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Peter Herrmann

Social Quality - Looking for a Global Social Policy


Attempting an Approximation to the Analysis of
Distances of Social Systems
Peter Herrmann

Social Quality - Looking for a Global Social Policy


Studien zu vergleichender Sozialpädagogik und internationaler Sozialarbeit
und Sozialpolitik, Band II

www.europäischer-hochschulverlag.de
Herrmann, Peter

Social Quality - Looking for a Global Social Policy


Attempting an Approximation to the Analysis of Distances of Social
Systems
Studien zu vergleichender Sozialpädagogik und internationaler Sozial-
arbeit und Sozialpolitik, Band II

Herausgegeben von Beatriz Gershenson Aquinsky, Maria Anastasiadis, Christian


Aspalter, Torben Bechmann, Nuria Pumar Beltran, Yitzhak Berman, Kezeban
Celik, Ming-fang Chen, Hsiao-hung Nancy Chen, Geoffrey Cook, Judit Csoba,
Leta Dromantiené, Franz Hamburger, Arno Heimgartner, Alpay Hekimler, Peter
Herrmann, Sibel Kalaycioglu, Francis Kessler, Yeun-wen Ku, Nadia Kutscher, Ju-
hani Laurinkari, Wan-i Lin, Jussara Maria Rosa Mendes, Julia O'Connor, M. Ra-
mesh, Mae Shaw, Dorottya Szicra, Stephan Sting, Sven Trygged, Hans van Ewijk,
Paul Ward, Luk Zelderloo
www.socialcomparison.org

1. Auflage 2009
ISBN: 978-3-941482-04-3
© Europäischer Hochschulverlag
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www.europäischer-hochschulverlag.de
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Die Deutsche Bibliothek verzeichnet diesen Titel in der


Deutschen Nationalbibliografie. Bibliografische Daten sind unter
http://dnb.ddb.de abrufbar.
Peter Herrmanni

Social Quality – Looking for a Global Social Policy. Attempting an


Approximation to the Analysis of Distances of Social Systems.ii

With a forewords by Wang, Lih-rong and Laurent van der Maesen

Written with the generous support of the Institute for Advanced Studies in Humanities & Social Studies
at the National Taiwan University, Taipei; the Max-Planck-Institute for Foreign and International
Social Law, Munich, the Middle East Technical University, Department of Sociology, Ankara and
Türkiye Bilimsel ve Teknolojik Araútırma Kurumu (Scientific and Technological Research Council of
Turkey). Not least I want to thank Kennet and Anna-Kaarina Lindquist at Noema-CMI Oy, on
Haukassari, Finland who provided me with an opportunity to work in an environment that was nearly
too nice to work – but also allowed an aspirational and inspirational writing, doing justice to the
complexity of the matter in case.

Not least, I am grateful for the support by the Research Publication Fund of the Faculty of Arts,
University College Cork, Ireland which made the publication possible.

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Table of contents

Figures.................................................................................................................................. 3
Tables ................................................................................................................................... 4
Preface by Wang, Lih-rong ................................................................................................ 1
Preface by Laurent van der Maesen.................................................................................. 3
Authors Preface and Acknowledgement ........................................................................... 5
Instead of an Introduction: Five Premises........................................................................ 7
Part I .......................................................................................................................... 11
Social Quality in the Perspective of World Systems Theory – Methodological
Considerations ........................................................................................................... 11
Social Quality: More than Another Contribution to Social Policy? ........................ 11
(a) The Social as Appropriation ....................................................................................................23
(b) Social Policy as Part of the Process of Socialisation ...............................................................27
(c) The Social and Social Policy ...................................................................................................44
(d) Contextualising Social Policy..................................................................................................54
(e) Social Policy and Developmental Dependencies.....................................................................78
Part II: ....................................................................................................................... 87
An Interim View – Where Are We Now, and How Can We Start From Here? ....... 87
Part III:...................................................................................................................... 91
The Social Quality Approach – Presentation and Difference to Other Claims for
Holistic Alternatives................................................................................................... 91
Dimensions of social being and dimensions of social quality .................................. 91
Understanding Development – A Review of Modernisation ......................................... 93
Socialisation..................................................................................................................................94
Processes of Shifting Patterns of Determination...........................................................................95
Interim Summary: A Critical Review of Welfare Regime Analysis .............................................96
Empowerment – a Core Concept of the Social Quality Approach ............................. 101
On the Character of Individual and Social Power.......................................................................101
Empowerment and Social Intervention .......................................................................................105
Summary.....................................................................................................................................106
Indicators of Social Quality – What is New About Social Quality Indictors ............. 106
Quality of Life Indicators............................................................................................................112
Human Security ..........................................................................................................................115
Human Development Approach..................................................................................................118
Social Quality and the Meaning for Social Policy Practice ......................................... 121
The Policy Triangle.....................................................................................................................121
General Rights and their Implication ..........................................................................................122
Part IV: .................................................................................................................... 125
Social Quality – A Suitable Tool for Global Policy Analysis and Policy Making? 125
General Considerations .................................................................................................. 125

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Reaching out for a strategy for public responsibility for social quality ..................... 140
On the way to Developing a Global Approach to Social Law – Caught Between
Relativism and Modernist Determination..................................................................... 152
Protection as Opening of Spaces of Opportunity ........................................................................155
Vita Activa – Recognition of Various Practices .........................................................................155
Protection and Practice as Constitution of Inter-Being ...............................................................155
Welfare Society – Merging L’État Providence, Welfare State, Sozialstaat, Welfare- and Care
State ............................................................................................................................................156
Matrix for a Global Assessment..................................................................................... 161
Responsibility, State and the Law...............................................................................................176
Excursus: Some Reflections on Asia ..........................................................................................179
Excursus: Some Reflections on Islam.........................................................................................189
The Common and the Law..........................................................................................................208
Law and Space of Regulation .....................................................................................................212
Power: Individual, Social and Society ........................................................................................214
Globalism, Values, Dominance ...................................................................................... 221
Part V:...................................................................................................................... 230
Cursory Deliberations on Asian Welfare Regimes – The Case of Taiwan as ‘Asian
Welfare Regime’ – Determinants of Social Quality in the Perspective of Globalising
the SQ-Approach ..................................................................................................... 230
(a) General Political Framework – Trying to get hold of the Mode of Regulation .....................239
Interim Conclusions: Bedding the Tiger Economy – Between Belief and Rights ......................283
(b) Accumulation Regime and Mode of Regulation ...................................................................285
Conclusions: The Political Economy of Refeudalisation............................................................290
Part VI: .................................................................................................................... 291
Conclusions and Outlook ........................................................................................ 291
I. Dimension of Policy Making....................................................................................... 291
II. Relationality, Processuality and Practice................................................................. 292
III. Finality....................................................................................................................... 295
IV. Tensions of Socio-Legal Traditions ......................................................................... 298
V. The Social Quality Approach and Social Law......................................................... 301
VI. Globalisation as General Standardisation versus Creating a Global Space for
Defending and Maintaining Specifities ......................................................................... 308
References................................................................................................................ 312

Figures

Figure 1: Defining the Social...................................................................................... 20


Figure 2: Perspectives of Agency ............................................................................... 34
Figure 3: Welfare Policy Patterns............................................................................... 41
Figure 4: Legislative Systems..................................................................................... 42
Figure 5: Regulationist Systems ................................................................................. 42
Figure 6: Public-Private Divide .................................................................................. 43
Figure 7: Rule of Law and income and income among EU-27................................... 57
Figure 8: Global Dependencies and Divides .............................................................. 64
Figure 9: Social Quality – The Tensions of the Determination of the Social ............. 91

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Figure 10: The Meaning of Empowerment in the Tensional Field of Social Quality104
Figure 11: The Meaning of the Conditional Factors with respect to Enhancing
Empowerment................................................................................................... 105
Figure 12: Conditional, Constitutional and Normative in the Tensional Relationships
of Social Quality............................................................................................... 106
Figure 13: Social Quality and Theory of Regulation ................................................ 108
Figure 14: The European Commission’s Policy Triangle......................................... 122
Figure 15: Three Pillar Structure of Social Policy in Practice .................................. 123
Figure 16: Different Levels of Valuation, Institutions, Regulation .......................... 127
Figure 17: Conditions of the Emergence of Welfare Systems .................................. 130
Figure 18: Establishing Common Legal Spaces ....................................................... 133
Figure 19: Policy Making and the Requirement of Different Reasoning.................. 151
Figure 20: Dimensions of Intervention for Traditional Social Policy....................... 162
Figure 21: Social Policy between Welfare, Nation and State ................................... 163
Figure 22: The Accumulation Regime: Condition and Constitution ........................ 164
Figure 23: Vita Activa Between Condition and Constitution ................................... 168
Figure 24: Constitution of Legal Realms.................................................................. 168
Figure 25: Tension between pre-juridical valuation and speculation and individual-
oriented regulation ............................................................................................ 169
Figure 26: Determination of Current Frames............................................................ 193
Figure 27: Proportion of Different Forms of Employment in Turkey, % ................. 205
Figure 28: Economy as Social Process vs. Econometric Distributional Models ...... 212
Figure 29: Redistributive versus Regulative Intervention ........................................ 214
Figure 30: Determining Dimensions between Unregulated Relativism and Modernist
Determination ................................................................................................... 219
Figure 31: Simple Centre-Periphery-Structure ......................................................... 223
Figure 32: Polycentric Centre-Periphery Structure................................................... 224
Figure 33: Diffuse-Hierarchic Centre-Periphery-Structuration ................................ 224
Figure 34: Societal Scope of Legal Functionality..................................................... 227
Figure 35:Capitalism and Competitive Orientations ................................................ 268
Figure 36: Civil Organisations in Taiwan-Fuchien Area.......................................... 280
Figure 37: Relationship between Social Welfare, Community Development, Social
Welfare Communitisation and Community Care.............................................. 281

Tables

Table 1: The 3x4 Factors of Social Quality ................................................................ 17


Table 2: Coupling and Decoupling Identity-Building ................................................ 66
Table 3: National Background of Highest Qualification Achievement – Examples
(from 2007)......................................................................................................... 83
Table 4: Analytical Framework: Indicators According to a Modified Regulationist
Approach ............................................................................................................ 97
Table 5: Comparing social quality and quality of life definitions............................. 114
Table 6: Civil, Political and Social Rights in Development ..................................... 124
Table 7: Finality and Instrumentalism of Policy Making ......................................... 150
Table 8: Unsettled Welfare Systems......................................................................... 165
Table 9: Resoures and Regulation ............................................................................ 203
Table 10: Female Labour Market Participation ........................................................ 207
Table 11: Status of Female Employment.................................................................. 207

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Table 12: Changed Conditionality of Welfare.......................................................... 217
Table 13: Employment Status, Men and Women (in percent) – All Taiwan 1963, 1991
.......................................................................................................................... 256
Table 14: Weberian Stratificational Position (in percent), Taipei Samples, 1963 and
1991 .................................................................................................................. 256
Table 15: Employment and Unemployment ............................................................. 257
Table 16: Dimensions of the Reach of Law.............................................................. 297
Table 17: Social and Legal Cultures......................................................................... 299
Table 18: Social Quality Factors and the Reflection of Cultures of Law ................. 306

5
Preface by Wang, Lih-rong

With this book Professor Dr. Peter Herrmann provides an important contribution to
current debates in social science though it is surely also a highly contestable approach.
The underlying orientation is that on social quality, defined as “extent to which people
are able to participate in the social-economic, cultural, juridical and political life of
their communities under conditions which enhance their well-being and individual
potentials for contributing to societal development as well we can easily see that
human rights are an issue of daily life, being relevant for many individuals and groups
who are pushed towards the margins of society”.

The author tries to conceptualise this approach on a global level, i.e. by attempting
developing a methodological framework that refers not primarily to the institutional
framework and conditions. With this regard there are surely both strong tendencies of
convergence and divergence alike. However, in order to understand them, Herrmann
approaches the questions in a different way, suggesting taking serious account of
three strands of arguments which have to be brought together. These are

* the different traditions – broad references to world cultures, including their


reflection in major philosophical and religious systems as e.g. Buddhism,
Christianity, Confucianism, and Islam
* the different legal systems that are expressing such value systems in concrete
systems of social security, service provision but as well mechanisms of
‘governance’
* the distinct accumulation regimes and modes of regulation.

Especially the analysis of the latter is of crucial importance, making it possible to go


beyond the dominant institutionalise approaches, contributing to understand welfare
cultures. It is a complex undertaking and surely only one step in developing further
the Social Quality Approach. Of special importance seems the elaboration of two
references. The one relevant framework is the reference to equality with two
dimensions, the one being ‘legitimacy’ and the other being empowerment. The other
relevant framework is appropriateness, also having two references, namely availing of
property and adequacy.

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With the limitation of being a first step it can help to develop further the reasoning on
sustainable welfare societies which is so important as the current economic and social
crisis shows again. What is needed is a thorough re-investigation of social policy that
does not limit itself to developing individual well-being. Instead it has to integrate the
different potentials in societies – and this will only be possible by breaking borders:
between different academic disciplines, between competing orientations in the field of
social professions and of course between countries and regions. – With bringing
different ways of thought into the debate – not least the reference to German notions –
the book is an interesting contribution not least as window-opener.

Herrmann shows that this needs a methodological framework that is academically


diverse and can help to understand social diversity. I am honoured to give this short
comment to this book as appreciation to his contribution to global social welfare.

Taipei, Taiwan November 2008

Wang, Lih-Rong (Lillian)

Director, Social Policy Research Centre (2005.07~Now)


Head, Department of Social Work (2005.07~2008.06)
National Taiwan University

2
Preface by Laurent van der Maesen

Since at least three years now the European Foundation on Social Quality emphasises
the importance of further elaborating the social quality approach as concept that goes
far beyond Europe. However, there two sides to the coin: On the one hand it is about
striving for Social Quality as a global orientation; on the other hand it is about
recognising that Social Quality is actually a concept that bears many marks of
Western thinking. In other words, the recent developments of the theory of social
quality are very much about the search of the local meaning of such a general concept.

This, in turn, means that the general concept needs itself to be revised, stepping more
fundamentally away from the dichotomisation of economic and social life and
policies. And not less the approach is confronted with the need of stepping away from
traditional policy concepts.

Many issues are involved and Peter Herrmann confronts us in this book in the present
document especially with two crucially important debates.

The first is that, if gearing policy making towards the global level, we have to look at
the question – and possible trap – of historical and social relativism. What is
commonly understood as economic relationship and social process has to be measured
against two backgrounds: the one is the general reference to production and
reproduction of life as a general socio-economic process; the other is the concrete
process in which this general process takes a specific socio-economic form – what is
in the book linked to the French regulationist school and presented as accumulation
regime. It is important – and this is something that is getting clear in the book’s
elaboration of Asian and Islamist contexts – to distinguish clearly the different
references of the arguments. – And the author’s reference to regulationist analysis and
legislative systems provides stimulation for further elaboration of the social quality
approach.

The second debate is concerned with another possible trap – we may call it the trap of
terminology. Of course, there is the need to link to existing concepts and with this: to
use certain terms as social policy, welfare state, welfare society, socio-economy,
rights etc. At the same time, however, it is necessary to radically overcome the
conceptual limitations that are inherent in the traditional mainstream thinking.

We can underpin this by referring to European debates on the welfare states. The
implicit trap is, that the state is the only real provider for delivering welfare provisions

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in order to guarantee the dignity of human existence. Of course, Western European
history demonstrates, that important movements realised a change of the state in the
beginning of the 20th Century till now in order to create social justice and dignity. But
an effect is that a manifold of actors, delivering provisions as well, are ignored,
theoretically and in many times also practically. This ignorance prevents an analysis
of what really happens (by families, by NGOs, by citizens' networks etc) and it
implicitly legitimises the supposition of the state as the most important phenomenon
in societies. Because the herewith related top-down approach of daily realties, it also
prevents theorising the most productive role of the state under modern circumstances
all over the world. The Social Quality Approach emphasises the role of a manifold of
players, paving the way for social justice, solidarity, equal values and dignity in life. It
concerns the four normative aspects of the social quality approach. The present book
provides stimulating ideas for this debate, not least by searching for an analytical and
strategic way that avoids the trap of voluntarism.

Particularly in this regard that Peter Herrmann’s work provides a meaningful


contribution to the debate: What may at first glance appear as over-complex and
eclectic, is a theoretically challenging approach to integrate not different theoretical
perspectives but to re-establish a theoretically based integrity of different strands of
modern social science.

Of particular importance is the view on the generic meaning of economic science,


science of law, but as well developments of ideological and religious systems and arts
etc.

All this can provide a valuable starting point for a sound theoretically enhanced social
quality analysis that is not least meaningful for guiding policy analysis and policy
making on the global level – a perspective that is not least looking at the concrete life
processes in their living spaces, be they rural or urban, in any case they have to link
the level of people’s life with global processes.

The Hague/Amsterdam November 2008

Laurent van der Maesen

Director, European Foundation on Social Quality

4
Authors Preface and Acknowledgement

The current study is mainly the result of intense studies in Taiwan during the month
of July to September 2007 when at least the frame of the basic idea had been
developed. However, as time went by and with the usual academic obligations, the
immediate work on the project had to be backstaged – paradoxically because the same
issues of approaching global socal policy became prevalent in other contexts. Being
back in EUrope, I was getting aware of the limitations not just of social policy but as
well and even more so of the theory on this matter. Defending and criticising this
‘model’ was very much based on the same premise: an extrapolation of the traditional
patterns as they had been characterising the cradle of the Western systems. However,
at the same time there was an increasing mismatch not only in terms of the
‘unfulfilled claims’, but equally between the basic values as they emerged from the
enlightenment which took its departure from the Renaissance and the reality of a
socio-political system of which the institutions had been caught in the cage of
globalising capitalism. Slightly later, the increasingly virulent debate on issues around
Islam – especially the more serious parts of this debate, not simply following the blunt
aggression of the Bush-administration, but issuing important matters of
multiculturalism, national identity, the (im)possibility of cosmopolitism and the like –
brought a new issue to the fore. A stay for teaching and study purposes at the METU
in Ankara and later contacts to colleagues added some facets.

Later again, a stay at the Max-Planck-Institute for Foreign and International Social
Law shaded new light – on the one hand simply by allowing to concentrate on the
research, utilising the Institute’s resources and by opening the mind for a more legally
oriented mind-set. This, however, did not mean to look closer into the issues of social
legislation. On the contrary, it meant to open the mind for more fundamental issues,
headed by the working title for the stay: Contributing to the Debate on Welfare
Systems in the Perspective of Theories of the State and Possible Consequences for
Legal Systems.

Many people crossed my way during this time, sharing discussions, thoughts, the
peaks and valleys of research work and life, though not sharing the responsibilities of
the flaws of the outcome. At least I want to name some – in simple alphabetical order
and not mentioning their very different meaning on the way: Almas Heshmati, Alpay

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Hekimler, Arno Tausch, Barbara Darimont, Chien Fu Jeff Lin, Claire Dorrity, Dong-
Mei Liu, Henning Frankenberger, Hsiao-Hung Chen, Jaclyn Guo, Juhani Laurinkari,
Joseph Finnerty, Kezban Celik, Laurent van der Maesen, Li-Rong Wang, Ming-Cheng
Kuo, Ming-Fang Chen, Nuria Pumar Beltrán, Orla McDonald, Sibel Kalaycioglu,
Theresa Der-Lan Yeh, Tsu-Yu Hsu, Mei-Yu Liu, Victoria Fülöp, Wan-I Lin, Werner
Thole, Yasemin Körtek, Yeun-Wen Ku, Yun-Chung Ting.

However, obstacles should not be denied: in my own department, the Department of


Applied Social Studies at the University of Cork, I experienced the managerialisation
of making (inter)library service available, being a ‘good example’ of undermining
free research. To be reminded that budget considerations rather than openness for and
freedom of research are not just on the way but already much advanced in
determining the thinking and acting of the free western societies. It is a tiny matter –
at first glance: introducing a quota system. i.e. determining in managerial spirit how
many books researchers can avail of per week rather than providing needed research
material when it is needed, definitely did not support. Fortunately there are still
mechanisms in place that make it possible to find ways around – and these make me
even more grateful for the support by the colleagues I mentioned, located all over the
world.

My special thank you goes to Melanie Jackenkroll and Claire Dorrity – still, though I
am especially greatful for their support and in general for the various contributions of
all of those mentioned, invaluable in many regards, I want to express my special and
personal gratitude to Hans F. Zacher, John Veit-Wilson,, Laurent van der Maesen,
Marco Ricceri, Yitzhak Berman and Zsuzsa Ferge – only alphabetical order can do
justice here. In many respects they went a long way with me, though in very different
meanings and though perhaps not even recognising how important their company was
on many occasions.

And as much they gave me; and as much burden they occasionally took off my
shoulders and mind – they were not expected and they could not take the
responsibility for any flaws from me.

Taipei, Aghabullogue, Munich, Haukassari, 2007/2008

6
Instead of an Introduction: Five Premises

In the beginning it should be briefly stressed that we are dealing with considerations
on a sustainable welfare society. It is important to explicitly see that this approach is
dealing with three questions, here in a hopefully sufficiently provocative manner
sketched by naming the catchwords of three challenging tensions. These are

* structure and processuality


* intitutionalism and relationality
* absolutism and relativism.

For the present purpose in particular the third point is of relevance. Approaching
issues of global social policy can take two rather distinct trails. The one is in the
meantime rather common, arising not least from the ongoing process that is now
defined as globalisation. This vague formulation ‘the ongoing process that is now
defined as globalisation’ is used to point on two moments. First, we find already for
quite a while the concern for ‘welfare issues’ in a global perspective – and one might
even positively complement colonialism as imperialist strategy of exploitation
whereas church lead missions were employed by both, the process of joining or at
least flanking the economically driven expansionism on the one hand – the
complementing of capitalist exloitation by evagilisation: not least spreading the
protestant work ethics – and the process of providing some kind of social welfare on
the other hand. A second notion is concerned with the fact that global social policy is
very much in the tradition of the concept modernisation as it is seen in the tradition of
the United States of America: a concept that pushes for the ‘one and best way’, seeing
the American way of life as the unique and also only way for global development.
However, there a paradox entailed as clamining ‘one way for all’ as mans of fosterig
affluence and equality actually structurally depends on ‘different ways’, i.e. the gap
between rich and poor and the maintenance of inequality. The concept depends in
itself as well on the notion of inequality between global regions and also the
inequality of concepts of justice. More precise, it depends on the factual
acknowledgement of inequality and injustice – maintaining different approaches and
definitions. However, at the same time a fundamental difference has to be
acknowledged as well between the understanding of injustice and inequality between
regions and within regions. As will be developed later, the fundamental issue is to

7
clearly define the points of reference within the social fabric for analysing and as well
for developing policies. This will be shown as matter of the relevant points within the
formations, and it will be seen as well as matter of determining the aggregate level
and their interaction. Thus it is justified to say that the only general principle is the
conceptualisation of policies for concrete social situations of individualities in their
daily life – and only as such policy debates are valuable means to determine their
validity.

In the following, five general aspects of the Social Quality Approach will be put
forward – they will serve as foundation and guideline for the later elaboration.

First, the Social Quality Approach understands itself as global not only in terms of
striving for principal applicability in all countries. It is important to understand its
global dimension as well in terms of an approach that requires an orientation that does
not stop at conceptualising social policy within a national framework. Any social
policy that aims to be sustainable relies on a balanced approach as well in terms of a
global setting.

Second, social quality is actually built on looking at the constitution of the social.

* For this, the first thesis is that human beings are in principal social beings. They
depend on interaction with others and they are interacting with others. The latter is
important as it contradicts any utilitarian and productive interpretation of social
interaction. Although such notions may determine individual action, there is the
fundamental aspect that first and foremost such social orientation is rampant.

* This implies, so the second thesis, a reference to practice as the core of the human
being, concerned with the action of self-definition via actively locating oneself in
relation to others and in relation to the natural and institutional environment. It is
only in this perspective, that the social can be understood in its processuality.

* The third thesis is that the Social Quality Approach does not start from the view of
a disintegrated society that needs some adjustment. Rather, social quality starts
from the assumption of a principally integrated and balanced society of which the
integrity is disturbed (a) by processes of differentiation and (b) by (though not

8
‘necessary’1) consecutive unjustified power imbalances. That does by no means
aim on denying mal-integration. On the contrary, it recognises well the imbalances
but looks at them as systemic anomaly (and as such possibly being dominant over
long periods of time). However, it subsequenty means that the matter in question is
not, following the mainstream, social policy but instead we have to direct our
interest towards conceptualising public responsibility for social quality.

Third, it is the before mentioned ‘anomaly of imbalances’ that actually causes (if not
anything else) that a system is not sustainable. This can temporarily be covered by
violence, by externalisation of conflicts or – in monetary regard – by over-
indebtedness. However, in a long-term perspective any of these strategies cannot
guarantee sustainability. For this – later this will be elaborated – the Social Quality
Approach starts by looking at the social as interplay of conditional, constitutional and
normative factors.

Fourth, social quality is fundamentally concerned with two dimensions: (a) it


provides an analytical tool; and (b) it is a normative framework. Then, on the one
hand, speaking of social quality does not primarily mean a setting is ‘good’ or ‘bad’ –
here the term quality is simply a general feature, a predicate. On the other hand, social
quality is a tool that aims on achieving ‘high quality’. In this latter regard, the Social
Quality Approach is working from the presumption of a set of normative factors
which will be as well elaborated at a later stage.

Fifth, taken together, this means that the Social Quality Approach is not primarily
concerned with social policy as matter of dealing with ‘social problems’ and the
provision of relief. Rather, it is an approach that starts from the vision of an integrated
society. However, this is not a matter of the European vision of (neo-)social-
democratic approaches, beingbased on a middle-class oriented ‘social policy for all’.
Instead, we are dealing with a different approach that may seem to be at first glance

1
As Karl Marx wrote in a letter to J. Weydemeyer, dated from March 5th, 1852:
Nowasformyself,Idonotclaimtohavediscoveredeithertheexistenceofclassesinmodernsociety
or the struggle between them. Long before me, bourgeois historians had described the historical
development of this struggle between the classes, as had bourgeois economists their economic
anatomy.Myowncontributionwas1.Toshowthattheexistenceofclassesismerelyboundupwith
certain historical phases in the development of production; 2. That the class struggle necessarily
leadstothedictatorshipoftheproletariat;3.Thatthisdictatorshipitselfconstitutesnomorethan
atransitiontotheabolitionofallclassesandtoaclasslesssociety.
(Marx,1852a:62/65)

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circular: actually each, the constitutional factors, the conditional factors and the
normative factors are defined by the interplay of the remaining other two factors:

* the constitutional factors by the interplay of the conditional factors and the
normative factors
* the conditional factors by the interplay of the constitutional factors and the
normative factors
* the normative factors by the interplay of the conditional factors and the
constitutional factors.

Applying a dialectical approach, we can understand this as reflexive mechanism.


Following this line of argument we arrive at having a tool at hand that allows to start
with analysing matters of global social policy with rather minimalist anthropological
or societal presumptions, suggesting one concept of social policy or welfare state as
blue print for different countries and regions. At the same time it suggests a common
standard not for policy making but for assessing the usefulness of locally, regionally,
nationally and supra-nationally specific policies. The reference to global social policy
is primarily made with reference to the ontological and epistemological dimension of
globality in matters of the social and relevant policies.

It is in this context that the current work will present the Social Quality Approach as
methodological framework for investigating and developing public policy. Moreover,
it will develop a comparative perspective as well for assessing regulative systems – in
particular the area of juridical thinking. In order to do this, some attention is geared in
particular towards the socio-legal thinking in Islam and in Asian traditions. A distinct
part will conclude by a brief analysis of the Taiwanese thinking.

10
Part I

Social Quality in the Perspective of World Systems Theory –


Methodological Considerations

Social Quality: More than Another Contribution to Social Policy?

The Social Quality Approach occupies an ambivalent position in the debate on


European Social Policy. Several reasons can be offered – some going back to
inconsistencies in the approach itself, others are due to a scientific and political
hostility of mainstream thinking. To name at least some of these underlying problems
makes it possible both to develop a clearer understanding of the curretly developed
approach and to further its development. Before briefly discussing them it is
important to highlight that many of these aspects are barely outspoken and some may
well be contested within the network.

* Although the work started by being geared towards European Union policy makers,
it could never be understood as being really a contribution to EU-policy making as
such. At least implicitly it aimed on contributing to a wider debate around
developments in the way in which people live together. The European and even
EUropean part was only given by the fact that the participants had been socialised in
the European traditions of thinking. This provided a common point of departure – but
the work showed that this had been in many cases a misleading commonality as even
in this seemingly uniform appoach the differences had been larger than they seemed
to be at first glance. – To include the tale of the work, debates around a Rousseau’ean
table, bringing together English utilitarianism, German philosophy and Dutch
pragmatism, resulted in a breath of vision and spoke – and wrote – volumes; however,
the needed storm for policy changes failed to appear.

* Of course, this brought at an early stage the limitations to the fore – the insight of
being Eurocentric – and the efforts to go beyond. At the same time, there was and is
the actual limitation – claiming to be global, leaves still a long way to go in order to

11
arrive at a global perspective. And even working on a general, globally applicable
understanding of what the social is, does not mean arriving at an understanding of
how it is actually lived – some of this may hopefully be clarified throughout the book.

* Addressing EU-social policy making was surely the original point of departure of
the network’s undertaking. However, the old question is still and again more than ever
valid: as much as social policy is departmentalised – and specifically understood as
social administration, social action policy, institutionalised subsidiarity of social
provision etc. – as much it is actually always concerned with something that goes
much further. It is societal and public policy – and it may be better to orient on a new
policy frame of public responsibility for social quality.

* And as such, policy can only be understood in the integral connection with politics
and polities – all understood in a loose and wide way.

* Especially when this is applied towards developing a global understanding, it is also


very much only possible under the condition of developing these thoughts as
contribution to further developing a theory of modernity, modernisation and
civilisation. It strictly has to develop an argument against what J. Samuel and Arturo
Valenzuela put forward as assumptions of the modernisation perspective, namely

The basic building blocks of the modernization perspective are


parallel tradition-modernity ideal types of social organization and
value systems, distinctions borrowed from nineteenth-century
sociology. Since societies are understood to move from tradition to
modernity, the ideal typical dichotomy constitutes the polar ends of
an evolutionary continuum, though at some point incremental
changes give way to the qualitative jump into modernity.
(Valenzuela/Valenzuela, 1978: 537)

Though from a different perspective than Valenzuela/Valenzuela, the Social Quality


Approach argues as well against the traditional views on modernisation and
modernity, rejecting implicitly that there is such a ‘dichotomy’ with two poles; rather
there is a different mode of integrating the different aspects, mechanisms and values
into a societal whole. The values actually do continue to exist, but their concrete mode
is specific to the given historical stage. This means as well that ‘modernity’ is not

12
final nor does post-modernity come after modernity. This implies three important
momentums: first, rationality is not a ‘core value’ (see the debate in ibid.); second, we
have to distinguish carefully between modernisation and modernity; third, we have to
try to avoid problems of state-centred approaches and centre, instead, on
understanding ‘the social’.

Any considerations on the ontology and epistemology of the social is actually nothing
else than the analysis of the social and its realisation under different natural and
historical conditions. As Max Weber says as well – and as it is especially overlooked
when talking about his work:

[i]t hastobesaidagaininadvance: that‘rationalism’can mean


verydifferentthings
(Weber,1915b:20)

and even

[t]he kind of rationalisation of the conduct of life we are here
dealingwithcantakeavarietyofforms.
(ibid.)

To explore this further, we have to look in general terms at the scene that makes the
search for political re-orientation necessary – there is a sufficient number of
publications looking at various aspects of concrete policy developments
(Svallfors/Taylor-Gooby, 1999; Deakon, 2007; Walker/Wong, 2005;
Chan/Ngok/Phillips, 2008; Ku, 1997; Castles, 2005). The lack or at least the difficulty
of many of these works can be seen in the fact that they are actually lacking a strong
focus in terms of the subject they claim as the focus of their work. Although dealing
with social policy, many of them are not equipped with a clear understanding of what
they understand under the social, taking this in a tentative, or better to say: customary
understanding.

This is a political and a scientific issue. Leaving the political aspects aside, I want to
point on the scientific aspect, referring to a debate on a recent symposium with the
theme Does Sociology need Society? (Groupe d’Étude et d’Observation de la
Démocratie, 2003). The contribution by Alain Touraine begins by looking at ‘the

13
unity of the sociology now termed classical’ (Touraine, 2007: 184) and confirming a
common object of knowledge.

The object of sociology was the study of society and the latter was
defined in the same manner as nature, matter or life. In fact, the
definition of society was more precise: it was defined as a set of
interdependent mechanisms ensuring the integration or combination
of mutually opposed elements: the individualism of the actors and
the internalization of institutional norms in the service of collective
integration. What we call society is the whole which thus combines
order and progress as well as individualism and solidarity.
(ibid.)

It is clear that such a definition is far from being concerned with providing an
understanding of the social per se. However, it gives evidence of a common focus.
And probably it is not wrong to say that we can speak in the same vein of a common
focus of social science in general, going beyond sociology. However, sociology and
social science in this understanding had been only possible after society emerged as
somewhat distinct entity. Touraine sees this not as depending on the emergence of
modernity; instead, for him

[s]ociology came into being the moment that the rational action of a
sovereign was replaced by the opposition between the forces of
consciousness and order, of the inner and the outer life, of morality
and the economy. The idea of society was introduced into the heart
of modernity to keep instrumental rationality and individual
consciousness from separating completely. The idea of society thus
designated the means for maintaining between the actor and the
system a distance that is real, but limited and controlled by
institutional mechanisms. One could define this classical sociology
as the quest for a third way between the imperatives of rational
economic management, on the one hand, and the demands of moral
conscience on the other.
(ibid.: 185).

14
As important as this investigation is, it leaves us somewhat dissatisfied behind, as it
does not clearly distinguishes between the constant variable on the one hand and its
concrete determination on the other hand. Consequently we find indeed the trend that
social sciences gets lost in

context[s] of region-based and nation-specific knowledge


communities – as well as delineated historical, political, religious
and social dynamics – and hence constitutes a project anchored a
project anchored to a significant extent in the singularity of the
regions and nations of its birth.
(Kalberg, 2007: 206)

However, the problem has to be located much deeper than both, Touraine and
Kalberg suggest. At present it is suggested that both social science – and this is true
for sociology and social policy (related) subjects alike – lost their focus, namely the
orientation on the social.

In fact, this loss could only emerge from the differentiation not of society but of
relationships, namely the process of internalisation of alienation. Three stages of
alienation will be brought forward in order to underpin this thesis, namely

* the alienation as accepting external power – the power of gods and goddesses,
myths and the acknowledgment of a space which is meaningful for action though
out of reach for direct influence;
* the alienation in terms of a first stage of internalisation, i.e. the clear attribution of
power to ‘selected’ individuals who – for different reasons – could claim the
position of being chosen and acting as intermediaries between the eternal and
external and most importantly: absolute power. Simplified we can say, their ordains
emerged to orders, these orders emerged to religions and these religions developed
to societies.
* Such development, however, was only one side – and it is contestable if it was the
most important one. We are now confronted with a paradox of crucial importance
with regard to the development of society. Although these rules had been a first
step of internalisation of alienation, they had been at the very same time a means of
shifting, or even kind of externalising power within the system itself. Insofar we
can refer as well to Touraine who states:

15
However, the idea of society did not make its appearance at the
beginning of modernity. For a long time, it was thought that God
had to be replaced by an absolute Sovereign, the depositary of all
legitimacy, at once father of the people and manager, generous and
a dispenser of justice. The formation of political power and the State
was, from Machiavelli to Hobbes and from Jean Bodin to Bossuet,
at the core of political philosophy; it later ceased to be so,
reappearing only in relatively marginal thinkers, such as Carl
Schmitt.
(op.cit.: 184)

We have to introduce a further element: that of power. In doing so, we can see that
the internalisation of alienation into the system of immediate action meant the
‘emergence of society’ as an entity that had been an external force to the individual
– of course, in reality a highly differentiated, multi-level and multi-stadial process.

Such argument allows as well the clarification of what Touraine leaves out: the
definite distinction of society, state and different institutions. To say the least, his
confusion of the social and society makes it difficult to overcome his fundamental
understanding of the system of action as voluntarist system.

It is important to underline two crucial aspects for the further debate. First, society
should not be confused with the social – although we are in both cases confronted
with the question of alienation, its kind is entirely different in character. Second,
notwithstanding the definition of the social as provided by the Social Quality
Approach, the social has to be seen as system of action. From here we can understand
in a first step the quality of the social simply as way in which individuals relate to
each other in their mutual dependence for further development.

Then, the Social Quality Approach is well suitable to shift the focus of attention,
bringing the social back into the debate; however, it lacks acknowledging the
fundamental focus of the social itself on its material dimension. We can say that, as
much social science tends to fade out the social in its substantive form, the Social
Quality Approach tends to suppress the material dimension of the social.

16
Two questions have to be addressed. First: How is the social as system of action
actually constituted? What is the focus of action? Second: What determines the
development? How can we determine a drive that makes ‘development’ desirable
and/or necessary?

From looking at these questions we finally arrive at the universal character of the
Social Quality Approach that is neither limited by a regionalist perspective (as its
current somewhat Eurocentrist notion) or restricted by a normative undertone in the
explicit form. The social – and with this: social quality – are understandable as matter
of socialisation. We can understand the permanent (re-)constitution of analysis and
critical consideration as reflexive process of relating three sets of factors, namely the
conditional, the constitutional and the normative as they had been mentioned already
before are clearly presented in ƒ„Ž‡ͳ.

CONDITIONAL FACTORS CONSTITUTIONAL NORMATIVE FACTORS


FACTORS
socio-economic security personal (human) social justice (equity)
social cohesion security solidarity
social inclusion social recognition equal value
social empowerment social responsiveness human dignity
personal capacity
Table 1: The 3x4 Factors of Social Quality
This had been already briefly mentioned above by stating that that the Social Quality
Approach may be seen to be at first glance circular: actually each, the constitutional
factors, the conditional factors and the normative factors are defined by the interplay
of the remaining two other factors:

* the constitutional factors by the interplay of the conditional factors and the
normative factors
* the conditional factors by the interplay of the constitutional factors and the
normative factors
* the normative factors by the interplay of the conditional factors and the
constitutional factors.

The way of investigation thus follows the five stages of looking at

* in the strictest sense an entity of individual, natural world and social setting, and an
external rule, moving on to

17
* an internally differentiated entity, characterised by a individuals who are
confronting each other on grounds of their different status in the sense of executing
power over the natural world, thus constituting social stratification, still leaving the
‘highest reason’ to an eternal and external power, defending own human supremacy
as divine intention,
* arriving at a stage where society takes the form of an institutionalised system
(Warlordocracy, nobility, state …) with, to some extent, two effects, namely
¾ •‡…—Žƒ”‹•ƒ–‹‘ƒ†
¾ †‡Ǧ’‡”•‘ƒŽ‹•ƒ–‹‘‘ˆ’‘™‡”ǡ
finally entering an up to now final phase of development
* an internally differentiated entity with entirely de-personalised, secular power,
following functional patterns of differentiation, striving for a further development
towards
* again in the strictest sense an entity of individual, natural world and social setting –
now the ‘external rule’ being entirely internalised (in Marx terms the stadium of
freedom as insight into necessities). 2

Important is – later this will be elaborated – to clearly elaborate that this approach is
only possible when it is seen as centrally concerned with (different forms of) action,
i.e. of social practice. One can even go further by saying that practice – and as well
the contradictions that come with it – is the ultimate ground and ratio of the entire
approach.

I use for two reasons consciously the wording functional pattern of differentiation
rather than a formulation as (pattern of) functional differentiation. The latter would be
close to the arguments brought forward by Talcott Parsons and later Niklas Luhman.
Despite further arguments, the reason for rejecting that kind of functionalism is
simply that both approaches suggest an overlay of social stratification and the
productive basis of stratification by functionally equivalent patterns. On another
occasion I suggested the formulation of functional integration within stratified-
segmented differentiated societies (funktionale[.] Integration in stratifikatorisch-
segmentär differenzierten Gesellschaften) (Herrmann, 1993; Herrmann, 1994:
passim).

2
Admittedly there are anthropological premises made which deserve closer discussion though this cannot be undertaken
here. Thus, what is said should be understood as broad rapprochement.

18
In any case, it is important to start any analysis – be it one of general societal
structures and their constitution, be it one concerned with concrete questions of
contemporary social policy – with the entity (a) from which the society in question
evolves and (b) which the given society represents, notwithstanding all contradictions.

Starting from socialisation means to develop a historical approach that, though not
rejecting normative considerations, investigates the specific formation as temporary
‘equilibrium’, emerging from previous antagonisms and being the point from where
current contradictions develop to future antagonisms, striving for a dialectical
development and thus emergence of a new social order.

The meaning of this gets evident when we look at the definition of social problems,
not being defined from a suggested ideal type of morality or any imagined global law
but from the interaction of norms directly derived from (inter-)action of individual,
natural world and social setting – this had been mentioned before at the first and last
developmental stage. Taking this as background for developing an understanding of
social problems as matter of (incomplete) socialisation we can turn to Hans F.
Zachers formulation, saying

[l]ooking at the societal, political and juridical practice, only a


limited range of challenges is getting manifest. This range is closely
linked to the horizon of such interventions that can actually be
imagined.
(Zacher, 2004: 661)

As elaborated on another occasion:

In other words, in epistemological respect practice – encompassing


the simultaneity of the societal, social and individual dimension –
has to be seen as key feature in overcoming the dichotomy between
structure and action as it is suggested in mainstream social science,
and the convulsive efforts of overcoming it by introducing concepts
as agency and so on.
(Herrmann, 2007 a: 92)

The Social Quality Approach understands the social as the outcome of the interaction
between people (constituted as actors) and their constructed and natural environment.

19
With this in mind its subject matter refers to people’s productive and reproductive
relationships. In this perspective

* the constitutive interdependency between processes of self-realisation and


processes of the formation of collective identities
* is a condition for ‘the social’, realised by the interactions of
¾ actors, being – with their self-referential capacity – competent to act
¾ and their framing structure, which translates immediately into the context of
human relationships.
The following graph may clarify the references:

Figure 1: Defining the Social


(from: Beck/van der Maesen/Walker, forthcoming; the definition is
very close to the one given there)

However – and continuing from what Hans F. Zacher stated – this definition lacks by
and large a material foundation; it puts forward an understanding of the conditions
and the constitution of the social. A problem remains however as the approach starts
from the social in a way that considers some form of the social that is limited by being
located on the ontological level of the general-abstract, however not allowing easily
stepping from there to the level of the concrete-specific. Despite referring to an
anthropological presumption of seeing the human being as social being (by and large
following the Aristotelian argument), it lacks to answer the question on what grounds
this constitution takes place. Thus failing to consider the ‘motivational dimension’, it

20
fails as well to clearly elaborate the dimension of social historicity. In other words, it
strongly considers the concrete process of constituting the social, but fails to look for
the historical character of the social itself.

Before coming back to looking for the material foundation by making reference to the
regulationist school, a remark in clarifying a crucial methodological differentiation
has to be made. If we want to look for a suitable concept of social policy analysis and
developing social policy measures we have to distinguish between four levels of
consideration, namely

* the abstract-general
* the abstract-concrete
* the abstract-universal and
* the abstract-particular.

This is important for any further considerations as it is necessary to understand the


concrete as combination of various abstractions and with this the ‘unity of the diverse’
(Marx, 1857: 38). Only with this distinction it is possible to avoid the trap of
ahistorical, institution-oriented analysis and to recognise instead that it is wrong to say

that production, as distinct from distribution, etc., is to be presented


as governed by eternal natural laws which are independent of
history, and then bourgeois relations are quietly substituted as
irrefutable natural laws of society in abstracto.
(ibid.: 25)

Instead, and again taking the words from Karl Marx

Regarding (1): production is always appropriation of nature by an


individual within and by means of a definite form of society. In this
sense it is a tautology to say that property (appropriation) is a
condition of production. But it is ridiculous to make a leap from this
to a definite form of property, e.g. private property (this is moreover
an antithetical form, which presupposes non-property as a
condition, too). History shows, on the contrary, that common
property (e.g., among the Indians, Slavs, ancient Celts, etc.) is the
earlier form, a form which in the shape of communal property

21
continues to play a significant role for a long time. The question
whether wealth develops better under this or under that form of
property is not yet under discussion here. But it is tautological to
say that where no form of property exists there can be no production
and hence no society either. Appropriation which appropriates
nothing is a contradictio in subjecto.
Regarding (2): Safeguarding of what has been acquired, etc. If these
trivialities are reduced to their real content, they say more than
their preachers realise, namely, that each form of production
produces its own legal relations, forms of government, etc. The
crudity and lack of comprehension lies precisely in that organically
coherent factors are brought into haphazard relation with one
another, i.e. into a merely speculative connection. The bourgeois
economists only have in view that production proceeds more
smoothly with modern police that, e.g. under club-law. They forget,
however, that club-law too is law, and that the law of the stronger
survives, in a different form, even in their ‘constitutional state’.
(ibid.: 25 f.)

This is very much underlying the Social Quality Approach, and we can refer to the
eloquent statement from Evald Ilyenkov who writes:

They discovered man’s concrete essence in the overall process of


social life and laws of its development rather than in a series of
qualities inherent in each individual. The question of man’s
concrete nature is here formulated and solved as the problem of
development of a system of social relations of man to man and of
man to nature. The universal (socially concrete) system of
interaction between men and things appears, with regard to a
separate individual, as his own human reality that was formed
outside of and independently from him.
Nature as such creates absolutely nothing ‘human’. Man with all his
specifically human features is from beginning to end the result and
product of his own labour. Even walking straight, which ‘appears at
first sight man’s natural, anatomically innate trait, is in actual fact

22
a result of educating the child within an established society: a child
isolated from society à la Mowgli (and such cases are numerous)
prefers to run on all fours, and it takes a lot of effort to break him of
the habit.
(Ilyenkov, 1960)

One answer which is frequently brought forward in the debate about welfare systems
and social policy makes reference to approaches of defining needs (for a debate see
Doyal, 1993; Doyal/Gough, 1991; a useful wider debate in Phillips, 2006). This spans
between the reference to fundamental, anthropologically defined requirements of
physical reproduction on the one hand and the socio-historical character, the latter
reaching even as far as making reference to wants and wishes. Of course, if remaining
at a very basic stage this can be seen as reasonable reference. However, coming to the
level of concrete policies, this ends easily at basic minimum3 standards on the one
hand, or it leads into socio-cultural relativism on the other hand. Thus, it is not a
suitable concept for consulting policy processes. The same is true when it comes to
approaches that employ the concept of rights instead of the concept of needs. Without
going into details, an important issue is that with the orientation on rights we are lead
onto a path of the Scylla of formalist legalism and the Charybdis of socio-historical
relativism on the one hand or the problem of pondering between the rights of
individuals or different groups, searching for acceptable compromises.

