rule is, as I have said, insufficiently precise. It is the concept of the social that now seems to determine regulatory objectives and to shape the variety of techniques some public, some private required to ensure their realization.
By the same token these individuals have to bracket their personal or private feelings, value commitments, and relationships, when they serve in public office. It is clear that this account of office cannot be reconciled with the liberal assumption that decision is inherently subjectivist, an assertion of the arbitrary will. Public office as a specialized vocation is a term that covers a range of distinct offices: the bureaucracy, the judiciary, the elected official, and the military.
Each of these types brings with it a specific persona that the official is to assume, a specific ethical comportment the official is to live up to. I would go further here. Since the reason for this system of public office is the constitution of the status of persons as free beings, the purpose of the office has to be oriented accordingly. The conception of the status of the person as a free being is historically and contextually specific. Moreover, the conception of the status of the person must always be interpreted in relation to the practicalities of a system of relationships between free persons as it operates at any one time.
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The idea of the status of the person as a free being belongs thus within this system. It concerns how to enable and to protect the personal security of individuals, to ensure that their condition is not obnoxius.
The conception of welfare services has changed to consider the more and complexities of contemporary individualized welfare services, with special. Individualization and the Delivery of Welfare Services: Contestation and Complexity by Anna Yeatman with Gary W. Dowsett, Michael Fine and.
Such considerations have justified ideas of e. On this approach, policy and regulation do not substitute for law but complement it [63]. Policy and regulation are understood to belong to the domain of the ethos of law, thus enabling law to be developed in relation to the practical exigencies of this domain, while ensuring that policy and regulation are developed in an open, transparent, politically as well as legally accountable way. To reiterate, this idea of the status of a free being finds specification in law and public policy understood not just in their formal aspect, but also in the ethos out of which this formal aspect grows and to which it returns and concerns the world of public office.
In other words, it reaches to and no further than a public ordering of conduct. Just as the ethic of public office requires those who serve it to leave their personal and private preferences and attachments at the door, the public aspect of conduct concerns the standing of individuals both in relation to one another and the state, but not their entire personality, nor other kinds of ethical commitment, whether to family, religion, business, and so on. A practical ethic of freedom, in other words, goes along with an ethical pluralism, as well as a clearly made differentiation between public and private life.
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Not only is such an ethic entirely irreconcilable with the twentieth century totalitarianisms, it is also irreconcilable with any exercise of state power that denies the standing of those subject to it as free beings. Finally, the account I offer of how the early modern idea of sovereign power can be further developed to accommodate and respond to the rise of the social returns us to the idea of the public domain that is not to be thought of as analogous to a household, but is constructed in terms of the immanent requirements of sovereign rule.
This domain obviously has to be resourced, and it is here we find the case for both public ownership and a progressive taxation system. Instead its many inadequacies place demands on government, but these are demands for government regulation.
Regulation is an inherently administrative rather than juridical activity:. Since the workings of markets and individual action possess the power to destroy as well as create, such operations stand in need of regulation by government. For government to realize these responsibilities, an extensive administrative apparatus is needed: the modern state becomes an administrative state [64].
From this point of view, Loughlin might say, it does not really matter whether the conception of political right is more liberal than early modern. The essential point is that the idea of political right as the ethical foundation of public law has as its ground some notion of what it is to live as a free being, and in a community or society of free beings.
Individualization and the Delivery of Welfare Services
The idea of liberty before or after liberalism is implicated in the conception of law as the modality of rule. Loughlin traces this alternative conception of the state to eighteenth century Cameralist thought and its science of police [66]. Here the state is thought of in terms of a household economy where the task is good economic management on behalf of the members of the household.