Welfare State and Globalization: A Legal Analysis of Solidarity
General Overview of the Research Field
As the primary legal innovation of the 20th century, the social State is an integral part of the history of metamorphoses the State has undergone since it was invented by medieval jurists beginning in the 11th and 12th centuries. In the 19th century, the industrial revolution, scientific positivism, the dismantling of traditional support systems and the rise of the “social question” led to a perception of the State as a mere instrument of power, to be overcome or eliminated. Such a loss of legitimacy led to 20th century totalitarian regimes that sought to transform the State into the tool of a one-party regime, responsible for implementing pseudo-scientific laws designed to govern human societies (racial biology or “scientific socialism”, for instance). The response of democratic countries brought about a restoration of the legitimacy of the State, entrusting it with the burden of its citizens’ welfare and adding a new dimension to democracy both economically and socially. The development of public services, widespread social security, and protection of the rights and collective freedoms of workers gave the State a new image, what the first article of the French Constitution calls the République sociale (Social Republic), and what is also known as the Welfare State, Sozialstaat, or État Providence in other contexts. All these terms fall within the generic concept of the social State and represent the latest manifestation of the state in its multi-secular history.
A good-natured ruler, tolerant of protest and ready to meet all expectations and remedy all ills, the social State was able to control the paired trends towards individualization and interdependence at work in industrial societies, but only for a time. While controlling the process, it also accelerated its development. In becoming the universal debtor, the State creates a nation of creditors who no longer see themselves owing each other mutual support. In addition to this internal destabilizing factor, trade boundaries are blurred and competition between social and tax legislation arises. Thus serious social, financial and environmental problems emerge that ultimately weigh upon States and also reduce their ability to act. They often attempt to solve these issues via negotiation or consultation with representatives of various interest groups. But the law that results is more a question of a compromise between interests than a concern for the common good. Thus the State becomes subject to a struggle to secure public resources.
The question that must now be asked is whether the social State still has a future. Three reasons give us an affirmative response. Firstly, the contractual and commercial sphere cannot support anything that goes beyond what can be predicted, and thus it is ultimately the State that must accept unforeseeable risks caused by the unreliability of man (such as disorder and violence, disruption of financial markets, and climate change). Secondly, to survive, a society must develop cooperation as well as competition, such that the social State, often perceived in Europe as a monument of the past, is still to be built in so-called “emerging” nations. Thirdly, the State remains the only institution that can lay claim to democratic legitimacy in levying individual income to finance shared expenses.
Once we eliminate ideologies that encourage the elimination of the social State, or their opposite, the indefinite extension of the State following a post-war European model, we must nevertheless study as objectively as possible the dynamics that govern its transformation and the new forms it is likely to take. This is the purpose of the research conducted by the Chair. Law is understood as one of the tools available to study the texture of societies, that is, a framework of texts where social relations are formed and undone. To avoid self-referentiality, the method relates normative categories under consideration to broader contexts of understanding. In turn, this enables us to approach the State as one among many types of solidarity systems – historically and geographically situated – and not as a framework to analyze these systems.
Taking the exact measure of the current destabilization of the institutional foundations of the social state requires a minimum level of terminological rigor that avoids the use of such misleading and vague concepts as “globalization”. This term maintains the confusion between two very different types of phenomena. On the one hand, there are structural phenomena, such as the elimination of physical separation in the circulation of signs among humans, or their shared exposure to health and ecological risks as the result of technical developments. These phenomena are irreversible and should be considered as such in their impact on changes in work and social bonds. On the other hand, we have the free flow of capital and goods, which is a cyclical phenomenon, proceeding from reversible political choices accompanied by temporary exploitation of non-renewable natural resources. These two types of phenomena combine in practice but are different in nature, and this confusion leads to see globalization as a manifestation of a natural law that would be unaffected by any political or legal decision.
The French language distinguishes between “globalisation” and “mondialisation”, and offers a way to introduce a certain rigor into the controversy. “Mondialiser”, in the original sense of the word (where “monde”, or world, is opposed to “immonde” (filthy) as “cosmos” contrasts with “chaos”), is to make the physical universe livable for humans, to make our planet a habitable place. In other words, to “mondialize” is to master the various dimensions of the globalization process. To control its technological dimension, we must adapt legal forms of labor organization inherited from the industrial world to the risks and opportunities arising from technological change. Control of the commercial dimension entails designing an international legal order that subordinates market forces to serve social justice. In any event, such a solution must be based on legal devices that articulate solidarity on a national level with both local and international solidarity systems.