Looking now another time at what had been said above, the introduction of practice
(rather than agency) is essential in its elementary meaning. This has various
consequential implications.

(a) The Social as Appropriation

The historical process and development can be clearly understood as matter of


developing the social individual in his/her confrontation with the physical and social
environment. This goes beyond the understanding of Anthony Giddens’ proposal of
structuration. For Giddens

3
In the sense of merely securing the physical existence.

23
structures have no independent existence beyond the way in
whichtheyarereproducedinaction,‘structureonlyexistsinand
throughtheactivitiesofhumanagents’(Giddens,1989,p.256).
Giddens(1984)alsoarguesthatwearereflexiveagents.Bythishe
meansthat,whenasked,wearealwaysabletogiveanaccountof
the reasons behind a decision that we have taken; we are
knowledgeableactors.Whilstwemaynotbeabletogiveaclear
articulation of the rules that we follow we nevertheless
demonstrate a practical or tacit knowledge of them through the
actionthatwetake.
(Hoggett,2001:38)

Margret Archer goes further (cf. Herrmann, 2007 a).

Structurationtheorymaynotbeveryhelpfultousinoureffortto
understandthiskindofrupturalagency.Clearly,andformuchof
the time,agencyunderstoodprimarilyintermsofcoping,‘making
out’ and ‘getting by’ does have a recursive relation to structure,
that is, through such forms of agency we do reproduce the
structures which provide the conditions for our own agency.But
aninstitutionsuchasahousing departmentdoesnotexistandis
notputintomotion,soastospeak,only whenworkersandservice
usersinteract.Structurationtheoryplaysuptheimpactofagency
toomuch.Archer(1990,p.79)arguesthatits ‘voluntaristicbias’
leads it to imply ‘that institutions are what people produce, not
what they have to confront and grapple with’. When we assert
second order agency we confront something head on, we feel its
resistanceandopposition.Inotherwords,whenweseektochange
things a dualism of agency and structure inevitably returns
(Craib, 1992, pp. 151–2). And this is equally true in terms of a
person’sownlife.
(Hoggett,2001:38)

As Margret Archer elaborates

24
[a]lthough it is contingent that any particular social structure
exists (for they are historically specific and only relatively
enduring), nevertheless whilst they do persist, as the unintended
consequencesofprevioussocialinteraction,theyexertsystematic
causal effects on subsequent action. Yet the systematicness of
these effects cannot be attributed to the entire shifting flux of
unintended consequences, precisely because these combinations
areephemeralandcontaininconsequentialitems,butratheronly
to a special subǦclass – that is emergent properties, whose
differentiating features are relative endurance, natural necessity
andthepossessionofcausalpowers.Sincetheexistenceofeffects
cannot serve to explain origins (a prime error of functionalism)
then the task of social theory cannot be restricted to the mere
identificationofsocialstructuresasemergentproperties,itmust
also supply an analytical history of their emergence which
accountsforwhymattersaresoandnototherwise.Equally,once
theyareso,theyconstitutepartofthesocialenvironment,and,as
with any other environmental influence, we can neither assume
thatagentsaredeterminedbythemnorareimmunefromthem,
butcanonlyexaminetheinterplaybetweenthepowersofthetwo.
(Archer,1995:167)

The clear distinction between different levels of abstraction means that we


acknowledge the actual entity, being able to detect the mutual emergence from each
other and, what is more important, that we are able to focus on the actual
conditionality and the material foundation.

An important aspect in this respect – and this will be later of special meaning when
we discuss the development of a legal perspective – is the understanding of commons.
The times of the commons in a physical understanding are since a long time gone. It
is important though to understand this loss of the commons not only as matter of
physical property – surely the most important expression of the societal change in
question. What is substantially more important, however, is the loss of a common
(focus of) action. The actual challenge of juridical processes in this perspective is to

25
bridge the disruption of the inner bond that is needed between action, property and
control over the different moments of the processual relationship. An attempt to deal
with the challenge within the existing system of a class divided society is obvious the
distinction between public goods on the one hand and common goods on the other
hand – a rather fragile crutch as it refers to exclusivity as central criteria for the
assessment rather than looking for a definition on grounds of public-private as
primary point of reference. The commodity character remains in the centre and with
this the concern is the distributional dimension rather than the ‘productive aspect’, i.e.
the meaning of the good for the social existence and the existence of the social itself.

The truly important aspect is that the orientation on the social as matter of
appropriation cannot start from the assumption of a separation between public and
private – a partition that is typical for the liberal system as

[l]iberal political theorists see public life as the sphere of
deliberation and coercion needed to protect private life, the
sphere of spontaneous feeling and actions, ‘the pursuit of
happiness.’
(Schwartz,1979:245)

Against such a position – and aiming on understanding the permanent constitution of


the social as process based on relations

[o]nemightconclude…that‘activityisalienated…whenittakes
theformofashismoroppositionbetween‘publiclife’and‘private
life’,’ and that the two spheres must be replaced by a
comprehensivepraxisor‘socialpractice.’
(ibid.: 246; with reference to Meszaros, 1970/1972: 183, 184 f.;
159Ǧ161;Avineri,1968:35,88,212)

The centrally important point is that in this way appropriation gains a double
meaning, namely the one being concerned with the ‘activity’ of availing of property,
the process; and the other being concerned with the object of the process, namely the
correspondence of the action and control based on this action (of execution and
outcome).

26
(b) Social Policy as Part of the Process of Socialisation

Taking such wider approach allows developing a deeper understanding of general


mechanisms of the constitution of the social as concrete process of socialisation.
Moreover it is possible to identify how they are translated into general social policy
systems.

Capitalism, industrialism and economism can be seen as mark of Cain of sociology or


perhaps even of modern social science, to be found already in the cradle as hidden
ballast. This will not be explored in full. At least a brief remark should remind us that
modern sociology originated in the ascending bourgeois society, aiming on bringing
the ideas of enlightenment to blossom, though reducing the colourfulness on material
prosperity in the understanding of development of capitalist growth. This is of
importance as it is hugely meaningful as well for the sociology of the welfare state.
The fundamental challenge is to overcome on the one hand the link between
sociology and capitalism and on the other hand the link between welfare state and
nation state – the latter will be explicitly dealt with below (see pp. 57 ff., 166 ff.).

This is important to note as it qualifies many of more or less recent critiques, position
of the outgoing 20th century. Theory of modernisation and the closely linked
emergence of social technology and, later, social managerialist approaches are not
much more than reissuing matters which had been proposed already by Claude Henri
de Rouvroy, Comte de Saint-Simon and Auguste Comte – though they argued from
rather different perspectives. In the words of Walter M. Simon:

To permit the extension of scientific method to new fields, two initial


assumptions were made which were methodological in their intent
but metaphysical in their implications. One was the celebrated Law
of the Three States (or Stages) which originated with Turgot and
was adopted by Saint-Simon, who passed it on to Comte.(1)
According to this law, as formulated by Comte, ‘From the nature of
the human intellect each branch of knowledge in its development is
necessarily obliged to pass through three different theoretical
states: the Theological or fictitious state; the Metaphysical or
abstract state; lastly, the Scientific or positive state.’(2) Closely
connected with this law was the other assumption, that the various

27
branches of knowledge, or sciences, were arranged in a hierarchy.
Since all knowledge about the universe was part of one vast and
coherent system, all the branches of knowledge were mutually
linked and interdependent. The hierarchy of the sciences specified
the various relations of dependence and established the areas in
which knowledge could not be expected to emerge until knowledge
in certain other areas had supplied tools and data. This hierarchy of
increasing difficulty therefore provided a chronological guide to the
order in which the various sciences would pass through the three
stages of knowledge. The science of society, or sociology as it came
to be called, was at the apex of the pyramid of knowledge, which
meant that society was the last area of human inquiry to be
illuminated by the techniques of the natural sciences and thereby to
become positive.(3)
(Simon, 1956: 313 f. – reference is made to (1) Cf. Merz, 1907: 14,
(2) Quoted ibid., IV, 484. (3) On this whole matter of the application
of the methods of the natural sciences to other fields, see the recent
book of Hayek, 1952). Essentially a polemic against social planning
which overstates its case, it is nevertheless a challenging work.)

Although we can agree with Tourraine in what he said regarding the emergence of
society, it is significant that he disregards the emergence of the so-called modern
society, the society we frequently refer to as capitalist industrialism, has to be seen
very well as quantum leap. Here we find a crucially important ‘split not between
individual and society’ as Tourraine names it. The split is now ‘internalised’.
Whereas earlier every day’s phenomenology suggested society as secularisation of
divine order, thus suggesting society as some kind of external power, we find now –
with capitalist industrialism, as it emerged from enlightenment – the inclusion of the
capability and the capacity of regulation. Before this had been completely attributed
to god, now being a matter within society.4 However, the implication is twofold – and
in itself contradicting. On the one hand it means that society is ‘made’, is obviously
product of human action and interaction. On the other hand it means that it is made on

4
In principal, the same pattern existed in earlier periods. However, now this reality was undeniable and easily visible for
everybody.

28
the ground of an internal split of society. This split was on the one hand concerned
with the reproduction of power imbalances, now within society. On the other hand it
is based on the divide between different functional systems. Moreover, it means as
well an intrapersonal divide, occurring in various forms as confrontation of bourgeois
and citoyen, as individual acting in different ‘roles’, as producer and customer (or
employee and consumer), etc. It had been later Sigmund Freud, who systematically
developed this idea, followed for instance by Wilhelm Reich, Erich Fromm, Theodor
Adorno et altera who systematised Freud’s approach by employing a more
sociological perspective. It is especially important for the later argument that
subsequently – and this justifies the lengthy quote on the three states of development
– the ‘enlightened individual’ became even more and inexorably individualised. –
This marks a fundamental difference between the Western and Eastern cultures.

Paradoxically – and now looking again at sociology – all this meant not least that the
strive for development merged involuntarily and paradoxically with an assumed
vision of the standstill of society: from now on, development could only take place as
development within society rather than development of society.

This finds already an expression in the thinking of early philosophy of the citoyenitee
and society of the bourgeois. We refer to a discussion of Georg Wilhelm Friedrich
Hegel, Immanuel Kant and Johann Gottlieb Fichte by Georg Lukács in his work on
Moses Hess and the Problems of Idealist Dialectics from 1926. He writes:

Here was the germ of a true historical dialectics (the dialectics of


history translated into thought). For it is precisely in the present
that all forms of objectivity (Gegenständlichkeit) can be revealed
quite concretely as processes, since it is the present which shows
most clearly the unity of result and starting-point of the process.
Given that, the rejection of all ‘Oughts’ and futuristic utopian
thinking, the concentration of philosophy on knowledge of the
present (grasped dialectically) emerges precisely as the only
possible epistemological method of knowing what is really knowable
about the future, the tendencies within the present which impel it
really and concretely towards the future.

29
However, implicit within this self-same tendency of Hegel, his
realism, his rejection of all forms of Utopia and all merely formal
‘Oughts’, was the limitation which not only prevented him from
going any further, but even forced him into an increasingly
reactionary position. As a result, his ‘present’ lost its immanent
tendency to point to the future and ossified more and more until it
became a hard and fast result. It ceased to be dialectical. The
fundamental problem confronting the philosophy of right at that
time was posed by the fact of the revolution. Constitutional changes
were recognized as being necessary; but since the attempt to solve
the problem was undertaken in constitutional terms – that is, in
formal terms immanently juristically, and in terms of social content:
within the framework of bourgeois society [18] – it was bound to
lead increasingly in that direction, especially if the revolutionary,
‘eternal’ law of reason was abandoned. Whereas Fichte’s
philosophy of right seeks guarantees which would establish this law
of reason in the face of empirical reality and the actual wielders of
power, Hegel attempts to find the indications of further development
within contemporary development itself. The more realistically he
conceive, this present and the closer he moves to the Prussian
Junker state, however, the less he is able to recognize
developmental tendencies concretely and the more he is obliged to
accept this state absolutely, thereby – from the point of view of the
philosophy of history – bringing the historical process to a halt in
the present.
Thus the result of Hegelian philosophy is to put an end to the
process as process. Historically and logically, every form of
abstract petrification and thing-ness has been dissolved into a
concrete becoming, a process, only for the product of the process,
the present, to petrify once again into a mere product, a thing.
Dialectics turns into yet another metaphysics – a change which
Penetrates deeply into the structure of Hegelian logic, where (even
in terms of pure logic) it dissolves dialectics into an appearance and
transforms it into a kind of aesthetics. Hegel relegates to the level of

30
sham movement the crowning achievement of his dialectics, the
dialectics of being and becoming, while at the same time raising it,
as he thinks, to the level of a pure movement in itself. He writes:
‘The movement of the concept is to be regarded, as it were, merely
as a game.’[19] The ‘reconciliation’ in which this construct of the
Hegelian system finds concrete and historical expression is
therefore manifestly and essentially dualistic. Looked at in relation
to earlier philosophy it is the resolution of Kant’s antinomies;
turned forward, however, it represents their reproduction on a
higher level. It is not possible to preserve the this-sidedness of
philosophy unless the real, dialectical tendencies, the direction of
the real dialectical process can also be shown as effective, as real,
as process in the present; unless, that is, the present points in real
and dialectical fashion beyond itself and into the future. This Hegel
fails to do. Hence, in terms of the motives which led him to posit it,
Hegel’s ‘reconciliation’ is an expression – albeit a resigned one –
of his self-criticism and his realism vis-à-vis history. In its
methodological, systematic and objective consequences, however, it
represents the fixing of the present as an absolute and the
elimination of dialectics – in other words, it is a reactionary
principle.
(Lukács, 1926)

This finds a marked and concrete expression for instance in the peculiar emphasis on
evolutionism as we find it later in the works of Aguste Comte and going hand in hand
as well with the ideas put forward by Herbert Spencer.

It had been only Karl Marx who, going far beyond Georg Wilhelm Friedrich Hegel,
maintaining the idea of development of society itself. For Hegel, development was
more the completion of society: the realisation and secularisation of the absolute idea.
For Marx, however, development was still concerned with the development of
society. On the one hand he was concerned with the development of society itself.
This meant as well that he fundamentally shared the Aristotelian view on the human
being as zoon politicon, namely the position of the ancient Greek philosopher that

31
[n]ow it has been said in our first discourses, in which we
determined the principles concerning household management an the
control of the slaves, that man is by nature a political animal; and
so even when men have no need of assistance from each other they
none the less desire to live together. At the same time they are also
brought together by common interest, so far as each achieves a
share of the good life. The good life then is the chief aim of society,
both collectively for all its members and individually; but there is
also some element of value contained even in the mere state of being
alive, provided that there is not too great an excess on the side of
the hardship of life, and it is clear that the mass of mankind cling to
life at the cost of enduring much suffering, which shows that life
contains some measure of well-being and of sweetness in its
essential nature.
(Aristotle: 201/203)

On the other hand he analysed the fact that society still was a developing entity – an
entity which was structurally forced to fundamentally change further. It is important
in this respect to note a fundamental difference between the two approaches. The first
is that, different to Aristotle, Karl Marx referred to the material foundation of the
process of sociability. Rather than grounding it in striving for well-being and
sweetness (though this had not been denied by Marx), it had been a systematic
deduction of social relationships from their material basis in the process of production
and reproduction. What is not less important is the fact that, different from earlier
social thinking, Marx saw the contradiction of these relationships as a systematic part,
as an elementary form of further development, neither allowing their externalisation
in terms of a split between the secular and spiritual powers nor allowing to externalise
the contradiction by locating certain groups outside of society. Without elaborating
this aspect, it is important to note in a side remark the continuity of this thinking. As
much as Aristotle fundamentally introduced a split between material foundation of
social relationships and a morally binding force, as much this tradition is maintained
by Adam Smith, who in this way externalises certain – and central – aspects of social
relationships, dissolving the link between socio-economic relationships and moral
sentiments.

32
In other words, one fundamental difference between Marxian historical and
dialectical materialism and other social science approaches had been that Marx
maintained the fundamental entity of social relationships by overcoming the split on
the phenomenological level which externalised and deified power. This also meant
that Marx’ approach made it for the first time possible to understand development as
process of socialisation as productive and reproductive practice. This means nothing
else than that ‘social problems’ are in this perspective not the exception but part of a
given concrete structure of society. Thus, they are linked to the elementary structure
of society. This contradicts only seemingly the thesis stated at the beginning, namely
that the Social Quality Approach does not start from the view of a disintegrated
society that needs some adjustment. Rather, social quality starts from the assumption
of a principally integrated and balanced society of which the integrity is disturbed (a)
by processes of differentiation and (b) by (though not ‘necessary’) consecutive
unjustified power imbalances. The reason for seeing this as only seemingly
contradicting the previous statement is the following. Any ‘status’ of social quality is
only temporary, striving by its own nature towards a kind of social equilibrium. The
temporary character can be dealing with short-term prospect and also as matter of
long-term development. However, in any case there is a need for a relationship of the
different aspects that are the basis for social quality to relate in an appropriate way.
Thus, the link between the two approaches is based on the fact that the tensions are
‘real’ rather than being a matter of contemplation and subjective and/or will-based
visions. – We can see this in concrete terms by looking at the class relationship: as
fundamental as the contradiction between the two basic classes of capitalism is, as
much is the relationship one of mutual dependency.

This has several implications for assessing social policy.

(a.i.) Social Problems versus Spaces of Social Action

Social ‘problems’ are part and parcel of socialisation in terms of the inner structure of
the concrete mode of socialisation.

This is closely linked with the process of social action. The one and obvious
dimension of social action – and this is as well the one which is usually highlighted in
sociological and in social professional thinking – is concerned with what we may call

33
direction and embedding of action. It is a perspective concerned with the relational
character of action.

However, there is another dimension, which can be interpreted as reference that the
acting individual makes to the environment in terms of an active relating – where
active should not be confused with conscious and controlled. Reference is made to
Paul Hoggett who proposes a matrix with the two dimensions: the one refers to
reflexivity, the other to the object-subject character. This is visualised in the following
figure.

Figure 2: Perspectives of Agency


(Hoggett, 2001: 48)

From here we can see that social problems are not primarily a matter of ‘life
situations’ or status. Instead we are concerned with the creation of spaces in which
personalities can locate themselves in an appropriate way, i.e. in a way that is
consistent with their degree of development social personalities. In this way social
problems are perceivable as mismatch between individual development and the space
that is available for conscious, responsible and responsive action by the individual.

(a.ii.) Social Problems and Spaces for Social Realisation

Social problems are at the same time a matter of ‘failed socialisation’. It is in this
respect that we can come back what had been already said by quoting Hans F.
Zacher, namely

34
[l]ooking at the societal, political and juridical practice, only a
limited range of challenges is getting manifest. This range is closely
linked to the horizon of such interventions that can actually be
imagined.
(Zacher, 2004: 661)

Thus we see a link to soci(et)al practice. We can reformulate what Zacher says by
establishing that only those matters are recognised as social problem that are relevant
for society, requiring action in order to avoid foreseeable ‘integrational flaws’
(relating current intervention costs and long-term costs of maintaining integration and
counteracting disintegration). Though caution is required with suggesting such
functionalist perspective, it seems to be justified to say that social policy is
fundamentally ‘productivist’ in its structure. However, making reference to
‘productivism’, does not mean making reference to the common model of
understanding the individual as factor of production,5 aiming on balancing rights and
obligations in an economically calculable way. Rather, the productivist perspective is
suggested as being a matter of the dependence of functioning individuals and social
relationships for society. – On this general level such proposal is open for different
perspectives on social policy – the forms and measures and their directions alike. In
short, talking about social problems and social intervention we are concerned with the
mode of socialisation and processes of ‘failed socialisation’ rather than with failing
individuals to socialise. Possibly this can mean

[a] move away from approaches to social work which were
therapeuticorstressedtheimportanceofcasework.Insteadsocial
workers/care managers were intended to act as coordinators or
managersputtingtogetherpackagesofcareforindividuals.
(Harris/Chou,2001:165)

This had been a hugely important, though barely outspoken matter as well during the
EU debates when during the 1970s/1980s the concepts of poverty, social exclusion
and social inclusion had been debated and as well with regard to the debates on
‘workfare programs’ (see e.g. Herrmann/Zielinski, 2003; Herrmann, 2008 c).

5
And actually reducing the entire being on questions of productivity rather than seeing the process of productive as a
complex social structure of reflexive reproduction.

35
However, this is by now means only a matter of EU or European politics. Rather, we
have to look at the fundamental question of the – at any given time – socially accepted
relationship of biographical and social development and also between private and
public. – This is hugely important when we want to elaborate a comparative view on
different social legislatures in a global perspective.

(a.iii.) Welfare Polities versus Analysis of the Social

However, for a proper assessment this is necessary in order to develop


methodologically sound the analytical steps behind assessing social policy as part of
the general process of socialisation. The statement as such is definitely not new.
However, the reasoning as it is suggested in the following may at least provide a more
systematic approach to developing a comparative and typologising approach. Thus it
is important in analytical terms and equally in terms of developing strategic
approaches to policy making.

The literature offers various presentations of and reflections on social policy – the
description of the development and the analytical assessment alike (for instance the
comprehensive volume The Welfare State Reader [Piersons/Castles (eds.), 2006; the
complex and detailed historical overview Geschichte der Deutschen Sozialpolitik seit
1945 [Bundesministerium für Arbeit und Sozialordnung [ed.], 2001 ff.; the more
discoursive text by Rieger, 2003; or the introductory works by Dean, 2005;
Rosanvallon, 1995). Already the title of the debate points implicitly on a considerable
shortcoming of the perspective, which is subdivided into two sincere areas. These
studies usually refer to social policy as matter of providing wellbeing. Of course, this
is to some extent not more than a reflection of real politics and policies which are
detached from reality of the sociability of human beings. However, the analytical
background of such an approach is concerned with a concept of wellbeing, here
considered as being principally individualising (Walker/van der Maesen, July 2003).
This is linked to the second problematique. The reference made to social policy as
provision does not grasp the entire question as it is on the one hand starting from a
principal confrontation of society and individual; on the other hand it subsequently
disregards the agency perspective as far as it is concerned with non-institutionalist
aspects. At the end, it is based on the pure principle of methodological individualism
and rational choice.

36
Regarding the confrontation of society and state, this is problematic even if we
consider the current conditions of the specifically capitalist welfare state. Although
this is surely a relationship of what might be called a colonialising state and where we
find to a large extent a relationship that is characterised – at least – by alienation, the
taken perspective would be simply wrong. Actually it would mean nothing else than
incapacitating the individual. Fading out the individual is a logical consequence.

Though starting from a functionalist perspective, the usual notion remains strictly
one-sided. A typical definition of social policy is provided by Peter Kaim-Caudle and
says

Social Policy is concerned with changing and distribution of the


components of living. It thus aims to bring about conditions
different from those which would be the result of the unrestrained
operation of market forces and of unrestrained human conduct in
other respects. The essence of social policy is thus intervention
based on two assumptions: that the common interest (a difficult to
define concept) should in certain conditions prevail over that of
individual and that, in certain respects, the judgement of the
community is superior and therefore should override that of the
individual.
(Kaim-Caudle, 1988: 5)

This definition as example for many similar approaches can be discussed in different
perspectives. Two main problems are the following.

First, we are facing the challenge of defining common interest which had been
developed – with different notions as ‘general interest’, ‘will of all’ etc. – for good
reasons in very different ways, not least reflecting specific national conditions. The
general historical background can be seen in the emergence of new societal structures
and formations (fall of the Roman empire, enlightenment and the emergence of
capitalism …). There is one crucial point which needs to be addressed. Leaving few
exceptions aside, any single variant of such concept of generalised interest starts
usually from some kind of natural law perspective, taking its origin in deliberations on
something defined from an external and usually as well eternal force. This interest is
acknowledged as being given and its definition is not itself part of a social process – a

37
process on ground of very unequal forces and powers. By and large, reference to such
diffuse concept of naturally defined law can be seen as effort of the emerging new
ruling classes to overcome the difficulties arising from the loss of direct religious
references. We can link this back to the tension which had been mentioned before
with reference to Paul Hoggett. The tension he is talking about can also be seen on
the systemic level. However, here it meshes with the class-based contradictions and
the respective claims. Whereas the secular stance is made for reflexivity and the self-
as-agent, the interest of ruling remains caught in the quest for non-reflexive self-as-
objects. The social quality of any society will not least be distinctly and specifically
defined by the concrete result of the interest quarrels and where it locates the
individuals in the options provided in the quadrangle.

When it comes to looking at social policy it is of special importance that many


religious aspects had been actually a sanctification of specific patterns of societal
structuration and class relationships which now had to be justified with respect to a
new world order.

Second, the reference made to ‘changing and distribution of the components of living’
reduces social policy from another side,

* first, the aim – welfare, well-being etc. – is taken as known and given – this can be
seen as reductionist interpretation of socio-economic security;
* second, considering the ‘components’ of this wellbeing as given, overlooks that
these components are essentially themselves emerging from a social process – this
can be considered as matter of a limited approach of dealing with cohesion;
* third, considering the process of distribution itself, this is not seen as part and parcel
of a wider social process – the usual consequence being an institutional and/or
supply-oriented understanding of social policy – this can be seen as limiting the
view on inclusion;
* fourth, considering changing the components and possibly changing their
distribution fades out that this requires (a) a change of the processes themselves and
(b) is thus a process that has to go beyond individual and institutional processes –
insofar such framework fails to address the social dimension of empowerment.

Franz-Xaver Kaufmann points importantly on the paradoxes, namely that the


establishment of the welfare state causes

38
the complete de-politisation of the welfare-discourse …:
a. everybody defines individually the criteria of his/her welfare and
sets accordingly priorities of his/her demand, sovereignty of the
consumer is established as expression of the value ‘freedom’;
b. the abandonment to guide economic processes by the state
promotes competition, which again increases effectiveness of
supply and the orientation of supply on the grounds of demand;
c. as – in principle – it is only produced what is demanded,
furthermore as this demand depends on the individual’s
assessment of the utility value, the growth of the gross product is
as such seen as indicator of the development of welfare.
(Kaufmann, 2005: 221)

This is getting clear as well in a contribution by Alan Walker on Social Policy in the
21st Century: Minimum Standards or Social Quality where he mentions three stages
of social policy development, namely an

approach to social policy is best labelled 'social administration'


and is characterised by three features. First, the equation of
'social'withtheactivitiesofthestate.Second,theassumptionthat
thepurposeofsocialpolicyistheenhancementofwelfare.Third,
thesubordinationofsocialpolicytotheeconomy.
…
The second wave of social policy development came in the late
1970sand1980s.Thepoliticaleconomyofwelfare…attackedthe
second feature of social administration highlighting the dual
functionsofstatewelfare:
Itsimultaneouslyembodiestendenciestoenhancesocialwelfare,
to develop the powers of individuals, to exert social control over
the blind play of market forces; and tendencies to repress and
controlpeople,toadaptthemtotherequirementsofthecapitalist
economy.(Gough,1979,p.12)
…

39
The next major stage of social policy development took place in
the early 1990s when the functions of state welfare were
examined, in comparative perspective, as an array of political
'welfareregimes'.
…
The next and latest stage of social policy development was to
examine the specific meaning of the 'social' and, thereby, to
questionitssubordinationtotheeconomy.
(Walker,2008(withoutdate):2 f.; quoting Gough,1979)

The problem with such classification is that it suggests social policy as following a
general pattern and subsequently entails some finality rather than seeing social policy
as a historically-concrete pattern answering the structural and developmental
conditions of the underlying societal system and its determination by the mode of
production.

If we go a step further in our analysis, social policy has to be seen as being located
within the contradiction of maintaining the function of any given system by
integrating the systemic contradictions on the one hand and on the other hand
transcending the contradiction by refocusing the system perspective rather than by
rebalancing different perspectives and different functional systems. In this perspective
it is important to define social policy as meta-practice.

Obviously it is the application of a functionalist perspective. However, the most


distinctive moment is the introduction of practice as central feature, thus avoiding the
shortcomings of functional-structuralism and structural-functionalism respectively.
This also means having a tool at hands that allows to deal with contradictions as
fundamental, genuine aspects of the system itself. With respect to the politico-
economic system Michel Aglietta expresses this most pronouncedly by speaking of

regulation of capitalism … as a social creation. This theoretical


position will enable us to conceive crises as ruptures in the
continuous reproduction of social relations, to see why periods of
crisis are periods of intense social creation are periods of intense
social creation, and to understand why the resolution of a crisis

40
always involves an irreversible transformation of the mode of
production.
(Aglietta, 1976: 19)

Consequently – this has to be emphasised again – we are primarily concerned with the
overall process of socialisation. Opening the perspective for a later debate, this means
qualifying concepts as state, general interest, responsibility of society, family, rights
etc. as will be shown at a later point, the qualification is not about different value
systems. Rather, if starting from the perspective on socialisation in its relational and
processual significance, we focus on the meaning of ‘welfare policies’, legislative
systems, economic processes and the public-private dimension of interaction with
their specific reference to the determination of the social – below this will be further
explored in its conditional and constitutional meaning. Here, we can tentatively
illustrate the different dimensions as follows. First, looking at social policy as meta-
perspective, we can show the different general patterns of ‘welfare policies’ in today’s
societies, of which some central patterns are presented in Figure 3.

Figure 3: Welfare Policy Patterns


As, at least in today’s societies, any social policy is in one or another form expressed
in or depending on legal parameters, the welfare patterns, previously proposed as
being central, can be supplemented by legislative systems, each idealtypically
covering one pattern as shown in Figure 4.

41
Figure 4: Legislative Systems
Translating this into more concrete terms of policy analysis within a political-
economic framework, using the extended understanding as proposed elsewhere
(Herrmann, 2007 a; Herrmann, 2008 b) we arrive at matching references as
presented in ‹‰—”‡ͷ.

Figure 5: Regulationist Systems


From here it should be clear that social policy is defined in a spectrum or field that
derives from the general and abstract patterns as they had been defined before. As
such, social policy, understood as part of the overall process of socialisation, is visible
as set of concrete measures between the poles of the two axes, reaching on the vertical

42
from societal and individual and on the horizontal from the public to the private –
Figure 6 adds these dimensions to the foregoing.

Figure 6: Public-Private Divide


At first glance, the link which is now established between the individual and the
accumulation regime may be surprising. However, it is at least valid for capitalist
systems where we find the production as individual act that is only ex post validated
as social act if and when the exchange value is realised on the market.

Of course, all this needs qualification. The one and most important is concerned with
the fact that there are, of course, no clear cut, i.e. strict divisions, and especially the
legal system is, even in the present perspective, not so clear in its attribution. For
instance, in many of today’s societies the contract law is as well influenced if not
depending on and defined by constitutional law etc. Another is concerned with the
stance of development and the relationship of what is usually discussed under the
headings of community and society (cf. Herrmann, 2008 a).

In methodological regard it is of importance that the entire argument of this section is


in itself based on ascending from the abstract to the concrete.

Taking this together with the developmental perspective, we can see as well that the
entire process is not about the formal patterns of anchoring social rights in the

43
legislative system and the extent to which this is undertaken. Nor is it sufficient to
develop any typology around the issue of de-commodification. Rather, the core of the
difficulty of such an undertaking in this regard has to focus on the question of

a) defining the public interest and the relationship between the public interest and the
general interest – systematically this is a matter of relating the volonté générale and
the volonté du tout.
b) defining the character of citizenship in the tension of frames of reference: between
global citizenship and socially affirmative,6 nation bound affiliation.

We can only now overcome the limited institutionalist perspective on social policy,
which remains in principal individualist. And this again is condition for approaching a
perspective that goes beyond a Eurocentrist and possibly EUrocentrist perspective.

(c) The Social and Social Policy

It is only now that we arrive at the next step of looking at social policy as matter of
socialisation in terms of the concrete-specific. This is concerned with two analytical
levels, namely

* a regulationist perspective, already briefly introduced through the backdoor and


* the welfare regime perspective.

At this stage only few remarks have to do suffice.

(c.i.) Theory of Regulation


If and to the extent to which it is agreeable that social policy is part of the general
process of socialisation, it is necessary to start by looking at the mode of social
integration or in other words: to investigate in which way the social is understood.
With the foregoing some instruments have been proposed. – In methodological terms
we reached now the stage of investigating the general-concrete.

In order to better understand this, reference is made to the French regulationist school
of political economy (see in this context as well Thére, 1992; see for various
information and discussion http://web.upmf-grenoble.fr/regulation/), with this
analysing the concrete mechanisms of antecedent differentiation. In analytical terms

6
The importance of the affirmative behaviour is for instance shown by the fact that in many cases ‘misdemeanants’ and
people with certain defined ‘behavioural anomalies’ loose their civil and civic rights.

44
the analysis focuses on four central mechanisms accumulation regime, mode of
regulation, life regime and more of life. These are defined as follows. In general, the
regulationist approach is looking at

regulatory mechanisms, i.e. institutional forms, societal norms and


patterns of strategic conduct which successfully expressed and
regulated these conflicts until the inevitable build-up of tensions and
disparities among the various regulatory forms reached crisis point.
When this occurred there would be an experimental period from
which a new accumulation regime and a corresponding mode of
regulation might – or might not – emerge.
(Jessop, 1990: 308)

Then, the accumulation regime is defined as

a particular combination of production and consumption which can


be reproduced over time despite conflictual tendencies
(ibid.).

This goes hand in hand with a specific mode of regulation, i.e.

an institutional ensemble and complex of norms which can secure


capitalist reproduction pro tempore despite the antagonistic
character of capitalist social relations
(ibid.).

Life regime and mode of life are defined in parallel to the economic dimensions
mentioned before. Thus, under life regime we understand a combination of factors
regarding the individual, locating him/her in the physical and social environment that
can be reproduced over time despite conflictual tendencies. On the other side, the
mode of life is defined as an ideological and psychological constellation of various
and complex norms that can secure the individual’s integration into the capitalist
circle of reproduction.

This allows understanding processes of socialisation as matter of the ‘conflation’ of


structure and agency (cf. the extensive discussion of Anthony Giddens’ work in
Archer, 1988; Archer, 1995).

45
Socialisation is in social science generally approached by looking at two dimensions,
namely the socialisation of production on the one hand and the socialisation of
personalities on the other hand. Though the perspectives on each had been very
different, the core dividing line had been the one of objective processes around
production in the widest sense, and subjective processes on the other hand, the latter
by and large seen as educational process. Again, with such an approach we find the
dichotomisation which sociological thinking frequently tried and tries to overcome
(see such an approach for instance in the works by Norbert Elias, Anthony Giddens,
Margaret Archer). Taking a dialectical perspective, it is important to take a functional
perspective, meaning in a simplified way to ask Why, for what is something needed
[definition of needs as conscious social process] and How does biographical and
societal development cling together in achieving the satisfaction of this need?
However, this question makes only sense if we start from the presumption that
differentiation is historically only a late process – late in the sense of not standing at
the beginning of social relationships. Without elaborating this, we can point on the
emergence of professional systems, classes and the state.

In short, socialisation is nothing else than (a) the reorganisation of togetherness under
the prefix of differentiation and (b) the (provisional) reunion of previously different
sub-systems.

Having said that a functional perspective is needed, we can usefully anticipate Figure
9 below. This figure includes the dimensions that are suggested as being general
functional requirements for social production and reproduction. These are socio-
economic security, social cohesion, social inclusion and social empowerment
respectively. The following definitions may do suffice to understand their meaning:

* Social economic security is the degree to which people have command over
material and immaterial resources over time in the context of social relations.
* Social inclusion is the degree to which people are and feel integrated in the
different social relations (systems, institutions, organisations and structures) that
constitute everyday life.
* Social cohesion is the strength of social relations between people (including
networks) which are a function of the integration of norms and values (including
trust and solidarity) in society.

46
* Social empowerment is concerned with the means and processes and relations
necessary for people to be capable of actively participating in social relations and
actively influencing the immediate and more distant social and physical
environment.

However, it is important to state that these four dimensions are – in general terms –
located on the structural side of the existence; it is the way in which these general
patterns are actually realised, how they are put into practice in every day’s life, that
actually shapes the social in its historically-concrete shape. For this, the constitutional
factors have to be sufficiently taken into consideration. A tentative approach of
defining them is given in the following.7

The main concern of these constitutional factors is self-reference and competence to


act. The first is concerned with the individual’s capacity to reflect him/herself and the
constitution of an own personality. The latter means the individuals’ concern by and
with interacting with the physical and social environment. From here, the following
issues can be raised for the individual factors

ȗ ‡”•‘ƒŽ ȋŠ—ƒȌ •‡…—”‹–› †‡’‡†• ‘ •‡…—”‹–› ‘ˆ –Š‡ …‘†‹–‹‘•ǡ ‹Ǥ‡Ǥ –Š‡‹”
ƒ˜ƒ‹Žƒ„‹Ž‹–› ƒ† ƒ……‡••‹„‹Ž‹–› ™Š‹…Š †‡’‡†• ‘ ƒ ’Š›•‹…ƒŽ ˆ‘—†ƒ–‹‘ „—–
‡“—ƒŽŽ› ‘ ƒ’’”‘’”‹ƒ–‡ ”—Ž‡• Ȃ ƒ ‡š’Ž‹…‹–Ž› ƒ‰”‡‡† •‡– ‘ˆ ‘”• ‘” ˜ƒŽ—‡•
™Š‹…Š”‡“—‹”‡••‘‡ˆ‘”‘ˆ…ƒŽ…—Žƒ„‹Ž‹–›ǡƒ……‘—–ƒ„‹Ž‹–›‘ˆƒ…–‘”•ȋ‡•’‡…‹ƒŽŽ›
–Š‘•‡ ™Š‘ †‹•”‡•’‡…– –Š‡Ȍ ƒ† ƒƒ‰‡ƒ„‹Ž‹–›Ǥ —…Š ”—Ž‡• …ƒ „‡ ‘ˆ ƒ ’”‡Ǧ
Œ—”‹†‹…ƒŽ ‘” Œ—”‹†‹…ƒŽ …Šƒ”ƒ…–‡” Ȃ ‹’‘”–ƒ– ‹• ‹ ƒ› …ƒ•‡ –Šƒ– –Š‡
—†‡”•–ƒ†‹‰ ‹• …Ž‡ƒ”Ž› †‡ˆ‹‡†ǡ ƒ† ƒ– –Š‡ •ƒ‡ –‹‡ •—ˆˆ‹…‹‡–Ž› ˆŽ‡š‹„Ž‡ ‹
‘”†‡”–‘†‡ƒŽ™‹–Š–Š‡‹†‹˜‹†—ƒŽ…ƒ•‡•ƒ†–Š‡›’”‘…‡••…Šƒ”ƒ…–‡”Ǥ
ȗ ‘…‹ƒŽ ”‡…‘‰‹–‹‘ ‹• ˜‡”› •‹‹Žƒ”ǡ –Š‘—‰Š †‡ƒŽ‹‰ ‘”‡ ™‹–Š –Š‡ ’”‡ǦŒ—”‹†‹…ƒŽ
ƒ†’”‘…‡••—ƒŽ•‹†‡ǡ‹…Ž—†‹‰”‡•’‡…–ƒ†Š—ƒ†‹‰‹–›Ǥ••—…Š‹–•ˆ‘…—•‹•
–Š‡‹–‡”Ǧƒ…–‹˜‹–›‘ˆ’‡”•‘ƒŽ‹–‹‡•Ǥ
ȗ ‘…‹ƒŽ ”‡•’‘•‹˜‡‡•• ‹• ƒ ƒ––‡” ‘ˆ ‘’‡‡•• Ȃ ƒ† –Š—• Šƒ• –‘ „‡ Ž‹‡† ƒ•
™‡ŽŽ–‘–Š‡ƒˆ‘”‡Ǧ‡–‹‘‡†ˆƒ…–‘”•ƒ•‹–†‡ˆ‹‡•–Š‡ˆƒ…–‘”•Ȃƒ†–Š‡”‡Ž‡˜ƒ–
‹–‡”ƒ…–‹‘Ȃƒ•ƒ’’”‘’”‹ƒ–‡‹–‡”•‘ˆ‘–„‡‹‰‹’‘•‡†‘‹†‹˜‹†—ƒŽ•Ǥ
ȗ ‡”•‘ƒŽȋŠ—ƒȌ…ƒ’ƒ…‹–›‹•ƒ†‹”‡…–ƒ––‡”‘ˆ”‡Žƒ–‹‘•Š‹’•Ȃ–Š‡‘’‡‡••‘ˆ
‹†‹˜‹†—ƒŽ•ˆ‘””‡Žƒ–‹‰–‘‘–Š‡”•ǣ‹ƒǮƒ…–‹˜‡ǯƒ†ƒ•™‡ŽŽƒǮ’ƒ••‹˜‡ǯ™ƒ›Ǥ
7
The following remarks draw heavily from Beck, Wolfgang/van der Maesen, Laurent J.G./Walker, Alan, 2008

47
For this level of observation we arrived at a sufficiently elaborated presentation of the
fundamental principles which social policy has to ‘serve’ and the conditions it has to
observe.

Pointing on the conditional factors allows proceeding to the temporarily last step, now
approaching the interpenetration of a developing economic and value base.

(c.ii.) Extending the Welfare Perspective


It cannot be the aim of the present elaboration to exactly determine the question of
primacy of religion or better: a system of beliefs and norms on the one hand and the
economic structures on the other hand. In principle, the author’s general view is
unchanged in relaton to earlier elaborations (see Herrmann, 1993; Herrmann, 1994).
Still, as emphasised on those occasions and further developed in later work,
dialectical and historical materialism is not suggesting a mechanical perspective but
one that highlights the development of relationships.8 We then look at the structural
linkage between the normative systems and economic relationships. This is widely
known as process of institutionalisation of values with the two dimensions of

* the reflection of ideologies and their development of objective processes and


relationship and

* the reproduction of these processes and relationships.

However, this statement is for the present argument only of interest if we see the
reproductive aspect as having two dimensions, namely being a matter of

* simple reproduction and


* reproduction on an extended scale.

Of course, this parallels the Marxian deliberations on the Circuit of Productive


Capital as presented in Volume 2 of The Capital (Marx 1885: 70-92). The thesis is
that the division between state and society and subsequent the division between policy
areas – parallel to the division between utility value and exchange value under
capitalist conditions – is a matter of the political mechanisms of regulation
progressing from simple reproduction to reproduction of the system on an extended
scale. We can say as well that the political mechanism evolves in its function of being

8
At this moment we can disregard for a moment the explicit mention of the dimension of action.

48
an immediate part of the entire productive system. If we return to ‹‰—”‡ͷ, we find the
shift from the mode of regulation as being confronted with the accumulation regime –
and being external – as being immediate part of it. Such absorption or merger means
as well that on the one hand the reproductive power gains a stronger, because integral
position in the entire system of production as well. – In empirical terms we find this
confirmed in the increasing externalisation of production-related services and – in a
way vice versa – the increasing encroachment of services and ‘non-productive’
factors in the productive system. For instance, the entire scale of systematically
developed management strategies can be mentioned.

The importance of this momentum can only be understood if we accept the in


principal processual character by which the accumulation regime and the mode of
regulation are linked. It means as well that, though we can speak of certain stages, we
have to acknowledge the fact that this development is not more than a tendency – the
processual relationship is one of intermittent changes from detachment and bonding.9
With respect to the mode of production this is ascertained in the following words:

At a certain stage of development, it brings forth the material


agencies for its own dissolution. From that moment new forces and
new passions spring up in the bosom of society; but the old social
organization fetters them and keeps them down. It must be
annihilated; it is annihilated. Its annihilation, the transformation of
the individualised and scattered means of production into socially
concentrated ones, of the pigmy property of the many into the huge
property of the few, the expropriation of the great mass of the
people from the soil, from the means of subsistence, and from the
means of labour, this fearful and painful expropriation of the mass
of the people forms the prelude to the history of capital. It comprises
a series of forcible methods, of which we have passed in review only
those that have been epoch-making as methods of the primitive
accumulation of capital. The expropriation of the immediate
producers was accomplished with merciless Vandalism, and under

9
This does not deny revolutionary development. Rather, the point in the present context is the dialectical character of the
development which is characterised by the fact that every change is only possible to the extent to which it accepts the
ongoing relevance of the elementary forms on which it builds its progress.

49
the stimulus of passions the most infamous, the most sordid, the
pettiest, the most meanly odious. Self-earned private property, that
is based, so to say, on the fusing together of the isolated,
independent labouring individual with the conditions of his labour,
is supplanted by capitalistic private property, which rests on
exploitation of the nominally free labour of others, i.e., on wage-
labour. [1]
As soon as this process of transformation has sufficiently
decomposed the old society from top to bottom, as soon as the
labourers are turned into proletarians, their means of labour into
capital, as soon as the capitalist mode of production stands on its
own feet, then the further socialisation of labour and further
transformation of the land and other means of production into
socially exploited and, therefore, common means of production, as
well as the further expropriation of private proprietors, takes a new
form. That which is now to be expropriated is no longer the
labourer working for himself, but the capitalist exploiting many
labourers. This expropriation is accomplished by the action of the
immanent laws of capitalistic production itself, by the centralisation
of capital. One capitalist always kills many. Hand in hand with this
centralisation, or this expropriation of many capitalists by few,
develop, on an ever-extending scale, the co-operative form of the
labour-process, the conscious technical application of science, the
methodical cultivation of the soil, the transformation of the
instruments of labour into instruments of labour only usable in
common, the economising of all means of production by their use as
means of production of combined, socialised labour, the
entanglement of all peoples in the net of the world market, and with
this, the international character of the capitalistic régime. Along
with the constantly diminishing number of the magnates of capital,
who usurp and monopolise all advantages of this process of
transformation, grows the mass of misery, oppression, slavery,
degradation, exploitation; but with this too grows the revolt of the
working class, a class always increasing in numbers, and

50
disciplined, united, organised by the very mechanism of the process
of capitalist production itself. The monopoly of capital becomes a
fetter upon the mode of production, which has sprung up and
flourished along with, and under it. Centralisation of the means of
production and socialisation of labour at last reach a point where
they become incompatible with their capitalist integument. Thus
integument is burst asunder. The knell of capitalist private property
sounds. The expropriators are expropriated.
The capitalist mode of appropriation, the result of the capitalist
mode of production, produces capitalist private property. This is the
first negation of individual private property, as founded on the
labour of the proprietor. But capitalist production begets, with the
inexorability of a law of Nature, its own negation. It is the negation
of negation. This does not re-establish private property for the
producer, but gives him individual property based on the acquisition
of the capitalist era: i.e., on co-operation and the possession in
common of the land and of the means of production.
The transformation of scattered private property, arising from
individual labour, into capitalist private property is, naturally, a
process, incomparably more protracted, violent, and difficult, than
the transformation of capitalistic private property, already
practically resting on socialised production, into socialized
property. In the former case, we had the expropriation of the mass
of the people by a few usurpers; in the latter, we have the
expropriation of a few usurpers by the mass of the people. [2]
Footnotes in text:
(1): ‘We are in a situation which is entirely new for society ... we
are striving to separate every kind of property from every kind of
labour’ (Sismondi, Nouveaux Principes de l’Econ. Polit.’ t.II, p.434.
(2) The advance of industry, whose involuntary promoter is the
bourgeoisie, replaces the isolation of the labourers, due to
competition, by their revolutionary combination, due to association.
The development of modern industry, therefore, cuts from under its
feet the very foundation on which the bourgeoisie produces and

51
appropriates products. What the bourgeoisie, therefore, produces,
above all, are its own grave-diggers. Its fall and the victory of the
proletariat are equally inevitable.... Of all the classes that stand
face-to-face with the bourgeoisie today, the proletariat alone is a
really revolutionary class. The other classes perish and disappear in
the face of modern industry, the proletariat is its special and
essential product.... The lower middle-classes, the small
manufacturers, the shopkeepers, the artisan, the peasant, all these
fight against the bourgeoisie, to save from extinction their existence
as fractions of the middle-class... they are reactionary, for they try
to roll back the wheel of history. Karl Marx and Friedrich Engels,
Manifest der Kommunistischen Partei, London, 1848, pp. 9, 11.
(Marx, 1867: 749 ff.)

– Thus, it is important to emphasise, that this does not interfere with the principal
validity of the thesis on the relationship between basis and superstructure. On the
contrary, it is actually the support of this thesis by way of pointing on the translation
of the different spheres as matter of socialisation.

This opens as well the way to a general developmental pathway, going beyond – and
at the very same time tightly linked to – economic developments. In order to capture
this link, reference is made to the Civilizing Process, thus emphasising the
relationality we are looking for as the elementary moment of the entire process.

By studying how people are associated and mutually dependent at a


different stage of social development, by trying to elucidate the
reasons the reasons why the mechanisms of human dependence
takes on this specific form at this stage, we not only contribute to a
better understanding of the development of our figuration. We also
discern, among people living in what first appear to be alien
figurations and who are therefore alien and incomprehensible as
individuals, the key positions that enable us to put ourselves in the
places of people living in a quite different society, and therefore
quite different from ourselves. In other words, by revealing the
interdependence in which people are enmeshed, we are able to re-

52
establish the identification the identification without which any
contact between people – even that of the researcher with his
subject, of the living with the dead – has something of the barbarity
of earlier, more savage phases of human development when people
of other societies were regarded as aliens and sometimes not even
as human beings We are able to penetrate below the level of social
phenomena on which they appear simply as a chain of different
societies of ‘cultures’, below the level that gives rise to the notion
that sociological studies of different societies imply a relativistic
position, to the deeper level where the differentness of other
societies and the people forming them loses the suggestion of
quaintness, and where people of other societies become
recognisable and understandable as people like ourselves. To put it
in another way, a predominantly descriptive approach in sociology
or history stops short at the point where the people one is trying to
understand are perceived merely as people in the third person. Only
if the researcher advances further, to the point where he perceives
the people he is studying as human beings like himself – the plans
on which the actual experience of the people studied, their first
person perspective, becomes accessible – can he approach a
realistic understanding.
(Elias, 1969: 226 f.; see in this context as well Goudsblom, 2004:
265 ff.)

The reason for introducing this examination is the debate on the specific value and
religious systems in their connection with the emergence of capitalism and its
concrete shape. The one major debate on this topic is the thesis brought forward by
Max Weber: that protestant ethics are a major force behind the emergence of
capitalism (s. Weber, 1904/05); the more recent debate, relevant on this topic –one
which is of immediate meaning for the presented work – is the debate on the existence
of a Confucian Welfare State (see e.g. a strong argument for its existence from Ka,
1999). However, it is crucially important to acknowledge the principal theoretical and
even empirical shortcoming of such approaches. Against such deficiency we can hold
with André Gunder Frank that

53
[a]nyseriousinquiry,then,ofthedifferencesintheoriginsofthe
historicalexperiencesandsubsequentpathsofdevelopmentofthe
variousregionsoftheNewWorldmustbeginwithanexamination
ofthehistoricalprocessofcapitalaccumulationonaworldscale.
This was the driving force of the various processes in the New
World which were integral parts of the world process. We can
then go on to consider how it was mediated through differing
modesofproductioninthevariouspartsoftheNewWorldwhich
corresponded to the differing – though related – roles these
regions played in that worldwide process. Differences in colonial
policiesandexperiencesinthenewWorldweremuchlessdueto
(and still less explicable by) supposed differences amongst
colonizers (as the Weberians claim) than to the differing
circumstances the colonialists found in the New World and the
relations of these to metropolitan needs (as Smith and Marx
suggested).
(Frank,1975:441)

Before going later into details, it is important to point briefly on two aspects. (1) The
foregoing interpretation will allow us to understand better the normative dimension of
the Social Quality Approach. (2) It is the framework from where very simple
questions come to the fore and from where it will be possible to approach them in a
more systematic way than usually. These are for instance How did primitive
accumulation occur? How can we assess the country’s position in terms of global
economy? Which international relationship determined the country’s development
(dependencies, independencies, nationality …)? What role did religion play in the
emergence of the state?

Basically, all these questions are concerned with two fundamental dimensions,
namely the indigenous character of developments and the existing dependencies.

(d) Contextualising Social Policy

Now we can understand how the various existing – and non-existing – social policy
measures translate from the social (policy) system – theoretically this had been

54
developed before. We come to further ascending from the general-abstract to the
concrete-specific. – At this point only a few remarks have to do suffice in order to
grasp the different analytical levels involved.

(d.i.) Economic-Social Framework of Social Policy

The two most important statements for developing a proper scheme for concrete and
specific analysis of a typological scheme are first to determine the wider socio-
economic framework of concrete schemes and measures and second to see them as
matter of functional elements not of system integration but social integration.

(d.i.i.)
Let us make the second step first and put forward the reasoning behind saying that
social policy is not primarily concerned with system integration but with social
integration. Of course, this is a somewhat provocative statement – and from the
beginning I will qualify it by stating that of course system integration is the ultimate
goal of social policy. However, it makes sense to speak of the primacy of social
integration. Any social policy does not start from institutional systematisation of
measures but from the need to establish a specific point of reference and framework
for analysing socialisation – and as part of this development, civilisation and
modernisation. Although – as explored before with reference to Norbert Elias – the
process of civilisation is very much concerned with enhancing the space of action (the
extended chains of interdependencies), the process of modernisation depends to some
extent on a movement that is at least at first sight going into the opposite direction. As
process aiming in one or another way on a rational design of systems, it depends on a
closure of the openness that is suggested by civilisation. As far as the economic
dimension is concerned, we saw this reflected in the lengthy quote from Karl Marx’
Capital, pointing on the stripping off of the fetters of the preceding developmental
stage. The very same process can be seen with respect to social and regulative
functions. Any extension of the inner space of action seems to depend on a closure
towards external influences – may be though that such closure is only transitory in
nature.

In terms of a process of socio-historical systematisation this can be interpreted as


demarcation of space, allowing the creation of a socially manageable individual and

55
an individually manageable social space. This process of dialectical Aufhebung –
sublation and supersession – was not least closely linked to the idea of rational design
of social and ecological relationships. Such enterprise depends on the conditions of
calculability. The offered solution can be seen in the nation state as matter of a new
stage in the development from status to contract.10 Thinking of this in institutional
terms, we can see the firm institutionalisation of contracts – instead of being
individual agreements, the state – and increasingly with its establishment as system
based on and guaranteeing the rule of law – being an overall framework that made
such mode of regulation generally possibly and as well enforcing contractualism as
pattern of relationships.

A statement that is of particular interest is made by Kemal Derviú and others.11

Poorer countries in general have weaker institutions. Perhaps


these institutions will improve as income grows and the country
develops. Figure 5.4 shows that if one measures the indicator
concerning the ‘rule of law’ relative to GDP per capita, the
performance of Turkey appears to be closer to the general
rankingoftheTurkisheconomy.Turkeyisclusteredtogetherwith
Romania and Bulgaria at the lower end of the scale. Its value is,
however, clearly below the regression line. This implies that
Turkey, with Bulgaria and Romania, perform even worse on the
‘rule of law’ indicator than one would expect given their low
presentGDPpercapita.
(Derviç/Emerson/Gros/Ülgen,2004:96)

10
Although there is obviously reference made to Arthur Sumner Maine’s dictum ‘from status to contract’, it is important to
state another time that, though agreeing with the principle notion, the development is not seen as distinct step in the
development of societies.
11
Of course, we are speaking of the Western understanding of the state and we have to keep in mind that this is closely
linked to the emerging capitalist economy.

56


Figure 7: Rule of Law and income and income among EU-27


(fromibid.:97)
In political terms this is not least reflected in the processes of nation building with the
confirmation of capitalist economic market systems. The market, as capitalist market
in principal defined as open system, depends on the nation state as regulatory
supplement. As evident from history, this closure did not stand against changes of
national borders nor did it stand against the partial suspension of national borders and
the creation of new – at the time of their creation at least – ‘supranational’ spaces as
the APEC, EAC, EU, NAFTA or SAARC.

However, we are not dealing with the concept of the state in the strict traditional sense
of the Western understanding with the classical mechanisms of – ideally – a
parliamentarian democracy, organised along the lines of the separation of power.

(d.i.ii.)
With the latter it can be seen that such social and political spaces had been centrally
economic spaces – in their function by all means comparable with ancient systems
where we find shifts between the existence of and development towards new
economic entities as household and clan economies, the emergence of appropriate
mechanisms of political regulations (or ‘governance’), making space for further
economic development. Although being a platitude, it is worthwhile to be mentioned
as we usually forget about the recent own history, then looking astounded at
developments in other countries and regions. There are at least four points which

57
should be kept in mind when approaching a comparative perspective on a larger scale
as that between continents or larger cultural spaces:

* In general, it can be asked if the suggested differences for instance in history, value
systems etc. are in actual fact as large as they supposedly are – later this it will be
discussed in some detail. Here it can already be said that many of the supposedly
typical Confucian values are very similar to those which are in the West supposedly
secularised.
* The ‘modern western state’ is historically only a recent invention. Although there
are of course many differences between Asian and Western understandings of the
state and its formation, the ‘state’ is as little an eternally existing European feature
as it would be correct to see only the Asian countries as emerging from some kind
of warlordism.
* It is as well important to remember that globalisation existed up to recently in a
very different and rude form: the form of colonial hegemony. Decolonialisation is
dating back only to the 1960s and 1970s; Hong Kong had been until 1997 a
dependent territory of Great Britain; 1999 Macau had been transferred from being
under Portuguese power; East Timor achieved independence only in 2002 – these
are just a few examples. Being aware of these historical facts, means to be also
aware of the fact that the West is by no means an economically, socially and
democratically advanced system, standing against a backward East. Looking at the
case of India and the British rule, Giovanni Arrighi et altera state

British rule in India was not just alien. It was an alien rule that,
unlike any alien rule previously experienced by India, continually
disrupted established ways of life and, moreover, did so in the
pursuit of objectives that ran counter all moral principles of the
subcontinent’s civilization. As argued in previous chapters, the
superexploitation followed by the destruction of the Indian
‘traditional’ productive apparatus and by its subsequent
reconstruction on ‘modern’ foundations, made perfect sense in
terms of the British national interest. But it made no sense at all
from the standpoint of the reproductive needs of India’s subaltern
classes. The alternating attraction and repulsion of their labor by
the British system of capital accumulation on a world scale

58
continually disorganized their social life making them prey to
misery and degradation. To them, this new alien ruler, who claimed
to be the bearer of a superior social order, and delivered instead
unprecedented social chaos, must indeed have appeared – to
paraphrase the Mahabharata – ‘like a dog that is affected with the
rabies and has become mad.’
(Arrighi/Ahmad/Shih, 1996)

This, then, justifies as well going on, even turning the standard argument around,
stating that

[i]n sum, Huntington’s claim that Western civilization is the bearer


of a heritage of liberalism, constitutionalism, human rights,
equality, liberty, the rule of law, democracy, free markets, and other
similarly attractive ideals – all of which are said to have permeated
other civilizations only superficially – rings false to anyone familiar
with the Western record in Asia in the so-called age of nation-states.
In this long list of ideals, it is hard to find a single one that was not
denied in part or full by the leading Western powers of the epoch in
their dealings either with the peoples they subjected to direct
colonial rule or with the governments over which they sought to
establish suzerainty. And conversely, it is just as hard to find a
single one of those ideals that was not upheld by movements of
national liberation in their struggle against the Western powers. In
upholding these ideals, however, non-Western peoples and
governments invariably combined them with ideals derived from
their own civilizations in those spheres in which they had little to
learn from the West.
(ibid.)

Be it as it is, it is important to work against pursuing any one-sided argument. This


means not least that one should never take things at surface value – and this is
especially true when it comes to values.
* Furthermore, we should never forget that some of the ‘long-established
democracies in Europe’ actually had been up to recently under dictatorial ruling.

59
This does not suggest excusing undemocratic ruling in Asia or any other part of the
world. However, it is on the one hand a reminder of up to recently existing
undemocratic ruling in current EU-member states. Moreover, we should not forget
to ask if the currently celebrated system of a formal parliamentary democracy is not
just a matter of Churchill’s lesser evil notion12 – the historian’s textbooks of the
future are not yet written but we find already many reports and analysis on the
failure of the current systems and the search for new forms of democracy.
* Finally, disregarding the fact that the introduction of many of the social security
and ‘welfare’ systems is historically only recent inventions, even the look at the
more recent history is well worth to indicate that social policy in the current sense
is in actual fact only a matter of the post-war period – and it is already under severe
structural pressure.

Saying this, we have to bear in mind that the major world regions as Europe, Asia,
Africa etc. are characterised by major internal differences. In order to understand this,
we have to acknowledge another time the importance of getting the sequence right. It
is important to start from the very general and common process of appropriation as
process of socialisation, which in the turn of history finds different historical forms in
the way it develops, and merges at some stage in (to some extent shared) points of
‘new departures’ – we find a common ground, specific developments or pathways,
merging on one stage again – but now it is important that the ‘common’, for the time
being: ‘global space’ is in some areas really ‘common’, shaped by the same issues,
and in some areas the same ‘issues’ are actually tinted by the previous specific
experiences. These specific ‘issues’ and the way of dealing with them are directed by
the common space and vice versa. Sure, this is only a rough grasp of a very complex
field.

In any case, the concrete schemes and measures of social policy have to be seen in
this complex field of tensions of difference and sameness, contradictions and
similarities, power claims and power sharing.

However, there is another dimension. The entire history of economic development is a


contradictory process moving between limitation and expansion. At least up to a

12
It has been said that democracy is the worst form of government except all the others that have been tried. (Sir Winston
Churchill: House of Commons speech on Nov. 11, 1947)

60
certain point of the development, any economic expansion needs limitation – failing
to find a suitable way of implementing this pattern would end in contraction. This
may seem as paradox as literally the antonym to expansion is both limitation and
contraction. However, in the interpretation suggested here limitation is concerned
with setting external or at least clearly defined borders whereas contraction is
concerned with a kind of implosion, the collapse of a system by loosing the ability of
dealing with its environment. The reason is that profit – as gain from unpaid labour,
measured in proportion to the total capital invested – is indivisible. Again, this cannot
be discussed in detail. At least two points should valuably be made.

(d.i.ii.i.)
First, it is necessary to acknowledge the basic principle of a ‘division of the world’ –
following world systems analysis. At this stage, mentioning two major points from
Immanuel Wallerstein’s work, though not necessarily referring directly to his work,
does suffice. First, we are concerned with a capitalist power that is to a large extent in
control of state and general societal relations (see on this the still important
contribution on state-monopolist capitalism by Boccara, 1973). Second, history
cannot be seen as a mono-linear development towards progress – here it is not of
primary interest how progress is defined. The major point is that the division of the
world developed from here. Although the

world-system is a social system, one that has boundaries, structures,


member groups, rules of legitimation, and coherence
(Wallerstein, 1974: 347)

it is on the other hand

made up of the conflicting forces which hold it together by tension


and tear it apart as each group seeks eternally to remould it to its
advantage. It has the characteristics of an organism, in that it has a
life-span over which its characteristics change in some respects and
remain stable in others. One can define its structures as being at
different times strong or weak in terms of the internal logic of its
functioning.
(ibid.)

61
It is on this ground that – by avoiding contraction – limitation takes place in terms of
establishing on the level of the world-system different entities that institutionalise the
power imbalance especially in form of nation states, trading chains,13 political and
economic communities14 and subsequently of course social imbalances in the
national, international and supranational sphere.

Especially with the increasingly complex structure of global dependency structures


two points are of special importance. First, although the fundamental division
between centre, semi-periphery and periphery remains valid, we are confronted with a
change as the hierarchical structure is complemented by horizontal relationships on
the different ‘distance-levels’. This means as well that after 1917 and equally ongoing
after 1989 we have a multicentre setting. Governance plays an important role in
regard of the regulation of the complex relationships. Second, the entire setting – not
least with the increasing meaning of governance and notwithstanding the ongoing
meaning of capitalist power being to a large extent in control of state and general
societal relations – is more and more one in which ‘global non-profit, non-
governmental actors’ play a role. Using this terminology is, of course, to some extent
a provocation to highlight the penetration of state and society by capitalist, for-profit
structures.

Trying to grasp these relationships, the following two graphs can be taken as
illustration. – Figure 8 looks at the economic and political relations and sub-
ordination.

* We see the centre, consisting of three major forces – United States of America,
European Union and Japan. Japan is seen as playing a special role, however – being
on the one hand traditional imperial power, on the other hand judged to be a
newcomer in the group of the current nations of the centre.
* Though there is a considerable difference within the EU it is suggested to disregard
this in general terms, however, to draw a line within the EU between the ‘old EU’
and the still so-called ‘new member states’. This border is not meant to be simply
one of economic meaning but it is seen especially as one of political-economic
subordination and dependency – this justifies seeing the latter as semi-centre. A

13
As the very early Peloponnesian League or later the Hanseatic League.
14
As APEC, EEC/EC/EU, EFTA, NAFTA etc. – here it can be left open [not if, but] in which way Council of Europe,
NATO, World Bank et altera are part of this

62
semi-centre position is as well claimed for Russia – though it is especially seen as
matter of the political power structure rather than an economic matter potential as
this is not yet developed. Finally, East-Asian countries (except Japan) are seen in
such position of a semi-centre. Both, Russia and East-Asian countries are pushing
towards the centre. With regard to the second it can be said, however, that despite
the absolute economic power, the position is to a large extent economically and
politically one of dependence – this includes the character of economic strength,
largely depending on FDI and being linked to a relatively weak internal market.
* The semi-periphery is seen as being divided into two levels. (Most of) The former
countries of the Soviet Union (as far as they are not belonging to the semi-centre as
for in particular the Baltic countries) are seen as semi-periphery I. This is justified
by their especially strong affiliation with or orientation towards either the USA or
the old EU – in many cases as well the orientation towards both of them. As the
role and position of Russia cannot be clearly assessed in its further development it
is here disregarded, subject to further scrutiny.
However, despite the strong ‘west-orientation’ it can be as well said that the current
position is still characterised by a strong link to Russia – this is especially due to the
large dependency from imports of energy raw materials (in particular oil). In this
regard we can see Russia in the smaller relationship as centre, the other states being
a semi-centre in relation to Russia. This position makes them on the one hand
extremely weak due to their dependency; however, a potential strength can be seen
in the opportunity to utilise this position in a global power game.
* China and South-Asia are by and large seen as semi-periphery II. The reasoning
behind this is twofold. Part of them could be equally seen as being peripheral.
However, what distinguishes them from other countries is that they can be seen as
tiger economies, expecting or preparing to jump ahead. Of course, the Peoples
Republic of China plays a particular though contestable role. First, it may well be
justified to see the country as ideologically communist, and economically capitalist.
Important is as well that in economic terms there is on the one hand the orientation
towards the West – and the actual dependency from it;15 on the other hand, since
recently we can state a strong dependency from other East-Asian countries, not
least from Taiwan though the latter is too small to speak of a real dependency. In

15
The situation is actually exacerbated by the two special administrative regions, and in particular Hong Kong.

63
any case, it may be justified to speak at least of a centre/semi-centre relationship.
With regard to other countries – as India – the position is entirely different, as their
position is related to the west rather than being heavily influenced by the East-
Asian setting.
* The South Americas (perhaps with the exception of Brazil) and the African
countries are here seen as periphery.

All this is a very rough outline and would need differentiation. The position of some
countries and regions (e.g. the Arabic area, Turkey et altera) is left as well entirely
open.

Figure 8: Global Dependencies and Divides


But things are getting more complicated. Although being interested in supranational
non-profit/non-governmental organisations, it is important to fully realise that they are
at least characterised by their relation to the profit-making system and the relevant
entities (not necessarily but as well enterprises). And as far as they are non-
governmental organisations they are still very much linked to mechanisms of
governmental politics and policies – the latter is on the one hand a matter of agenda
setting mechanism, on the other hand it is a matter of certain national dominances (not

64
primarily though as well due to the mere seize of some countries who a are member
and their financial power).

(d.i.ii.ii.)
Another question will be only briefly dealt with: the construction of collective
identities. Though apparently an increasingly important issue in policy developments
and even more so in debates on politics this matter can easiliy be identified as matter
of distraction.

Postmodernisation is a major reference if we look at debates in social science in


general and social policy more in particular. Trends of changing patterns of modernity
and shifts in boundries are not denied here. However, the following observations are
thought to be useful to qualifiy some contemporary debates. (a) It is more than
questionable to qualify these trends as dissolution of modernity. In actual fact, we see
more a solidification of structures that are typical for ‘classical’ capitalism, being
covered by window-dressing: communitisation as means of outsourcing, governance
as opening of polities for traditionalist patterns, and most importantly a change of the
economy towards individualist ‘niche production’ and moreover towards profit
generation based on circulation and exploiting distributive processes rather than being
firmly routed in the process of production.

In this light the debate on lost collective identities and the shift to subjective, hedonist
life styles, searching for faith-based solutions has to be qualified as matter of a change
of economic patterns that undermine proesses of identity building by re-establishing
pre-modern rather than post-modern patterns. That this process takes place after
primitive accumulation means that we are confronted with patterns of identity
building that combine different developmental stages by fading out the the structural
meaning of production. It is not the individualisation that determines hedonist
exhibition and competition; rather, it is the displacement of the process of production
as core of the economy that evokes individualisation of identities, however in fact
only being an immediate expression of the long chains of production into the long
chains of sociogenesis and psychogenesis. This confirms that collective identities are
actually built on the ground of correspondence and non-correspondence of
socialisation of production and socialisation of appropriation.

65
This finds as well an expression in legal issues, taking the form of the dissociation of
legal processes from actual relevant political cultures. It is in this context that we can
understand what Mauro Zamboni writes about Hans Kelsen, namely:

Consistent with his legal positivistic premises, Kelsen clearly


emphasisesthedisinterestofthelegalsystemastothecontentof
theBasicNorm.ThatwhichisrelevantwithinlawǦmakingisthat
the Basic Norm performs the funtion of transforming nonǦlegal
instances (or values) into valid law. The choice of the types of
instances tehBasic norm determines as leglally relevant is not
interestingtothelegalactors,whetheritisthepoliticalvalueof
obeying the first constitution or the value of obedience to the
Fuehrer.*
(Zamboni,2008:34;*withreferencetoKelsen:GeneralTheoryof
LawandState;supraat120,wheretheauthorpointsouthowthe
content of the Basic Norm is a matter of contingency, i.e. it “is
determined by the facts through wich an order is created and
applied.”See,e.g.,Kelsen,ProfessorStoneandthePureTheoryof
Law,17STAN.L.Rev.1144[1965])

In this light the question of identity building is put back on its feet, namely dealing
with the coupling and decoupling of following dimensions:

Circulation
Production
Individual Social Societal
Table 2: Coupling and Decoupling Identity-Building
We are then back to the question of (lacking) synchronisation of accumulation
regime, mode of regulation, life regime and mode of life.

Summarising this perspective, we see the reversion of socio-politicao-economic


processes: the economy is rebuild, now starting from the end, i.e. consumption.
Important is, however, to firmly state that this is not the conversion to a needs-
oriented economy. Rather, we find a redefinition of the process as matter of loosening
bond between production and needs, thus idealising the sphere of circulation. The
crisis of indentities of personalities, social and political institutions and the loss of

66
economic integrity are nothing else than the different sides of the same process, to
vorro the words from Paul Boccara, an expression of the “modifications profondes
des structure: déréglementations et exacerbation de la marchandisation dans la crise
systémique” (Boccara, 2008: 64).

It is important to avoid getting distracted by discussions on political identity and


governance, concepts that can easily be abused to distract from the underlying
economic facts.

(d.ii.) Modernisation, Social Rights and Welfare Policies

Taking these two aspects together, an interesting point is to develop the actual
function of the welfare system in its overall context of socialisation (here broadly
taken as overall synonym for development). Although there is a fundamental
reduction of the way of approaching ‘development’, an interesting perspective comes
from Sven E.O. Hort and Stein Kuhnle, presenting on The Coming of East and South-
East Asian Welfare States. The authors do not refer to a simple chronological
assessment of introducing social security legislation. Instead, their

concern … is whether the high growth, ‘miracle’ East and South-


east countries have introduced social security systems earlier or
later in terms of ‘developmental time’.
(Hort/Kuhnle, 2000: 166 f.)

In order to approach this, they determine

the level of development of modernization as measured by


proportion of labour force in the non-agricultural (and non-fishing,
non-forestry) sector at the time of the introduction of the second law
of social security ...
(ibid.)

This approach is of special interest in three regards.

First, it is of course interesting that social security is seen as the same as welfare.
Without discussing this any further, it has to be said that social security is definitely –
though see the third point for qualification – the core issue (see for instance Kuo,

67
Ming-Cheng, Zacher, Hans F., Chan, Hou-Sheng, 2002). However, such equation is
problematic in two regards: social security is in itself part of and condition for
welfare. But welfare must as well go beyond that. Referring to the conditional factors
mentioned before, social security/social welfare in the usual understanding is only
concerned with socio-economic security. Another problematique can be seen in the
fact that social security is in itself vehemently contested as far as its concrete design is
concerned – especially recent EUropean debates on flexicurity show this (see official
EU-website:
http://ec.europa.eu/employment_social/employment_strategy/flex_meaning_en.htm;
http://www.tilburguniversity.nl/faculties/law/research/flexicurity/;
http://www.socsci.auc.dk/carma/indexenglish.htm; Boccara, 2002).

In any case it is valid what Ming-Cheng Kuo states with respect to Taiwan, namely
that

[w]e can recognise the following when looking at the current
systemofcareforhandicappedanditsdevelopmentinTaiwan:
* the connection between industrialisation, change of societal
structures, democratisation and social policy,
* the necessity to establish a modern system of social security
(especially of social insurances),
* the importance of political reforms as important factor of the
development of social policy and
* the fact that law and legislative regulation are an indispensable
instrument of social policy.
(Kuo,2003:291f.)

Read properly, the important point is the emphasis that the social security system is
not universal but specifically linked with Westernisation, namely specific
capitalisation and specific democratisation. But as much as there is a western-
capitalist affirmation in such a stance, there is also a fundamentally different
perspective entailed which can add a stimulating thought to Western debates. This is
marked by the tension between sowing Manchester-capitalist methods on
authoritarian, semi-feudal soil on the one hand and the search by human rights
academics, professionals in the social field and activists for a concept going beyond

68
the Western individualist concept of rights provision. It is the aim of conceptualising
rights as some kind of communitarian issue. Thus

[t]he experience of Asian NGOs illustrates some of the


opportunities for collaboration between human rights scholars,
professionals, and grassroots activists, as well as some of the
challengesinworkingacrossdifferencesinexperience,class,and
expertise. In recent years there has been an ‘explosion’ of Asian
NGOs, both quantitatively and qualitatively, that address the
problems of militarization, intolerable poverty, permanent
environmental degradation, the exploitation of women, children,
and religious or ethnic minorities, and the abuses of prevailing
authoritarian regimes.[.] Clarence J. Dias has identified three
strands of the Asian human rights movement: struggles against
authoritarian political regimes; delivery of basic services and
education programs to the rural poor; and focus on national
developmentprograms.Althoughtheseactivistsdidnotexplicitly
start out with a human rights agenda, they quickly turned to
human rights activism as a means to (1) empower the
impoverished;(2)secureaccountabilityofthosewhowieldpower
and control over resources; (3) increase participation of the
oppresses;and(4)assertvaluessuchassocialandethicalvalues
thatshouldunderlierestructureingofasocialorders.
(Hom,2001:205f.)

An important aspect in the entire debate is not least that with this perspective the
entire direction is moved as well towards developing a strategy that includes a
reflection of the issue of care – the debate in the circles of the United Nations took
over the time a interesting shift, moving from problem-oriented services towards
socialisation-oriented services:

Itwasrecommendedthatprioritybegiven tomethods‘designed
topromotethegeneralwelfare of thecommunity ratherthanto
those which are more concerned with the adjustment of the
individual to his environment’, and that emphasis be placed on

69
prevention, with priority ‘to those social services which can be
madeavailabletothewholepopulationorthelargestsegmentof
it…’
(Madison, 1980: 193; with reference to United Nations.
DepartmentofEconomicandSocialAffairs,1959:60.IV.I:21f.)

Finally this matches well with the Social Quality Approach as it emphasises the
character of social rights as socio-political process rather than as matter of provision.
And in this perspective it is not least a fight between different principles claiming
universalist validity.

Second, to put industrialisation on a level with modernisation is definitely


questionable. Not only that modernisation is a term lacking any definition,
modernisation is in any case more and at the same time less than industrialisation. It is
more as far as – taking mainstream thinking – a link is established between
enlightenment and modernisation, being employed by considerations of
‘rationalisation’, individualisation, conscious design of society etc. Industrialisation
may be part of it – but it is then only part and cannot be taken for the whole.
Modernisation is less than industrialisation as there are definitely ways of
modernisation that are very distinct from each other, not necessarily related to
industrialisation. This means as well to look at ‘modernism’: a bureaucratic-rationalist
way of administration and a reductionist definition of development, linking this solely
on technological progress, commodification of relationships and reduction of
measuring progress on achieved economic growth as only one possible pathway
amongst others.

What had been said under the previous two points – the problematique of the equation
of social security and welfare and of modernisation and industrialisation – is
condensed in the third point, namely the close link between welfare in a reductionist
understanding of social security on the one hand and the capitalist-industrialist society
on the other hand. Such a link is at least suggested by introducing the measurement of
the proportion of labour force in the non-agricultural sector as based on the thesis of
proletarisation in the understanding elaborated by Immanuel Wallerstein (see
Wallerstein, 1983; see as well Wallerstein, 1989).

70
This is important as it opens the perspective on the actual possible scope of any social
policy measures. Such perspective emphasises the necessity of orienting any analysis
on socialisation and the assessment of social policy as part – condition and
consequence – of it. In other words, we are concerned with the definition of
citizenship on the grounds of social security rather than institutional side of social
security. This links into the preceding analysis, especially the view by Tom H.
Marshall and the discussion of ‘general interest’ (see on the latter as well Herrmann,
2006).

Here it has to be pointed out as well that current debates on programmes which
emphasise ‘non-social-security issues’ (as the elements of the mentioned flexicurity-
approaches, the French RMI of the late 1980s with the emphasis of empowerment etc.
– see e.g. Herrmann/Zielinski, 2003; Herrmann, 2008; van Berkel/Møller [eds.],
2002) are likely to fail as long as the issue of capitalist-industrialism is not tackled. It
is characterising that the critics of Gøsta Esping-Andersen barely emphasise the
reduction of his perspective on Three Worlds of Welfare Capitalism. This limitation
of the perspective is especially clear when he offers to

review the contributions of comparative research on the


development of welfare states in advanced capitalist countries.
(Esping-Andersen, 198: 13)

He then states

that most scholarship has been misdirected, mainly because it


became detached from its theoretical foundations.
(ibid.)

But looking at the claimed theoretical foundation, it is surprising to see his point of
reference being the question

does social citizenship diminish the salience of class? Or in other


words, can the welfare state fundamentally transform capitalist
society?
(ibid.: 11)

71
This question does not testify a thorough theoretical grounding of the question at last
from a Marxist perspective.

(d.iii.) Social Rights and Legislative Traditions

Searching in the following for the definitional framework, a first look brings us to the
legal framework – not only because any social policy is finally defined by legal
provisions or the lack of them but as well because any governance is as well reflected
in one way or another by law. Having said this, is however slightly precipitated. With
reference to Max Weber’s thinking, we can understand law as general system of rules,
however, more specifically as logically formal legal thought, characterised as follows.

Present-day legal science, at least in those forms which have


achieved the highest measure of methodological and logical
rationality, i.e., those which have been produced through the legal
science of the Pandectists’ Civil Law, proceeds from the following
five postulates: viz., first, that every concrete legal decision be the
‘application’ of an abstract legal proposition to a concrete ‘fact
situation’; second, that it must be possible in every concrete case to
derive the decision from abstract legal propositions by means of
legal logic; third, that the law must actually or virtually constitute a
‘gapless’ system of legal propositions, or must, at least, be treated
as if it were such a gapless system; fourth, that whatever cannot be
‘construed’ legally in rational terms is also legally irrelevant; and,
fifth, that every social action of human beings must always be
visualized as either an ‘application’ or ‘execution’ of legal
propositions, or as an ‘infringement’ thereof, since the
‘gaplessness’ of the legal system must result in a gapless ‘legal
ordering’ of all social conduct.
(Weber, 1921: 658 f.)

However, this is indeed – and as picture with a very broad brush – not only a very
European perspective on law but – as Weber says himself – very much concerned
with present-day legal science. The foregoing question that needs to be put forward is

72
how we historically arrive at such formal legal system. The entirety of the complex
reasoning can be left aside, and only some important divisions will be presented.

Such rules are of course first and foremost based on the active confrontation of human
beings in the triangular relationship of (at least two) individuals and the environment.
Thus, any of the rules are an expression – or reflection – of the socio-environmental
relationship and thus the superstructure built on the basis of the productive and power
relationships. This is not crude mechanical materialism but the consideration of the
fact that rules are only needed to regulate relationships rather than being abstract
norms for ‘good behaviour’.

And of course, speaking of such rules as systems of regulation we have to see as well
that the ‘guidance’ is strictly determined by two factors, namely (a) the finality and
(b) the existing knowledge – both a matter converging in the question of power.
Leaving the economic foundation – and the materialist theory of law, and as well of
religion in the strict sense – aside, an important factor in the present context is to look
at how law relates to rules that are suggested as being ‘general’ in character. The point
in question is not to look only at law in positivist terms as one – and superordinated –
system of rules but to look at other relevant systems of rules, investigating how they
are linked with each other.

Leaving the origins of religions and their different development aside, much of the
legal thinking is derived from (quasi-)religious belief systems – be they theist or non-
theist.16 Following Harold J. Berman, there are at least two important points, namely
(a) that with its ‘religious origin’ law calls itself to have some ‘religious character’
and (b) that the legal system has to maintain in one or another form the values that are
defined in the underlying belief system.

To begin with the first aspect, reference can be made to the remark Berman’s, with
which he looks at a possibly emerging ‘common law of human kind’, proposing

the thesis … that the universal belief in law constitutes an important


element of the fundamental belief systems – in that sense, the
religion – of the emerging world society.

16
For the latter we may refer to Buddhism, Confucianism, Hinduism or as well to Rousseau-like ‘civil religions’.

73
The development of a body of world law is suitable only if the belief-
system that underlies it and nourishes it also continues to be
sustained and to develop.
(Berman, 2006: 747)
The point in question – and this should get clear from Berman’s statement – is that
any set of legal rules, of law is bound to fundamental values that are defined outside
of the legal system itself. It is the pre-juridical realm, suggested to be a jus naturalis
although such claim neglects that a reference to any rules that are defined as being
‘natural’, is actually a reference to any given society that considers itself as natural –
and thus, especially with the inclusion of non-theist contemplation into religious faith
systems, optimal and most coherent system in which human beings can interact
amongst themselves and with nature. In this light, the jus divinum is only one, though
in the Western world strong tradition. Important for the much later development of
positive law in general and social law in particular is the determination of the thinking
of individual and society by these pre-juridical systems of thought.17 Though only to
be mentioned en passent, it is of utmost importance in which way the individual and
the social and their relationship are approached by pre-juridical thinking – and how
they are translated into positive law. And of course it is as well of utmost importance
in which way the legal discipline – definition of law and jurisdiction alike – emerges
as ‘practice’, for instance in Friedrich Carl von Savigny’s request

tolearnthemethodoffindingrules,nottherulesthemselves
(vonSavigny,1802Ǧ1842:63)

Reference to Savigny and his historical method is especially of interest as his work
clearly carries a fundamental tension in which legal science is caught: on the one hand
we find his rejection of common law and the emphasis of the necessity to search for
the relevant principles (cf. Rueckert, op.cit.); on the other hand, however, Ralf
Michaels sees

(h)istheoryoflawasbornfromthepeople’sspirit(Volksgeist)
(Michaels,2005:10)

and asserts

17
To emphasise it again: all this is can only be understood, if seen in the light of the relevant productive systems from which
the ideological systems and the ‘rules of behaviour’ arise.

74
that, although he approves of the primacy of legislation over
customary and scientific law1, he does not think highly of state
legislationintheareaofprivatelawingeneral.
(ibid.;withreferencetoSavigny,1840:§13:38Ǧ44)

These reflections are most clearly presented by the contemplation on jurisprudence,


legislature and the actual society by the historical school, in a way clearly merging
natural law, naturalness of a (national) society and positive law. Thus it is with the
clear and definite settlement of the Western nation state and its close and
unambiguous link to capitalism that

[i]n the nineteenth century, the German historical school (Savigny)


developed a positivist version of normative formalism. National
systems of law reflect as a matter of fact the normative order of the
underlying society; such a normative order is coherent or tends
toward coherence on the basis of the spirit and history of the people
in question; ‘legal scientists’ can and should elaborate the positive
legal rules composing the system on the premise of its internal
coherence. In the middle and late nineteenth century, the German
Pandectists (Puchta, Windschied) worked at the analysis of the
basic conceptions of the German common law version of Roman law
with the aim of establishing that this particular system could be
made internally coherent, and also be made to approach
gaplessness.
(Kennedy, 2004: 1033)

Not least this means that – in the West – the modern nation state emerged for good or
for bad as a kind of deus ex machina, replacing divine and natural rules and ruling by
openly and positively claiming to represent them. It is only by reaching back to the
very early foundations that we can understand as well the individualist strive – as link
between theism, capitalism and the orientation on the individualising welfare state of
the West. It is already in the middle of the 17th century that Hugo Grotius states:

God created man ĮȣIJİȟȠȣıȚȠȢ, ‘free and sui iuris,’ so that the
actions of each individual and the use of his possessions were made
subject not to another’s will but to his own. Moreover, this view is

75
sanctioned by the common consent of all nations. For what is that
well-known concept, ‘natural liberty,’ other than the power of the
individual to act in accordance with his own will? And liberty in
regard to actions is equivalent to ownership in regard to property.
Hence the saying: ‘every man is the governor and arbiter of affairs
relative to his own property.’
(Grotius, 1607)
From here it is getting clear as well that primary and secondary law can now be
understood as part of the mode of regulation, as technical handbook that establishes
and confirms the link between accumulation regime and mode of regulation.
Consequently Gustav Radbruch comes even to the following conclusion:

Opposingnaturallawparadigm,thehistoricalschoolsuggeststhe
other extreme: replacing the absorption of the right law by set
law,thevalueoflawbytherealityoflaw,thephilosophyoflawby
thescienceoflaw.
(Radbruch,1932:108)

This statement is especially interesting if linked to the point for instance made by
Guenter Frankenberger, namely that comparative law in the traditional and
mainstream thinking is ethnocentric and legocentric (see Frankenberg, 1985: 411-
455). Thought further – i.e. thinking Radbruch and Frankenberg together – it means
that positive law can now be seen as actually falling behind developing a critical
perspective and instead providing a pure justification of given conditions. In this
sense it strictly follows positivism in sociology as we know for instance from Auguste
Comte.

Looking then at the second point, the ‘religious character’ of law, it does not come to
a surprise that those who engaged in jurisprudence established one of the first
professions in the modern sense. And only a brief hint may do suffice, recapitulating
what Harold J. Berman says, namely that

[t]he secular-rational model of law … tends to neglect elements of


law that transcend secular rationality, elements that law shares with
religion. Like religions, law everywhere communicates with its
values (a) through ritual, that is, formal procedures of legislation,

76
adjudication, and administrative regulation that symbolize its
objectivity, (b) through tradition, that is, distinctive legal language
and practices handed down over generations and centuries that
symbolize its continuity with the past and its ongoingness into the
future, (c) through authority, that is, reliance upon written or
spoken sources that effectively symbolize its binding power, and (d)
through universality, that is, justification of itself in axiomatic terms
as the embodiment of universally valid principles and concepts. …
These characteristics of law tend to give it a sacred quality.
(Berman, 2006: 745 f.)

And as far as this establishes a somewhat independent status of the profession this
involves of course the potential to redefine the values and political dimensions of the
mode of regulation. – Subsequently it should not come as a surprise that in many
cases we find a large number of representatives of the legal profession as well as
representatives in national parliaments.

What should be in any case clear is that – even positive – law in the pure form as
described with the quote above taken from Max Weber is intrinsically linked to the
economic structures and processes and also to the ‘value basis’ of political decision
making. This means as well that it manifests the fundamental – and often discussed –
problematique of Weber’s confrontation of an ‘instrumental rational’ versus ‘value
rational’ thinking. It is this as well the tension that endure within the capitalist
economy itself: being on the one hand a social relationship sui generis, being on the
other hand the expression of the isolated individuals ‘free and sui iuris’; with respect
to jurisprudence being caught in an ‘iron cage’ not only of bureaucracy but as well of
jurisprudence and at the same time never completely leaving the fetters of feudalism –
it is in concrete terms the rational capitalism of the protestant ethics with the
instrumentally rational understanding of the legal system and on the other hand the
Manchester capitalism with its orientation on common law, on the one hand being a
space for negotiating equity among people with differently strong power positions –
and subjective notions of justice, including mercy, on the other hand being an array of
arbitrariness, not standing back behind the feudal power of nobles. – Not by accident
Max Weber pointed on the similarities of Cadi-justice and common law (see e.g.
Weber, 1915 b: 109; Weber, [1915 a]: 102; see as well Weber, 1921).

77
The question is then if it is as well correct to recognise that

[le]galism is not a particular evolutionary stage of development of


legal systems, in Weber’s sense. It is a feature which can and does
appear whenever certain conditions prevail in a legal system – the
duty to decide; the duty to give reasons; a closed canon of
principles and rules; legal functionaries whose roles do not
legitimately allow for the making of law. These last two conditions
are in fact the same: that the canon is closed explains why no new
norms may be created; the fact that no new norms may be created
means that the canon is closed.
(Friedman, 1966: 161)

Is this not exactly what we see reflected and expressed in the debates on governance
and discoursive law within the EU, the limitation of common law on specific arrays in
the UK, the search for positive legal regulations of social rights in the Asian countries
with their capitalisation etc.? And of course, the question if equity can be organised
(see Schaffer, 1981) has to be supplemented by the question if equity is really solely
understandable as being

founded on the essential criterion or value of ‘equitable


individualization’. The testing rule, in fact, is what is fair for the
individual.
(ibid.: 13)

Indeed the question poses a paradox as

[t]he individual is purely a legal fiction, as much an institutional,


procedural, systematic construct as the first set of rules themselves.
(ibid.)

(e) Social Policy and Developmental Dependencies

This is a sufficiently broad and tight background for providing a matrix against which
social policy development can be assessed in a perspective going fundamentally
beyond an institutionalist view as it is common in mainstream social policy research

78
(see in this context as well the general discussion in Herrmann, 2007 a). The
background explored before is sufficiently broad as it allows including various
aspects of ‘welfare’, directing the investigation towards social quality as guiding
concept, defined as being concerned with the means and processes and relations
necessary for people to be capable of actively participating in social relations and
actively influencing the immediate and more distant social and physical environment.

It is also sufficiently tight as some core issues could be isolated that allow as well
developing a framework for an empirical analysis that is able to grasp the relevant
complexity of relationships.

Still, it is time to outline at least some general mechanisms of global influences –


these will be provided not primarily on grounds of economic globalisation (although
this plays, of course, a vital role). Instead, the following will combine with
qualifications the principals of world systems analysis with the perspective of
institutional actors (see in this context for example comprehensive overviews on
relevant questions of theories of development in Haque, 1999 and Chapter 2 on
Theoretical Conundra in: Chan/Clark, 1992: 11-31)

The following main mechanisms and directions are proposed – selected in particular
with respect to social policy development. It is not claimed to be an exhaustive list.
Furthermore, it cannot be systematically developed in which way and to which extent
simply personal influences, based on charisma, play a role in general and/or
individual cases.

* There are, of course, global economic trends. The interesting question is how we
actually can deal with an extremely contradicting pattern. Generally, in major
debates and data analysis we find as dominant pattern the emphasis of a general
trend, one version suggesting a general upward trend of economic growth,
measured in standard figures, another version assuming the same pattern though
being concerned about a time lag, i.e. a retarded development of some countries. In
any case, the core of the argument is a pull, seeing the actual driving force with the
‘developed countries’, and by and large denying an indigenous force for
development in the ‘developing countries’. – In the context of the present
discussion this links closely into the so-called productivist model of the
developmental welfare state.

79
Several problems have to be mentioned. This approach does not ask if it is justified
to reduce measuring development by standard figures as GDP etc. Another problem
had already been mentioned, namely the denial of existing indigenous
developmental forces. Furthermore, and importantly, the argument accepts seeing
‘welfare’ as function of economic growth, perhaps in need of some ‘correction’ for
which social policy has to be available with a suggested flanking role. However,
exploring these aspects has to be left to another work. There are two further
difficulties, however, that deserve more consideration.
¾ Such statements do not question if there is a general trend, basically moving all
countries into the same direction of ‘prosperity’ and ‘affluence’. Though it will
not be systematically analysed, it can be said that the increase of affluence of
certain areas depends in many cases on the relative economic failure of some
areas or even the impoverishment in absolute terms.
¾ Furthermore, such arguments often neglect by and large that the development
within regions and countries is based on most important and far-reaching
inequalities – the country’s overall ranking may well mean that we find a major
general boost in economic growth figures going hand in hand with increasing
inequality or even poverty for some classes; as well, other social burdens as for
instance regional inequality, urban congestion with all social and environmental
consequences cannot be seen in the aggregate figures.
* Despite this we have to look at international legislation.
¾ On the one hand this is part of ‘direct intervention’ in national frameworks for
instance by signing international agreements (as e.g. United Nations and UN-
affiliates as ILO or WHO),
¾ On the other hand we find indirect intervention in cases where bilateral
agreements are made in certain areas and their conclusion depends on accepting
as well ‘linked issues’ – such agreements can be even set by international
companies, requiring the recognition of certain labour standards.
It is important to point on two aspects: Although a country may not be directly
under international legal observance and control there may well be an indirect
reasoning by following moral pressure. As John Harris and Yueh-Ching Chou
ascertain
[t]heeconomicpressuresconstrainingsocialwelfaredevelopment
inTaiwanwereheightenedbythecountry’sdiplomaticisolation,

80
due to its absence from bodies such as the United Nations, the
World Trade Organization and the World Health Organization.
Thisveryspecificcontextualfactorofisolation(MoranandWood
1996) mediated between Taiwan’s social welfare policy and
globalization pressures (Gummett, 1996) and resulted in a
strategyof‘substancediplomacy’(Ku,1997,p.223).Thisrefersto
Taiwan’s attempts to counter its political ties with other
countries, in the process making Taiwan politically as well as
economically dependent on the global market to establish its
connectionswiththeoutsideworld.
(Harris/Chou,2001:164f.;withreferencetoMoran/Wood,1996;
Gummett,1996;Ku,1997)

Another aspect is concerned with the question of harmonisation and coordination.


Especially in multilateral areas we usually do not find harmonisation, a process that
can be defined as direct and literal application of an existing law or the
development of legislation that is directly applied in the relevant countries (see
below, 125 ff.). However, coordination is something very different as it reaches
only to the stage of measures making different national (and here it should be
added: regional) legislation compatible. In cases of coordination, national
legislation remains in principal unchanged. There are however two influences,
namely
¾ a change in terms of negotiating partial changes to make movements, mostly in
terms of ‘free movement’ of capital, trade, services and workforce (or as well
people in general) possible or at least easier (the General Agreement on Trade in
Services (GATS) does not belong here as it is more a measure of harmonisation);
¾ a change in terms of discussing with relevant countries issues that are thought of
being in need of consideration and for which aims and objectives are negotiated
which are subsequently translated into legislative regulations on the national
level with the result that although the object of regulation may be agreed upon,
the subject of regulation and as well the mechanism and act of regulation may be
rather different, adapted to the specific national traditions and conditions.
* A next level is linked to general political influences – in some cases it will not be
possible to make a distinction between the level of executing influence and the

81
before mentioned processes of legislation. Here the following are seen as major
issues:
¾ The development and maintenance of hegemony in connection with colonial and
neo-colonial rule and with this the permanent validation of legal traditions.
As already briefly mentioned, colonial powers had not been dismantled up to
recently. But despite the formal discontinuation of formal power, the influence of
the former colonialisers did not cease though today we do not find the direct
execution anymore. Important is in any case that at least usually the hegemony
was not abruptly broken.
¾ Global debates play a role as well – not least reinforced by instruments as
embargos or embargo-like instruments. For instance global events as the
Olympic Games should not be underestimated as points of executing influence.
As well, certain moments of trade embargos, organised by critical customers
should not be left entirely out of consideration. This is as well the case with some
moments arising from so-called Corporate Social Responsibility (CSR), although
CSR has to be assessed in very sceptical terms.
* Furthermore, political and not least academic and professional exchange plays an
important role. Though it is difficult to finally assess this in quantitative terms, an
important indicator may be the academic exchange. Despite programs (as for
instance the Program for East Asia Democratic Studies, National Taiwan
University, Institute of Humanities and Social Science;
http://eacsurvey.law.ntu.edu.tw/chinese/eng_intro.html; 14/08/08; 10:49), research
projects and think tanks (as the SQ-Asia networks; see for instance van der Maesen,
Laurent J.G.: Strategies to Develop a Connected Social Quality Approach in
Europe, Asia and the Pacific;
http://homepage.ntu.edu.tw/~ntusprc/workshop/CV/ab2-10.pdf; 14/08/08:10:45)
can be as influential as exchange and working abroad of academics. This reaches
from individual activities to the most important training of academics in other
countries. Just taking two examples, the following table states the origin of the PhD
of staff at two Departments of two Universities in Taipei:

82
NATIONAL TAIWAN UNIVERSITY, NATIONAL CHENGCHI UNIVERSITY,
DEPARTMENT OF SOCIOLOGY AND COLLEGE OF LAW19
SOCIAL WORK18

EUROPE

EUROPE
TAIWAN

TAIWAN
20

21
OTHER

OTHER
TOTAL

TOTAL
ASIAN

ASIAN
US

US
Professors 28 25 3 26 2 3 4 17
Associate 13 13 11 2 2 0 7
Professors
Assistant 9 1 5 2 5 1 1 3
Professors

Table 3: National Background of Highest Qualification Achievement – Examples (from 2007)


Important in further analysis is not only the direction of the flows but as well the
different investigation, looking at different subject-origins (in turn pointing on the
distinct meaning of regions with respect to strength and weakness of influencing
policy, technological development, economic thinking, social policy etc.). Although
it will not be possible to exactly determine the weight of the different factors and
although it will be difficult or even impossible to determine general patterns behind
individual cases in the respective design, the discussion of such issues is important
in order to determine actual channels of international policymaking in order to
qualify the assessment of processes of globalisation.

* Finally – and of crucial importance through its structured approach – is the


influence execute by ‘global organisations’ – though they are in the meantime
varied and in many regards contradicting each other and even internally. A point of
further complication is their complex internal dynamic. Looking at the United
Nations with its special meaning in regard of immediate social policy and human
rights issues, the first task is to look at its role as actor. Peter A. Koehler concludes:

The ‘idealistic’ view, defining the UN as ‘organisation operating


above the relations between nations’, is as one-sided as the ‘realist’
antipode, that concludes on ground of the relative dependence of the
UN from its environment, the organisation never acts really

18
http://www.social.ntu.edu.tw/english/eng-faculty.htm, http://homepage.ntu.edu.tw/~ntusw/english/index.htm
19
http://www.law.nccu.edu.tw/Engpages/EN_faculty.htm;
http://www.law.nccu.edu.tw/Engpages/EN_faculty_professors02.htm;
http://www.law.nccu.edu.tw/Engpages/EN_faculty_professors03.htm;
http://www.law.nccu.edu.tw/Engpages/EN_faculty_professors04.htm; accessed 16/08/07 – 7:04
20
All figures including part-time staff
21
All figures including part-time staff

83
autonomously and originally as it permanently and exclusively
reflects activities of the constituting individual states.
(Koehler, 1987: 34)

Of special interest for our context is that with this dualism the UN – cum grano
salis the same can be said for comparable organisations and institutions – the
genuine own position is characterised by some form of amalgamation of various
prejudicial systems – and at the same time it reflects the specific hegemony that
defines it at any given point in history. This means not least that the current22 UN-
policies are in regard of the ‘social’ realm very much characterised (a) by the
hegemonic capitalist system, conveying the old social question, as basically defined
with the industrialisation and (b) the social disasters due to droughts, crop failure,
natural disasters etc. However, only slowly (but surely) the emergence of a ‘new,
global ‘social question’’ (ibid.: 50; with reference to Schmid, 1981: 36) gains
foothold, signifying

a new objective, of which the pre-conditions are international


solidarity and cooperation.
(ibid)

Koehler highlights as well the problem of attempts of a simple transfer of the


‘specifically western, Christian-occidental models’. And in the remarkable further
elaboration of the outstandingly detailed and circumspect work he points out which
issues are arising as substantially new dimension of such global social question.
However, it can be debated if we cannot push the matter a little bit further.

Then, we have to look first at decisive changes that have to be seen as background
for new developments. Rather than seeing the growing interest in international
social policy issues as matter of the immediate and indirect consequence of WW-II,
it is important to look at the more structural aspects, broadly characterised by the
following moments:

Though inequality in the ‘developed world’ continued to exist, it was framed in a


new way: its persistence could in reality be to some extent encrypted by reference

22
i.e. from its beginning until at least the last third of the last century.

84
to the war and the hope for recovery23 and ideologically distorted by the
confrontation of and competition between the different systems.24 The economic
emergency created a specific, class-integrating cohesiveness, based on mechanisms
of an internal glue of reconstruction and the effects of block building against ‘the
other’. Acknowledging this is important as this constellation opened the view on
‘the others’ as inferior and allowed to make them subject to offering support,
independent of the scarcity of own resources. This could be maintained for some
time, reducing international social engagement very much on a new kind of poverty
relief. However, in the longer term the collapse of the ‘legitimate’25 block orders, in
particular the collapse of the colonial order and much later the dissolution of what
became known as real socialism changed the agenda and the actors. On the one
hand we see the development of an independent ‘block’ on the world agenda;26 on
the other hand the increasing meaning of the inclusion of these now independent
countries into the global economy meant that the externalisation of certain
problems could not be maintained in the same way as it had been possible before:

¾ migration – for economic or political reasons – has to be mentioned with its


repercussion on global developments, immediately imprinting on the western
world;
¾ the – possible and real – imbalances of the trade in raw materials (in particular
energy and comestible goods) was an increasingly threatening momentum on the
global agenda;
¾ the emergence of the – though modified – old social question in the newly
capitalising world; and finally
¾ the characterisation of problems around dependency which gained a new
dimension by the full inclusion of the countries into the world market.

In consequence, three strands of international law: the dealing with human rights,
the question of humanitarian aid and the concern for global justice merged into one

23
Though in particular for Germany, the post-WW-II-period can generally be seen as period of relative extensive economic
growth, trying to ‘regain lost time’.
24
It has to be mentioned that nevertheless as well the awareness of a clear class division or at least social inequality strongly
persisted (cf. Popitz, Heinrich et altera, 1957).
25
Such ‘legitimacy’ had been expressed for instance by advertisement-image of the ‘Sarotti-Mohr’ (though established
already since 1922, it had been in the 1950s/early 1960s an ‘image of the time’) or the ‘Les Aventures de Tintin’ by
Georges Remi (Hergé), which advanced to one of the most popular Belgian and European comics, nonetheless its
prevailing racist undertones.
26
For instance expressed in the foundation of the Organization of African Unity in 1963 (see http://www.africa-union.org/)

85
new, tough not clearly defined challenge. This meant as well that questions as they
are today high on the agenda: as ‘Social Development’, ‘Human Development’,
‘Human Security’ and the like can be seen as new social question, bringing the
different dimensions immediately together.

This overall complex constellation means not least that – despite claims of sensitivity
towards cultural norms and the insight to respect specificities, the general trend is one
of the emergence of a system of a new world hegemony.

As much as this will reflect on the one hand the hegemonic power of the West and in
particular of the United States of Northern America, we have to reflect as well that the
overall changing conditions require as well a new reflection of the ‘objective identity’
of these western countries. The changed conditions of the global accumulation regime
and the emergence of the germ of an international order mean as well the need to
reflect the own mode of regulation. New approaches in juridical thinking, debates on
‘governance’, corporate social responsibility, the increasing reflection of the role of
and claims by civil society and others can only be understood in this objective
context.

86
Part II:

An Interim View – Where Are We Now, and How Can We Start From
Here?

Trying to bring the different dimensions which had been developed up to here
together in a concise way, the following points seem to be central.

First the aim of the present remarks should be made clear. The title reads Social
Quality – Looking for a Global Social Policy. Attempting an Approximation to the
Analysis of Distances of Social Systems. This means that the entire piece is not
primarily concerned with global (nor international) social policy. Rather, the main
aim is to develop an approach that allows to analyse and assess social policy in a
global perspective, i.e. to look at issues that we are usually or even commonly
classifying as social policy. And it is from here that we hold a toll in our hands to
develop as well social policy in a global perspective. The tentative wording already
ought to signal the readiness to change as well (part of) the terminology.

The reason behind the readiness for such potential change is the thesis that the debate
is very much based on a Euro-centred or Western-centred understanding of policies in
this area. This orientation is a treble fallacy.

* On the one hand it is a concern that is already irritating within the European Union
as it links very much into a specifically defined institutional system – ranging from
a common understanding of the large institutions (state, government, family etc.) to
concrete elements (as social insurance, social benefits etc.). Although there are a
well relevant differences within for instance the EU, it is suggested that the
differences are more fundamental when it comes to a comparison with non-
European countries and regions.
* On the other hand and beyond the general limitations of applying an institutionalist
approach, the limitation is given by the fact that such an approach is a new edition
of attempting to overcome a one-sidededly affirmative approach towards
modernisation. In terms of the present question it means that one social model is

87
considered as the unique approach, thus presuming the validity of the present
system and moreover suggesting that both, the challenges and problems are the
same and as well the social settings in which policies are located.
* Furthermore, it has to be seen that much of the Western welfare and social policy
rhetoric is based on an exclusionary principle: Although the historical development
of welfare states points into the direction of extension of protection and supply
systems, and although we find in the EUropean area an increasing scope of issues
covered by mechanisms of public policies, we find a counteracting pattern, going
hand in hand with this quantitative and qualitative extension: in principal the nation
state as exclusionary system of reference gains importance as exclusionary system.
Regional federations and conglomerations as the EU and supranational or
international cooperation are not in contradiction with the thesis. The point in
question is that such developments are at the same time mechanisms of building
closures on a larger scale – who didn’t hear the term ‘fortress Europe’. This means
in many cases that the external borders are shifted; the boundaries of the centre are
moved further away. However, at the same time we find the reproduction of the
centre-periphery within the centre; and we find as well the establishment of centre-
periphery relationships as relationship between new regional unions on the one
hand and the non-members on the other hand. In short – and with respect to welfare
policies – we can say that the space for externalisation of costs of the western
welfare system is shrinking; another formulation of the fact of increasing pressure
on national and regional policy systems as consequence of globalisation.27

Although it is justified to refer to some general basic needs and fundamental rights as
points of reference for social policy, a more fundamental question – and challenge – is
to find a scientific tool that goes beyond anthropologically or ethically defined
minima. The challenge is, however, to find criteria for developing criteria that are
both,

* sufficiently general to be valid on a global level and


* sufficiently concrete to be viable while being applied on different regional and local
levels without undermining the specificities and without falling into the trap of
socio-historical relativism.

27
Here it does not play a role to which extent this pressure is already real or to which extent it is simply used as argument to
maintain high profit rates for top-economic players.

88
Bringing this together, means to approach social policy not from the perspective of
supposed universal needs nor from a system of given universalist economic patterns
and institutional support systems. There are several options in order to approach this
question which will be discussed later. To direct the search, the crucial moment is the
development of a suitable orientation on human practice, spanning between
biographical and societal development.

One dimension of global policy is that it is dealing with global social questions and
questions arising immediately from global processes and processes on the global
level. Migration is one very obvious area in his respect. Furthermore, global policy is
of course a factor that influences – in blunt and covered ways – the various regional
patterns. Although not acting in one way only, it definitely leads to some form of
adaptation by way of a ‘global politico-cultural hegemony’. Important is to analyse
this development in a differentiated way, distinguishing between (a) the consequences
of the execution of hegemonic power, (b) any secular processes and (c) the specific
mixture arising from national traditions and their merger with different influences as
they are part of the various processes of globalisation (including colonialism,
crusades, missions etc.). This is further complicated by the various interactions
between the different class interests, opening a field of interaction between different
interests and classes – speaking of cross-national and cross-religious coalitions is the
closest way to describe it.

All this is – in different national perspectives – concerned with the development of


very specific rationalities that combine in historically unique ways

* the natural conditions,


* the socio-material conditions
* the specific tradition, not least the unambiguous specific theodicy
¾ as characterisation of god and good and
¾ as definition of responsibility
* the inner social structuration of the given society and
* the way of relating to the external social conditions as question of identity building.

Of course, all this can only be understood if looked at in a historical perspective.


Moreover, it is of utmost importance to acknowledge that taking a ‘historical
perspective’ is not a matter of taking a retrospective stance. Instead, the important

89
issue is developing the understanding of history as constitutional process, welding the
before mentioned factors into a set of legal determinations and regulations. The legal
norms – reaching from constitutions over statute law to any other legal regulations,
and regulating via command, prohibition and permission, defining standards for
‘accepted behaviour’ – are appearing as construit juridique, thus being seemingly
independent and defined within their own fraemw of reference (see Constantinesco,
1983: 184 f.), building a framework of and for interpretation, being an ideal
expression of what Karl Marx said, namely that

[t]he concrete is concrete because it is the synthesis of many


determinations, thus a unity of the diverse.
(Marx, 1857: 38)

Understanding social policy – and its expression in legal norms – has to focus on the
quadrant of

* an ethical entity,
* founded on a specific socio-economic order,
* defining a typical social stratification and
* founding the definition of public-private divides and subsequently the definition of
private and soci(et)al challenges.

From here, it is possible to arrive at last at a framework for understanding social


policy better – as public policy being concerned with every day’s life, or in other
words as public responsibility for social quality.

90
Part III:

The Social Quality Approach – Presentation and Difference to Other


Claims for Holistic Alternatives

Dimensions of social being and dimensions of social quality

First of all we have to distinguish between the social being and the standards for
assessing its quality.

The social being itself is located in a dialectical tension along two dimensions.

* On the vertical axes we find at one end the biographical development, being related
to the societal development at the other end;
* on the horizontal axes we find at the one end communities, peer groups etc., being
directly related to institutions and the statutory system at the other end.

This relationship can be visualised as follows:

Figure 9: Social Quality – The Tensions of the Determination of the Social28

28
From the website of the European Foundation on social Quality: www.socialquyality.eu

91
Note, that dialectical tension means not least that we are actually confronted with a
mutual dependence as part of which both, the poles of the horizontal and the vertical
axes depend on each other; the neighbouring areas are also interdependent.

Many of these tensions had been frequently discussed in social science, however
usually concerned with an underlying notion of seeing the relationship as
dichotomous. The Social Quality Approach is different in this respect as it underlines
the dialectical perspective. This includes the emphasis of a developmental approach
according to which there is a kind of shift between the different dimensions, not
necessarily concerned with a development to a ‘higher stage’29 of one or the other
kind but at least with a kind of dialectical Aufhebung (supersession and sublation). In
a very simple way, we will not find any biographical development without societal
development – and they are mutually reinforcing each other. Only to the extent to
which they allow this mutual reinforcement, we can speak of real development – else
we have processes of superficial adaptation or subjugation. The same is true with
respect to systems and communities – rather than being confronted with a dichotomy,
we have to look at the mutual dialectical reinforcement.

It is important to note that this pattern is suggested to be a global pattern not of


wellbeing but simply of being. Social, then, is not a matter of any kind of norm or
normatively defined ‘being good’ but a matter of

* acting and being together with others


* required by the need of reproduction
* leading to a mutual interweavement of regulating the relationship.

It is not of interest to discuss in detail the entire sequential hierarchy of the


constitutional process – in this context it would be necessary to have a look for
instance at the materialist theories and Karl Marx’ and Frederick Engels’
consideration of the relationship between basis and superstructure as well as the
elaborations by Abraham Maslow’s hierarchy of needs. Athi this stage the most
crucial point is the focus on the social in its constitutive processuality and as such the
focus on the nominal side of the social. In other words, we have to look at the
reasoning behing the actual process of production and reproduction, being aware of

29
In terms of ‘better’, preferable

92
the fact that individual and social, or to be more precise: biographical and societal
development depend on each other.

Understanding Development – A Review of Modernisation

Modernisation is commonly understood as a Western concept, fundamentally linked


to two major aspects:

First, we find the reference to the process of enlightenment. As such modernisation is


a matter of increasing rationalisation.

Therefore, every rational being must so act as if he were through his


maxim always a legislating member in the universal kingdom of
ends.
(Kant, 1785)

As such, it is caught in the need of balancing increasing individual control and


development on the one hand and (its contribution to) social control and development
on the other hand.

Second, the debate on modernisation is very much a ‘normative’ one, most


importantly linked to a self-image – and political strategy – of the United States of
Northern America as ‘most advanced’ society, as blueprint of and for other societies.
Such view on the USA as blueprint was not least characterised by two central
moments, the first being the view on capitalism as ultima ratio and actual raison
d’etre of societies. The second aspect – in a way per definitionem included in the first
– is its imperialist character. From the perspecive on the American Way as superior,
this blueprint was at the same time seen as standard of development of other countries
– being taken as instrument of measuring their development and as means of
imposing this model as pathway for their development.

The second interpretation of modernisation implies that biographical and societal


development are actually dichotomised, pointing on a determining role of society.30

30
Two problems cannot be discussed here: the first is that despite this prioritisation of society, the fundamental
methodological paradigm ismethodological individualism; the second is concerned with the fact that there is of course a
certain kind of dominance of society, the contradiction well captured in Karl Marx’s words, that
[m]enmaketheirownhistory,buttheydonotmakeitjustastheyplease;theydonotmakeitunder
chosenbythemselves,butundercircumstancesdiretlyencountered,givenandtransmittedfromthe

93
Another implication is a centre-periphery perspective which, though it claims to aim
on ‘developing other countries’, it maintains the assertion of being a superior power,
though it may be at least the prior inter pares.

However, if we turn away from these deliberations and look in more general terms at
processes of development rather than modernisation we can state the following theses:

As much as modernisation stands in a European tradition, this kind of modernisation


is only part of a wider perspective of development. It is proposed to understand such
development as being characterised by the two moments, namely socialisation and
processes of shifting patterns of determination.

Socialisation

In general terms, socialisation had been already explored above (see page 46). It is is
describe as processes which defines the concrete forms of general norms and the
patterns of actions – and in this way strongly links the two dimensions of
socialisation, namely socialisation of production and socialisation as a kind of
pedagogical process. The Social Quality Approach draws on normative factors in
order to understand the guiding principles, necessary to build an integrated soci(et)al
entity of high social quality. However, these principles can be justified as universal
values though their interpretation and realisation can be drastically different. These
normative factors are

* social justice (equity)


* solidarity
* equal value and
* human dignity.

However, what is still missing is the actual manifestation or realisation of these


general patterns by human action, for which we have to look at the constitutional
factors, namely

past.Thetraditionofallthedeadgenerationsweighslikeanightmareonthebrainoftheliving.
And just when they seem engaged in revolutionising themselves and things, creating something
thathasneveryetexisted,preciselyinsuchperiodsofrevolutionarycrisistheyanxiouslyconjureup
thespiritsofthepasttotheirservice,…
(Marx,1852b:103f.)

94
* personal (human) security
* social recognition
* social responsiveness
* personal capacity.

In a way we can even say that, although we are measuring first the indicators of the
conditional dimensions, the constitutional factors are actually the expression of the
welfare system.

Processes of Shifting Patterns of Determination

The process of production and reproduction is caught by the challenge of increasingly


including mechanisms of control of production and reproduction into the sphere of
immediate human action. This statement starts from the assumption that human
societies emerge from an originally ‘natural state’ of a space free from dominance.
This is characterised by the entity of the productive and regulative form: the
individual producer, the co-producer, the raw material and finally the produced are
falling together in a ‘single action’ (though this does not mean that they build an
entity). From here emerges equality. Differentiation, which is relevant in social and
societal terms, comes later, especially due to reproduction on an extended scale. It is
primarily here where religious systems emerge and where we find at the same time
mechanisms that aim on balancing power between God, Government and People (s.
more on this in Herrmann, without date [2007]). This means that societies, tending on
the one hand to deal permanently with power along the lines of externalisation,
hierarchisation and depersonalisation. However, on the other hand both, the social
control and the control of the substantial side of production require the opposite:
secularisation as counterpart of externalisation, equity rather than hierarchisation and
personal control instead of depersonalisation. In very broad terms, we can see this as a
way between direct control and deist concepts of mastery of the world, processes of
rationalisation and emergence of fetishism and patterns of totemic lore. The
fundamental question is if and in case, to which extent, a development achieves the
creation of a (temporary or permanent) congruence of (physical and social) space of
the individual’s action with the (physical and social) space of the individual’s control.

95
However, we should not forget that both these processes have to be linked to the
debate on nation building and emergence of the state in the treble sense of

* protection
* establishing a space for action
* subordination and class building and maintenance,

all effective at the very same time and determining the pattern of hegemony.

Interim Summary: A Critical Review of Welfare Regime Analysis

Taking these aspects together, namely differentiation, socialisation and processes of


shifting patterns of determination we are confronted with a fundamental tension:
Whereas we find on the one hand an increasing exclusiveness on the one hand –
differentiation, accumulation of power, accumulation of poverty, centralisation of
power structures, variety of life styles etc. –, we find on the other hand trends pointing
exactly into the opposite direction: new forms of integration, distribution of power,
cohesion of life styles, blurring borders of power structures etc.

Later, we will look more in detail at questions of indictors. However, already now we
will provide in ƒ„Ž‡Ͷ a matrix, showing the complexity of relationships that have to
be considered. At this stage we are not really looking at the question of the actual
indicators. Instead, the aim is to clarify the complexity and the interaction of different
aspects of soci(et)al systems – this aims on bringing together the regulationist
approach with the Social Quality Approach.

In particular when it comes to looking for a global perspective it is important to


acknowledge both the distinction between the social quality of the individual’s
existence and the social quality of a society.

96
Overview of Indicators
Classification Accumulation Regime Mode of Regulation Life Regime Mode of Life
Centrally Affected Precarity31 and Socio-Economic Divergence and Cohesion Exclusion and Inclusion (Dis)-Empowerment
Dimension of Social Security
Quality
Structural Dimension Economic Structure Political and Institutional Structure Welfare System Administration and Governance
Legality International Legal Integration Legal System (suggested for Taiwan: Conflict Resolution Definition of Legal Titles
Common-Customary Law)
Aggregate Level Macro-Structure and Micro-Level Meso-Level Micro-Level Meso-level and Micro-Level
Indicators ¾ GDP ¾ Independence/Autonomy of ¾ Relative Poverty Rate ¾ Role of NGOs and civic engagement
¾ NDP Primitive/Initial Accumulation on the ¾ Child Poverty Rate ¾ Education System
¾ Sectorial structure National Level ¾ Poverty Rate Before and After Social ¾ Investment in Third-Level-
¾ Enterprise Structure (seize) ¾ Role of the Church Transfers Education – Subjects
¾ Employment Rate (general, ¾ Role and Structure of Trade Unions ¾ Emigration/Immigration ¾ Basis for Provision of Public
gendered, sectorial and age-related) ¾ Wage Bargaining ¾ Existence and Standard of Public Services
¾ Unemployment Rate (general, ¾ Individual/Social Wages Infrastructure
gendered, sectorial and age-related) ¾ Form of Enterprise I: Internal ¾ Quality and Accessibility of Social
¾ International Relations (IR) – Organisation Services
balance of trade ¾ Form of Enterprise II: Forms of ¾ Health Care System
¾ IR – Diversity of Sectors Competition
¾ IR – Diversity of Countries ¾ Form of Enterprise III: Ties amongst
¾ IR – Diversity of Regions Enterprises
¾ IR – Balance of Accounts ¾ Predominant Legal Pattern
¾ Forms of State Intervention

Table 4: Analytical Framework: Indicators According to a Modified Regulationist Approach

31
Whereas poverty, exclusion etc. are prevailing patterns, the new situation of precarity means that even the centre of integration is in tendency dissolving. In other words, precarity is a process of
dissolution of society into self-sustaining individuals, being as such exposed to the ‘individualist socialised capital’ (the latter means that we have capitals with a super power [for instance with
larger budgets than nation states] but largely controlled by individuals and/or acting as capital in [quasi-]monopolist positions). In consequence, precarity is a ‘life pattern’ that gains validity as
well for people at the centre of society, justifying in many respects to speak of a refeudalisation of society.
(Form a working paper by the author, titled Precarity – Approaching New Patterns of Societal (Dis-)Integration, and written as first draft; proposal for an analytical and political framework for
SUPI– A Network on Precarity (see for this network in general http://www.supi-project.eu/index.php).
Against this background the orientation as given by Gøsta Esping-Andersen falls
short of making an understanding of global processes possible. He states that

a welfare regime can be defined as the combined, interdependent


way in which welfare is produced and allocated between state,
market, and family.
(Esping-Andersen, 1999/2000: 34 f.)

Despite the general critique as it is frequently brought forward against this approach
(see for a discussion for instance Kasza, 2002; Bambra, 2004), there is a more
fundamental aspect. First, the critique which is brought forward here is not so much
concerned with the fact of an institutionalist curtailment but with the fact that (a) the
justification for the three welfare regimes, as suggested by him, is taken for granted –
without bringing forward an understanding of the social of the given systems – or we
might say: the criteria of their integrity. Cum grano salis the same is true for the
extended versions as suggested by for instance by Stephan Leibfried. Though slightly
different, similar can be said for feminist criticisms (e.g. Lewis, 1992) as they are not
questioning the principal of a definition of the social in its bias of a capitalist
productivist model that is in its core capitalist; instead these critiques put forward
additional individual criteria, asking for their inclusion into this model – however, the
question of what the social is in its nominal dimension is not brought forward. This
means as well that – paradoxically – the social is actually defined in an individualist
way. (b) This leads to another aspect, namely the complexity behind the system.
Rather than aiming on understanding this complexity as a dynamic process of
production itself, the welfare regime analysis maintains the notion of a static vision of
a productivist model. This implies that social policy, looked at in this framework,
follows a reductionist pathway rather than allowing the development of an integrated
approach.

The same applies to the question that is put forward in a book on East Asian Welfare
Regimes in Tradition (Walker/Wong [eds.], 2005) where it is asked if welfare is un-
Asian (see Chau/Yu, 2005: 21-45). Already tabling such question seems to be open
for discussion as it overlooks the fact that welfare(-states) have the character of the
Lernaean Hydra. Firstly, welfare is un-capitalist – and as such it is un-Asian to the
extent to which Asian countries develop as capitalist countries. However, then

98
welfare-states are capitalist as far as they are securing the functionality of capitalism –
and as such they are by no means un-Asian to the extent to which Asian countries are
developing as capitalist states. This in mind, the question is as inappropriate as is the
welfare regime approach that is put forward by Gøsta Esping-Andersen.

Of course, all this causes a problem as well for the Social Quality Approach. With the
orientation on a by and large functionalist methodology the challenge is to develop an
understanding of the framework itself dynamic. – For this we can make reference to
earlier statements of the reflexive relationship of the conditional, constitutional and
normative factors – such reflexivity undermines the development of any finality.

Another issue arises. Is it useful to search for an Asian welfare system, considering
that the mainstream debate is by and large Eurocentric and actually even when
attempting its globalisation it still follows the pattern of ‘we and the other’, taking
itself as standard for the assessment of the other – the debate on the European Social
Model is an example par excellence? If looking for any specificity of an Asian way
(or the specificity of any non-European societies/regions) the actually crucial point is
not to start by looking for their specific social quality let alone to initially analyse any
welfare regime that exist. Rather, we have to make out as point of departure what the
social actually means in each given society. In this regard it is first and foremost
striking that there seem to be some values that can be found by and large in all known
or at least all major societies. Looking at Asian countries, we find frequently
reference being made to Confucian norms and values. However, if we look at what is
actually highlighted, we can see that many of the general values and norms are very
similar to those that stand at the heart of the value system in Europe. At least from the
outset the differences are not as clear as they are commonly suggested. As well, as
plausible as Max Weber’s thesis of the protestant ethics – thus the close link between
Protestantism and capitalism – is, we should not forget that we find evidence that
currently catholic countries are much more advanced in pursuing ‘capitalist success’
(see e.g. Herrmann, 2007 b). Thus the challenge is to avoid getting caught in the trap
of

* Eurocentrism
* affirmation of capitalism and
* state-centred societies.

99
In which way ever, we approach the question we have to consider the principal danger
of an ahistorical bias of social policy orientation. Still, at least for the time being
human rights and general social rights, as discussed especially on the level of the
United Nations, can serve as analytical and practical stepping-stones.

What follows is that the argument of any specificity of ‘welfare systems’32 – and even
more so the analysis has to developed with the following moments in mind:

1) Any capitalist system emerging today is already to a large extent interwoven and
embedded into a global capitalist world system. As much as this means that the
emergence is not taking place as an independent development, we have to
acknowledge that this predetermines to some extent as well the position the newly
emerging capitalist system will have in the power structure as it is divided between
centre and periphery.
2) Accepting the clear link between protestant ethics and the emergence of capitalism
should not hinder us to look at different links and roles between other religious and
belief systems and advanced capitalist systems.
3) Any attempt to analyse ‘social welfare systems’ has thus to start by analysing how
under the given historical and structural conditions (a) the social and (b) welfare are
defined.
4) As much as we may appreciate under the given circumstances of the supposed ‘end
of history’ the European Social Model, we should not forget the following:
¾ By any means, we did not reach the end of history – especially more recent
developments of re-emerging class conflicts, and the search for alternatives
makes this more then obvious.
¾ If at all, the orientation on a ‘best-of’-option is at most only true as one of the
best of existing societies, acknowledging that capitalism is currently without any
doubt dominant. This should not make us forget, however, that accepting such
assessment starts from the presumption of a productivist model of society per se
– a highly contestable presumption if taken as ultima ratio.
¾ We cannot deny that current developments of the capitalist world system shows
clearly some form of decay of the system: the search for new systems of
‘economic justice’ and equity can be found against the background of blatant

32
This is set in inverted commas, keeping in mind that there is no simple universal definition of welfare that can be referred
to.

100
inequalities; search for new systems of ‘governance’ in view of obvious
dysfunctions of the link between state bureaucracy and capitalism; the dissolution
of in part inflexible legal systems into highly segmented, ad-hoc adaptive
systems of formal justice, reflecting as such the formal rationality of a system of
individualised production which is only ‘socialised’ by acts of exchange between
individuals; the search for new values (or the revival of old values) in societies
that transformed the social into an incoherent amalgamation of competitiveness
striven isolated individuals.
This list could be extended; however, what is important is that it already marks a
foundation for looking for qualifications when assessing different welfare systems.

Empowerment – a Core Concept of the Social Quality Approach

On the Character of Individual and Social Power

If we look at what had been proposed as being a general pattern of development, we


can even claim the centrality of empowerment as aim and expression of development
– this had been frequently brought forward in social science and political debates by
using terms of emancipation, mutual control etc. In this regard we should not
overestimate more recent debates on empowerment as crucially new. However,
looking at the reality of soci(et)al developments we detect that up to hitherto the
development is largely characterised by the falling apart of biographical and societal
development. In actual fact we can even say that there is an increasing gap between
what is possible in social and societal terms on the one side and the individual’s
capacity of control. This had been well expressed by Niklas Luhmann, stating

Everything could be different – and it is nearly nothing that I can


change.
(Luhmann, 1971: 44)

Even more pronounced, Helmut Willke says

because so much is possible, nothing seems to be practicable


(Willke, 1989: 41)

101
However, rather than following systems theory, making increasing complexity
responsible for such a development, the Social Quality Approach suggests another
interpretation of des-empowerment. In this light, it is the emergence of dichotomies
and contradictions on the two axes of the tensional fields determining social quality,
namely

* societal and biographical development on the one axis;


* systems, institutions, organisations and communities, configurations, groups on the
other axis.

It is important, however, to underline that such gaps are arising because of power
imbalances in the objective status of individuals which does not guarantee general
power.33 However, the imbalances cause – despite ‘uneven distribution of control’ –
the falling apart and alienation of the different poles on the axes.

Mentioned had been already the orientation on a fundamental question: To which


extent does a congruence of (physical and social) space of the individual’s action with
the (physical and social) space of the individual’s control exist. If the orientation on
such question is justified as being the core question of the Social Quality Approach,
we can say simultaneously that empowerment is amongst the four conditional factors
the prior inter pares. This is justified by the fact that in the light of the forgoing we
can see empowerment very much as being simultaneously means and end in terms of
both defining the social and defining social quality.

As noted before, empowerment is defined by being concerned with means, processes


and relations necessary for people to be capable of actively participating in social
relations and actively influencing the immediate and more distant social and physical
environment.

Taking this definition, it is important to note that there are two principal dimensions
to it,

* the one being concerned with social policy as principal part of the general process
of socialisation,
* the other being concerned with mechanisms of social intervention.

33
Individuals in ‘powerful positions’ are in some way or in another in a similar position as it is described by Luhmann and
Willke.

102
The important and most difficult questions are in this context (a) to which extent
empowerment is a zero sum game and (b) in which way there is a conflict between
two kinds of empowerment, namely (i) empowerment within the system in order to
‘function properly’ and (ii) empowerment beyond the system in terms of active
involvement of dialectically fostering biographical and societal development. From
the definition as it is given before it is clear that we can speak of social empowerment
only in the later case. However, it is more difficult to answer the question if
empowerment is a zero sum game.

In mainstream discussions, empowerment is reduced on the partial redistribution of


power, enhancing the abilities of the individual to access points where power is
executed. The other way round this means however, that power as such is not availed
of by individuals. (a) It is individuals who (may) increase their own power rather than
changing the actual power structure. This can be interpreted as increase of ‘quality of
life’, but is alien to increasing social quality. (b) Power is basically seen in terms of a
zero-sum game – collective power, though mentioned in modern theories of
governance, is not at the core of such theories. Moreover, here the understanding is
fundamentally grounded in an individualist approach. As valid as this is under certain
soci(et)al conditions, such perspective is limited by dealing with individual rather than
social empowerment.

Nevertheless, what can be valuably borrowed from such an approach is the


requirement of clearly defining the reference points of the analysis – and this is
concretising the question regarding the conflict between two kinds of empowerment
as posed before. In regard of the debate on empowerment it is necessary (a) to clearly
define the object of power (over what is power exercised) and (b) to make out on
which level it is exercised – this latter point may be concerned with the reference to
the same aggregate level and as well with the power which reaches across the
different levels. In particular we have to distinguish between
* sub-systemic exchange, i.e. the execution of power on the same aggregate level
(individual power),
* systemic exchange, i.e. the execution of power in the immediate environment
(social power), and
* exchange with the environment, i.e. the execution of power in the wider
environment (societal power).

103
An important point is to see in particular empowerment as ‘rotating domain’, i.e. as
moment that is concerned with the four tensional fields of the social quality setting.
However, if we want to look at it in this way, the following interpretation would be
reasonable – especially when we look at the policy implications – to provide an easier
access we refer to the figure again and look at this in two terms: (a) in the meaning of
empowerment in the tensional field of Social Quality and (b) with respect to the
meaning of the other conditional factors with respect to enhancing empowerment –
Figure 10 and Figure 11 provide a simplified overview.

Figure 10: The Meaning of Empowerment in the Tensional Field of Social Quality

104
Figure 11: The Meaning of the Conditional Factors with respect to Enhancing Empowerment

Empowerment and Social Intervention

To some extent we can see already a paradox being inherent in the concept of
empowerment: On the one side it means that we are dealing with giving power away,
empowering those who do not have power; on the other hand it means that those who
empower others, actually define what power is. Social professions propose two
approaches: on the one hand it is suggested there can be an ‘objective’ definition of
power and empowerment and the social professional can re-distribute this according
to simple ‘arithmetical rules’. On the other hand it is suggested that social
professionals can (and should) take the stance of those who are without power and act
first as their advocates and ‘train’ others to take over own their own behalf.

There is a problem with both approaches: the first approach remains very much on a
formal level, without taken into account that any formal definition of power remains
in the framework of exchange processes. However, in such frameworks, power is by
definition linked to (increasing) inequality. The problem with the second approach is
that it is as well concerned with an individualist approach, disregarding the fact that
the increase of individual power, though it may even be concerned with the power of
social strata, is always limited by not tackling the question of balancing fields of
action.

105
Summary

The following figure gives a summarising overview of the attempt for developing a
perspective on empowerment as part of an integrated Social Quality Approach.

Societal Development
Access as dimension of Autonomy as
socio-economic dimension of
security in terms of appropriating and
empowerment as utilising resources in
personal capability order to be capable of
and relationships actively participating
in social relations and
actively influencing
the immediate and
Systems, more distant social and Communities,
institutions, physical environment configurations,
organisations Participation as Control as dimension groups
dimension of inclusion of cohesion in terms of
in terms of empowerment as
empowerment in terms accessibility of the
of empowerment as institutional system
civic rights
(comprising of civil,
political and social
rights)
Biographical Development

Figure 12: Conditional, Constitutional and Normative in the Tensional Relationships of Social
Quality

Indicators of Social Quality – What is New About Social Quality Indictors34

When it comes to indicators, it has to be acknowledged at the very beginning that


indicators are not statistical figures that express directly any ‘social fact’. The reason
is that they suggest ‘measuring’ something that is in reality a complex issue in the
sense of being a combination or an entity for which we may find hints in the form of
figures but definitely we do not find any direct expression. This is especially true as
we are dealing – to use a mathematical description – with the interrelationship of two
functions, each having multiple variables, some of them not being known.

The Social Quality Approach works with this challenge by a multi-layer approach,
looking first at the three by four factors, namely the conditional, the constitutional and
the normative factors (already presented in ƒ„Ž‡ͳ).

34
See for this section in particular: van der Maesen/Walker, 2005

106
The second layer, underneath these factors is divided and at this stage the work had
been limited to the work with the conditional factors. Their further investigation is
divided into domains, subdomains, and indicators. It is very important to highlight
this moment, as it is from here that we can develop as part of an iterative process the
logging of a meaningful account of social quality in the two dimensions of providing
an analytical tool for what the reality is actually like and what it should and could be.
It is not necessary to go into detail – the text by Laurent J.G. van der Maesen and
Alan C. Walker (van der Maesen/Walker, 2005) provides detailed information. There
are following crucially important aspects.

First, we have to be careful with maintaining and carrying over a Eurocentric


approach. The important part is to look for national/regional patterns of providing
what is seen as conditional factors. However, as important as these national values
and norms are, it should not be forgotten that we are nevertheless driven by a general
approach. The solution for establishing the linkage is to investigate the contribution of
each factor in establishing the congruence between the (physical and social) space of
the individual’s action with the (physical and social) space of the individual’s control.
This means not least to thoroughly investigate the relationship between

* public and private and as well


* collective and individual.

By definition, this has much to do with the role of – and independence from – religion
and the existence of hierarchies and independence, in other words: with the way in
which independence is ‘granted’ and organised. In considering domains, subdomains
and indicators, we have to consider

social norms preceding legislation and being as such constitutive35


(Zacher, 2006: 2; see as well on more general issues of this
question with regard to comparative research on social legislation:
Zacher, 1993)

From here we can as well (a) go back to the actually lived social space and given
meanings and (b) step forward to understand the legislative system.36 Furthermore we

35
In the German original: vorrechtliche Norm des Sozialen

107
can develop further both the Social Quality Approach and the regulationist theory by
bringing them closer together (for first steps see Herrmann, 2006; Herrmann, 2007
a).

Taking the ‘quadrants’ of the two approaches together we arrive at the following
graph:

Societal Development – Mode of Regulation

Systems … – Communities … – Life


Accumulation Regime Regime

Biographical Development – Mode of Life

Figure 13: Social Quality and Theory of Regulation


This needs further theoretical reflection. However, it can valuably be employed as
heuristic tool for assessing possible indicators, subdomains and domains to the
different functional dimensions, namely biographical development, societal
development, communities and systems. This means as well that in this way it is
possible to overcome the apparent finality. We can look at the role of each of the
factors with regard to the poles of the axes (function for and requirement from).

A further – and most important – consequence is the accessibility of ‘regional


uniqueness’ of social quality indicators. This is important first with regard to Quality
of Life Indicators, second with view on the concept of the developmental (welfare)
state, third with regard to the concept of Human Security, and finally fourth with
regard to the Human Development Approach, in particular the capability approach by
Amartya Sen.

Providing a general perspective for such an analysis we come back to what had been
already very briefly discussed with respect to the modernisation and development
thesis. It is most important for all these different approaches to recognise the
following fundamental aspects:

36
Especially this consideration is rather new to the Social Quality Approach and seems to be especially important in the
context of its globalisation; see for instance The Formation of the Rule of Law in East Asia. An Integrated Jurisprudential
Study onto the Theory. Institute for Advanced Studies in Humanities and Social Science. National Taiwan University;
http://www.law.ntu.edu.tw/center/ntulawtop/en/index.asp - 14/08/08: 18:00

108
* Looking at different ways of measuring ‘welfare’, ‘welfare policy’, ‘social policy’
etc., we have to remember that we are dealing with complex socio-economic
relationship. As had been stated elsewhere, this means to look at the analytical and
as well at the prospective policy-making perspective. In order to do this in any
meaningful way it is important to recognise a fundamental insight with regards of
development/underdevelopment, namely that:

[y]et even a modest acquaintance with history shows that


underdevelopment is not original or traditional and that neither the
past nor the present of the underdeveloped countries resembles in
any important respect the past of the now developed countries. The
now developed countries were never underdeveloped, though they
may have been undeveloped.
(Frank, 1972: 1)

And more important is that

historical research demonstrates that contemporary underdevelop-


ment is in large part the historical product of past and continuing
economic and other relations between the satellite underdeveloped
and the now developed metropolitan countries. Furthermore, these
relations are an essential part of the structure and development of
the capitalist system on a world scale as a whole.
(ibid.)

And as true as it is for Latin America, as true is for the Asian countries in general and
for the later analysis for Taiwan in particular that

[t]he uneven process of world capitalist development, the


economically, technologically, and politically changing re-
quirements of the capitalist metropolis, and the varying possibilities
of … responses have occasioned constant modifications in the forms
of colonial relationship, class structure, bourgeois policy, and rates,
degrees, and forms of … underdevelopment.
(Frank, 1972: 23)

109
All this should make at least clear that the thesis of Taiwan – a country that will be
later looked at by way of exemple – being an underdeveloped country is in very
principle terms highly problematic. The paradox is that the uniqueness of the Asian
and in particular then the Taiwanese structure can only be understood if the analysis
defines the specific context of the development. Despite further detailed critique
below, the generalist approaches calling for minimal platforms of human security are
by and large disingenuous. The underlying generalist approach, the appeal for human
rights is of course in principle not to be dismissed; however, it neglects the specific
context and remains on the level of moralist claims. In many cases we find thus a lack
of theory or the same contradiction as we can see it already in the deliberations of
Adam Smith: here the economic theory, there the moral philosophy. Only a sound
socio-political and political-economic framing of the analysis will enable to develop a
sound analysis and setting political goals.

Such analysis should focus on clear economic role of the political system. Rather than
following a general orientation on welfare systems. Though very rough, a useful
reference can be made to David Soskice’s

[b]inary classification between coordinated and liberal market


economies according to their organization of production and
market institutions (Soskice, 1999). In his schema, coordinated
economieshavethefollowingfeatures:
1. Industrial relations: Wage determination is formally or
informally coordinated with industry-level bargaining important
and both unions and employers’ organizations playing a key role.
Within firms employee-elected bodies play an important role in
decision-making.
2. Education and training: Vocational education is well established
with strong involvement of firms and unions. Higher education
provides a strong supply of scientists and engineers.
3. Company financing: Publicly quoted companies generally have
stable shareholdings where hostile takeovers are rare and
difficult. Banks play a key role monitoring companies and are
central to financing of smaller companies. This can result in
limited investment in new technologies and industries.

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4. Inter-company relations: Consensus-based relations operate,
often through business associations. Although there is typically
orientation towards international markets, certain sectors may be
protected domestically.
Decentralized orliberal marketeconomies,bycontrast, havethe
followingfeatures:
1. Industrial relations: Wage bargaining is largely company based,
often with little coordination. Employees have few if any rights to
workplace representation and the density of unionization is now
typically low.
2. Education and training: There is limited vocational training and
company-based schemes. Higher education may be strong, but it
is less closely integrated with industry than in coordinated
economies.
3. Company financing: Higher levels of stock market capitalization
than under coordinated economies with the threat of hostile
takeovers playing a key role in form governance. Capital markets
for risky finance tend to be better developed than in coordinated
economies.
4. Inter-company relations: With less developed business
associations these are more governed by arms-length legal
relations. Competition law tends to be strongly anti-collusion.
(Perraton/Clift,2004:203;withreferencetoSoskice,1999)

The details of Soskice’s assessment and classification may be questioned. But the
principle appears to be useful. Meaningful for further analysis is to go a step further,
adding the feature of actual control, i.e. property but as well execution of the actual
control and the orientation of the interest underlying the orientation of control. This
means to move away from the criteria of formal control, looking at the substantial
side of appropriation (see as well 21 ff. of this document).

If not seen as question of formal ownership, the actual question is the concern with
discussing the link between public good and the constitution of a ‘general interest’.

111
Quality of Life Indicators

Without looking at the variety of quality of life-concepts (see for a comprehensive


overview: Phillips, 2006), it shades some dubious – and even alarming – light on the
direction which is suggested from such an approach for social policy – and
development of society in general when we read in a paper on social indicators, to be
exact on indicators on the quality of life that

[t]he focus of social policy itself is on the modernization of the


European social model, investing in people, and combating social
exclusion, within a broader agenda that focuses on quality as the
driving force and has as a guiding principle the strengthening of the
role of social policy as a productive factor.
(Fahey/Nolan/Whelan, 2002: 2)

The quality of live approach starts from a definition of quality as (a) a matter of
available resources and (b) the emphasis of the qualitative leap, suggesting that the
availability of a certain amount of resources ‘characterising quality’. Such an
understanding is not only based on the primary reference to resources but as well by
the reference made to an abstract understanding of well-being – a norm which is
derived from the utilitarian-functional perspective on supplies as matters of
satisfaction, happiness and well-being. Though bringing objective and subjective
moments together, there is a fundamental shortcoming as far as the quality of life
approach does not only orient along an individualist line or an approach with a social
dimension as ‘add-on’. What is at the heart of the difference is the way of deriving the
point of reference. The one dimension of arriving at this reference is by looking for an
anchorage in natural law, seeing it as given by god, nature and/or defining it in form
of a social contract. Then, quality is given from outside as an external and static
standard. There is of course some meaning in this as far as such an approach allows
measuring minimum standards (however, we have to acknowledge carefully their
historical dimension). Compared with this quality is for the Social Quality Approach a
categorical matter, starting not from the reference to resources nor from reference to
well-being. Rather, at stake is the human being, acting in every day’s life situations.
This means that primary reference is made (a) to action and (b) to a herewith
established relationship between acting people rather than the relationship between

112
resources and people. Resources play a role, of course; however they play a role only
in terms of conditional factors, not constituting by themselves any kind of quality.

Second – and elaborating what implicitly had been said before – the matter in
question is that the Social Quality Approach is considering any qualitative leap as the
possible impact of resources not on the individual (as the quality of life approach
would suggest). Instead, we are dealing with the impact of resources for the
individual on his/her capacity to act. This is as well the reason for understanding
empowerment (mind: not capacity) as objective factor. The determinants of quality
are not concerned with the supply of goods, services etc. as such. Rather, they are
concerned with the constitution of an ‘environment’, of relations between goods and
services that allow the individual to define him/herself in relation to and to relate to
others.

This reflects in some respect the Weberian and as well Husserlian emphasis of
meaning. However, both Weber and Husserl go astray as they follow constructivist
considerations, thus largely neglecting the objective dimension – quality of life-
studies follow largely such phenomenological slant. The Social Quality Approach,
however, suggests the view on a triangle with the angles

* individual as acting being,


* under conditions which are found and which are defined as ‘relationships of things
and doings’ and
* appropriating the situation in the sense of ‘making the best out of it’, not least by
changing them and ‘delving into the given field’, getting engaged and being part of
it.

Thus, the constructivist dimension is only a matter as far as it is concerned with


ascending the ‘ladder of appropriation’ –

* appropriation as taking in possession,


* as division and distribution,
* as comprehension and arrangement,
* and finally as utilisation.
(Herrmann, 1998: 38)

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We arrive again at the theoretical considerations of looking at indicators as matter of
establishing a congruence of different spaces of and for action.

Third, looking at the social, the quality of life approach proposes the social as a matter
of a supply and at most (a) the ‘responsibility of society and communities to support
the other’ (following a somewhat naïve systems of religious or other values and
norms) and (b) the availability of material and other resources to participate in
relationships with others.37 For the Social Quality Approach, however, the
understanding of the social is genuinely about people’s relationships in every day’s
situations and their own capacity to act within these relationships. Here, the reference
made to the different modes of appropriation is decisive. It is only here that the
question of the more individualist orientation of the quality of life approach is getting
relevant. And it is not really about seeing the difference between the two approaches
as matter of the one approach being individualist, the other approach being ‘socialist’;
rather it is about the way in which the social is understood.

In this light, the Social Quality Approach and the quality of life approach are both
dealing with conditional, constitutional and the normative factors, however their
interpretation is entirely different. The following ƒ„Ž‡ ͷ shows this by starting from
the definitions as given by the Social Quality Approach (SQ), and confronting them
with those imagined for the quality of life approach (QL).

CONSTITUTIONAL FACTORS CONDITIONAL FACTORS NORMATIVE FACTORS


SQ QL SQ QL SQ QL
personal personal social personal human human
capacity capacity empower- empower- dignity dignity
ment ment
Contextuali- social social social solidarity support
sing social recognition of cohesion cohesion
recognition the individual
social personal social personal Democrati- utilitarian
responsiveness responsiveness inclusion inclusion cally based approach to
citizenship citizen-ship
personal personal socio- socio- social justice justice
(human) security economic economic (equity)
security security security
Table 5: Comparing social quality and quality of life definitions

37
As it would be suggested not least by a somewhat reductionist interpretation of the work of Pierre Bourdieu.

114
Summing the difference between quality of life approaches and the Social Quality
Approach up, the following quote from Laurent van der Maesen and Alan Walker
provides a succinct overview:

Because the overall orientation on individualistic based


phenomenon and herewith related opinions of people the quality of
life school is in definition not oriented to (i) processes for
increasing the competence to act, (ii) the societal conditions for
applying this competence for continuing or changing these
conditions and (iii) processes for judging the outcomes according to
ethical standards. With this in mind we may summarise the essential
difference with the Social Quality Approach as follows. Thanks to
its theorising of the transformation of social relations, the social
quality is concerned, first, with relational issues. The focus lies – in
contrast to the mainstream of ‘quality of life’ approaches – on the
relationship of human beings to each other and the way they are –
as individuals – depending on and contributing to a wider set of
relations. Second, by applying its measurement instruments -
indicators (objective dimension), profiles (subjective/cognitive
dimension) and criteria (normative/ethical dimension) – it will
understand herewith related processes. In other words it is in
contradistinction to the ‘quality of life’ approaches process-
oriented. This will deliver a real point of departure for contributing
to public policies for establishing and defending sustainable welfare
societies and a clear role for responsible citizens.
(van der Maesen/Walker, 2007: 9f.)

It is particularly important to keep this in mind with regard to the selection of


indicators. The difficulty is to overcome the input-output-orientation and orient on
indicators that are suitable (a) to capture relationships and (b) to understand mutuality.

Human Security

First, it is interesting in its own right that we find frequently new concepts coming up
as proposal (a) to overcome the general challenges arising from severe poverty and

115
alleviate hardship from conflicts and natural disasters and not least (b) to find ways of
development. One of the most important of the recent years was definitely the United
Nations Development Programme (http://www.undp.org/) – but there are some
remarkable initiatives as well under the auspices for instance of the OECD
(http://www.oecd.org/department/0,3355,en_2649_34621_1_1_1_1_1,00.html) and
the World Bank (http://www.worldbank.org/poverty). As important as such initiatives
are without any doubt in terms of providing some form of relief, they fail in two
regards, namely

* in providing a fundamentally sustainable strategy of development and with this


* developing a vision of a developmental strategy other than that of a capitalist-
modern38 pathways.

The latest approach in this row seems to be the work of the Commission on Human
Security,

established with the initiative of the Government of Japan … [and]


Co-Chaired by Sadako Ogata, … and Amartya Sen,
(Establishment of the Commission)

It works under the slogans ‘Protecting and Empowering People’ and ‘Survival,
Livelihood And Dignity’ (see website).

There we find as well the following description of the goals; these are are:
1. to promote public understanding, engagement and support of
human security and its underlying imperatives;
2. to develop the concept of human security as an operational tool
for policy formulation and implementation; and
3. to propose a concrete program of action to address critical and
pervasive threats to human security.
(ibid.)
For achieving this,
Two broad areas of research and related consultative processes
inform the Commission’s deliberations. One area deals with human
insecurities resulting from conflict and violence, and the other with

38
This sequence is consciously chosen to emphasise that it is here capitalism that defines the understanding of modernity.

116
the links between human security and development. Together, the
two areas of research address the need for providing effective
protection as well as empowering people to take charge of their own
lives in critical situations.
The project on conflict focuses on individuals or communities facing
extreme situations like displacement, discrimination and
persecution. It addresses the special security needs of people and
the protection of victims, refugees and internally displaced people.
It also addresses the interrelations between insecurity and the need
to ensure that developmental activities proceed alongside conflict
resolutions.
The project on the developmental aspects of human security focuses
on insecurities related to poverty, health, education, gender
disparities, and other types of inequality. It also works on problems
that cut across these themes, including institutional arrangements
for reducing insecurities and new vulnerabilities associated with the
current global situation.
(ibid.)

The shortfall of this approach is that it starts from a fundamentally restrained view on
the situations and countries on which it aims with ‘developmental policies’. It does
not allow to understand these in their own sociability. Again, the social is reduced on
a supply mechanism, based on the concept of morality on the one hand and global
functionality on the other. The first remark means that the social is interpreted as an
external factor, in other words: as factor that is not a matter of relationality and
procesuality. By global functionality it is meant that ‘underdevelopment’ is in one
instance a danger for the affluent world. Moreover it is in a second instance a space
needed for sustaining the centre-periphery structures and at the same time allowing
their reshuffling.

It is again the difficulty of balancing the different dimensions of spaces of action as


briefly touched upon in the earlier debate on the relationship between theories of
modernisation, dependency schools and state-centred approaches and the debate on
nationhood and statehood. In terms of indicator research the question is not the input
of these societies into the system of a globalised world system. Instead, we have to

117
look for indicators that allow assessing the congruence of spaces of action of people,
communities and states.

Human Development Approach

The Human Development Approach – being in principal inspiring for understanding


empowerment from a social quality perspective – focuses on capacities and
capabilities. In particular Amartya Sen can be seen as representative – and even
initiator – of such an interpretation. The characterising moment is that such view takes
capacities and capabilities together, thus emphasising the connection between (a)
objective conditions of availing of power and (b) the ability to make use of these
‘opportunities’. This is not least based on a critique of parts of traditional mainstream
economic theory. Sen argues against simplifying economic theories of motivation
which suggest

to see rationality as internal consistency of choice, and the other …


to identify rationality with maximization of self-interest.
(Sen, 1987: 12)

Instead, for him rational decisions are only one element of decision-making. In
consequence, there are as well other moments that finally decide over power of
individuals. The one aspect is simply the economic power in the sense of objectively
given resources ‘as such’; however, another aspect is the ‘value’ of these resources in
terms of what a person actually can achieve with them.

By developing such a perspective, Sen articulates in particular the reinterpretation of


poverty as matter of accessing means by which the individual can gain control over
the own living circumstances. Philosophically, such a perspective is based on Stoicism
and its emphasis of the independence of the individual, the ‘engagement by gaining
distance and independence’ (s. Nussbaum, 1998: 52 f.; 58). Sociologically, such an
approach is closely (though not directly and explicitly) linked to interpretative
sociology as it looks for structures and resources insofar – and only insofar – as they
represent a certain ‘meaning’. The form is only relevant as far as it determines – and
allows for – a specific and enhanced content. Here, empowerment is very much linked
to its etymological root – the pouvoir, the ability which can be understood as

118
the expansion of the ‘capabilities’ of persons to lead the kind of
lives they value – and have reason to value.
(Sen, Armartya, 1999: 18)

Consequently, Sen writes

The concept of ‘functionings’, which has distinctly Aristotelian


roots, reflects the various things a person may value doing or being.
The valued functionings may vary from elementary ones, such as
being adequately nourished and being free from avoidable disease,
to very complex activities or personal states, such as being able to
take part in the life of the community and having self-respect.
(ibid.: 75)

This is followed by the remark:

There can be substantial debates on the particular functionings that


should be included in the list of important achievements and the
corresponding capabilities. This valuational issue is inescabable in
an evaluative exercise of this kind, and one of the main merits of the
approach is the need to address these judgemental questions in an
explicit way, rather than hiding them in some implicit framework.
(ibid.)

Nevertheless it has to be seen that this debate is mainly based on the economic
approach of ‘balancing resources’, aiming on equilibrium and orienting on ‘coping
with situations of shortage’. On the one hand, Sen rejects a purely economic approach
and argues in particular against welfarism on the basis of Pareto-optimal distributions,
which he argues are only concerned with efficiency criteria. He states that

welfarism is the view that the only things of intrinsic value for
ethical calculation and evaluation of states of affairs are individual
utilities.
(Sen, 1987: 40)

On the other hand, it can be very much argued against such position that – by
referring to agency, he only adds another moment to individual motivations

119
underlying their decision making. Although he mentions the ‘creation of social
opportunities’ (Sen, 1999: 40), the said limitation gets clear as he does not attempt to
overcome the individualist perspective of the much referred Stoicism and the
reference to

four distinct categories of relevant information regarding a person,


involving ‘well-being achievement’, ‘well-being freedom’, ‘agency
achievement’, and ‘agency freedom’.
(Sen, Armatya, 1987: 61)

Furthermore, linked to this there is an undeniable danger of slipping down into a


purely subjectively defined ‘meaning’. Here a similar critique would apply as it can
be brought forward in the debate of Pierre Bourdieu’s class analysis and the notion of
an – at least partially – interchangeable ‘concept de capital’ (see e.g. Bourdieu, 2000)
and its culmination in the ‘esprit de calcul’ (ibid.: 17). Although power – and with
this empowerment – is not infinite and not even quantifiable, it is by no means a
matter of contingencies. This is true in terms of the range of power and as well in
terms of the foundation of power.

An important point in overcoming the difficulties can be seen in establishing a strong


link between empowerment and citizenship. This is not only concerned with pointing
on rights-based aspects of the conceptualisation of empowerment strategies. Of
course, strong points can be made in this regard – drawing attention to the historical
development as pointed out primarily by T.M. Marshall (see Marshall, 1992), but as
well at least in terms of the established welfare states, in particular in form of legally
codified systems.39 Despite this, however, there is a second strand of the debate,
which focuses on the meaning of citizenship. As much as this is a matter of existing –
and withheld – rights we have to go a step beyond. The question of citizenship and
rights is very much a matter of ‘openness’, of existing opportunities to participate (=
take part in a given system), but as well of exploring and developing an principally
open space. Empowerment has to be concerned not solely and mainly with the

39
In this context it is interesting that we find in German social science alongside with the term welfare state
(Wohlfahrtsstaat) the term of the social state (Sozialstaat), the first referring more to the general pattern of the welfare-
related governance, the different actors and the outcome of any kind of well-being, security and ‘social embeddedness’
(see in this context Gøsta Esping-Andersen’s approach), the second reflecting the judicial codification of social policy in
its relation to the ‘politics of [soci(et)al] order’ (Ordnungspolitik).

120
realisation of the given social space but as well with the realisation of the self by
which the social space subsequently develops itself.

Social Quality and the Meaning for Social Policy Practice

The challenge of developing (social) policy based in the social quality approach is to
bring the different levels of action as well in terms of intervention together.

The Policy Triangle

The first and most fundamental point (thus frequently made in the Foundation’s
documents) is the request for overcoming the shortcoming of traditional mainstream
approaches, pronouncedly presented in the European Social Agenda, launched in
2000 by the European Commission. In the document a set of three policy areas is
presented, each dealing with distinct issues, namely

* economic policy, aiming on competitiveness and dynamism


* employment policy, striving for full employment and quality of work
* social policy, social quality dealing with social quality and social cohesion

Figure 14 is taken from the European Commission’s document.

121
Figure 14: The European Commission’s Policy Triangle40
Positively, with this approach social quality is acknowledged as issue of policy
making. However, there is the concern that the approach does not start from any
understanding of what actually the social itself is about. As such it follows an
institutionalist, normative and/or customary approach. The three dimension are at
most related in a functional order, however,

a) lacking an understanding of what the social actually is and


b) denying the fact of economic policies and employment policies themselves being
concerned with ‘the social’ as they are in there very heart relational matters and
influencing relationships.

In other words, the thorough inclusion of social quality can only mean to locate this in
the centre of policymaking – as end and means.

General Rights and their Implication

The second, and up to now frequently neglected, aspect is the attempt to bring
together the orientation on global human and social rights on the one hand and the
local and regional conditions and traditions on the other hand.

40
From: Commission of the European Communities, 2000: 6

122
Thus, policymaking has not only to go beyond a supply-approach. Moreover policy
has to start on a three-pillar approach which is sketched in Figure 15.

Figure 15: Three Pillar Structure of Social Policy in Practice


In a first phase it is obviously necessary to assess the given social quality – be it in the
commune (municipality or similar), the region or on the national level. Although
dealing at first with the conditional factors, we have to keep already now in mind that
we have to develop a wider perspective that includes constitutional and as well
normative factors. – Actually we are applying an iterative practice. This iterative
approach is continued as well in terms of approaching the two legislative systems.
This has to look at global standards and their development and the translation into the
(sub-)national context.

This means to understand the general legal systems and proclamations on the one
hand as accepted standards, to see them at the same time as historical not in terms of
their validity (i.e. not in terms of their implementation) but in terms of the kind of
their implementation.

This means that policy-making has to watch out for the pre-juridical and the juridical
instruments of policy making. The first is very much concerned with the way of
decision-making and mechanisms of community building as matter of a civic consent;
the second is a matter of the legal framework and its implementation.

123
LEVEL OF democratisation international establishment of development of
ARGUMENT as establishing a (global) re- national systems rights-awareness
state based on cognition of for and claimant
law – formal standards implementation attitude
constitution of a
democratic
system
GUIDING Is the Does the Are there Is the claiming of
QUESTIONS enforcement adaptation of sufficient rights a matter of
based on internal laws and rules mechanisms to protection and
or external follow a ‘peer guarantee the development of
considerations? pressure’ or can actual activities or is it
it be seen as implementation reduced on a
expression of a of the granted formal dealing
genuine political rights? with rights and a
discourse? matter of
claiming
individual
supply?

Table 6: Civil, Political and Social Rights in Development


As we are finally linking into an existing polity, thus dealing with social policy in the
traditional sense, the following points are gaining special importance:

* Determination of the different actors and their role with the guiding question: What
is their role in terms of supporting the process of socialisation, i.e. linking the
different spaces of action?
* Determination of the different instruments and ‘systems’, here the guiding question
being: How do they support individual’s independence in developing relationships?
And Are they sufficiently activating and allowing activity?
* Determination of the implied ‘rights’ and ‘obligations’, headed by the following
guiding questions: In which way are they determined and ‘negotiated’ by the people
concerned and to which extent are they going beyond formal rights? And: To which
extent do they allow people concerned to develop relationships of action on
different levels of their existence?

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Part IV:

Social Quality – A Suitable Tool for Global Policy Analysis and Policy Making?

General Considerations

At the very heart of the conclusions from the previous elaborations we find the
following issues:

First, when talking about welfare and social policy, the conventional reference to
welfare regimes proved again problematic. A more useful approach is to look at
accumulation regimes and their complementing mode of regulation. Though part of
social policy is surely immediate component of the accumulation regime, it is
proposed to attribute social policy in more general terms to the mode of regulation.
However, to come to a more or less operational level, we have to reconsider the
standard definitions of the state and as well of the legislative systems.

Second, it is subsequently proposed first to structure the mode of regulation by


distinguishing between the following four dimensions of policies. These are
* the coordination of functionality of the system and finality of practice
* the public recognition of public responsibility for individual living conditions and
life conduct
* the specific rationalisation of socialisation of which juridification is one strand
* the implementation in form of every day’s life practice.

Although it has to be kept in mind that the regulatory system – and with this the
‘welfare regime’ – is very much a reflection of the accumulation regime, it has to be
acknowledged that the institutional welfare regime is only small part of social policy
in the present work’s understanding. Looking at socialisation as central point: here
meant as recognition of public responsibility for individual living conditions and life
conduct, we arrive at backing the Social Quality Approach with its orientation along
the two dialectical tensions, namely the tension between immediate life spaces and

125
institutionalised systems on the one hand and between biographical and societal
development on the other hand.

Third, approaching social policy from this perspective requires four points of
reference, namely (i) an understanding of the social, (ii) an analysis of the economic
formation as way of social relating, (iii) the reflection on the specific rationalisation as
reflection of the ‘theodicy’ of the given society, (iv) culminating in an exclusive
process of civilisation, including the definition of stratification and processes of class-
building, the definition of rights and obligations, the understanding of inclusiveness.

Fourth, developing this understanding in a systemic way and opening it for


comparison has to aim on understanding the body of legal regulations as
constitutional in the double sense of a reflection of the present system but furthermore
the reflection of the codification of the process of civilisation. Thus, we are concerned
with developing ‘social policy legislation’ as specifically rational codification of the
social. Importantly this has to acknowledge the following paradox: socialisation
means the determination and enhancement of the rights of (some) individuals. This
occurs as consequence of the ‘rationalisation of the reflection on the nature of the
existence’. In other words, as much as any legal system is based on some kind of
natural law, it is limited due to the supposed unquestionable character of the rules. As
such, the legal system as expression of a constitutive process of regularity is only
thinkable in its historicity. This means as well that especially41 constitutional law is
not self-reflexive. Instead, it makes explicit reference to socio-historical processes,
codifying the societal mode of appropriation. In the words of Herbert Krueger:

[w]e can only talk in a meaningful way of a constitution if the ethnic


ancient forces of social life are stripped off their elementary
character and their impact, but especially their interaction is
transformed into an orderly, and especially a nonviolent procedure.
(Krueger, 1961: 72)

One development is given by the simple codification of laws that are founded in some
kind of natural determination: the codification of the supposed general human
character and/or the supposed general laws of the universe. It is the codification of the

41
In one or the other way this applies of course as well to other areas though to a much lesser extent.

126
essential relationship of the human being to the general association to which he or she
belongs and with this the codification of the relationship between the individuals of
the given polity. It does not matter if the universal laws are interpreted as being
metaphysically, anthropologically or theologically based or whether they are derived
from practical reason (see Hittinger, 1987).

Another development is characterised by the increasing distancing of legislative


processes from supposed natural, in particular metaphysically and theologically
defined relationships, searching for rules that are entirely and consciously derived
from the reasoning as for instance claimed in the tradition of enlightenment.

Figure 16: Different Levels of Valuation, Institutions, Regulation42


This is well reflected in the words of Léontin-Jean Constantinesco, stating that

[t]he fundamental difference between the legal systems of different


legal families is on the one hand given by the specific finality they
pursue, on the other hand it is a consequence of the type of law as
instrument that ought to ensure these functions. This observation is

42
The mode of regulation 1 is very much the ‘moral law, derived from the lex divina and the lex naturae, leading to the ius
naturale, ius gentium and ius civile’ (Fechner, 1964: 748), forms that Fechner classifies as ‘a priority of the understanding
of law’.

127
true for modern open and dynamic societies and also for traditional
societies and closed and static communities.
(Constantinesco, 1983: 191)

However, the statement is problematic as it may be contestable in concrete cases what


a modern, what a traditional society and what a static community is. Re-approaching
European societies from the experience of non-European societies is not always
confirming the standard notions of openness and dynamism.

A further important point is in this context the way in which the social is approached
in terms of its conflictuality. Though we find traditionally the two notions – the
presumption of a harmonious togetherness versus the basic conflict as point of the
departure and in ultimate need of intervention in order to tame the bellum omnium
contra omnes, the war of all against all – a dominant orientation in contemporary
debates is based on the assumption of conflicts as principally possible and likely
pattern of human existence.43 For example Ernst E. Hirsch refers to ‘four axiomatic
presumptions’, namely

1. Social order is not the result of supranational forces, but a


permanent process which is immanent to humankind. …
2. At least in part the process we call social life [Sozialleben], can
– to some extent – be influenced, controlled and regulated by
human efforts, led by a defined objective and with a specific goal,
in short it can be subordinated under an artificial rule with a
specific finality. …
3. As mentioned, though law as institution, in the meaning of an
active order and establishment, is not the only, it still is one of
the instruments, to influence and regulate process of social life.

4. Law, as instrument of regulation has to and can be adapted to
the real instances of those concrete groups of which living
together is to be regulated as otherwise the assumptions of an
existing interdependence would not make any sense.
(Hirsch, 1966: 28 f.)

43
Though strangely enough the prevalence of class conflict is usually denied.

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This – and this side of the argument seems to be agreeable – links indirectly as well
the emergence of social policy and even social law not to the ‘consequences of
industrialisation’44 but to the more general aspects of people living together. We find
a very interesting presentation, provided by Peter A. Koehler when he is looking at
the Emergence of Social Insurance (Koehler, 1979). What makes this contribution
especially interesting is that fact that Koehler begins by pointing on

essentials of this economic formation and its preconditions:


(1)predominance of capital within the economic system
(2)mechanisation/technisation of production
(3)monetised economy
(4)rational (double-entry) accounting
(5)commercialisation and transferability of all commodities
(6)calculability of the political and juridical system
(7) working class, that offers its labour, not the product of labour
(ibid.: 26; with reference to Wilensky/Lebeaux, 1965).

However – and this goes as thread through the then following tract – there are still
major differences as the concretisation of these abstract conditions is defined by
various specific conditions that cause various differences in the overall development
in different countries.

Against this light it seems to be more appropriate to employ a more dynamic


approach, not looking at the general formative conditions nor looking at the
differences in the systems of social security and social regulations. Instead, in order to
draw a heuristic sketch for grasping the relationships and processes, the following
parameters appear to be useful – linking this as well back to the general
considerations as brought forward by the Social Quality Approach.

44
As proposed e.g. by Hans F. Zacher, 2008: 13 – there we can read: ‘Die “soziale Frage” und die auf sie gegebenen
Antworten waren Konsequenzen der Industrialisierung. Sie wurden zum zentralen Nenner der Entwicklung des
Sozialleistungsrechts.

129
Figure 17: Conditions of the Emergence of Welfare Systems
This means as well that public policy for the development of social quality has to be
considered first against the background of the general human condition as elaborated
by Hannah Arendt with her proposal of looking at the vita activa. Second, against this
background we have to consider (i) the conditions and (ii) the constitutions. Such field
of multiple dependencies allows looking at the normative factors as part of a
regulative system that provides a specific framework for directing the process of
actively shaping the process of civilisation. – The reasoning of leaving technological
development as marginal variable is that the kind of technological development is
rather open, and at the same time it is more a dependent variable than anything else.

Fifth, the influence of social science, namely economics, sociology and legal science,
is of course another important feature in this process. However, it is important to
acknowledge the fact that there is no general pattern of rationality. What we find
instead is a global community, influenced by different waves and in the long run
merging to a general development. In this context it is of some interest that we find

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currently (again) two processes: a further surge of instrumentalist reason, now directly
applied in the array of personal relationships (processes of managerialisation) is
accompanied by a strive for different kinds of spirituality, as well oriented towards
holistic approach, encompassing what Max Horkheimer suggested to be objective
reason, but possibly as well various approaches as Buddhist ways of life etc.

Sixth, the difficulty is to maintain the perspective on the specificities and to


acknowledge at the very same time the meaning of processes of globalisation.
Looking at issues relating to social policy, the following main dimensions need to be
mentioned.

(i) Economic globalisation means at least to some extent as well the transfer of
general socio-cultural patterns. This is of special importance if it is accepted that such
process as the current pattern of globalisation is very much a process of ‘enforcement
of capitalist rule’ rather than being a new version of ‘home rule’.

(ii) We find social challenges, being subsequent to economic processes, including


migration, not least as process of urbanisation, in many cases fundamental changes in
the structure of qualification, changes in family structures due to changing
employment patterns to mention but a few. We find also – in connection with the first
aspect – the adjustment of living conditions and respective forms of socialisation (as
for instance development in labour law).

(iii) Important is the hegemony of a globally dominant ruling class coming from the
West – one could speak of a modern missionary movement. This includes for instance
mechanisms as political transplant of laws or legal systems, developments as
consequence of contracts in international business, international and supranational
agreements and treaties and the like (see in this context for instance Schnitzer, 1961;
in particular part 1, sections III, IV, V, VI; de Geest, Gerrit/van den Bergh, Roger
[eds.], 2004; Cotterrell, 2006; chapter 7). In this context it is interesting to find as
well an adaptation and the strong confirmation of the thesis that law is an instrument
of the ruling class, spreading out as means of pacification. We can come back to
Herbert Krueger who exemplifies his interpretation of what he calls ‘orderly, and
especially a nonviolent procedure’ by saying

131
[i]n detail this means for instance to turn a revolution ‘from below’
into opposition and a revolution ‘from above’ into legislation.
(Krueger, 1961: 72)

However, it has to be emphasised that such pacification is both defining and


solidifying the stratificatory system and also serving as mechanism of protection of
the population against possible consequences of that solidification.

(iv) At the same time we find the different interests that are reproduced in different
realms, i.e. on the different national levels and on the level of global policymaking.
This requires a clear differentiation of ‘global policy making’, reflecting the following
arreas:

* general national policies (path dependency)


* specific national policies, facing globalisation
* bilateral policies when entering specific relations (trade, political relations …)
* global policies.

Each of these arrays is negotiated nationally/regionally and also inter- and


supranationally. And on each level we find different coalitions, reflecting both class
and national interests.

132
Figure 18: Establishing Common Legal Spaces
(v) Important is to recognise that factually
comparative law is not relevant, and it doesn’t matter for what
reason – be it that those concerned do not know about it, be it that
they consider it as being too expensive. The most sincere argument
is that one sees oneself in an avant-garde position … And else some
representatives of legislative bodies claim that everything is well
(‘we are anyway the best’). Of course, the disappointment is even
larger if international bodies of the ILO or the Council of Europe
state that this is actually not the case. And because of this we find
already immanent reservations geared towards comparative law.
(Birk, 2003: 225 f.)

However, the real background of the difficulty of investigating ‘the other’ in terms of
a comparative perspective – and the difficulty of transfers – has to be answered by
looking at the conditions determining and requiring the application of the legislation
in question. Taking such comparative perspective, is of some ease – i.e. it answers

133
practical requirements – when it comes to an immediate confrontation of different
legislatures and/or when migration takes place and people move from one legislature
to another (‘indirect confrontation’) (see for instance Soezer, 2003: 65-84) – Seen in
this light the concern for the legal systems in other regions is not so much a concern
for the rights of the people in other regions (i.e. legislatures) but more a concern for
the consequences of incompatibilities. – Looking at the economic background, it is
important to recognise the shift in patterns of globalisation. Though we find at early
stages in history huge capital and commodity transfers etc., an increasingly important
mechanism is that previous ‘international trade’ is somewhat replaced by ne patterns
of closer and more diffuse ‘interference’. Speaking of increasing international
exchange, Maurice Flamant usefully uses the term ‘interpénétration des marchés’
(Flamant, 1976: 447).

(vi) A final aspect being especially relevant under present conditions of intercultural
globalisation and the ease and speed of (especially global) communication is should
be briefly mentioned at least to stimulate debate. It is concerned with the fact that
[g]lobal law can only be adequately explained by a theory of legal
pluralism which has recently successfully turned from the law of
colonial societies to the laws of diverse ethnic, cultural and
religious communities in modern nation-states. It needs to make
another turn – from groups to discourses. It should focus its
attention on a new body of law that emerges from various
globalization processes in multiple sectors of civil society
independently of the laws of nation-states.
(Teubner, 1997: 4)

Of course, it remains questionable if such procedure can actually be sufficiently


tightened to continuously fulfil the principles that actually define law: being an
enforceable body of rules governing any country. As well, if we link Teubner’s
statement to Juergen Habermas’ claim for a ‘communicative discourse as actual
democratic discourse’, the problem of voluntarism remains obviously a major critical
point. However, the point made by Teubner is especially interesting for developing a
social quality perspective as it centrally touches the interface of institutional and
systemic mechanism and the community and communal level of interaction. In this
light is not so much a matter of shifting governance patterns. Instead, more useful is

134
to consider this as requirement to open and control the power structures of these
processes in a formal way and also to consider them when it comes to formal social
policy making – a matter that is highly important when looking for instance at social
and civil dialogue within the EU. But it is as well an important issue that may be
usefully applied when it comes to the need of bridging the formal Roman law
tradition with for instance traditions of customary law, Shari’a traditions or the
legislative systems that link to Confucianism. For instance we find the OMC and
already the earlier formally structured (tripartite) corporatist negotiations as important
examples. Similarly, we can look at mechanisms of the systematic development of
communal structures e.g. in Taiwan, apparently rights-based mechanisms of self-
regulation and communal involvement. The central question is not a procedural one;
rather, we are in all these cases concerned with the challenge to (re-)consider
citizenship. Of special importance is in the present context dissolving the connection
between nation state and citizenship. Then
we are faced with the more formidable problem of figuring out what
we are talking about when we use the language of citizenship.
Citizenship is not a unitary concept, and conventional
understandings of the term are multiple and disputed. Most
commentators concur that citizenship designates community
membership of some kind, but the term has an enormously broad
range of uses, not all of which are compatible.
(Bosniak, 2001: 240)

However, reference to community and approaching citizenship from such perspective


as ‘a form of political activity’ (ibid.: 242) and global society (see ibid., 243) seems to
be easier in theory as it actually is in practical terms. Although even in practice
citizenship is or should be indeed a matter of appropriating a polity from below, an
open question is the actual meaning and how we can include the dimension of
identity-building when faced with a ‘polity without demos’. Three topics will be
crucial for developing the matter further, namely (i) the consideration of easing access
to nationality or membership in the nation state, (ii) multicultural citizenship and (iii)
social justice.

Commenting briefly on the latter, one has to look at a way of defining a frame within
which biographical development and equally the development of societies is possible.

135
However, this raises the question, if and to which extent we can actually maintain the
concept of society (thus going beyond the question of debating the concept of the
nation state). An important shift in this respect is marked by the fact that

[a]t the present stage, that responsibility of society means also the
responsibility of global society. But this global society itself is weak,
is of a tentative nature. It is above all extremely unbalanced:
between power and powerlessness, between accountability and
arbitrariness, between rationality and feelings, between totalitarian
uniformity and liberal openness. Thus, ‘global justice’ at this time is
not more than a project, but a necessary one ….
(Zacher, 2007 a: 49)

However, the subsequent statement, that

[g]lobal society’s self-detection as such occurred when humans


understood themselves to be essentially equal. That was when they
perceived the reality of humankind as a whole – and when they
came to accept the norm of their equality
(ibid.: 50)

has to be further debated. Zacher himself continues by highlighting the paradox that
the acceptance of equality goes necessarily hand in hand with the acceptance of
diversity. The challenge is to investigate this challenge by adding another pole,
namely that of generating inequality so that we have to contemplate on the double
paradox of productive tension between

* equality as condition diversity


* diversity as outcome of equality
* inequality as outcome of diversity.

We can speak in one sense of simple matters of equality: disrespecting existing


regulations and ignoring mal-administration and the like. But the actual matter is
different, concerned with the fundamental question of the definiens of cohesiveness
and the reference frame. Here the problem is that commonly social justice is not
defined positively. Instead, the reference is the negative definition as matter of

136
exclusiveness. The other way round: social inclusion is considered as being equal to
social justice. The question that follows is threefold:

* Who has the defining power?


* Who is (to be) included? and
* What is the reference for inclusion?

Social justice can be defined can only by answering these three questions. Seen in this
light, the nation-state is not much more than a crutch, representing a specific
economic entity – sufficiently coherent in promising economic ‘progress’ and also
sufficiently coherent in providing a framing for ‘common action’. What, however,
happens while this economic entity breaks away? What if we have different
economies overlapping each other – and with this the group relationships also overlap
in different ways? A question of utmost importance behind this is in which way we
define against these different backgrounds – and the list could easily be extended –
the constitutive process of interests without an uncontested social reference that is
sufficiently concrete to provide a space for common action? Is the only way out the
emerging dilemmas increasing individualism and even hedonism? Is the only way out
a new wave of fundamentalist beliefs that define social justice in abstract terms?

Though it is here not the space to answer these questions, at least some preliminary
thought may be put forward – by referring back to early deliberations in social
science. It had been Wilhelm von Humboldt who put his finger on a question of crucial
importance when he presented his ‘Ideas on an Attempt to Determine the Limits of
the Properties of the State’ (Humboldt, 1792). Taking up major debates of the time, he
distinguishes between a protective and a supportive role the state takes with respect of
individuals. Humboldt suggests a three-layer approach, the first issue being the
reduction of the role of the state on negative wellbeing, the second being concerned
with the attempt of concretising the protective role and mentioning some very modest
elements that are to some extent concerned with the positive wellbeing as he points on
issues of public education; the third momentum clearly shows the dominance of the
negative approach by directing such

care by the state for the security by finding the conditions of those
people that are not in possession of their natural or appropriately

137
matured human capabilities (immature and those who are
dispossessed of their mind)
(Humboldt; op.cit.: 192)

This statement from a classical liberalist perspective shows the fundamental problem
of the approach as it neglects the social dimension of human existence. Though
Humboldt is positive rather than negative about the individual, not following in
principle Thomas Hobbes’ dictum, he is negative about society (and one can say as
well about the individual) insofar as he sees the individuals’ capacity limited on
utilitarist striving – and thus producing somewhat involuntarily a positive common
wealth – rather than accepting his/her ability to define mutual and common interests
and consequently cooperating in order to work for them.

Looking again at the concept of a vita activa, there is in this framework at most space
for a fundamentally amputated form. At the end we have to strive for a process of
reshuffling locality and time as two dimensions and how they influence the different
aspects of the vita activa: labour, work and action (including the implicit
understanding of power and empowerment). We can reformulate this by looking at a
shift of control by means of socialisation.

Whereas we find originally small spaces ‘under control’ of communities, however by


and large following solely divine rule, such phase is followed by a stage where this
split is internalised: following different rules of power separation and distribution, the
‘manageable communities’ are split into different entities. As much as this means that
power had been taken over by humanity it means as well that only part of humanity
actually gained power (or access to positions with which power had been executed).
One can interpret this as expansion of the scope of human power, the price being
demanded to pay the inequality of access of power (positions). One can understand –
with all limitations45 and on grounds of different reasons – the general lines of the
developmental process in the following way.

First, the development was characterised by re-acquisition of power, following the


pattern of building centre-periphery relationships. In this way, not least social law had
at least elements of empowering individuals and potentially extending the scope of

45
The following deals with a secular process rather than looking at social legislation or socio-economic processes in their
concrete shape –these may during certain phases even contradict the secular trend.

138
communities’ action and extending communities. Second it has to be acknowledged
that all this had been also an exclusionary process – exclusionary by way of treating
certain groups of society (for instance women), by way of dealing (and trading) with
other countries (e.g. accepting child labour in other countries) and by way of focusing
‘participation’ on certain areas (for example sovereignty of consumers or as well
institutionalising a social dialogue which allows only limited and specifically
structured intervention). – Such centre-periphery-building has to be seen as complex
process, where we find as well in the periphery certain mechanisms of centre
building, sometimes as simple ‘reproduction’ of structures from global centres,
sometimes as adaptation and sometimes in entirely different forms. Third, the process
of appropriation is further extended and generalised by extending ‘control’ over space
and time, there creating new inequalities and new points of access.

The problem of thinking this process is due to the fact that the dimension of
appropriation in broad terms makes an understanding difficult. So far we only looked
at the range of decisions in terms of social strata and locality. However, a second
dimension has to be added, and this is concerned with the understanding of the social
dimension of existence. Talking of rights, we can mention granting social rights for
individuals on the one hand and the genuine social character of rights on the other
hand. – This is briefly tipped on when talking about different understandings of the
welfare society (see 156 ff.). It is getting clear as well on a more concrete level,
namely when looking in a comparative perspective at the different understanding of
social policy and law. Rosalind Brooke states in this regard that

[t]he contrast in England between law and social security, and law
and other areas of social policy is very marked. The definition of
social law in West Germany … appear to cover social security,
family benefits, rent payments, Jugendhilfe and Sozialhilfe, benefits
for the physically and mentally handicapped, and professional and
further education. As has already been indicated, social law is not a
concept discussed by lawyers in England, but is contained in
narrower divisions like social security, labour or housing law.
(Brooke, 1979: 101)

139
This reflects very much again the different concepts of the state. By and large the
Western concept is driven by negativity – the protective state as we can see it when
looking at contractualist concepts as promoted by John Locke, Thomas Hobbes, and
Jean Jacques Rousseau and Wilhelm von Humboldt. These systems are particularly
characterised by

* presuming (and dealing with) a principal tension (or even contradiction) between
individual and state
* a substantial degree of secularisation
* which is at least a matter of translating legislation out of the realm of arbitrariness
and
* a certain degree of separation of powers.

All these different forms have to be seen as expression of specific modes of


socialisation. Social policy and social security is in this light not only – and perhaps
not even primarily – concerned with providing security but (i) with the political
decision of what the relevant social problems are (and this depends of course on the
socio-historical economic conditions) and (ii) how generally available resources in a
given society are distributed in order to reach what is seen as social security. Most
importantly, this includes defining the scope of the social – most importantly as it is
an important issue in contemporary consultations.

We can now say with Philip Allott that the current challenge is to design

[g]lobalisation … [as] the beginning of the self-socialising of all-


humanity. As typical social phenomena accumulate at the global
level, the perennial question of the nature of the ‘good life’ arises
yet again, in an unprecedented form. Post-European civilisation,
dominated by democracy and capitalism, does not offer an adequate
model of the good life in an emerging international society whose
only form of stability is an equilibrium of evils.
(Allot, 2007: 41)

Reaching out for a strategy for public responsibility for social quality

Especially two points have to be mentioned:

140
Public responsibility for social quality can only be brought forward as policy of
practice. In order to apply practice as concept directed towards a ‘societal vision’, it is
not sufficient to strive for liberating practice as instrument to avoid suffering (see for
such orientation e.g. Fagan, 2008) or to foster social justice (see e.g. Kurasawa,
2007; in particular 11-16 on the localisation of practice between structural
determination and voluntarist subjectivism). As valuable as such approaches may be
in terms of immediate policymaking, they lack a sufficiently sound point of reference.
Accepting without further systematic rationale a general concept of social justice and
falling back on a generalised idea of suffering is likely in danger of accepting
historical relativism. If it is correct that it had been seen by contemporaries as just,
what we condemn today as unbearable, it is equally right that today’s understanding
(mind: not practice) of justice is likely limited as well. Also, there is the danger that
such orientations are not much else than the establishment of a competition for
different ‘social rights’, ending with balancing rights by means of weighing.

We arrive at the second core point, namely the search for a universal principle, by
which the political being can be characterised in more concrete terms. Aiming on
avoiding as far as possible a reference to reflexive, in this sense tautological
normative references, two points are suggested as normatively and also empirically
proven anthropological points of reference: the social character of the human being on
the one hand – this had been already elaborated – and existence as practice of one or
another kind on the other hand.

Having a look at the second point, we can – with reference to Hannah Arendt – make
out three dimensions, namely

Labor (…) [as] the activity which corresponds to the biological


process of the human body, whose spontaneous growth, metabolism,
and eventual decay are bound to the vital necessities produced and
fed into the life process by labor. The human condition of labor is
life itself.
Work (…) [as] the activity which corresponds to the unnaturalness
of human existence, which is not imbedded in, and whose mortality
is not compensated by, the species’ ever recurring life cycle. Work
provides an ‘artificial’ world of things, distinctly different from all

141
natural surroundings. Within its borders each individual life is
housed, while this world itself is meant to outlast and transcend
them all. The human condition of work is worldliness.
Action, the only activity that goes on directly between men without
the intermediary of things or matter, corresponds to the human
condition of plurality, to the fact that men, not Man, live on the
earth and inhabit a world.
(Arendt, 1958: 7)

This reflects the need to secure the material existence but as well the fact that social
relationships do not exist as such – outside the individual – but only through some
kind of action.

Looking at what Hannah Arendt denotes as vita activa, we can interpret this as well in
perspective of the social quality. Then, tentatively, work is bringing together
conditional factors, labour can bee seen as matter of constitutional factors and action
signifies the set of normative factors.

This approach is supported by another perspective, namely one that sees relations as
an inherently constitutive factor of the actual being. We approach the social again as
being not independent of human practice, existing as external force. Nor does it exist
as add-on – enriching biographical development. Instead

[s]trong relationality … is an ontological relationality.


Relationships are not just the interactions of what was originally
nonrelational; relationships are relational ‘all the way down.’
Things are not first self-containing entities and then interactive.
Each thing, including each person, is first and always a nexus of
relations.
(Silfe, 2004: 159)

In this perspective, the social can be developed as an immediate matter of human


existence. This means as well that public responsibility for social quality has to go
fundamentally beyond a system of provision of support of individuals. We have to
focus on social policy in the real meaning of the term: a policy that is concerned with
relationships.

142
Thanh-Dam Truong, following amongst others Daniel Engster, makes an interesting
point by specifically extending on the one hand the notion of practice and the notion
of inter-being on the other hand (see Truong, forthcoming; see as well: Truong,
2005). For her, the issue in question is that practice is not least a matter of care.
Although this is not primarily seen as matter of dependency, the reference to a life-
cycle approach reminds to some extent of an exchange within relationships in an
inter-temporal perspective. This possible limitation can be overcome by taking care
out of the rationale of a prior law, positioning it as practical linkage between the
constitutional factors and subsequently linking them with the conditional factors. In
this understanding, care is not primarily a matter of exchange amongst people. Instead
it can be seen as matter of relating different concerns. Thus the notion of exchange
moved towards a notion of synchronisation of people’s different concerns over time.
Legislation for public responsibility for social quality (i.e. in traditional terms social
law in general and social policy legislation in concreto) can now be assessed and
further developed within two matrixes.

First, it is a matter of the normative setting with the two maxims of equality and
empowerment. Important is to acknowledge that we are concerned with a process of
extension of rights in two directions. Furthermore, it is suggested to overcome the
structural limitation of rights-based approaches by generating a strict orientation on
the social character of rights.

The mainstream debates suggest that the extension of rights of one (group) equals the
limitation of rights of others (other groups) – this is the case even when we look at
supposed social rights. However, here the thesis is that the traditional notion is
actually not much more than the concern with the rights of an individual to access
social settings and provisions. In other words,

[w]estern social sciences today are preoccupied with individual life


styles, individual happiness, preferences, consumption, well-being
and quality of life of people as autonomous individuals, rather than
as individuals-in-communities.
(Gaspers/van der Maesen/Truong/Walker, 2008: 13)

However, we gain a new perspective if we look from the perspective of equality and
empowerment on social rights. Rights can then be understood as genuinely social,

143
comparable with communicating vessels. This goes beyond the requirement for a
Pareto-optimum of social policy and is – instead – concerned with establishing a
collective ‘social identity’. In terms of rights oriented and juridical formulations, we
see the problematique for instance in the human rights discourse where

[m]any Western diplomats and scholars still view civil-political


rights, which guarantee individual political freedom of expression,
movement, and person, as priority rights. They give precedence to
them over economic-social-cultural rights that are associated with
the ‘East’ in the historical ‘East-West’ conflict, and they tend to
dismiss development or collective rights as derivative rights that
compromise and gut the individual human rights concept … . From
philosophical and political points of view all rights other than
political rights as difficult to formulate or fulfil, as particularistic,
not universal, and therefore not as ‘human rights’.
(Messer, 1997: 299 f.)
It is important to recognise one feature that is frequently overlooked and accessed by
the meaningful term of sovereignty. There are two dimensions to this. Individual
sovereignty depends on enhancing the space of action and consequentially depends on
overcoming stratificatory patterns within any given society. For social policy this
means that it is necessary to counteract measures, behaviours and structures that cause
or maintain involuntary inequalities. This means that they have to strive for achieving
an optimal congruence. It is the process of permanently maintaining a demos, the
issue of citizenship not as matter of granting rights but as matter of reaffirming the
individual’s (and groups’) belonging to a demos. We can usefully define the latter by

at least five substantive components.


Rights: The members of a demos acknowledge each other as
autonomous individuals, each with a right to personal self-
fulfilment.
Trust: The members of a demos accept that once an obligation has
been entered into, it must be complied with.
Public spirit: Members of a fully developed demos also show a
sense of collective identity if their preferences as individuals include
a concern for the well-being (or the suffering) of the collective. In

144
its weak form, such a sense of collective identity (public spirit) is a
precondition for public deliberations about the right solution for the
community as a whole.
Public discourse: Public spirit can be transformed into public
discourse if most of the members affected by the decision have a
capacity to communicate publicly.
Solidarity: In its stronger form, a collective sense of identity
provides the basis for (re)distributive processes within a political
community. Solidarity is the willingness of individuals to give up
things they value for the sake of the collective, and the acceptance
of re-distributive policies is the best indicator for this.
(Zuern, 1999: 39 f.) 46

Defining thus the ‘people as sovereign’, the immediate practical question is, who is
actually part of ‘the people’ (remember the historically only recent granting of full
citizenship to women in the Western world – and the ongoing discrimination). We are
as well confronted with the fact that this concept faces the principal danger of being
exclusive. This can be clearly seen when we look at current debates on social policy
and subsequent legislative processes: In the name of globalisation we find
retrenchment policies in many countries. The argument is that within a global
economic, ecological and social system the nation state as representative of the people
as sovereign cannot maintain the sovereignty as actor on the global level by
mechanically transferring mechanisms that hitherto had been national. In this light,
the process of retrenchment is not primarily a matter of cutbacks – actually several
empirical studies show that in quantitative terms the social spending is generally
increasing and the rights of various social groups generally expanding. Nevertheless
we can speak of retrenchment though in a different way: it is the specific
rationalisation of the western welfare systems that specifically redefine citizenship
and the way in which it

symbolizes an internally oriented relationship that the demos shares


with the institutions of the polity to which its members belong.
(Chryssochoou, 2001: 182)

46
Although Zuern develops this against the background of the question of Europeanisation, the made stances are cum grano
salis as well applicable in a wider sense.

145
We face a process by which the structure of policies is changed in favour of a shift of
interests – and with this the view on the state is also changed. A useful reference can
be made to the definition of the state by Michael Zuern and Stephan Leibfried who
state:

We define the modern state in four, intersecting, dimensions. The


resource dimension comprises the control of the use of force and
revenues, and is associated with the consolidation of the modern
territorial state from scattered feudal patterns. The law dimension
includes jurisdiction, courts, and all the necessary elements of the
rule of law, called ‘Rechtsstaat’ or constitutional state in German-
speaking countries where it is most closely identified with the widely
held concept of the state. Legitimacy or the acceptance of political
rule came into full bloom with the rise of the democratic nation-
state in the 19th century. And welfare, or the facilitation of
economic growth and social equality, is the leitmotif of the
intervention state, which acquired responsibility for the general
well-being of the citizenry in the 20th century.
(Leibfried/Zuern, 2005: 2 f.)

In other words, the state

had evolved four dimensions and fashioned them into a tightly


woven fabric – a multi-functional state that combines the Territorial
State, the state that secures the Rule of Law, the Democratic State,
and the Intervention State, and which we connote with the acronym
TRUDI.
(ibid.: 3)

Translating this view into a perspective which is nearer to social policy and the
investigation of social security systems in particular, we can accept Thomas Simons
who writes that

[s]ocial support [Soziales Leisten] is … located between


performance by the sovereign and cooperation based on solidarity.
It is result of the one and the other, without allowing for definite

146
attribution. In this light the ambivalence of social support [Soziales
Leisten] mirrors the fundamental ambivalence of statehood. The
state is a sovereign organisation of power and by this characteristic
it is as institutionalised power [Herrschaftsgewalt] subordinated,
being prior to the citizen. However, at the same time the state is the
embodiment of the res publica, thus executor of the super-individual
interests that are common to all subjects of the state and thus
expresses the mutual relationship of the citizens that are integrated
into the caring society [Solidargemeinschaft].
(Simons, 1985: 70 f.)

He continues by saying:

Social policy presents in this perspective in modern social states as


extension of the state’s integrative function, presented in ever new
dimensions of public intervention into social relationships. By this,
an increasing number of needs of individual citizens became a
public task and consequently a matter of the citizenry. Again and
again the state felt in its development to the social state urged to
take care for specifically defined needs; and in this it looked
permanently for a compensation amongst citizens, following the
Leitmotif of solidarity: ‘one in support of all, all in the support of
one’.
(ibid.: 71)

Simons then points on the important paradox that the increasing role of the
Gemeinwesen Staat47 requires simultaneously a specific retreat from the traditional
tasks of the state48 and – in turn – the inclusion of various ‘non-state’ institutions and
mechanisms into what can be called statutory process. To quote another time Thomas
Simon:

Already at an early stage we find with the genuine activity of the


state the recourse on existing social institutions or institutions that

47
The term ‘Gemeinwesen’ means something between polity and community, a kind of ‘communitarian polity’; as such it is
of course problematic to speak of a the ‘state as communitarian polity’, though it is in German thinking not only a common
notion but as well logically coherent if we look at the tradition of the dominant state philosophy in the country.
48
i.e. acts of sovereignity (hoheitliche Aufgaben)

147
still needed to be established – instances that would be closer to the
social problems in question and that consequently would be more
suitable to provide a solution.
(ibid.)

Subsequently we see the need to go beyond Stephan Leibfried and Michael Zuern
whose definition lacks clear reference to any kind of ‘finality’. Despite the principal
problems of the concept of general interest as seen for instance from a Marxist
perspective, such reference can be used as heuristic instrument. The traditional
concept of the state can at least suggest the imagination of a general interest, thus
defining the ‘exclusionary concept of citizenship’. It could present itself as
representative of general interest and with this as interest of all. However, the
contemporary phase of globalisation and the consequences for the state has three
important consequences for assessing social policy making and public responsibility
for social quality.

First, we see relevant references of economies dissolving. (i) Although the national
economy remains the major point of influence, the major point of reference is the
global economy. (ii) And equally, although influencing the global economy is one of
the major goals (in the sense of defining national performance with reference to the
competitiveness), the major point of reference is the national economy. Important is in
any case that the relation of economic space, living space and political space
undergoes another49 reorganisation.

Second, the role of the state is redefined. Paradoxically the supposed ‘general’ is now
loosing ground – fading away into an abstract notion of ethical considerations – and
being replaced by the specific interest of system maintenance.

Third, this means that we find as well a shift of the sovereign – retrenchment policies
appear as redefinition of responsibilities. In terms of Western welfare reform:

The tensions which we have identified earlier between individual


and society become evident because stakeholding seeks to combine
in one concept the idea of everyone participating in welfare

49
Another as we can observe similar processes throughout history.

148
provision but doing so as individual owners rather than as welfare
recipients of collective resources.
(Rodger, 2000: 115 f.)

The request for rethinking the state emerges from the shift of reference frames of
statehood:

* the citizenry which changes formally and quantitatively, changes subsequently as


well in its qualitative character;
* and the ‘general interest’, which gains a new reference frame and has to orient itself
at least for a specific historical phase – until history may be ripe for a world society
– along the following lines:
¾ the maintenance of the traditional framework of the nation state
¾ the reference to accepting difference – and with this: the opening of a space for
developing a commonly acceptable understanding of social quality – the basis for
this being ‘common interest’, and may well a building block for reaching the next
stage, i.e.
¾ the reference to a global understanding of social quality and public responsibility
for social quality which enhances the overall understanding of relationality.

When it comes to international social policy and when developing a sound


comparative perspective, the subsequent challenge is to move from a concept based
on the notion of common interest to one that is based on the interest of all. Important
is the fundamental shift of finality from maintaining nationhood and wellbeing
towards the concept of developing global equality and social quality. Statehood, then,
means as well looking for a way of secularising relationships.

This requires as well to develop different perspectives on appropriate definitions of


social problems and instruments – an intuitive summary is given in the following
table:

149
FINALITY SPECIAL DIMENSION OF INSTRUMENTS
POLICY AREAS
Maintenance of nation Socio-economic security Regulative systems (civil
state: Common interest and empowerment in the law)
based on immediate framework of different
relationality and ‘welfare states’
exclusivity
Globalisation: Common Socio-economic security Discursive approaches as
Interest on basis of and inclusion on grounds mix of natural law,
competition and of redistributive policies discursive approaches and
emerging common transplants
rationality
Globalism: Interest of Empowerment and Common law-based
all on basis of ‘total cohesion on the basis of approach towards civil law
rationality’, merging open regulative systems
objective and subjective
rationality

Table 7: Finality and Instrumentalism of Policy Making

Leaving without further investigation if we are dealing with a conflictual relationship,


a relationship derived from conflictual quarrels and negotiations or a consensual
relationship, it is important to underline that we are in any case dealing with a
political and thus historical relationship which may be clear for some point in time but
which requires permanent reassurance within the entire legitimatory system of the
fabric. This means not least that in one or the other way a predetermined normative
consensus cannot be given. The understanding of ‘the social’ is in itself permanently
contested by its appropriateness – determinable as

dialectic of the general (of what is considered to be ‘normality’), the


specific (the ‘social correction’) and the totality (the ‘social state’)
(Zacher, 2008: 9)

Looking at such tension, we see not least the need to go beyond both: the abstract
general definition of the social, based on pre-juridical assumptions on the one hand, a

150
voluntarist vision on the other hand and the classical social question as given
reference as reference of practice.

Of course, this is again very much written from a Western welfare state perspective.
However, it proves the notion that we find a developed welfare system here and a
developmental welfare system there ad absurdum. What we find is at least … – a
question. What are relevant criteria for public policies for social quality? How can we
find criteria for policies that are not simply an annex to the productive system,
breaking away as soon as the economic viability proves to be problematic, being
countered by policies that are based on moral sentiments?

The following matrix – to be read in conjunction with ‹‰—”‡ͳ͸, thus emphasising the
finality of a coherent development of biography and society – provides a framework
for assessment, but even more for the development of ‘appropriate sustainable
development’.

Equality/equity Extension of Objective reason Consciousness


(problem to be access:
overcome: * more people
anthropocentrism) * doing
more/being in Activation and
control of democratic
more control
* furthering
collectivity Structural
and the social character based
meaning of on secular
practice power
Structural
character based
on sacral
power
Empowerment (as Extension of Subjective reason
matter of practice meaning by
rather than a developing
matter of choice) integrity and
integration
Figure 19: Policy Making and the Requirement of Different Reasoning

This shows the direction of rethinking as well fundamentally national limitations in


considering societal integration. In other words we face the necessity of

* reintegrating economy and social policy


* overcoming the national boundaries of social law

151
* decoupling economy and public policies for social quality.

In consequence, the two factors mentioned, i.e. equality and empowerment go hand in
hand with two general ‘instrumental’ mechanisms, namely appropriateness and
accountability. Important is to emphasise that the first is etymologically linked to
property and the second has to be constructed around a principle of ‘open balancing’.
– And, of course, with such perspective the understanding of the meaning of property
is historically different and thus depends on a concrete society, always being open for
questioning.

On the way to Developing a Global Approach to Social Law – Caught Between


Relativism and Modernist Determination

It is astounding that we see today not (only) a push for social and human rights from
people who are victims of the neglect of these rights. Instead we find a bizarre
constellation:

* Broadly speaking and as mentioned before, we find across the OECD-countries in


one or another way and to different degrees retrenchment policies – though these
are not necessarily coming along in form of cutbacks, they are important in terms of
a restructuration and it seems to be characteristic that this kind of retrenchment
policies shows an inverted relationship to the degree of development. In other
words, the most developed countries are most serious in advancing retrenchment.
Although the Nordic countries are still an exception, scoring very high in their
‘social performance’ (see Aiginger et al., 2007; Herrmann/Hesh-
mati/Tausch/Bajalan, 2008), they are probably further advanced in respect of
retrenchment policies than usually acknowledged with regard to the mode of
policies – the difference, if compared with other countries, is a more subliminal
dealing and at the same time more thorough with regard to structural changes.
* At the same time we hear from these countries a call for extension of human and
social rights in various parts of the world as e.g. the oriental and African countries –
surely this can be seen as consequence of globalisation: the attempt to attenuate
pressure on the world market from these countries due to their dumping price
policies based on low labour costs; however, it seems to be equally an expression of
the fact that only with industrialisation part of the ‘social question’ gains meaning

152
(Kasza, 2006). Global capitalist players are confronted with the need to compensate
for the loss of legitimacy on the national level in their home countries and markets.
This is expressed in both, the push for ‘social law’ in countries in question but as
well the readiness to accept at least in part the claim for fair, i.e. appropriate trade.
* This is complemented by a respite of class-based demands in the developed
countries and – though with qualifications – the readiness to accept forms of
bargaining and negotiations that are very much based on a developed model of fully
implemented juridified system, connected with a seemingly unquestionable set of
socio-ethical values while at the same time the orientation for change is geared
towards the ‘less developed countries’.
* At the very same time we find in countries with developed welfare states some
mourning about lost grounds – the ‘secular progress’ in the mode of living together
on a more ‘regulated’ way is already in early deliberations only half-heartedly
welcomed – be it by political scientists, sociologists or legal scientists. In actual
fact, the (neo-)liberal turn in economics can surely be interpreted as well as answer
on a development by which many of the spontaneous patterns of regulation had
been undermined, thus looking as well for a way towards a different, more
‘traditional’ mode of regulation. Strong family orientations, communitarism and
debates on governance prove as examples.
* Looking at general values and rights, we find a contradicting constellation. Several
values and rights seem to be unquestioned and generally accepted. Going beyond
the question of different stances on the actual interpretation in different countries, a
problem arises from the contextualisation. If we take for instance the question of
multiculturalism, we are facing the problem that we may feel obliged to accept – in
the perspective of multiculturalism – ideological and behavioural systems within
one context, though we would rebuff them within another constituency. Though
surely simplified, do we accept the hijab in Western countries as part of a
multicultural attitude or do we reject it on grounds of the general principle of
laicism, while we reject it in its ‘original context’ as idiom of neglect of women’s
rights? Do we accept in a multicultural perspective the celebration of a submissive-
serving role of women as specific element of certain cultures while we reject the
very same notion when it comes to a perspective of gender equality? – Although
some of these issues seem to be ready for easy solutions, they are not simple when
it comes to political practice – referring to moral statements does not do suffice.

153
Looking only a little back in our own history shows for instance that women’s
rights remained up to recently fundamentally unrecognised as well in the so-called
developed world50 – and this went always hand in hand with the claim of these
societies of being democratically advanced and socially just. Another example is
that traditional networks play an important role as well in the ‘modern societies’,
and – though perhaps with a different appearance – are doing even more so in the
so-called post-modern settings (cf. on the foregoing for the perspective of the
perception of the Asian economies for instance White/Goodman, 1998).

There are two options for answering the challenge. The one, and commonly applied,
is to bring together moral sentiments – socially on the basis of some kind of natural
law – with differently juridified systems of social rights. The latter would reach from
general social rights to concrete regulations of health issues, social security and the
like. The problem with this is (a) that the definition of moral sentiments remains too
vague, too exposed to subjective responses. (b) Approaches to juridifcation, as we
find them in policy processes, usually maintain the traditional pattern of
modernisation: transferring existing models to other constituencies and legislative
systems. It is the pattern which Reinhard Bendix characterises as follows:

The older, evolutionist approach tended to be classificatory. It


assumed that the less developed countries will follow the ‘steps and
sequence of change’ through which the more developed have passed
already. Analysis becomes a matter of assigning culture traits or
even a whole country at a given time to a specific stage of
development. Once this is done it is possible to assess the
progressive or regressive significance of ideas and actions, either
because the future or next stage is ‘known’ in advance, or because it
seems plausible to examine the past of the ‘developed’ countries for
purposes of such retrospective evaluation.
(Bendix, 1968: 68)
This reflects insufficiently the diversity of the Western models and also their internal
flaws – we will shortly return to this question. Furthermore, (i) it potentially neglects
problems that are not easily comparable with the ones in the countries from which the

50
And even today it is commonplace that we are far away from equal opportunities and equal rights for instance within the
EU; see e.g. Commission of the European Communities, 2008

154
models are taken, (ii) it fails to provide sufficient answers for specific problems which
are due to the developmental pathway of these countries and (iii) it does not
sufficiently recognise the resources that do exist for problem solutions.

It had been emphasised that a social quality perspective – as meta-theory –


importantly has to be bedded in a sound analysis of economic processes and geared
towards socio-juridical structures. In the following some issues will be raised.

Protection as Opening of Spaces of Opportunity

Considering equality and empowerment as core points of reference, the main concern
of social law is the search for ways of how to ensure a trinity of securing socio-
economic security not only as matter of provision of material resources but as way of
opening spaces for inter-being. Not least this means the recognition of spaces for a
caring life. It proves again problematic to orient on increasing employment rates by
redefining care work solely under the remit of employment. More important is the
recognition of the immediate link between security, care and equality.

Vita Activa – Recognition of Various Practices

This opens the perspective on the acceptance of a wider range of practice as goal for
political intervention or recognition. Rather than focusing on the provision of certain
conditions and defining eligibility criteria, the challenge in the perspective of the
notion of the vita activa is the question of how society is actually assessing people’s
role in maintaining relationships. Employment suggests a wrong finality as it refers
only to a very limited range of practice – and moreover only to that kind of practice
that is the least important in terms of general relationality.

Protection and Practice as Constitution of Inter-Being

Protecting space and securing a wide range of practice means as well to extend the
understanding of social policy, integrating legislative process, ‘social work’ and
‘democratic processes’. It is characterising nationally different approaches that they
do not only focus on specific aspects of the complex and intermingled system of ‘the
social’ but that they are furthermore caught in the trap of path dependencies that are

155
specificly dissolving the social as entity. More precise: we find a pattern that
specifically defines the social in the context of its concrete accumulation regime.

Welfare Society – Merging L’État Providence, Welfare State, Sozialstaat, Welfare-


and Care State

The European Social Model, appearin from outside as rather distinct entity, is in
actual fact rather diverse when looking at the actual processes. Each country follows
very different traditions. A tentative approach towards assessing the differences had
been already developed with reference to the complex relationship of the
accumulation regime and the mode of regulation.

More in general, the elementary concern is the different understanding of state and
citizenship. Though bound together by the pattern of a fundamentally capitalist
accumulation regime, the range between the different systems is, however, rather
varied even within the European Union. On another occasion (Herrmann, 2007 a) a
view on major differences had been presented by a historically oriented analysis. This
can be summarised in very rough terms – and translated to an interpretation of the
‘welfare state’ – in the following way.

1) A ‘French version’ is lead by the idea of the État-Providence, defined by a strong


responsibility and unity of the state, in other words

En bridant les libres efforts d’association, la providence étatique a


dû prendre la place de la providence divine sous l’Ancien Régime.
(Merrien, 1997: 8)

It is the centralist system, which, on the one hand, emphasises citizens’ rights, on the
other hand, requires the full integration, thus aiming on overcoming any notion of
distinctiveness. Consequently, policies reach beyond the simple provisions of
resources and are instead employed with the ‘constitution of citizenship’. Looking in
a comparative perspective at the specific pattern of social administration in France,
Barbara N. Rodgers states as reason for the characteristics:

The short answer is French individualism, and the tensions and


compromises set up in the attempt to promote the well-being of

156
individuals trough that ‘collective action for welfare’ which
constitutes the welfare services.
(Rodgers, 1968: 19)

This includes a superior meaning of social action which Elie Alfandari presents by
following definition:

A partir du moment oûl’action sociale ne se contenait plus d’être le


filet de sauvetage des laissés pour compte des systèmes de
protection sociale existants, on s’est démandé si non autonomie ne
serait pas mieux assurée par un critère spécifique d’intervention.
Il a semblé que le meilleur critère était l’inadaption. Les inadaptés
seraient, selon la définition de R. Lafon, ‘tous ceux pour lesquels il
faut faire quelque chose de plus et de différent qu’a l’ensemble des
autres, tous ceux pour qui, si l’on veut respecter le principe de
l’egalité pout amener au niveau des autres’ (V.Rev.dr.san.soc.,
1971, no 28, p.1.)
(Alfandari, 1989: 93 f.)

As quoted from Merrien, religion is replaced – though it continued and still continues
to play a role, it is only important as entirely private affair within the fundamentally
Laicist orientation in the public realm. As much as this is a matter of excluding a
certain area from the ‘public’, it means in a proper reading the emphasis of a strong
public array. Important is to see that this goes hand in hand with a specific mode of
centralisation, for instance characterised by

the fact that both the commune and the department are areas for
central government administration as well as for local government.
(Rodgers, with Greve/Morgan, 1968: 27)

Another characteristic moment of the mode of centralisation is the important role


played by semi-public agencies (cf. ibid.: 29). It is no wonder then that we find as
well a comparatively important role of the state within the economic sphere,
expressed for instance in the ‘planification’.

2) The English concept of the welfare state is the logical merger of two notions: the
particularly sturdy tradition of charity as strong orientation on individual

157
responsibility (see the old poor law which has its repercussions as well in the modern
British welfare state and being well revived in the policy of the Third Way) going
hand in hand with a strong utilitarism of a capitalist system that ultimately and solely
orients on individualism as framework for defining challenges – in other words: the
process of fundamentally fading out the social realm. It is remarkable that even the
role of the family is relatively weak within the overall system of welfare policies.
What is more important, and emerging not least from the church-led charitable
movement, is a specifically organised voluntary sector, not least taking the
responsibility for the ‘drop-outs’ and for the non-financial side of support
mechanisms. This means not least that citizenship is actually not centrally linked with
the state but with civil society.

3) The third case, in the referred analysis the Prussian model, is fundamentally linked
as well to the highly class-divided model of utilitarist capitalism, however at the same
time – trusting the denotation of reason – flanked and cushioned by a corporatist
system of negotiations within a – at least supposedly – parity based system, bringing
together the ‘independent’ parties of employers and employees – and kept together by
the absolute idea. This is not primarily meant as reference to god but as an
achievement of men’s ability to apply reasoning.

In both, in the French and the Prussian model we find the family as focal point,
however in the first instance it is understood as duplication of the state (which
actually allows the maintenance of the centralist structures) and in the second case it
is understood as reflection of the system of strictly hierarchical structures of
inequality. – Though surely in both cases the systems are far from structurally
guaranteeing equality, the question is in one case a matter lacking equity (F), in the
other case a matter of lacking equality (FRG).

These three ‘paradigms of the state’ are especially with respect to social policy and a
possible public responsibility for social quality much more important than the gist
presented by Gøsta Esping-Andersen under the heading of the Three Worlds of
Capitalism as we are now confronted with the principals behind the development of
legal instruments rather than the gradual differences in distribution. – Sure, Gøsta
Esping-Andersen’s argument is supported by certain empirical data. However, the fact
of his orientation on the meaning of gradual differences rather than the underlying

158
principals of the state are shown by recent developments. We see in many areas rather
‘easy’ shifts with direction of convergence whereas other areas remain fundamentally
untouched – and in many cases we can even say that especially those areas remained
untouched which had been neglected especially in the study with which Gøsta Esping-
Andersen first made some apparent furore in the early 1990s. Strikingly, relatively
little systematic notice had been taken of the work by Stein Rokkan although he made
social science aware of some of the mistakes before they actually had been made by
the institutionalist approaches. To raise the most important points we can quote Einar
Bergen and Per Selle, who summarise:

Because of Rokkan’s strong urge to synthesize and combine


different approaches by making skilful use of other scholars’ ideas
and categories in a different context, Rokkan can be said to
simultaneously incarnate the different schools of thought of the
‘Golden Age of Political Sociology’. The Michigan school of
empirical electoral studies was essentially ahistorical and strongly
oriented towards the psychological aspects of the partisanship.
Rokkan was equally as data-fixed as the Michigan school, but he did
not accept the ahistorical and psychological approach which
downplayed contexts. The concern for context brought Rokkan in
contact with the contemporary schools of political development and
‘nation building’. These schools addressed themselves to problems
of the contemporary context. They were ahistorical, and mainly
interested in showing how aggregated individual political
orientation related to political stability. Rokkan was also strongly
concerned with the general development processes; he, however,
put a much stronger emphasis upon institutional variation, as a
result, of the historical strategies of elites far back in history. It
became crucial for him to show how elite decisions became
institutionalized and how variations in such early
institutionalization influenced modern mass politics. This interest
made him particularly concerned with developing strategies of
systematic comparison which took into account the structural
aspect.

159
(Bergen/Selle, 1992: 289 f.)

A main point of the models, developed on the basis of this approach is the fact that the
different systems and policy options are not simple institutional orders but – as
soci(et)al settings much more complex as the representation of specific interests.
Although there are of course basic interests at work, we find various constellations
and

[t]o account for such variations, we clearly cannot proceed


cleavage by cleavage but must analyze constellations of conflict
lines within each polity.
(Rokkan with Campbell/Torsvik/Valen, 1970: 102)

The proposal in that study is to apply the AGIL-scheme Talcott Parosns’ and link the
same with four cleavages,

[t]wo of these cleavages are direct products of what we might call


the National Revolution …
Two of them are products of the Industrial Revolution …
(Ibid.)

A summarising graph looks as follows:

(ibid.)

The question is not if we agree with the different cleavages and their meaning and
exclusivity nor is it at this point important if the AGIL-approach is seen as suitable for

160
the further analysis. However, the crucially important aspect is that Stein Rokkan uses
variables that are genuinely social by referring to the double importance of
biographical and societal development. Consequently, they can well contribute to
developing a further step in understanding welfare regimes, overcoming the limitation
of an individualising institutionalist approach. It is from here that we can reintegrate
as well the apparent dichotomies between agency and structure and structure and
function by further applying the Gramscian perspective on hegemony.

Matrix for a Global Assessment

So far, we are still moving along the lines of the standard arguments, evolving from
the European tradition of enlightenment. However, it seems to be relevant that this
tradition is in itself split into two fundamentally different strands,51

* the one being the mainstream modernisation as emergence of the instrumental


reason (see for instance the interpretation by Lerner, 1968: 82-92);
* the other being a process of civilisation (cf. Elias, 1939).

As proposed before, the orientation on civilisation in the interpretation of Norbert


Elias allows developing two important orientations. First, it allows moving away from
the general-abstract principle of rationalisation/rationality to the concrete-abstract
principle of appropriation. We are concerned with a standard that is inherently dealing
with the way people develop through relationships and subsequently in their
processuality. Second, with this orientation on relationality, it allows an objectivation
of the social beyond pragmatism and utilitarism, thus fundamentally looking at (i) the
social dimension of personality and (ii) the public dimension of the social. This means
that the genuine definition of the social, of policy, economy and (social) law develops
at the interface of chains of interdependence.

Thus the question to be asked differs from the traditional instigation. Traditionally,
social policy presupposes a fixed reference to a normative setting that defines what is
good and what is bad52 and also – to some extent stemming from there – a given

51
The variety of using the terms modernisation and civilisation will not be further developed; see for some of the discussion
for instance Szakolczai, 2003; Wagner, 2001
52
This has to be seen as matter of valued or at least accepted ‘societally setting’ but as well as matter of valued or at least
accepted behaviour.

161
understanding of what a social problem is. Moreover, this understanding is only on a
secondary level seen as genuinely social as it refers to an in principle harmonious
relationship, estabilised by a flaw of the – rational – individual who doesn’t behave in
a sufficiently adapted, capacitated way. In other words, social policy – and social law
– is engaged in cases where a dissociation exists between individual and social, where
paradoxically relationality is interrupted – be it as rupture between ‘system and
individual/social group’ or be it as rupture of systemic development. Furthermore, it is
from here that it evolves further and gains the character of being a principal means of
designing and regulating social spaces. Important is that the emergence of the latter
function usually occurs as response of ‘mismatches’ or systemic dysfunctions or
requirements. Then social law is caught between being defensive and proactive, being
employed not primarily with the protection of people or groups but with the matching
of the understanding of the social in reflection of the actual practice (previously this
had been mentioned as matter of the vita activa and the different perspectives on
appropriation). – The following figure may give a heuristic impression of this.

Figure 20: Dimensions of Intervention for Traditional Social Policy


Social policy has in general terms three dimensions. The first is the organisation of
the public realm – as administration of relationality. The second is the concern with
the administration of fractures: points where individuals have to coordinate and adapt

162
to general and external developmental processes. The third is the concern with
breaking points within society itself.

This can be merged with the view brought forward by John Clarke, who emphasises
the triangular setting of welfare, nation and state (see Clarke, 2004: 26). Bringing the
two interpretations together, we arrive at the following.

Figure 21: Social Policy between Welfare, Nation and State


A new question is especially virulent in two historical situations, namely when it
comes to developmental ruptures and when it comes to the confrontation of different
systems.53 Though in many cases, formally same or similar legislation is applied
across different regions and countries and while it is true that

[t]he application of laws does not – re vera – entail knowledge of


their origin and ‘meaning’. The procedure requires, as can be
legitimately said in allusion to Niklas Luhmann, only legitimacy in
its own term
(Pörtner, forthcoming)

53
This formulation says as well that it is – or should at least be – also a relevant question in non-disruptive situations.

163
we still have to find the different ‘dialects’ (ibid.). Without them, legal and economic
thinking is very much in danger of following an affirmative, uncritical remit.

The first issue to be discussed seems to be about finality – some issues had been
already mentioned. As discussed very early in this document, usually reference is
made to different value systems – an approach for which only little evidence can be
maintained as many of the fundamental values are very similar across the borders of
different systems of thought. Furthermore, the economic patterns, though we find a
general and fundamental developmental path of convergence, has to be seen as well in
its differences inasmuch it is a social process. As such it defines specifically

* class and class relationships


* profit – or in a more general term: ‘gain’ – this including the meaning of wealth
* the means of achieving what is considered a ‘good life’.

Reconsidering values against this background means reshuffling the triangle of (i) the
economic system which has to be understood as socio-economic-environmental
relationship, (ii) the ‘general values’ within a society (of which religious beliefs are
one aspect) and (iii) the specific political (social-normative and regulationist
mechanisms [of which social law is one].) With this we arrive at another triangle,
which can be used for grasping the meaning of general and specific value systems in
the constitutional process of economic formations and social regulation.

Figure 22: The Accumulation Regime: Condition and Constitution

164
However, speaking of political mechanisms as determining action, has to be
understood as process of socialisation. We arrive now at a stage were the reflexivity
of defining action, as suggested by Hannah Arendt is overcome. The regulative
system – and its increasing secularisation – presents itself as emergence of
mechanisms of control but also as increasing space of opportunities to the extent to
which contingencies (here understood in the sense of incalculability) are reduced.
This goes hand in hand with a partial relocation of the role of statehood and
nationhood. Earlier, and with reference to John Clarke, a seemingly firm relationship
between welfare, state and nation had been put forward (see ‹‰—”‡ ʹͳ). Clarke
highlights following moments contemporary of crises and challenges (see Clarke,
2004: 26 ff.):

Unsettled Neo-liberal anti-welfarism Expanding the social


welfare Conservative anti-welfarism New constituencies
Workfare New rights claims
Revalorizing the private/familial Residual and emergent solidarities
Individuation/consumerism
Unsettled New mobilities Traditional values
Nation New migrations Ethnicization
Unsettled borders Nationalism
Fragmentation Multi-culturalism
New ‘ways of life’ Internationalism
Unsettled Devolution Supra-national governance
State Decentralization Regional blocks
Privatization Meta-governance
Marketization Differentiated and shared
Managerialization souvereignity

Table 8: Unsettled Welfare Systems


Paradoxically, following this argument we are likely going beyond seeing unsettled
systems, rethinking the different moments of welfare, nation and state and redefining
and relocating them. It is certainly true to state that integrating globalisation

into the field of social policy poses questions about many of the
assumptions, concepts and theories that have been integral to social
policy analysis. Social policy as a field of academic study is ill-
suited to thinking beyond the nation state as its theories and
concepts were developed in a national context.
(Yeates, 2001: 19; quoted in: Clarke, 2004: 82)

165
However, it is questionable if and to which extent it is useful to further refer to
nationality and statehood as persisting variables, emphasising on the one hand their
adaptability or seeing them with Arjun Appadurai on the other hand as

devices for handling objects characterized by motion. The greatest


of these apparently stable objects is the nation-state, which is today
frequently characterized by floating populations, transnational
politics within national borders, and mobile configurations of
technology and expertise.
(Appadurai, 2001: 5 quoted in: Clarke; 2004: 83)

Though nation and state are without doubt to some extent stable and even more: are to
some extent re-established as claimed units of and for action, the real stability can be
found in different realms, namely the economic actors – and the fact of their different
interests and in the fact of different regimes and scopes of (re-)production. The first
can be seen as matter of relationality; the second as matter of processuality. Rather
than making reference to nation and state, global social policy requires an explicit
reference to class and ‘productive entities’. Though themselves ‘floating’, they are
also stable as reference for societal and biographical development. Societies are
established on the ground of economic frames of reference – in terms of social law
being concerned with processes of empowerment and participation – and biographical
developments – relevant for development of social law as matter of
equalities/inclusion and cohesion.

– In the following some points will be presented, aiming on providing at least a


framework for developing a thorough future analysis. This means as well, that some
of the issues mentioned before will be further elaborated. The criteria for such
analysis are to some extent abstract ‘normative’ principles. However, as such they are
elaborated on the basis of the Social Quality Approach which had been presented
above, reflecting both inductive and deductive approaches.

First, social policy is about rationality, bringing together the three levels of social
communication and relation building: pre-juridical/normativist – constitutionalist –
regulationist. This means not least that any further development of analytical and as
well political approaches has to appreciate the complexity which is not expressed by a
variety of values and norms but by the set of regulative mechanisms, defined through

166
their relationality. – Such statement quickly looses its alleged triviality if we look
through part of the literature. In many cases we find for instance the indication of
different Asian values, however, when asking for concretisation the mentioned values
are in many cases very much the same as we find them in Western systems: family,
respect, social responsibility etc. However, the specific combination leads to a
likewise specific interpretation of the meaning of the individual values.

Second, the most important point is to accept that we are working with poles in the
understanding of tensional relationships. There is in any case no such thing as pure
reason. However, we are dealing with different forms of rationality and
rationalisation. This may again look like a truism, however, fact is that various sides
claim representing the one and only truth. – A recent study on publishing of global
policy issues reveals some interesting data, pointing out the fact that structures as well
of academic libraries reproduce very much the centre-periphery relationships, thus
proving the world hegemonic power structures (see Tausch, 2008). The detailed
results of the study show as well that we find the occurrence of nationalist and
regionalist patterns – structures of truly global communication are by far not reached,
although the availability of technical means does suggest otherwise. Thus, it is
important to acknowledge that the first momentum when looking at social policy has
to avoid confronting rational with irrational systems. Instead, important is to expose
the fact that rationality is actually following universal principles, however the
underlying finalities are very much the opposite of being universal as they refer to the
concrete socio-economic conditions. Reference to ‘poles’ then means to look for the
determinants by which the specific universalisms are defined.

Now we can translate the previous figure into a more elaborated pattern with the
following momentums as definiens of the evolving legislative process from the
general to the concrete. For this we do not start with ‘social situations’ as ‘problem’
but instead with a space of conditions and opportunities.

167
Figure 23: Vita Activa Between Condition and Constitution
This is not given by any value system though values surely play a role. Instead, we
start by looking at (i) the broad socio-economic conditions – for the present purpose
sufficiently grasped by the term accumulation regime, (ii) the referring practice as
matter of a vita activa and processes of appropriation and (iii) the evolving mode of
regulation which is in its different parts to different degrees stable and adapting to
permanently changing conditions.

Figure 24: Constitution of Legal Realms


Important is that the pre-juridical conditions do change – adapt, gaining over time
constitutional and even ‘positively defined’ character (and possibly loosing it again),
thus providing a foundation for ‘progress’. This can be understood as ongoing
processing of the intersection of

* normative factors
* conditional factors and
* constitutional factors

as they had been explored when presenting the Social Quality Approach.

Of course, this is still a broad framework. Useful is the concept of an alternating


movement, by which societalisation provides – as much as it is functioning as binding
mechanism – a space for possible and optional socialisation. For instance, we can see
this by looking at the emergence of systems of social provisions that are in the
modern sense ‘accountable’. Whereas we found at early stages ‘informal’ systems

168
and/or institutions that offer a low level of formal regulation, being responsible for
social provisions of different kind (family, parish, charities etc.) and though many of
these provisions is ‘in kind’ and immediate, they are subsequently developed further,
emerging into a system of strictly formally regulated mechanisms – being replaced
and also gaining (and making) social spaces for new social processes. With Karl
Marx’ emphasis of the historical-moral element of determining the value of labour
power and also with Thomas Simons, who speaks of the ‘acknowledgement of
subjective rights to avail of social provisions as process of historical development’
(Simons, 1985: 79), we can point again on the meaning of political processes as
relevant and appropriate mechanisms of voicing. Relevant and appropriate does not
mean more nor less than the need of strong forces bringing a point on the agenda
which is important in terms of reproduction and legitimacy. Of course, this means as
well to define such spaces that are specific for a possibly emerging process of
international or even more global social policy making.

Third, focusing on the social, a core issue is paradoxically the specific understanding
of the individual. It is this understanding – the definition of the intersection of
biographical and societal development – that defines the mode of socialisation, or to
use Georg Simmel’s terminology: the ‘forms of socialisation’. The latter are
understood as public responsibility for social quality without pre-empting the latter on
statutory processes, let alone legislative instruments only. In any case, the focal points
of this tension are the degree of immediacy of the relationship on the one hand and the
public and private character respectively on the other hand.

PRIVATE PUBLIC
IMMEDIATE
RELATIONSHIPS OF
RITES
MEDIATED
RELATIONSHIPS VIA
RULES
Figure 25: Tension between pre-juridical valuation and speculation and
individual-oriented regulation
Interesting is the sequence by which the development of social security systems is
characterised – though broader empirical surveying is required. According to Thomas
Simons’ study of Germany and Italy (see Simons, 1985) the definition of rights,
namely the ‘recognition of subjective rights to avail of social provision’ is subsequent.

169
Before it comes to such acknowledgement we see the regulation of institutions
possibly taking on such roles. We can reformulate this, linking it to the ‘tension
between pre-juridical valuation and speculation and individual-oriented regulation’.
The development of the immediate relationships takes the form of defining a
‘common interest’ or even a ‘general interest’ – ‘general’ with its spatial-temporal
reference.54 The definition of such interest is increasingly socialised, i.e. the process is
in different forms and to different degrees secularised and taken out of the hands of
external experts.55 Though remaining in the hands of experts, these had to follow
certain rules – in this context the establishment of professions plays an important role
and so does the establishment of various formal control mechanisms. It is apparently
after the definition of the various rules – the defined general interest and the
mechanisms of maintaining and regulating it – that the rights of individuals (and of
course even more their obligations) are defined. With reference to the figure we can
say that the first move is towards the regulation and only after that we find the
extension of the space that is defined as (being in need of) public (regulation).

Of course, this leads not only to a changed understanding of responsibility but also to
changes of the reference of action.

A case with some exemplifying meaning can be found behind the message in the
Sueddeutsche Zeitung where Felix Berth reports on the 19th/20th of July, 2008:

German courts intervene more frequently by regulating family


affairs: Between 2006 and 2007 the number of cases of custody
orders rose by 12.5 percent, if compared with 2005 the raise made
up for 23 percent. …
The new figures indicate that the youth welfare offices and family
judges intervene at an earlier stage since the public outrage,
responding several cases of infanticide.
(Berth, 2008: 1)

This can be simply interpreted as ‘the state’ (represented by the welfare institutions)
taking responsibility to protect weak members of society – this would reflect a move
on the scale towards the public. The interpretation can reach further and look as well

54
Though such reference is usually not made explicit.
55
Such experts had been for instance druids, magicians, saints etc.

170
at the shift in the specific finality. Though somewhat simplified, we say that the
concern is now not simply with the private welfare but with societal development. For
instance, child care and now as well child rearing is to some extent taken out of the
individual responsibility as the way in which it is privately dealt with is not
responding to societal needs. Having said that this is a somewhat simplified
interpretation means that this ‘public concern’, which requires such intervention, is
reflecting different moments as public concern, lack of other social and public control
mechanisms and provisions, lack of security, knowledge, esteem that is required for
bringing up children, but as well the wider interest of legitimacy of the state,
requirements for having a renewed productive workforce etc. Important is to see the
shift that is characterising the process of socialisation: From purely protective
measures a system evolves that is increasingly characterised by a regulationist mode –
in other words, the shift from negative to positive integration.

In general terms, this reflects the two dialectical tensions already mentioned as
underlying as well the Social Quality Approach. Applying Norbert Elias’ approach, a
meaningful interpretation can only be achieved by looking at the actual reach of
control of relationships and of the self within these relationships.

In this context, it may be interesting to briefly discuss the Confucian orientation on


relationships (see as well ƒ”–ǣ —”•‘”›‡Ž‹„‡”ƒ–‹‘•‘•‹ƒ‡Žˆƒ”‡‡‰‹‡•
ȂŠ‡ƒ•‡‘ˆƒ‹™ƒƒ•Ǯ•‹ƒ‡Žˆƒ”‡‡‰‹‡ǯȂ‡–‡”‹ƒ–•‘ˆ‘…‹ƒŽ—ƒŽ‹–›
‹ –Š‡ ‡”•’‡…–‹˜‡ ‘ˆ
Ž‘„ƒŽ‹•‹‰ –Š‡ Ǧ’’”‘ƒ…Š), expressed by Mencius in the
words as

[l]ove between father and son, duty between ruler and subject,
distinction between husband and wife, precedence of the old over
the young, and faith between friends. Fang Hsüsaid.
Encourage them in their toil,
Put them on the right path,
Aid them and help them,
Make them happy in their station,
And by bountiful acts further relieve them of hardship.
(Mencius, 2003: 60)

171
Particular is the peculiar tension between individual and social. Although the
individual is on the one hand entirely defined by his/her relationality this does not
mean the denial of individuality. On the contrary, on the other hand

[i]n Confucian ethics, jen can only be achieved by the efforts of the
individual self (chi). Given the Confucian understanding of the
individual as an active self who is capable of reaching sagehood,
the central problem in self-cultivation is not the proper exercise of
free will, as is hypothesised in much western ethics, rather it is how
to remove obstacles that prevent the natural growth of the
mind/heart through principle.
(Tao/Drover, 1997: 12; in this context as well Needham, 1956; in
particular volume II, chapter 18)

The characteristic momentum is first the focus on ‘inter-being’, not least


understandable by focusing on the principle of mutuality rather than dependency. This
is even then the case when we consider that reciprocity goes hand in hand with the
principle of hierarchy and even domination. – This is important to note, as this is a
distinct feature when compared with the Western thinking. It is by the fundamentally
different approach towards relationality, that as well the quality of relations is defined.
Thus we find in Aristotle’s Politics the assertion that

justiceisaqualityofathinginrelationtopersons,andtheyhold
that for persons that are equal the thing must be equal. But
equalityinwhatcharacteristicsdoesthismean,andinequalityin
what? This must be made clear, since this too raises a difficulty,
andcallsforpoliticalphilosophy.Forperhapssomeonemightsay
that the offices of state ought to be distributed unequally
according to superiority in every good quality, even if the
candidates in all other respects did not differ at all but were
exactlyalike,becausementhataredifferenthavedifferentrights
and merits. Yet if this is true, those who are superior in
complexionorstatureoranygoodqualitywillhaveanadvantage
inrespectofpoliticalrights.Butsurelytheerrorhereisobvious,

172
and it comes out clearly if we consider the other science and
faculties.
(Aristotle,1932:231/232)

Decisive in this statement are (i) the individualist approach: it is the relationship not
between people but between individuals and their position towards the environment
and within the structure rather than the relationship between people themselves; (ii)
the somewhat static approach as quality is not seen as matter of changing a given
structure but at most about changing the position within the structural framework.
Though structure plays a well a very important role in the Asian approach to
relationality it is here the positioning within the structure which is by definition
characterised as permanent process of interactivity: depending on mutuality there
cannot be any personality or even individual outside of such a relationship.

A second momentum is concerned with closure. It is the specified relationship that is


seen as point of reference in itself. This is especially important when it comes to the
underlying patterns in Asian worldviews: autarky of the individual and as well of the
relevant groups is a reoccurring issue. Sure, at this point we are not dealing with a
detailed and differentiated analysis – just speaking in a generalising manner of Asian
worldviews – of views that are in actual fact varied and stand as well in contradicting
relationships.56

Before going further into detail it is worthwhile to mention a particular meaning of


community within this setting which Theodore de Bary explains.

Inanearlierbook,TheLiberalTraditioninChina,[.]Ihighlighted
the less well recognized ‘liberal’ features of Zhu’s community
compact,pointingfirstonhiseffortsatpopularupliftonthelocal
level through his proclamations to the people. Typical of this
genre was Zhu’s proclamation in Zhangzhou (1190Ǧ1191), the
most notable feature of which was Zhu’s emphasis on mutuality,
reciprocity, and cooperation among community members. These
values, rather than the imposition of superior power or punitive
law,weretobethebasisfortheproperconductofpublicaffairs

56
As it is the case as well with the various Christian traditions. See in this context Lubis, 1990.

173
onthevillagelevel.HeretheappealwastoacombinationofselfǦ
respect and mutual regardamong personsas the natural means
of upholding a voluntaristic social order, which was seen as
preferabletoayenforcementofstatecontrolfromabove.
(DeBary,1998:58f.;withreferencetodeBary,1983)

Although taken in a very tentative way, if we make a step from Confucianism to


Buddhism, we detect a similar pattern: the orientation on this-worldliness and
development of personality – not striving for salvation in another world. Instead, in
this tradition we find the orientation on the development of the personality as
complete realisation of the own identity, merger with the natural environment and at
the same time achievement of autonomy.

We can see this exemplified in works of Chinese arts, if compared with Western arts.
Although the following pieces are randomly chosen, they seem to be characteristic for
a tradition that marks much of the traditional view on what the character and role of
the human being is thought to be – arts usually being a reflection of the societal being
(folk arts is rarely the major heritage). ‘Early Spring’ by Kuo Hsi (1072), ‘Autumn
Colours on the Ch’iao and Hua Montains’ by Chao Meng-fu (1296) ‘T’ao Ku
Presenting a Lyric’ by T’ang Yin (Ming Dynasty) and others, all are typical in as they
reflect a very specific secularity that can be seen as characteristic. Although the
following needs further backing by in depth research, it is flamboyant that arts and
religion are oriented towards the human being and especially the human being in
(usually) the inner relatedness with nature. Flamboyant is as well the dominance of
nature – it is left to the observer if the human being delves into nature or if it is the
other way round: the nature providing a space in which the human is able to develop,
to unfold and to find a ‘true’ being.

Finally, it is an interesting feature that

after traditional Chinese painting had developed for some time that
text in the form of colophons and inscriptions were added, opening
up a whole new field for the art. In terms of such textual additions,
no set standard was used. … The artist and any associate, viewer,
or collector can take part and give full vent to their emotions on a
work of art. The artist’s inscription was most often written on the

174
surface of the painting itself, being viewed as a key element of the
work. … Collectors and viewers sometimes go one step further and
use space beyond the painting surface itself, such as added pieces of
paper, the mounting, a frontispiece or an endpiece, to present text
after text of comments and exposition.
(Wang/Feng [editor-in-chief], 2007: 53)

We can interpret this in close connection with the fact that

[t]he God of Heaven was also triumphant here. Following Ssu-ma


Ch’ien’s biography of Confucius, the philosophers argued that the
gods of the mountains and rivulets rule the word because rain
comes from the mountains. But the God of Heaven was victorious as
the God of heavenly order, not heavenly hosts. It was a turn of
religion which was specifically Chinese; for other reasons and in a
different form, it had also remained dominant in India. Here the
timeless and irrevocable attained religious supremacy. This was
brought about by joining an inviolate and uniform magical ritual to
the calendar. The ritual compelled the spirits; the calendar was
indispensable for a people of peasants. Thus the laws of nature and
of rites were fused into the unity of Tao.[.] Not a supramundane lord
creator, but a supra-divine, impersonal, forever identical and
eternal existence was felt to be the ultimate and supreme.
(Weber, [1915 a]: 28 [Weber, 1915 b: 47]; see as well ibid. [text in
1915 b, German edition, only]: 14)

We are dealing with a differentiated system that comes until today along at least in
one version that is very much characterised by its this worldliness – an orientation that
plays such strong role that it is even – to some extent – positively recognised under
conditions of the claimed communist orientation in China – showing both the path
dependency of ‘Chinese communism’ and as well the extent of variety and
differentiation of Confucian thinking (see Chan 1964: 37 f.).

175
Responsibility, State and the Law

Fourth, although historical development is quite comparable in very broad terms –


developmental threads are suggested by different lines as for example from
segmentary over social to functional differentiation, from clan-societies over court
societies to bourgeois societies and others – there are nevertheless fundamental
differences. One of special importance – and closely linked to self-realisation and
this-worldliness – is the understanding of the state and the meaning of responsibility
which derives from the foregoing.

With respect to the latter we can briefly say that responsibility has a different notion if
we follow traditional Asian thinking. On the one hand it is the orientation of the
individual on him-/herself – as quasi-autarkic entity. However, and this appears as the
fundamental difference if compared with the Western-Christian notion – the
individual is seen as personality, self-responsible and most importantly at the very
same time only in relationality. In Western terms this is not easily compatible, as
relationality is very much defined by mechanisms that would be seen as contradicting
what Western enlightenment defines as independence and freedom. The notion of the
rule of law – as previously attributed to the modern state – has a subordinate position.
The Book of Tang, one of the so-called Twenty-Four-Histories, and providing a view
on the Chinese classics, is dedicated to the following chapters: seven chapters on rites
(Liyi), four chapters on music (Yinyue), three chapters on calendar (Li), two chapters
on astronomy and astrology (Tianwen), one chapter on physics (Wuheng), four
chapters on geography (Dili), three chapters on hierarchy of office (Zhiguan), one
chapter on carriage and costume (Yufu), two chapters on sutras and books (Jinji), two
chapters on commodities (Chihuo) and finally one chapter on punishment and law.
Decisive is the hierarchy of the system, emphasising the meaning of rites as means of
regulation. However, at a later stage – in particularly during the Qin Dynasty and even
ore so during the Han Dynasty57 – we find different forms of early legal codes, in the
Han era not least aiming on the regulation of Confucian values. This is reaffirmed by
the fact the interpretation of mechanisms of control that are in the interpretation of
Violina P. Rindova and William H. Starbuck, though changing over time, very much
characterised by a common general orientation: self-improvement and discipline by
subordination on displayed supremacy:

57
approximately 220 BC to 220 CE

176
TheancientChinesesoughttousedutiesandceremonialetiquette
to increase social integration. They tried to build macro social
relations on micro ones. The macro relations included
organizationsandsocialstrataasdefinedbythefeudalhierarchy.
The micro relations were dyads such as husbandǦwife and rulerǦ
subject.
By1100BCE,thestateofChou’sgovernmenthaddevelopedintoa
wellǦarticulatedbureaucracy.…
Before 250 BCE when China became an empire, the Chinese
conceptofeffectiveleadershipemphasizedselfǦimproement.
(Rindova/Starbuck,1997:158)

The decisive moment seems to be the orientation on self-control and immediate


integration of the individual: contradicting to the individualist model of the West, now
the social in its relationality being the point of reference.

Liberal ideas of liberty, freedom of expression, and equality of
rights are valuable goods for liberal democracies. They have
served as effective deterrents to arbitrary and authoritarian
coercion committed against often vulnerable individuals and
minorities. But by themselves, they provide no guarantee that
informed free expression and competent deliberation concerning
public affairs will take place among a citizenry. By themselves,
theydonottemperagrowinginclinationtoassertthesovereignty
of majoritarian interests over the independence of certain
politicalandjudicialinstitutions.Notionsoflibertyandequalityin
rights also need to be put to work as effectuating means in
developingmechanismsforintelligentpracticesofdiscussionand
deliberation between policy makers, experts, and the public and
betweendifferentgroupsandorganizationswithinthepublic.But
the success of such practices, for pragmatists like myself,
presupposestheexistenceofstablecommunitiesandassociations
withinwhichpublicscanbecomeestablishedandarticulate.…

177
Pragmatists, with their relational conception of selfhood, and
theirdesiretoaugmentliberaltalkofindividuallibertywiththe
acknowledgment of the community grounds for articulate
expressionofsuchliberty,wouldhavemanysympathieswiththe
political and philosophical orientation of contemporary
Confucianism.
(O’Dwyer,2003:51f.)

Returning to developing a legal perspective, a fundamental problem arising then is not


least that the legal system gained a certain hyper-complexity due to far-reaching aims
that had been set, namely the coverage of both: a strictly value-led positive law.
Importantly, it can in a way be as well seen as combination of common and civil law,
going hand in hand with a very strong orientation on the explicit validation of pre-
juridical norms as they are especially given by the meaning of rites. – In other words,
and generally speaking: the challenge is to balance positive and common law, hard
and soft mechanisms of regulations.

This means that discussing patterns of responsibility requires as well reflecting on the
understanding of the state. The Western model had been presented above with
reference to Michael Zuern and Stephan Leibfried as TRUDI, referring to
territoriality, rule of law, democracy and intervention. It is useful to add a historical
aspect – though the following quote reflects especially the German development, this
can be by and large seen as bold refection of the European pattern. Babetta von
Albertini Mason writes:

The confessional civil war during the 16th century rose the desire for
a state policy of ‘inner peace’. Only a modern state, based on the
principle of sovereignty could end the civil war. But in its absolutist
variation it brought about the danger of confessional and
ideological [geistigen] terror and inspired the longing for freedom
which could only be satisfied by the taming of the state, giving it the
form of a constitutional state. However, the constitutional state
proofed in its original form compatible with slavery, division
between classes and social misery. The longing for justice could
only be served for by a democratic and social constitutional state.

178
(von Albertini Mason, 2004: 8; with reference to Kriele, 1994: 12 f.)

Excursus: Some Reflections on Asia

In the Songs of the Five Sons from the third volume of the Sacred Books of the East
we read

Itwasthelessonofourgreatancestor:Ǧ
Thepeopleshouldbecherished,
Andnotlookeddownupon.
Thepeoplearetherootofacountry;
Therootfirm,thecountrytranquil.
WhenIlookatallunderheaven,
Ofthesimplemenandsimplewomen,
Anyonemaysurpassme.
IftheOnemanerrrepeatedly,
Shoulddissatisfactionbewaitedfortillitappears?
Beforeitisseen,itshouldbeguardedagainst.
Inmydealingwiththemillionsofthepeople,
I should feel as much anxiety as if I were driving six horses with
rottenreins.
Therulerofmen
Howshouldhebebutreverent(ofhisduties)?
(SacredBooks,1879)

However, this is only one side of a supposed general-Asian understanding of the state.
Far more important is actually that the state follows in traditional Eastern thinking an
approach that is rather different to the one that prevails in Western thinking – and
such statement has of course to keep in mind, that any generalisation of Eastern and
Western thinking is problematic. Still, in the present context it may be helpful.
Keeping this caveat in mind, we find an important issue, with important
modifications, in the different religious and philosophical systems: Ta T'ung, the
Great Principle; the yƯnyáng, the inter-being … – all being concerned with the
following three key moments:

ȗ ˆ—†ƒ‡–ƒŽŽ›„—‹Ž†‹‰‘–Š‡—‹–›‘ˆ‘’’‘•‹–‡•ǡ
ȗ –Š‡’”‹…‹’ƒŽ‘ˆ—‹˜‡”•ƒŽŠƒ”‘›ǡ
ȗ –Š‡ƒ’’”‘ƒ…Š–‘’‡‡–”ƒ–‹‘ƒ•ƒ–‡”‘ˆ…‘’”‡Š‡•‹‘

(cf. in general Chou, Tun-i [๟ᢕ㗜], 2002).

179
In a Western perspective this manifests a paradox as actually the emphasis of the
social and the integrative character of the entire setting is in consequence highly
individualist at least in its potential meaning and consequence for action, based on the
orientation on one’s self and forbearance.

An important aspect behind this – though not claiming to provide an exhaustive


explanation – has to do with the strictly hierarchical system of the societies in
question: in one dimension this means the strict division and independence, which can
only be overcome by the self-perfection as a strictly individual (though not
individualistic) act; and in another dimension it means the orientation on individual
self-reliance and autarky – the latter being concerned with the individual and the
classes, societal institutions and societies alike. – Of course, this can be traced back to
the economic conditions and here not least the availability and distribution of
resources.

Important for determining then a sense for social quality is the awareness that the
social fabric is actually – when looking on generating cohesion – more penetrating
from a perspective of (i) the immediate social environment rather than from the
individual or the societal and (ii) the relational rather than the processual. The social
fabric and the relevant mechanisms of integration seem to be more grounded in
structural perspective of achieving and maintaining cohesion rather than the
orientation on processes of empowerment. Such statement is entirely supported by the
point Prasenjit Duara makes, stating

Viewing‘culturalism’(oruniversalism) asa‘Chineseculturalism’
is to see it not as a form of cultural consciousness per se, but
rathertoseeculture–aspecificcultureoftheimperialstateand
Confucian orthodoxy – as a criterion defining community.
Membershipinthiscommunitywasdefinedbyparticipationina
ritual order that embodied allegiance to the Chinese ideas and
ethicscentredaroundtheChineseemperor.
(Duara,1993:4)

It is from here where identity gains a very specific form – not determining the
economy or economic behaviour in a Weberian understanding but being a seedbed for

180
the hegemony of a state that is centrally build around hierarchy, ongoing meaning of
rites and rituals and autarky. In a wider perspective it reflects that

[i]ndividuals and groups in both modern and agrarian societies


identify simultaneously with several communities that are all
imagined; these identifications are historically changeable, and
oftenconflictinternallyandwitheachother.NotonlydidChinese
people historically identify with different types of communities,
but…whentheseidentificationsbecamepoliticizedtheycameto
resemblenationalidentities.Tobesure,thisdoesnotvalidatethe
claimofsomenationaliststhatthenationhadexistedhistorically
as a cohesive subject gathering selfǦawareness and poised to
realize its destiny in the modern era. PreǦmodern political
identification do not necessarily or teleologically develop into
nationalidentificationsofmoderntimes.Anewvocabularyarises
within which a political system selects, adapts, reorganizes and
evenrecreatestheseolderidentities.Nonetheless,thefactremains
that modern societies are not the only ones capable of creating
selfǦconsciouspoliticalcommunities.
(ibid.:8)

This means not least that social security and also social legislation gains a different
perspective. These are more last resorts than in Western thinking as they are strictly
seen as last resort and not part of a process of socialisation.

The entirety of the pattern described so far finds its expression as well in the fact that,
though a strict hierarchy was very much at the core of the understanding of the state,
it was based on a claimed moral superiority. However – and most importantly – this
could only be claimed on grounds of material independence, thus being a matter of
the rich and powerful, thus carrying

the one really essential reservation concerning economic


acquisitiveness: namely, the poise and harmony of the soul are
shaken by the risks of acquisitiveness. Thus, the position of the
officeprebendaryappearsinethicallyhallowedform.Itistheone

181
position becoming to a superior man because the office alone
allowsfortheperfectionofpersonality.
(Weber,[1915a]:160[Weber,1915b:148])

Rather than following Max Weber, this can be interpreted as continuum, rather than as
contradiction of different religions and their approaches to affluence about which
Weber writes:

The Confucian attitude toward vocational life and possessions is


opposedtothatfeudalenjoymentoflavishexpenditureprominent
in statements of the prophet in early Islam, and it is opposed to
the Buddhist rejection of attachment to worldly goods. It is
opposedtothestrictlytraditionalist,vocationalethicofHinduism
and to the Puritan hallowing of innerǦworldly ascetic and
profitable work in a rationally specialized vocation. If, for once,
wemaydisregardthisfundamentalcontrast,thereareallsortsof
particularized affinities to be found between Confucianism and
thesoberrationalismofPuritanism.
(ibid.:161[Englishedition]149[Germanedition])

We are, thus, employed with the different rationalities – and these can be well linked
by the interpretation of seeing them as ordered along a continuum of inside and
outside orientation and order of the world and orderly life of people. Then, hierarchy
meant as well (i) moral obligation and (ii) suppression and neglect of those who had
not reached the supposed stage of worthiness. In consequence, an understanding of
the state could develop that authoritative and suppressive on the one hand and callous,
indifferent on the other hand. Moreover, being strictly linked to ‘rationalism as order’
(Weber), it meant as well the requirement of acceptance:

Chen Ki Tong says, ‘Rather be a dog and live in peace than be a
manandliveinanarchy.’
(quoted in Weber, ibid. 169 [English edition] 154 [German
edition];withreferencetoTscheng,1896:122).

However, at the same time it should be noted that Confucianism makes important
references to benevolence, highlighting the importance of philanthropic support. In

182
which way the two: namely hierarchy and benevolence are intertwined is made clear
in the words of the ‘sacred texts’ where we read

Mencius said, 'He who, using force, makes a pretence to


benevolence is the leader of the princes. A leader of the princes
requires a large kingdom. He who, using virtue, practises
benevolence is the sovereign of the kingdom. To become the
sovereign of the kingdom, a prince need not wait for a large
kingdom.
(Mencius.1895:chapter6)

And then

Mencius said, 'Benevolence brings glory to a prince, and the


oppositeofitbringsdisgrace.Fortheprincesofthepresentdayto
hate disgrace and yet to live complacently doing what is not
benevolent, is like hating moisture and yet living in a low
situation.
(ibid.)

Under these conditions the foundation for social policy could only be based – and this
is somewhat distinct to the Western thinking – on solidarity amongst kinship and to
very limited extent pitiful benevolence. The negligence of social policy and social law
as genuine part of a general process of socialisation meant as well the lack of a rights-
based approach; not least in connection with the personal self-perfection this could
not easily be reached.

From here a major contradiction evolves – however it is one that marks to some
extent also Western thinking. Whereas on the one hand material independence is
highlighted as necessary for reaching independence of mind, i.e. mindfulness, it is on
the other hand the independence of the mind that can find self-perfection in its
orientation on authenticity, virtue, sagacity – and obedience of rituals.

Important is in this light, first, the emergence of a strong ‘priesthood’ – merging to a


professional orientation for instance of a Confucian elite. As John W. Dardess
summarises:

183
In brief, the argument is that Confucianism may be understood as
profession in the light of the following considerations: (1) the
imperial state established ‘Confucian households’ as a separate
fiscal and juridical category, based upon the special functions they
performed; (2) those who considered themselves to be Confucians
firmly believed that they performed services of crucial importance
to the continuation of civilized life; (3) the Confucian knowledge
brought to bear upon the problems of civilized life was
‘professional’ knowledge in that it consisted in an ordered body of
generalized and abstract principles or truths, applicable to a wide
range of concrete situations, that were beyond the comprehension of
laymen; (4) acquisition of this knowledge demanded rigorous and
extended formal education and training; (5) though abstract,
Confucian knowledge was ‘useful’ knowledge and demanded of
those who acquired it that they apply it to the rectification of certain
kinds of social malfunctions; (6) Confucian practitioners
assiduously cultivated an air of disinterest and impartiality toward
their clientele and its problems; and (7) Confucian practioners
constituted a community of professionals that was distinctly
different and separate from family, locality, or public bureaucracy
as employing organization. The cumulation of these features
resulted in the development of a Confucian professional interest.
(Dardess, 1983: 13 f.)

Second, this can as well be seen as reason for the fact that even much later there had
never been the development of a strong and independent bourgeoisie. The
contradiction is described by Samuel Edward Finer who asserts

From 1560 China was a very prosperous country. Its economy,


moreoverwasrecognizably‘modern’intheWesternsense,inthat
itcomprisedaproletariat,anurbanmiddleǦclass,merchants,and
businessman.
Itwas,however,stillabasicallyagrariansociety,andevenatthe
close of the dynasty most of its tax revenue was still collected in

184
kind. During this dynastic span the social structure in the
countryside underwent a great transformation which had
profound political consequences … Initially, the founding
emperor’s expropriations served to reǦcreate a nation of
smallholders…,butfromthebeginningofthefifteenthcenturythe
peasant proprietors began to disappear. Some abandoned the
landandfoundemploymentinthetowns,themines,orthearmy
andalargenumberbecamedéclassés–wanderers,dropǦouts,or
bandits. But most became not so much tenants as bondsmen …
Not merely were there immense latifundia worked by tenantǦ
farmersbutoftenthisstatusimpliedpersonalsubordination.1This
wastrue,inmanycases,ofhiredlabourersalso. 2Therisingsthat
destroyedtheMingin1644wereoftenrevoltsbyserfs,andalsoby
tenantsrevoltingagainsttheirdependency.3
(Finer,1997:809;withreferences1:Elvin,PatternoftheChinese
Past,236Ǧ7;2:Ibid.238Ǧ44;3:Ibid.246Ǧ7)

Thus the state, though being highly developed and principally lead by an extensive
civil law system, was very much understood as moral power and power of
‘professions’ – the Confucian litarati as they had been mentioned before. They had
been

[t]he custodians of the constitution in China … . All mandarins


were literati. Imbricated with the state and with landowner
families, these men were the ‘scholar officials’, an aristocracy of
thebrush.
(ibid.:818)

Thus, it was likely to establish a state that had been caring or suppressing, but not
empowering nor inclusive as mechanism of a wider process of socialisation.
Consequently the state is not so much understood as means and expression of
socialisation. Instead, it is more that of a pure and open instrument of power – and as
such an institution standing ‘outside of society’; it is a forbidden city. A brief look at
the earlier Chinese history confirms this perspective.

185
In a manner no less dramatic, Zhu Yuanzhang also left a
permanent imprint on Chinese political, economic and social
history whose effect can still be felt nowadays. Centralization of
powerwasthemoststrikingfeatureofhisstyleofmanagement.…
This stringency derived its justification from the failures of
previous dynasties. When the Mongols were expelled, the alien
dynastywasofcoursediscredited.ThelaxityoftheSongwasalso
undercriticism.ItwasarguedthatChinawouldneverhavebeen
subjectedtothedominationofforeignminoritiesifdisciplineand
solidarity had been maintained by the bureaucracy and by the
population. Despotism always has its way of finding moral
sanction. In the case of the Ming, Zhu Yuanzhang was his own
spokesman. Several pamphlets authored by the dynastic founder
spoke of his own cruel and tyrannical rule as his solemn duty
underheaven.
…
State and society after the bloody inquisition appeared unusual
evenbyChinesestandards.Thepositionoftheprimeministerwas
abolished, not to be revived for the duration of the dynasty. The
emperorhimselfdealtwithalargenumberofofficialsonmatters
both significant and trivial. The censorial branch of the
government was empowered to speak up to challenge policy
inadequacies and bureaucratic irregularities and, as
circumstances warranted, to remonstrate against the emperor
himself. For the censors, even deliberate silence was a serious
offence, for it implied neglect of duty. Yet, neither were they
grantedimmunityincarryingouttheirfunctions.Throughoutthe
Ming period, many censors suffered the vengeance of the throne
anddiedignominiouslyfortheiroutspokenness.
SimilartotheBismarckianconceptthatGermanytowardtheend
of the nineteenth century was ‘saturated’, Zhu Yuanzhang was
determined to hold the center core intact without involving it in
externalliabilities.

186
(Huang,1997:170f.)

The state is thus located outside of society, depending on and allowing a strong
genuine society – though simultaneously largely individualist/isolationist. The
challenge is to take into account what Ming-Jer Chen presents as the understanding of
the ‘middle way’.

In contrast to the Western analytical way of thinking, which is based


on breaking the whole into parts, the Chinese mindset takes an
integrative point of view, one that considers all things in terms of
their relationships, be they social, economic, or biological. In the
Chinese perspective, integration is not the sum or combination of
parts, a paradigm grounded in Western philosophy. Rather, it is the
totality of relationships, which blends all parts together.
(Chen, 2002: 179)

Surely, there is much space for ideological augmentation. And it can be contested if
such purity of differences does exist and if many moments of what is suggested as
Chinese approach is not also present in at least several parts of Western thinking.
Furthermore, it can be discussed if those patterns of thinking, classified by Ming-Jer
Chen as Chinese, are not also easily classifiable as ‘traditional’, following the
mainstream confrontation of traditional and modern. However, leaving this aside, it is
an interesting confrontation that follows.

Chinese Western
Intellectual paradigms
Holism Analysis of parts
Both/and Either/or
Interdependent opposite Exclusive opposites
Time
Circular Linear
Correlation and co-existence Causality
Process-oriented Deadline-oriented
Go with the flow Efficiency
History and tradition Future-oriented
Performance
Group harmony and shared Individual performance
accomplishment accomplishment
Qualitative and subjective Quantitative-objective
People-oriented Task-oriented
Economic and social concerns Economic indicators
(adapted from Chen, 2001: 94)
(ibid.: 187)

187
If we acknowledge the points made by Ming-Jer Chen, it is at least getting obvious
that the standards of assessing the despotic character, usually said to be dominant in
Asian countries, the subordinating patterns, the lack of individuality have to be
qualified. Though all these patterns are concerned with setting definite ‘borders’,
there is as well a moment of opening realms within these borders for developing
intense relationships – and dependencies. If we take such approach, we have to go
further, looking behind the scene and ask for the reason for such different way of
socialisation. As much as spirituality may play a role, there is another fact that is
much more crucial – and pops up throughout the current text again and again: the
challenge to properly assess the economic conditions and the role of the state as part
of the accumulation regime itself and also as part and perhaps even determinant of the
mode of regulation. Looking from here another time at the Ming dynasty – the era that
probably is still the most important as historical path builder – it is important that

[a]t the founding of the Ming, the only major dynasty in Chinese
historythatoweditsorigintopeasantrebellions,theadaptation
ofaprimitiveeconomicbaseasthenationalstandardandthedoǦ
itǦyourselftypeofserviceproceduresmettherequirementsofthe
time.…Intellectuallyunattractivehis[ZhuYuanzhang’s]schemes
wereneverthelesseffectiveatleastfortheshortterm.Sacrificing
qualityforquantity,heunitedanationofpeasantmasses.
But the longǦterm effect of this creation was depressive. It
virtually announced to the nation that China, as a large
conglomeration of village communities could be content and
happy without the complications of commerce. Not interested in
developingservicefacilitiesofitsown,thedynastyalsoremained
thoroughly apathetic towards diversifying the nation’s economy.
There was even less concern for providing a legal apparatus to
facilitatediversification.
(Huang,1997:174)

And with this

188
[b]ureaucratismundertheMing…appearedtobethemostrigid
ofitskind.Therelianceonsocialvaluesasthebasisofgovernance
deepened.
(ibid.)

It is worthwhile to point at least in a side remark on a comparative perspective:


whereas China – like Turkey, as we will see later – did not have a sufficiently strong
bourgeoisie, the rebellion against the system – if we can speak of such rebellion at all
– came from peasants – and as such it had not been centrally concerned with the fight
for power but for the fight for better treatment. The economic question – at least as
question of the accumulation regime – did not play a central role: not for the peasants
nor for the germinating small bourgeoisie (cf. Moore, 1966).

How different was this for instance in France? Though surely to some extent
exaggerated, one may say that the French revolution can only be understood as matter
of ‘The Bakers of Paris and the Bread Question’ – thus the title of Steven Laurence
Kaplan’s book (Kaplan, 1996). Life – in retrospective and also as matter of
developing a perspective for the future – had been fundamentally established on the
ground of securing the social supply and support mechanisms, thus enhancing
individuals’ standing within society rather than enhancing communities and
maintaining their integrating and simultaneously highly seclusive organisation.

Excursus: Some Reflections on Islam

It is with respect especially to (social) law interesting to look at two aspects of its
closure. In one respect we can understand closure as matter of seclusion and
departmentalisation or coherence building. Either

* every systemic level of the legal system (simplified: pre-judicial, primary and
secondary level) is in itself closed and allows only the execution of hierarchical
influence (seclusion); or
* the different systemic areas (again simplified: pre-judicial, primary and secondary
level) influence each other and in both directions to provide redefinitions that
increase internal coherence; this can for instance happen through concretisation of
general regulations due to specific regulations that require more thorough reflection
(departmentalisation); or finally

189
* the communication between the different systemic legal areas (in the same way
simplified: pre-judicial, primary and secondary level) is closely linked to the ‘social
reality’, equally
¾ ‘adapting’ to changes in terms of changing themselves,
¾ supporting changes of reality or
¾ aiming on hindering social change (coherence building).

This can be translated into a complementing perspective, dealing with the question of
control. Three dimensions have to be defined. First, it is the degree to which it is
secularised, i.e. the degree to which human beings have actually taken hold of the
legislative process. Second it is the degree to which it regulates every day’s life and to
which it is a matter of ordinary policy processes, calculable in the sense of clearly
defined and put into writing. Third, it is a matter of exclusiveness in its scope, i.e. a
question about the actual and real meaning of equality. Most importantly we can see
this as well as three dimensions of constituting citizenship – and it has to be
emphasised that we are talking about the constitution of citizenship as matter of active
identification of people with their engagement in a specific relationship rather than
granting citizenship as legal act.

In the West – and for us this is the easiest way to develop a meaningful reference –
the relevance can be seen if we follow the process of general secularisation which is
not only meaningful as matter of translating divine power into human law. Rather, it
is as well meaningful as means of using this power for directly shaping the way of life
– though still very much an exclusive procedere it is increasingly defined as process
of direct control and matter of defining norms. From here the development opens into
three directions, namely (a) the use of law ‘against’ people as disciplinarian means,
(b) the use of law in support of people, though the support character can have very
different meaning, ranging at least between enablement and empowerment (meaning
that the latter is more characterised by gaining independence) and (c) the use of law
by the people, i.e. the move towards a system in which both law making and law
implementation is controlled.

We can see some parallels when we look for instance at the Sharí ah, the Islamic law.
Ernst Klingmueller, for instance, mentions

three large epochs

190
the foundation of the Islamic law in the Qur’ân in its function as
source and standard of law. The reason for validity is solely god’s
will, expressed in the prophet’s proclamation to the people;
the doctrination and systematisation of the entire matter of law by
the paradigmatic law school and the endeavours to amalgamate the
Islamic legal thoughts with the various jurisdictions and laws of the
subordinated countries;
the dispute between the Islamic thought of law with European legal
thinking by way of defence and assault.
(Klingmueller, 1980: 376)

Then Ernst Klingmueller puts his finger on a serious problem, he calls congenital
defect, the problem being that the Sharí ah

arose from a faith based pardigm rather than from ‘staatsraeson’


[raison d’état, national interest]. … The Qur’ân rather than the
state, the power of the state is a constitutive element of Sharí ah;
legal security follows more a transcendental understanding and
ensuring legal peace is in this light primarily a consequence of the
Muslims, living together in their community rather than being a task
and function of the state; this is different when it comes to the courts
led by the state (mahakim al-mazalim). The Sharí ah lacks the
immanent and chartered efficiency, in other words: as well the
independent power to enforce the sentence.
(ibid.: 376)

This contradiction opens as well a different perspective, emphasising the supposed


compatibility of Sharí ah and the Western legal tradition. Whereas from the latter
perspective a claim is made to represent a rationalist approach, deriving legal
principles and judgements from a supposed general will, the logic of the Sharí ah is
twofold, first claiming the identity between the primary sources, namely the Qur’ân
and the Sunnah (traditions) and what is legal, and second establishing a direct
hierarchical ‘deductive’ line between these two and the actual legislation and
deliberation for a verdict, applying the subsidiary sources of which is said that

191
[t]here is almost unanimous agreement among the scholars of the
different schools of jurisprudence that the Qur’ân and the Sunnah
(the Traditions) of the Prophet (peace be upon him) are the only
primary sources. In view of the extreme complexity of the possible
sources of legal provisions, there can be no complete consensus on
the subsidiary sources. It emerges however from the different
schools of jurisprudence that the most commonly accepted
subsidiary sources are: Consensus of Opinion, Reasoning by
Analogy, Equitable Discretion, and finally Interests.
(Omar, 1997: 148)

Seen in this light it is not about rationality here and irrationality there. At stake is that
the link between the different rationalities – for us relevant the pre-judicial, the
primary and the secondary law – is much closer; and this means not least that the
degree to which humans are independent and self-determining actors on their own
individual and collective behalf is at stake.

As important as it is to acknowledge the religious dimension of the background of the


different legal systems and their pre-judicial conditioning, it is not less important to
consider secularisation not only as way of overcoming the religious dimension but as
well as bending faith and religious issues in a way that establishes, maintains and
manages certain hegemonies.

An important, though largely neglected point of the debate is that in any case even the
religious pre-judicial grounds are at some stage translated into matters of everyday’s
behavioural norms. This, in turn, means that the totalitarian, holistic, general approach
comes into conflict with the situational particularity. It is for instance remarkable that

[t]heologians say that Islam is a simple and intuitive faith. It is


based on clear foundations which are valid at all times and in every
place. As these foundations are the core of the Muslim’s belief, it
follows that disbelief in any one of them is equivalent to disbelief in
all of them.
(ibid.: 148)

And from here Mohamed Abdel-Khalek Omar claims that

192
Islam, as a matter of faith, is a religion, not a mere ideology, and as
a matter of practice, a way of life, not a mere compilation of legal
rules.
(ibid.: 157)

and continues that

the Qur’ân lays much stress on the necessity of making use of one’s
own reason both in matters of belief and action
(ibid.: 259)

However, the translation into reality, i.e. the application does not simply follow from
above. Rather, it is an application in a specifically given framework of reality. As
such it is a mixture of the traditional beliefs, i.e. interpretations of the world, the given
reality at a given point in history and the interpretation of this reality in the light of
old values and value systems.

Figure 26: Determination of Current Frames


Exploring this linkage may offer a way of clarification of the necessary pathway of
contemporary conflicts between seemingly generally accepted values and their
defiance in reality. This then explains as well that the contemporary modes of
regulation, legally constitutional systems (primary law) and even secondary law are
still to a large extent coined by very early systems of politico-legal thinking.

193
We continue by looking at current debates in Turkey – a secular state since nearly
hundred years, though at the same time coined by both: Islamic traditions and a
currently still strong influence of the Islamic community in the country. In addition, it
is important to recognise the economic situation, roughly to be characterised by

* only recent economic growth, though this is regionally extremely unbalanced,


* a huge divide between economies,
¾ part being under public control,
¾ part being entirely dependent on foreign capital and not much more as
subcontractors,
¾ others performing as sustainable national industry and others again performing as
some form of genuine shadow economy
* a ‘modern performance industry’ on the one hand and a tradition-oriented economy.

In addition, we find a relatively large share of public employees, in the state


administration and not least the overwhelming role of the army.

To point briefly on some aspects of the historical development, we have to look at the
different patterns, in part establishing specific tensions within the economic, political
and legal system. Decisive aspects in this respect are the following:

* The breakup of the Ottoman Empire meant as well establishing a new socio-cultural
and economic entity, itself being still classified as ‘developing country’, and in this
case being characterised by the inherent religious tension between Islamist and
Christian traditions. It is not the place to discuss historical aspects of the nearness
of the young republic to one or another faith system. Important is that we are facing
under the leadership of Mustafa Kemal Atatürk the foundation of a secular republic.
This break with (parts of) the country’s history means as well the establishment of
internal and external conflicts in ideological respect as it meant the foundation of a
secular enclave within contradicting religious traditions – a conflict that had been
(and still is) as well marking part of the inner factionalism.
* What matters is at least a strong influence of economic traditionalism as stigma of
the republic. At first glance, this seems to be a straightforward matter, being based
on the developmental stage of the country: for a long time the slow move from a
mainly agriculturally oriented economy. The history – the breakup of the Ottoman
Empire in the early 1920s meant in a way as well disentanglement from the

194
capitalist centre – could not easily been overthrown. The one reason is a huge
regional disparity in the country’s development (see for the analysis of different
aspects of regional economic development and regional policies: Özaslan, 2007:
125-173).
This can be seen not least by looking at some key statistical figures: Though we
find a mentionable sectoral shift within the economy, the decline of agricultural
production is relatively slow. There is, however, a stark difference between regions,
for instance an above-average share of the service sector in central Anatolia, and an
above-average share of agriculture in the Black Sea area. Similarly interesting
patterns can be seen with respect to concentration of capital and the relevance in
different sectors (see Pöschl, Josef et altera, 2005: 35, 32, 38 ff.).
Another important meaning had been the geopolitical position. Here we find some
uncertainty, the country(‘s economy) being torn between the orientation towards
the European west (what became later institutionalised as the EU), the European
east (especially the USSR) and the American United States. This translated not
least into the choice between three options:
¾ Š‡ ˆ‹”•– ‘’–‹‘ „‡‹‰ –Š‡ ‘”‹‡–ƒ–‹‘ ‘ ”ƒ’‹† ‰ƒ‹• ‘” ƒ– Ž‡ƒ•– ”‡Ž‹‡ˆ Ȃ
ƒŽ–Š‘—‰Š˜‡”›’”‡…ƒ”‹‘—•ƒ†•‘…‹ƒŽŽ›•‡‰‡–‡†Ǥ –Š‹•…‘–‡š–”‡Ž‡˜ƒ–‹•
–Š‡ ‹’‘”–ƒ…‡ ‘ˆ ‹‰”ƒ–‹‘ǣ ‘—–™ƒ”† ‹‰”ƒ–‹‘ ‘ˆ ™‘”‡”• ƒ† ‹‡”
•‡‰”‡‰ƒ–‹‘ ƒ• ˆƒ…–—ƒŽ ‡š…Ž—•‹‘ ‘ˆ —”†• ‘ ™Š‹…Š Richard Rose ƒ† Yusuf
Özcan•–ƒ–‡ǣ
Historically, Kurds have lived in the poorest regions of eastern
Turkey, where illiteracy, family size and infant mortality are
higher, while incomes are considerably lower. Such social
conditionstendtodepresssuchpeople’squalityoflife;moreover,
living in an area of armed conflict further undermines citizens’
qualityoflife.
(Rose/Özcan,2007:12)

Ȃƒ–‡”‹‰”ƒ–‹‘‘ˆ–Š‡•‡‰”‘—’•–‘™‡•–‡”’ƒ”–•‘ˆ–Š‡‡’—„Ž‹……‘—Ž†‘–
…‘’‡•ƒ–‡ˆ‘”‡ˆˆ‡…–•‘ˆ’”‡˜‹‘—••‘…‹ƒŽ‡š…Ž—•‹‘ǡ’‘Ž‹–‹…ƒŽŽ›Ž‡ƒ†‹‰–‘–Š‡
…‘ˆ”‘–ƒ–‹‘ƒ†ˆ‹‰Š–„‡–™‡‡ƒ–Ž‡ƒ•––™‘ƒ–‹‘ƒŽ‹•–‘˜‡‡–•™‹–Š‹
—”‡›ǣ –Š‡ ‡ƒŽ‹•– ƒ† –Š‡ —”†‹•Š ‰”‘—’•ǡ ‡ƒ…Š ƒ• ™‡ŽŽ ‹ –Š‡•‡Ž˜‡•
•’Ž‹–™‹–Š”‡‰ƒ”†–‘–Š‡‹”‹†‡‘Ž‘‰‹…ƒŽ‘”‹‡–ƒ–‹‘Ǥ

195
¾ Š‡Š‘’‡ˆ‘”•Ž‘™„—–•—•–ƒ‹ƒ„Ž‡†‡˜‡Ž‘’‡–‘ˆƒ‡…‘‘›–Šƒ–‹˜‘Ž˜‡•
‘–Ž‡ƒ•–ƒŒ‘”•–ƒ–‡ƒ…–‹˜‹–‹‡•Ȃ‹…Ž—†‹‰ƒ‡–‹‘ƒ„Ž‡•‘…‹ƒŽ‹•‡†•‡…–‘”Ǥ
¾ Š‡ ‘”‹‡–ƒ–‹‘ –‘™ƒ”†• ’‘Ž‹–‹…ƒŽ ’‘™‡” Ȃ ‘– Ž‡ƒ•– ƒ• ‡š’”‡••‹‘ ‘ˆ –Š‡
…‘…‡”ˆ‘”•‡…—”‹‰•‡…—Žƒ”‹•Ǥ
These different orientations did not just show a huge impact on the living
conditions of the different social groups of the population but meant as well that the
socio-political system – and with this any social policy and public responsibility for
social quality – remained rather ad-hoc oriented rather than allowing a systematic
and strategic development.
Furthermore, economic traditionalism can be seen as characterising the country’s
developmental status as well as consequence of the persistence of some elements of
Islamic economics.
The three central moments in this regard are
¾ …‘‹–‡– –‘™ƒ”†• ’‘˜‡”–› ”‡Ž‹‡ˆ ƒ† ”ƒ‹•‹‰ Ž‹˜‹‰ •–ƒ†ƒ”†• ˆ‘” –Š‡
ƒ••‘ˆ–Š‡’‘’—Žƒ–‹‘
¾ ‘–Š‡‘‡Šƒ†„›ƒ•–”‘‰”‘Ž‡ˆ‘”–Š‡•–ƒ–‡ǡ
¾ ‘–Š‡‘–Š‡”Šƒ†„›ƒ‘”ƒŽŽ›Ǧ‘„Ž‹‰ƒ–‘”›•›•–‡‘ˆ•—’’‘”–‡…Šƒ‹••ƒ•
‡Ǥ‰Ǥ •‘…‹ƒŽŽ› ”‡•’‘•‹„Ž‡ ‹˜‡•–‡–ǡ ‹–‡”‡•–Ǧˆ”‡‡ „‘””‘™‹‰ ȋ‘” ƒ– Ž‡ƒ•–
•’‡…‹ƒŽ ”‡‰—Žƒ–‹‘ ‘ˆ ‹–‡”‡•– …Žƒ‹•Ȍǡ ’ƒ›‡– ‘ˆ …Šƒ”‹–› …‘–”‹„—–‹‘ ƒ†
‘–Š‡”•Ǥ

M. Umar Chapra writes that

[s]omeoftheessentialfunctionsoftheIslamicwelfarestatewith
respecttotheeconomymaybestatedtobe:
(1)to eradicate poverty and create conditions for full employment
and a high rate of growth;
(2)to promote stability in the real value of money;
(3)to maintain law and order;
(4)to ensure social and economic justice;
(5)to arrange social security and foster equitable distribution of
income and wealth;
(6)to harmonise international relations and ensure national defence.
(Chapra,withoutdate[1979]:9f.)

196
claiming the same importance for all the elements mentioned. Planning, provision
of infrastructure and guaranteeing law and order are emphasised by the same
author. But at the same time the general und utmost rule is claimed in the following
way:

TheveryobjectiveoftheShari'ahistopromotethewelfareofthe
people which lies in safeguarding their faith, their life, their
intellect, their posterity and their wealth. Whatever ensures the
safeguardingofthesefiveservespublicinterestandisdesirable
(Chapra,[withoutdate]1992:1;withreferencetoalǦGhazal)

and also in the following statement:

The basis of the Shari'ah is wisdom and welfare of the people in
this world as well as the Hereafter. This welfare lies in complete
justice,mercy,wellǦbeingandwisdom.Anythingthatdepartsfrom
justice to oppression from mercy to harshness from welfare to
misery and from wisdom to folly has nothing to do with the
Shari'ah.
(ibid.; with reference to Ibn Qayyim alǦJawziyyah, I’lam alǦ
Muwaqqi'in(1955),vol.3.p.14)

The decisive moment is – and this is an argument going through the works of
various representatives of Islamic economics – its claim of being distinct from
socialism and also from capitalism. As Umar Chapra states

socialism,asconceivedbyMarx,isbasicallyamoralandbasedon
the concept of dialectical materialism; while capitalism, being a
secularideologyis,atbest,morallyneutral.IncontrastIslamlays
emphasis on both the moral and the material aspects of life and
erects the edifice of economic wellǦbeing on the foundation of
moralvalues.Thefoundationbeingdifferent,thesuperstructureis
boundtobedifferenttoo.
(ibid.:27;cf.e.g.Haneef,1995:58ff.)

197
* A final aspect is that despite the introduction of a legal system that had been
broadly build along the lines of European traditions, we find only at a relatively late
stage a clear
justification of public law in contradistinction to civil law, which
had been as well in the Ottoman Empire initially solely determining
the foundation and scope of judge’s control of statuary activities, as
well as the concern for the relationship between the hierarchy of
norms and the judicial control.
(Rumpf, 1992: 211)

The fundamental – and as well contemporary – tension is very much a consequence of


the intertwinement of two moments, one being the long-term tradition from which the
Kemalist state arose, the other being the concrete historical circumstances of the
foundation of the state. The latter are very much expressed in article 103 of the
Turkish constitution which reads as follows:

ARTICLE 103. On assuming office, the President of the Republic


shall take the following oath before the Turkish Grand National
Assembly:
‘In my capacity as President of the Republic I swear upon my
honour and integrity before the Turkish Grand National Assembly
and before history to safeguard the existence and independence of
the state, the indivisible integrity of the Country and the Nation and
the absolute sovereignty of the Nation, to abide by the Constitution,
the rule of law, democracy, the principles of the secular Republic,
not to deviate from the ideal according to which everyone is entitled
to enjoy human rights and fundamental freedoms under conditions
of national peace and prosperity and in a spirit of national
solidarity and justice, and do my utmost to preserve and exalt the
glory and honour of the Republic of Turkey and perform without
bias the functions that I have assumed.’
(Office of the Prime Minister. Directorate General of Press and
Information, 2008)

198
Although a thorough withdrawal from Ottoman principles took place, including the
acknowledgement of the rule of law, a principle limitation was given. In the
interpretation of Christian Rumpf

[i]t has not been possible to observe the development of an ample


concept of a state based on the principle of the rule of law, rather
teaching and jurisdiction linked up with specific focal points as for
instance the incidental control of norms and the principle of the
sovereign act, independent from law.
(Rumpf, 1992: 457)

As much as these forms can be seen as justified by the concrete historical conditions
of nation-building, Rumpf points on the principle problematic, writing

[t]he moment constitution is written down it can easily come to a


congealment. The problem is aggravated by the fact that the
composition of the text of a constitution frequently mirrors only the
ideals and perceptions of an elite which are not necessarily linked
to the reality of the state. In a society in which breach of honour can
only be revenged by blood, in which the state is on the one hand
seen as protector and guardian in all situations of life, serves on the
other hand with the available positions as source for sinecure, used
in a self-service manner without considering its function of being a
power to secure societal peace in the name of freedom, equality and
justice conflicts may easily arise: the text that is suggested as
constitution emerges as utopia of norms, being independent of
normative reality.
(Rumpf, 1996: 29; see as well Weber, 1915 b: 77)

With this, the actual problem is not least one that acts around the two issues of
building a distinct identity on the one hand and combining this with relating itself to
other countries – the latter of special importance as the geopolitical situation is
automatically raising the question of being a border or a bridge between the occident
and orient.

199
The question if and to which extent it is justified to see Turkey as bridge may be left
open, in actual fact two points are relevant. (a) The strong influence of Islam as
previous state religion – and with this the close relationship with Arab countries
confronts the country with a specific challenge when it comes to defining its own
identity. (b) This is not so much a matter of defining its position between orient and
occident or a matter of the geopolitical position. At stake is the country’s positioning
within the processes of modernisation, as they had been pointed by Stein Rokkan,
namely the clarification of the internal and external centre-periphery structures. We
may look at the internal structure by directly referring to the four cleavages, namely
class, religion, cultural hegemony, space (urbanity). External points of reference are
of course, the degree of independence and with it the orientation especially towards
the Unites States of Northern America and/or towards the European Union (the other
past, current and future centres are currently not playing any obvious major role).

In more concrete terms the following seems to be interesting. Though it will not be
systematically developed, we find a strong nationalist orientation not only as notion of
independent statehood but as well as rejection of ethnical and cultural diversity. This
includes ‘integrational’ policies with a strong assimilatory stance. This is as well
interesting in a comparative perspective as it goes hand in hand with a strong
orientation along the lines of French legal traditions (see for several pointers Abadan,
1960).

This is the context in which Kemalism has to be understood, characterised by the


following principles which are defined in the constitution:

* Nationalism
* Laicism – explicitly seen as elementary for the rule of law
* Revolutionary reformism
* Populism, understood as mutuality
* Etatism
* Republicanism.

Remarkable is in the 1982-constitution an extensive elaboration of principles of the


social state. Looking at the English translation of the constitution, it is striking that we
find below the very general level of argument some attempts concretising the meaning
of general rights (social justice …), before going on to developing principles of social

200
security and service provision. This – and also the principle of democracy – are not
immediate part of the principles as they had been originally brought forward by
Mustafa Kemal Atatürk.

Another interesting feature that is showing the entire tension, is the inclusion of
certain legal definitions that are of crucial importance in the present context: the
redefinition of collectivity and individuality or in other words: the redefinition of the
reference of judicial systems. Looking at the development in Turkey shows the
importance of analysing the shift towards juridification and raises at the same time the
question in which way and to which extent juridification equals a specific
individualisation. – The matter in question gets clear when we briefly look at the legal
dimension of the so-called honour killings.

First, though apparently58 directed against women, the point in question is in a legal
perspective the term honour: to be precise, reference is made to the honour of the
family, this being understood in a very wide fashion. To some extent this seems to be
a simple reflection of the ongoing meaning of feudal and religious patterns. However,
more important are the ongoing family bonds. It is difficult to source this meaning. In
any case it is important to highlight the contradiction that on the one hand Turkish
legislation signed and ratified a multitude of relevant international legislative
agreements (e.g. the UN Declaration of Human Rights [1948]), supports as well
international initiatives as the World Conference on Women in Beijing (1995) and
finally has sufficient relevant provisions in the Constitution (e.g. article 17); on the
other hand we find in the old Turkish penal code from 1st of June 1926 the
classification of criminal offences, directed against sexual indefeasibility of women
and children as ‘offence against public moral and the family order’ (see Göztepe, Ece:
Rechtliche Aspekte der sog. Ehrenmorde in der Tuerkei; in: Europaeische
Grundrechte Zeitschrift [EuGRZ] 35/1-5; Kehl et altera: N.P. Engel, 2008: 16-21;
here: 18). It is only since June 2005 that this orientation has been changed – the
suggested public interest is in terms of legal systematisation redefined and shifted to
the individual and his/her protection. In a statement by the Permanent Mission of
Turkey to the United Nations we read

58
There is of course as well a factual side to it but this dimension is outside of the legal system – in legal terms the so-called
honour killing can be directed against and undertaken by both: men and women.

201
2. In Section 1, the references made to the new Turkish Criminal
Code has to be changed as follows:
‘The new Turkish Criminal Code which was adopted by the Turkish
Parliament on 26 September 2004 and will enter into force on June
1, 2005 has very important reform-like regulations concerning
women. The most important regulation is the abolishment of the
distinction between women and girls in the law. While the existing
law protects the societal norms and evaluates many crimes that
victimise women as crimes against society, the new law abolishes
that approach and gives priority to the protection of individuals’
rights and freedoms. In this way, sexual crimes are defined as
crimes against the individual rather than crimes against public
decency. Marital rape and sexual harassment at work place are
defined as crimes against the individual, for the first time, in the
new law. Another important development is, crimes committed with
the sake of honour are regarded as qualified crimes with heavy life
term imprisonment as the sanction to be imposed and no reduction
is possible.
(United Nations, 2005)

It would be important to investigate the actual background of these crimes. Usually


seen as being linked to Islam religion, such a stance seems to be questionable
although these crimes persist in parallel to maintained religious beliefs and the
belonging to the faith community rather than being linked to a traditional life style.
Thus we read in a report on violence against women:

In the UK, the most visible ‘honour’ crimes are those which have
occurred within Islamic Asian or Middle Eastern immigrant
communities, reinforcing stereotypical notions that Islam
condones ‘honour’ killings, a view which is refuted by many
Muslim community leaders and members, in the UK and
elsewhere. ‘Honour’ crimes are rooted in cultural traditions, not
religious beliefs; the conflation of the concepts of culture and
religioncontributestothemisunderstandingofsuchcrimes,…

202
(Sen/Humphreys/Kelly,2005:23)

Although so-called honour crimes are obviously a matter of disrespecting human


rights – inasmuch as they are simply disrespecting human existence per se – the actual
question is much more complex. To point on one problem only, it is remarkable that
in the UK the justice system is – according to the same report – reluctant to intervene
because of the respect of the private and cultural sphere. As duplicitous as this sounds
in this case, it is in the same vein that human rights groups actually disapprove
governmental intervention in connection with data protection. – The respect of and
dealing with individualism, rights of individuals and individualist rights seems to be
difficult to balance.

And it is necessary as well to return to the question of economics – relevant on the


level of ‘family economies’ in both, the understanding of private households in
developed countries and as subsistence economies in a macro-economic context, and
also relevant as macro-economic issue. The task – here only pointed out and left open
for empirical research on another occasion – is the investigation of the economic
development within the following quadrangle: one dimension is defined by the
orientation of management and the other by the availability of resources against the
background of the mechanisms of regulation and steering.

AVAILABILITY OF internal external


RESOURCES

REGULATION
traditional value-orientation
(i) collective
(ii) individual
occidental rationalist
(i) collective
(ii) individual
Table 9: Resoures and Regulation
The following brief look at the current economic development has to be seen against
the background of the various influences from the Republic’s development. For
instance it is then interesting to recognise the assessment of the more recent economic
development – put into a historic context – by the European Foundation for the
Improvement of the Living and Working Conditions. In the summary of their quality
of life study we read:

203
By EU 15 standards, Turkey has been late to industrialise.
However,unlikethetennewMemberStatesofeasternandcentral
Europe, its economic development was not distorted for four
decades by the imposition of a nonǦmarket economy. Instead,
followingdecadesofunsuccessfulstateǦledinitiatives,itseconomy
hasdevelopedbyproducinggoodsandservicesforexport,without
access to the rich energy resources that have characterised
development in parts of the Middle East. Turkey’s acceptance of
marketǦled growth is in fact more comparable to that of the
RepublicofKorea.Unlikemanycountrieswithasmallpopulation,
Turkey is big enough to sustain economic conglomerates that
possess the resources to finance development and support the
country’sapplicationtojointheEU.
(EuropeanFoundationfortheImprovement…,2007:2)

However, the development is a very mixed one, both regionally and socially. In the
following a brief look at only two figures may provide already some insight into the
huge tensions of different developments. On the one hand,

[w]ith a  population seize second only to that of Gemany among
theEUMemberStates,Turkey’saggregategrossdomesticproduct
(GDP)isnowgreaterthanthatof16EUcountries.
(Rose/Özcan,2007:5)

This has to be seen against the background that

[e]conomic growth reflects the activities of indigenous


entrepreneursinAnatoliainclassicearlyindustrialproductssuch
astextiles,aswellasthegrowthoffinancialconglomeratesbased
inIstanbul.
(ibid.)

Some general patterns can be seen from Turkstat- and IMF-Gobal Economic
Perspectives-data. In the recent years (21st century) we find a steady economic
growth, now going hand in hand with an overall increase of the GNP (Dollar Value of
Turkish GNP) – accompanied by a decreasing inflation rate and a decresing net public

204
sector debt. The currency volatility in 2006 is likely not expression of a ‘crisis’ in the
strict sense of capalist economy59 but can actually be seen as moment linked to the
relativ stability: although foreign direct investment decreased in 2007, it is still on a
high level. As well, despite the negative trend of GDP development, there is no
dramatic rupture. However, alarming are two factors: The overall unemployment rate
remains – with the exeption of 2002 – on a high level. And we find only a relatively
small number of jobs created, if related to the GNP- and GDP-growth rates. –
Looking at the quaterly development, it is obvious that a large number of jobs are not
meant to provide permanent, stable employment – rather, it is seasonal work,
presumingly farming and tourism related.

The segregation behind the economic growth is reflected in the fundamental split of
the employment figures as they are shown in the following graph:

(fromibid.:28,withreferencetoTüík,2003)

Figure 27: Proportion of Different Forms of Employment in Turkey, %


This also means that we have to acknowledge the tensions which occur in terms of
social policy and public responsibility for social quality: though other moments surely
play a role, we can assume that a major impact on social rights and their definition is
coming from the underlying economic pattern and the maintenance of traditional
thinking. Thus it is striking that on the one hand the gender gap in terms of
educational achievement actually turned around – showing high achievement rates
now on the side of women – however, continuing the disadvantage of women on a

59
Though it is surely expression of the general crisis of this system.

205
disproportionally high level when it comes to equality in the labour market and
overcoming existing patterns.

Strikinggenderdifferencesemergeintheemploymentpatternsof
menandwomen.Menaremorethanfivetimesaslikelyaswomen
toparticipateinpaidemployment….Moreover,womenaremore
than twice as likely as men to be unpaid family helpers rather
than working in paid employment. Since a majority of female
adultsarehomemakers,whoareunpaidandhavenoretirement
age,womenaremuchlesslikelytobeeligibletoavailofthesocial
securitybenefitsofretirement.
Gender differences account for the substantial discrepancy
between labour force participation in Turkey and in the EU
countries….Whilenostatisticallysignificantdifferenceemerges
between the proportion of adult men in employment in Turkey
and the EU, a large gap in the labour force participation of
women is evident. The EQLS survey found that three times as
manywomenintheEU15areinpaidemploymentthaninTurkey;
conversely, three times as many women in Turkey are
homemakerscomparedwithwomenintheEU15.
(ibid.:39f.)

This is seconded by Ali Murat Özdemir and Gamze Yücesan-Özdemir, who state

WhenwomenworkersinTurkeyareconsidered,thestrikingissue
istherelativelylowleveloflabourforceparticipation.Compared
to many OECD countries (especially Nordic countries and some
centralEuropeanones),withfemaleparticipationratesofalmost
80percent,femalelabourforceparticipationratesinTurkeyare
verylow,atlessthan30percent(OECD,2004).Whenweconsider
urbanemployment,thefemaleparticipationratedecreasestoless
than twenty per cent (Table 5). Following immigration to urban
areas, women, because of their low level of skills, cultural
conditioningandtraditionalfamilyresponsibilities,stayoutofthe
labourmarket.

206
(Özdemir/YücesanǦÖzdemir, 2004: 36; with reference to OECD,
2004)

The latter quote contradicts slightly what had been previously said – the overcoming
the educational gap. However, it is likely that this contradiction is only an expression
of the specific pattern of migration. The figures in ƒ„Ž‡ͳͲ and ƒ„Ž‡ͳͳ are in any case
telling much about the contradicting intertwinglement of – to use these problematic
terms – ‘traditionalism’ and ‘modernisms’. – And though there is a definite pattern, it
seems to be rather rushed to ignore it away as transient.

Turkey Urban Rural


1991 34.1 15.6 55.3
1995 30.6 16.7 49.2
2000 25.7 17.2 38.6
2001 27.1 17.4 41.7
2002 27.9 19.1 41.4

(ibid.:37;withreferencetoStateInstituteofStatistics)

Table 10: Female Labour Market Participation


Wage and Causal Employers Self- Unpaid
salery workers employed family
earners workers
1990 18.2 3.4 0.4 8.7 69.2
1995 21.7 4.7 0.7 8.4 64.5
2000 32.0 4.6 0.8 11.8 50.8
2001 30.5 4.6 0.7 12.8 51.3


(ibid.;withthesamereference)

Table 11: Status of Female Employment


This picture is then completed by the incessantly high level of subsitance economy,
the importane of mutual support and at the same time the low level of ‘organised civic
engagement’. This is shown as well by the fact

207
thatonly4%oftheyouthwhoparticipatedintheStateofYouth
SurveyweremembersofNGOs.ThefactthatNGOsinTurkeyare
stillintheprocessofdevelopingtheircapaicutyaccountsforthe
low participation rates. Moreover for NGO projects where the
internationaldimensionstandsout,moreeducatedyoungpeople
who know how to use computers adequately and, more
importantly, who know enough Englis have an advantage.
However, in Turkey the rate of youth who speak a foreign
languageadequatelysoastobeabletoreadapublicationis28.4
%.(.)Regionaldifferencesshouldnotbeforgotteneither.Whenwe
lookatthedistributionofNationalAgencyprojectsamongcities
we see the remarkable gap between large and small cities and
betweentheeastandthewest….
(Aytaçetaltera,2008:82f.;seeaswellRose/Özcan,2007:43).

Thus, any reflection on the economic development It has to be noted that Kemalism is
not only a matter of secularism but – despite other important moments – as well a
matter of the nationalism. And it is nationalism that actually determines as well a
specific interventionist mode of the state also with respect to the economy, going hand
in hand with the subsistence economy and as well some reflection of the traditional
Islamist economy.

The point in question is – so the thesis – that in Turkey, as in any other country, the
analysis of the accumulation regime, if going hand in hand with the mode of
regulation, shows at least traces of the historical foundation not only in terms of path
dependencies but even more as reflection of a mode of thinking, an ideological tune
that determines what is (or can be) considered as available resources and possible
mode of exploiting them. It determines ‘what is considered as being just’. Taking it
from here, the Islamic society in a Kemalist state may actually not come so much as a
surprise anymore.

The Common and the Law

Before considering this complexity further, another dimension may be added by


looking at common law, not least prevalent in the Anglo-Saxon tradition. Though not

208
in the pure sense, we can make the point that this judicial approach60 is located
somewhere between customary law on the one hand and civil law on the other hand
(suggesting that customary law covers as well religious law though not being identical
with it). This points on the fundamental question in which way and to which extent
any legal system can in actual fact only be imagined as abstract, formal and
instrumental matter, being independent from the actual social existence. In this light,
the dictum ‘from status to contract’ gains an additional perspective, entailing four
dimensions, answering three questions – all along the line of their individual,
collective and societal scope.

* What is the mechanism of regulation? – Questions arising are as follows:


¾ Is it a mechanism that is immediately controlled by the people concerned and
thus a mechanism of self-determination and self-regulation?
¾ Is the regulatory system one that permanently connects to social reality and in
which the formation of law results from a feedback loop between the present
reality, its (as well historical) context and a specialised body of experts?
¾ Is the formation of law based on generalised and formalised procedure that
confirms its validity on a circular and reflexive basis?
* Who or which group is benefiting from the regulations? – Questions arising are as
follows:
¾ Does the regulation concern individuals or social groups?
¾ Is the regulation geared to social entities in the sense of directly concerning an
abstract entity (institutions, ‘the society’, the interests of groups within society
[rather than members of certain groups])?
¾ Does the judicial system claim validity for a specific society, for humankind, for
members of a nation-state or (for instance religious or ethnical) group,
independent of their location?
* What kind of benefits does the regulation offer? – Questions arising are as follows:
¾ Does the regulation result in possible monetary benefit or compensation
respectively?
¾ Do they mainly aim on regulating positions in the sense of ex ante defined and
conditional attributions?

60
It is characteristic that for instance in England the common law tradition is mainly applied in the following areas: law of
property, law of succession, law of obligations (contracts, torts, quasi-contracts).

209
¾ Do they apply rules of equity rather than rules of strictly defined positive law?
* What is the scope of the regulations and its assessment? – Questions arising are as
follows:
¾ The scope is the national (or local and regional) level in the understanding of a
recognised historical entity?
¾ The scope in question is an international and comparative one?
¾ Is the aim global validity of the regulation?

Of course, in such a perspective the dictum of law as general medium, as brought


forward by Niklas Luhmann (see for instance Luhmann, 1993; as well Rottleuthner,
1989) cannot be fully maintained. More important are, however, the consequences for
the understanding of social rights, citizenship and ‘general interest’ as points of
reference of any public responsibility for social quality. It is in this sense that we can
draw a line of substantial tensions between social regulation versus individual
regulation on the one hand and regulating the social versus regulating individuals on
the other hand.

– Consequently two moments have to be considered: First, though a formal separation


of faith organisations and state institutions is widespread, the factual implementation
cannot be taken for granted as well in many countries of the ‘enlightened West’. Thus,
Klaus Eder speaks of post-secularisation, stating in an interview:

Giancarlo Bosetti: Prof. Eder, what do you understand by the term


‘post-secularism’?
Klaus Eder: We begin with a paradox: in secular societies like those
in Europe, we have a growing religious discourse. On one hand, we
speak of secular society, but, on the other hand, more and more
people discuss religious matters. The questions that I pose are: what
happened in the course of secularization? How are religious voices
changing? My response is simple: during secularization, religion
did not disappear tout court. It simply disappeared from the public
sphere. In other words, the voice of religion was no longer audible,
having become a private matter. Today religion is returning to the
public sphere. I define this return of religion in the public sphere as
‘post-secularism’.

210
(Eder/Bosetti, 2005).

Important is: we find a recently increasing debate on de-secularisation – and it still


can be left open if Europe is an exception as Sven-Eric Liedman claims (see Liedman,
2008). At least it is remarkable that he claims against Juergen Habermas that ‘post-
metaphysic thought’

has something to learn from religion, under the premise that it is


freed from dogmatism and coercive guilt. Secular thought still has
insufficient expressive potentiality and lacking sensitivity in dealing
with unsuccessful lives, unreasonable life plans, or polluted societal
conditions. Religion stands as better equipped.
(ibid.)

One issue in question which is frequently forgotten is that in the debates – especially
after 9/11 – various issues are mixed, and debates are more image driven rather than
reflecting issues (see for instance Zaid, 2008; Abu-Lughod, 2006). The danger is that
attention is easily distracted from the core question, and this is: looking for an
understanding not of the influence of religion in society but at the understanding of
people’s life in society. In methodological terms this requires a clear distinction
between a structural approach and a functionalist perspective. Only in this way we can
find as well a proper understanding of what modernisation is finally about in terms of
a way of attaining capacity to act – something that cannot be fully understood by
looking either at the individual or at society. At stake is the clear definition of three
crucial moments of socialisation, namely public and private, citizen and status,
universalism and particularity.

– Important is developing an understanding that grasps the dialectical relationship or


the ‘middle way’ perspective of the three by two dimensions. Thus, we find the
supposed dichotomies on the one hand as matter of extremes between which
individual matters can be located; on the other hand the different dimensions specify a
space in which people can expand their action.

Second, though looking at the institutional system and in particular the state, the
actual concern is the respective image of humankind and the understanding of what
reason is about. Importantly, the question concerns the relationship between natural

211
and positive law – a fundamental issue which is going through debates of both:
political science and sociology and also legal science.

In short the following matrix can serve as tool for comparison.

SELF-CONTAINED SELF-SUSTAINING
PERSONALITY INDIVIDUAL
PRIVATE
PUBLIC
Figure 28: Economy as Social Process vs. Econometric Distributional Models

Law and Space of Regulation

Fifth, as important as this is with respect to defining the institutionalisation and


personality as part of the specific understanding of the social, it is as well an
important question in which way this is specifically linked to the social structuration
(stratification, class building). The hypothesis is that we find three stages of class
structuration, depending on the different modes of regulation as they had been
discussed before.

First, the purely ‘social’ and ritual regulation leads towards an increasing meaning of
general stratification, founding a hierarchical system of dependencies where
mechanisms of power are more or less absolute, specifically relating the ‘insiders’ of
society, but as well excluding certain groups, leaving them ‘outside of citizenry’.
Slaves, women and children are typical groups for the latter, but we can point also on
groups as the ‘lawless’ that are typically left outside of the system of reference. It is
an interesting fact that in Confucian tradition apparently the law is explicitly valid for
those groups that are seen as standing outside society – as said, there is only one
chapter on punishment and law and this is the last of the entire Book of Tang. This
openly raises the question – not only for societies following this tradition but also
even for so-called modern societies – to which extent and in which way law is a
general means of regulating social relations and to which extent and in which way law
is a means of general socialisation versus being a means regulating exceptions of
socialisation. This can be linked to the previously mentioned issue, i.e. the shift not
primarily of responsibilities but as well of interests.

A second mode is marked by the generalisation of the rule of law – suggesting via
socio-local generalisation of its meaning as well the generalisation of the meaning

212
itself. It is with this the emergence of a permanent tension the general rights and the
individualisation. The crucial point is that with law being now a means of general
socialisation, the mechanisms fundamentally change, being by definition lead by the
principles of (a) formalisation and (b) individualisation. Of course, the mode of
regulation varies in actual fact – for instance in the one case taking the form of
common law, in the other case of civil law. And it can make huge differences which
mode is actually applied. The following strands of thought are underlying the
emergence of such system. (i) The one is the ‘concretisation’ of the general
mechanisms of regulation, i.e. the translation of natural law mechanisms into
mechanisms that increase accountability and calculability. (ii) Next we find the
mechanism that translates in one way or another this increased accountability and
calculability from natural law into positive law – without completely achieving this
implicitly ultimate goal. In any case we can see the importance of the hierarchy of
law. (iii) Finally we are confronted with this mechanism being translated from general
rules into instruments, using fundamentally similar approaches in all individual cases,
presupposing the individual as rational, i.e. calculating actor. With this in mind
accountability and calculability mean as well to reduce social relationships on
exchange processes. – And: as much as the generalised law is only dealing with the
individual case, it fundamentally fades out the individuality of the case. In other
words, as more ‘positive’ as the legislative rule is, as more it is reducing both:
procedures and the exchange process on a case that pre-empts the actual case from its
underlying values and as well from the factual power as far this has to be located
outside of the exchange between formally equals.

A third mode is proposed as increased individualisation which allows applying


general rules in a way that is appropriately reflecting the individual case. Looking at
the legal system which is required, this could be understood as common law on
grounds of positive law. Although we find in any legislation such mixture, the
specific moment that is here suggested is the explicit combination of these in principle
contradictory systems. The sociological implication would be that such a system
presupposes to a large extent the breakup of relationships based on class interests.

To arrive at a meaningful application of this formal framework, requires going a step


further, looking at the foundation of the constitution of classes. Although the
foundation is in the last instance in all formations an economic one, there are huge

213
differences in the concrete development. The most important aspect is to which extent
and in which way regulative mechanism are in place that are sufficiently strong for a
sufficient intervention, i.e. that can be seen as mechanisms of an interventionist
regime. This is important to the extent to which intervention can be understood not
simply as mechanism of re-distributive regulation but that is instead a definite
mechanism of socialisation. This means not least to emphasise their character to
control processes in time, space and especially their constitutive character. As such, a
political and legal system would be only little departmentalised and trying to realise in
fact structural coherence.61

This translates into a systematic inclusion of the following questions: first in which
way are elites established and second which role do they play in the process of
political structuration.

We arrive from here at looking at the different forms and levels of intervention.

CASE ORIENTATION SOCIAL SPACES


INDIVIDUALITY
PERSONALITY
Figure 29: Redistributive versus Regulative Intervention

Power: Individual, Social and Society

At this final stage the different aspects have to be pulled together. Integrating this into
the broader debate of legal doctrine, it is proposed to discuss the different aspects
along three lines, each of them reflecting – in their interplay – a sociological
perspective and also a legal perspective.

* The first perspective can be found in the position between the tensional pre-
juridical speculation and valuation on the one hand and the individualist regulation
on the other hand, the constitutional definition as mediator between them;
* the second perspective focuses on the social character of the economic process and
it’s actual relevance as redistributive moment on the one hand and the regulationist
moment on the other hand – this had been frequently issued as accumulation
regime;
61
Decisions as the judgement XII ZR 109/05, July 16th 2008, where the German Bundesgerichtshof (BGH) had been
requested to decide on the equity of distribution, the decision was, however, very much one on defining the role and
position of women, reaching far into the realm of the meaning of public services show the difficulties of a split legal
system.

214
* the third perspective is an application of this in terms of the reflected recognition of
the entanglement of social and individual in the sense of a genuine entity.

At the end, everything seems to be concerned with the question of how to balance
three kinds of power: (i) the power of the individual over the own life as social being,
(ii) the power of the individual over relevant social spaces and (iii) power of society
over defining some legitimate, i.e. simply: as such accepted ‘general interest’,
developing appropriate means and instruments and achieving these in the perspective
of political and social practice.

It is important to see this in a historical perspective – rights as well as their meaning


and reference change over time, linking for instance human rights, specific political
procedures etc. immediately to the specific historical reality rather than seeing them
as timeless, a priori defined framework. In this sense we can agree with Inoue Tatsuo,
who writes:

Here I aim to argue … that liberal democracy is not a sheer West-


centric idea but an appropriate response to the human conditions
that we also find in Asia.
My argument is twofold. First, I will point out … that the concept of
Asian values does not convey Asian voices in their full complexity
and diversity, nor does it represent genuine Asian initiatives.
Rather, it depends on, or even abuses, the West-centric frameworks
that it claims to overcome. Second, I will show that there are points
of contact between Asian voices and libeal democracy – not only
that there are some Asian voices sympathetic to liberal democracy,
nut that the latter can give us intellectual and institutional resources
that we need in order to accommodate the internal diversity and
conflict among Asian voices and to resolve the problms raised by
them.
(Tatsuo, 1999: 29)

Interesting is in tis context that an increasing constitutional realm is covered by


legislation (secondary law) and at the same time ‘new rights’, previously contested
claims gain the character of constitutional rights. Furthermore, within the jurisdiction
we find an increasing body moving from the constitutional sphere into the area of

215
secondary legislation and further to tertiary legislative or strictly law-defined
regulations (administrative regulations etc.). Despite being a quasi-automatic
extension as we find it discussed in Niklas Luhmann’s theory of autopoietic systems
(see Maturana/Varela, 1980; cf. Rottleuthner, 1989) and despite the political and
juridical reasons (see e.g. de Béchillon, 1996: 60 ff.), there is another reason, evolving
not directly from the regulative system itself, but being a reflection of a combination
of the tendency of the regulative systems’ generality and the increasing requirement
coming from the development of an increasing diversified reality: the need for –
relatively – individualised rules. – If such trend is real, we can say that this is not least
a reclaim of regulative activities by society. And it would mean as well that to some
extent space is gained for ‘re-naturalisation’ and ‘communitarisation’ of regulations.
It would require exact empirical investigation, but there is evidence for the following
developments going hand in hand:

* a decline of natural law based regulation


* with this, first an increasing meaning, in the meantime as well a decrease of
constitutional law, first especially as shift from the general parts in favour of the
more concrete parts, employed with implementation
* followed by an increasing meaning of interpretative rulings through the
constitutional courts and at the same time of secondary legislation which itself
gains increasingly the character of framing regulations etc.;
* all this going hand in hand with a shorter validity of newly inaugurated legislation.

Especially in today’s political situation it has to be considered that any appropriate


response is timely in the sense of being enforced at a specific moment in history but
as well being ‘optional’, and can be withdrawn if and when the conditions of
appropriateness change. This particularity of the historical development of rights in
the context of the classical social question may well be a reason behind currently
raising interest in the perceived Asian (and increasingly Arabian) socio-political
system that is capitalist, but is specifically capable of giving an answer on current
socio-economic challenges. The following table provides some hints pointing on
some challenges of the old social question (column 1), on how the welfare state
broadly answered the emerging challenges (column 2) and finally on the shift within a
global accumulation system (column 3) that allow a global shift with some tendencies
of a global ‘refeudalisation’ (column 4).

216
1 – classical challenges 2 – classical welfare system 3 – new accumulation regime 4 – re-feudalised welfare system
Poverty due to unemployment Workhouse, social benefit Long term unemployment; Workfare approaches – ‘challenging and
precarity supporting’
Poverty due to illness; Health insurance, public health Increasing number of Health-insurance and public services – with
ill-health services. furtive/hidden health problems increasing multi-layer structures and private
Measures of public hygiene contributions.
Also: commercialisation and managerialisation
of services due to public controls
Poverty due to disability Health insurance, New mass epidemics; reoccurrence Two-tier system of support mechanisms,
protected/sheltered of ‘classical epidemics’, e.g. increased ‘forced integration’ into the labour
employment/work; public health tuberculosis marked, parallel with increased offers of real
and rehabilitation service opportunities
Poverty/lack of resources due to Old age/pension funds; public care Increasing number of people in Old age/pension funds, subject to the increased
age provision need of long-term care. need for supplements; public and increasingly
Demographic change private care provision, building up a strong
multi-layer structure, leaving many cases for
charitable welfare.
Also: commercialisation and managerialisation
of services due to public controls
Lack of education Public education and schooling Continued lack of education, Formalised and ‘diversified’ educational
including ongoing social services with increasingly privatised and
inequalities; segmentised elements.
Contradiction between high levels Going parallel with social divides:
of formal education, however, due departmentalised services.
to high degree of formalisation Also: political effort of increasing accessibility
short-term orientation

Table 12: Changed Conditionality of Welfare


Although such development is already showing effects, it has to be acknowledged that
at the same time a secular progression can be found, expressed for instance by widely
and generally accepted norms of social and human rights.

Coming back to the general issues, public policies for social quality we have to
consider against this background – and linking it back to the conditions of the
emergence of ‘welfare systems’ (see ‹‰—”‡ ͳ͹) and the variety of potential
combinations of the social quality factors (see ƒ„Ž‡ͳ) – different modes of legitimate
social regulation and social law as specific matters of providing a specific ‘real vision
of social security’. Aspects of this are linked to securing mechanisms based on

* kinship-oriented obligation,
* solidarity (especially kin-based or class-bound),
* person-bound, ‘associative’ (especially church-based) or state-bound obligation

in conjunction with different orientations as

* service or transfers
* protection
* enablement
* care
* contractualism.
(see in this context for example the different valuable contributions in von Benda-
Beckmann et altera [eds.], 1988).

If we try to visualise the three mentioned factors, we come to the following figure as
space for comparison.

218
Figure 30: Determining Dimensions between Unregulated Relativism and
Modernist Determination
This has to be read in connection with the four issues mentioned before, namely
equality and empowerment as substantial dimensions on the one hand and
appropriateness and accountability as instrumental dimensions on the other hand.
Approaching the social and the related public responsibility for social quality from the
natural law perspective would lead into a dead-end of dogmatisation and idealisation
which tends to isolate the matter from a reality which has only little to do with an
ideal world. On the other hand, the formal approach equally leads into a dead-end
inappropriateness. In the words of Hans F. Zacher – already quoted earlier – we are
concerned with the

dialectic of the general (of what is considered to be ‘normality’), the


specific (the ‘social correction’) and the totality (the ‘social state’)
(Zacher, 2008: 9)

In a provocative manner – and using terms in a sociological rather than a juridical


understanding – one may consider this as a dialectical tension between a
constitutional and legalist system.

219
In their interplay these dimensions are suggested as definition of socialisation that
allows a processual and relational perspective. If used for assessing issues of global
standards of social quality and as well if applied to discussing human and social
rights, such perspective allows respecting the different socio-cultural contexts without
ending in the trap of relativism.

Earlier it had been highlighted that in the perspective of equality and empowerment
rights can be understood as genuinely social, comparable with communicating vessels
and that we are concerned with establishing a collective ‘social identity’ – as general
instrumental dimensions appropriateness and accountability had been mentioned as
references. Then, social law does not reflect how much it contributes to individual
wellbeing. Instead, it is concerned with its reflection (i) on social integrity (ii) for all
and (iii) in perspective that allows individuals’ development in their relationship to
relevant social spaces.

This reflects from another perspective what had been said before, namely the
relevance of economic rather than nation-bound references and the more neutral
reference to living spaces. – To quote from above,

[t]hough nation and state are without doubt to some extent stable
and even more: are to some extent re-installed as claimed units of
and for action, the real stability can be found in different realms,
namely the economic actors – and the fact of their different interests
and in the fact of different regimes and scopes of (re-)production.
The first can be seen as matter of relationality; the second as matter
of processuality. In other words, rather than making reference to
nation and state, global social policy requires making reference to
class and ‘productive entities’. Though themselves ‘floating’, they
are also stable as reference for societal and biographical
development. Societies are established on the ground of economic
frames of reference – in terms of social law being concerned with
processes of empowerment and participation – and biographical
developments – relevant for development of social law as matter of
equalities/inclusion and cohesion.
(page 166 of the current document).

220
Linking this to what had been developed in connection with ‹‰—”‡͵, ‹‰—”‡Ͷ, ‹‰—”‡ͷ
and ‹‰—”‡͸, we are now able to detect more closely possible realms of – and tensions
between – different accumulation regimes, modes of regulation, legislative systems
and social quality factors, always searching for the appropriateness of their
relationship along the tensional axis which underlie the Social Quality Approach (the
axis between biographical and societal development on the one hand and between
communities and institutions).

It is of crucial importance that this perspective allows not least to understand the shifts
of governance, currently to be defined as tension between the ‘conventionalist
welfarism’, paternalist charitabilisation (‘refeudalisation’) and postmodernist welfare
contingencies.

Globalism, Values, Dominance

Before looking more closely at some aspects of the development in Taiwan – taking
this as case study – it is useful to return to the question of what role ‘values’ actually
play in the process of socio-economic constitution. It had been pointed out that in
many mainstream studies – and not least when it comes to investigating recent
successes of Asian countries – Confucian values are highlighted as not only
underlying but even as conditioning such developments. And Inoue Tatsuo, a
Japanese legal scientist, criticises the ‘Asian way’ which he describes as

a combination of capitalist economy and ‘Asian values’, which they


claim are embedded in traditional Asian cultures and are
incompatible with the core values of liberal democracy: civil and
political liberties, especially the right to criticize and to change the
government, and minority rights. To put it into another way, it is a
strategy based on economic modernization without political
modernization.
(Tatsuo, 1999: 28)

Although the reference to such values goes in other cases hand in hand with a
reference to interpreting them as liked to the concept of a developmental welfare state,
it is a perspective that lacks reasoning inasmuch as

221
the discourse on Confucian culture and economic development
constitutes a form of Orientalist economics that constructs Chinese
culture as a set of timeless ‘Oriental’ essences that exist in radical
separation from and opposition to the West … . The cultural essence
underlying the family firm is the traditional, collectivist, mutually
beneficial family.
(Greenhalgh, 1994: 447 f.)

However, by making explicit reference to the Orientalist character, Susan Greenhalgh


steps into the very same trap which she claims to overcome: stating some form of
timelessness. At the same time her work has the merit of inherently linking the debate
on values to the economic development. Here, it is of not of primary interest to
answer the question to which extent values are an independent force. In any case they
provide a matrix of primary importance in the concrete ‘design’ of the accumulation
system as much as this is to the same extent a social space as it is a space of profit
generation in a system of monetary exchanges. For the current purpose it is then
important to look at the constellation as a tensional field of (at least) four poles. These
can be sketched in the following way.

First we are dealing with the continuation or repercussions of the path that is founded
in the specific national (or regional) pattern of economic (re-)production. This is not
least determined or at least influenced by the occurrence of resources (natural, human,
social …) – to some extent themselves depending on political decisions.

Second, ‘buying into international and global economic relations’ is another


dimension – talking about international and global only means a subsequent extension
of economic spaces of action (one can even see some early extensions going beyond
household economies as part of this process). Any of such extensions means entering
a process of exchange with and influence by and of other economies.

Taking both aspects together, this has to be seen as interplay of gaining and
maintaining independence and even autarky (any crossing of borders leads possibly to
some kind of sharing profits and more importantly sharing to some extent control) and
opening spaces as means of increasing resources (and importantly: control).

222
This is reflected in a specific pattern (constitutional and subsequent) of the value
system by which specificities are shaped (planned, enforced, structured, legitimised
and justified …). Highly important are (i) the definition of what is valued – with
consequences for defining the productive and reproductive process, ‘profit’ and ‘goals
of economic activities’), (ii) the legimitation of ‘stratification’ (class, gender,
ethnicity, age …) and (iii) finally the ‘discourse on general interest’ in its different
forms – this formulation does not suggest any harmonious deliberations and
negotiations but aims on clarifying that any suggested general interest is by no means
defined a priori; rather, it is contested or at least contestable, at most representing a
temporary basic consensus.

As well in this realm of value systems we see the two features, as mentioned before:
first the continuation or repercussions of the path that is founded in the specific
national hegemony, now especially defined by the temporarily fixed structure of
social relationships. Second, the merger of hegemonies from different nations and
regions, but as well – increasingly important – the merger of hegemonic status of
different professions.

This can be visualised by the following figures – ‹‰—”‡͵ͳ presenting a simple centre-
periphery understanding of the traditional kind, ‹‰—”‡ ͵ʹ presenting a complex and
polycentric centre-periphery structure and ‹‰—”‡ ͵͵ presenting a diffuse-hierarchical
structure.

Figure 31: Simple Centre-Periphery-Structure

223
Figure 32: Polycentric Centre-Periphery Structure

Figure 33: Diffuse-Hierarchic Centre-Periphery-Structuration


Though in an extremely simplified way, these three graphical grasps can be seen as
presentation of the perspective developed by world systems theory. It can be said, that
at an early stage in the works of world systems theory this had been seen as a simple
hierarchical and encompassing relationship.

Later works in this area – for instance and in particular with a view on China – the
perspective had been extended by way of emphasising not only the time perspective
on increasing power but by emphasising also possible shifts that can be found in the
complex of world relations. This meant for example the emphasis of different centres

224
– with specific regional relevance or as well in competitive relationships of the kind
of oligarchic rather than monopolistic relationships.

Importantly, especially the works by Andre Gunder Frank and even more so by
Giovanni Arrighi showed the eminently important aspect of changing accumulation
regimes – and moreover: the characterisation of accumulation regimes not as simple
power regimes but as complex social systems of power. Power, as it is now seen, can
be defined as system of appropriateness, defined by the interplay of different classes,
the given accumulation system and how it relates to the various internal and external
resources (see Arrighi, 2007; in particular 28 f.).

This approach can be meaningfully linked to the analysis elaborated by Stein Rokkan
and the extensive consideration of various factors that constitute power – although his
analysis is geared to Europe, it provides a heuristically useful framework for broader
analysis. He proposes to focus

on the interaction among the four primary components: FORCE –


CULTURE – LAW – ECONOMY. Each of the poles in the two-
dimensional field cutting across the centre-periphery axis
corresponds to a set of functional prerequisites for the development
and maintenance of a territorial system: there must be some form of
organisation for the protection of the borders through the use of
FORCE, there must be some degree of acceptance of some common
CULTURE, whether expressed in linguistic terms, in religious
terms, or both; there must be some minimal standards for the
adjudication of disputes and the control of deviant behaviour
through LAW; and all these organisations for the maintenance of
external borders and internal order must of necessity depend for
their survival on some sort of accommodation with agencies in the
ECONOMY.
(Flora et altera [eds.], 1999: 124)

As much as these different factors and their interplay provide a complex framework
within which the mechanisms for establishing and maintaining accumulation regimes
and modes of regulation are permanently confirmed, renegotiated, reconfirmed,
modified and overturned, as much we can interpret them as part of a struggle for

225
hegemony – a quick reference to Antonio Gramsci’s work has to do suffice to point
out the direction of further elaboration. At least it is clear that, especially when
looking at globalisation and the development of systems of social interaction on the
global level, it is indispensable to include time as important moment that contributes
to the development of certain standards. In general, this seems to be grasped by the
recurring notion of the tensional development of ‘higher’, more organised, ex ante and
authoritatively defined relations (see for example Maine, Durkheim, Toennies, Weber,
Habermas; cf. Herrmann, 2008 a).

This leads to a further step in developing world systems theory: the investigation of
complex, diffuse-hierarchic centre-periphery relationships. This is to some extent
similar to systems theory’s shift to a taking a perspective on functionally
differentiated systems as we find here as well the determination of the strength as
matter of utilising ‘functional advantage’ and establishing and maintaining specific
hegemonies as the decisive matter in determining the position of the performance in
one or another area (see ‹‰—”‡ ͵͵). The relevant definition of centre is given by
Edward Shils for whom

[t]heterm…referstoasectorofsociety(orcommunity)inwhich
certainactivitieswhichhavespecialsignificanceoffunctionsare
relativelymorehighlyconcentratedormoreintensivelypracticed
than they are in other parts of that society and which are to a
greater extent than are other parts of society the focus of
attention,preoccupation,obedience,deference,oremulation.
(Shils,1998:114)

In other words, the centre is in this perspective not one in general terms, i.e. a matter
of general centrality and advancement, but a space or area which gains centrality in a
particular area.

However, it is decisive to clarify to which extent such centrality can be gained


independently in one specific area without the country or region performing in the
same way of advancement in other areas. – It is suggested that – and this is as well an
important difference if compared with systems theory – we find very well an overall,
embracing functional ‘brace’, guiding and maintaining the overall performance. Such

226
maintenance does not necessarily mean that this is done in the optimal manner. On the
contrary, it means that the guiding principle is determining the success criteria for
feasibility of the different parts of the world system. At the end, the only difference
when compared to the simple model is that peripheries can obtain some power on
ground of specified competitive advantage – the price to be paid may be high in terms
of other aspects of that specific system – we can see this when we look for instance at
the high social or environmental costs some countries pay for their participation in the
global market. Though the physical centre may well have shifted towards blurred
global players, the functional perspective is even ore focused.

With this point of reference for developing a global comparative understanding we


can further elaborate the concept of appropriation as matter that reflects the concrete
conditions, spanning between

* appropriateness as
¾ ‘availing of property’62 and
¾ adequacy
* equality as
¾ contestable legitimacy (‘control of the system’) and
¾ empowerment in terms of developing capabilities (‘control of the own life and
development’)
appropriation
property adequacy
legitimacy
equality

empowerment

Figure 34: Societal Scope of Legal Functionality

62
Not to be confused with a property formation under private law

227
This allows developing a comparative perspective from another side, namely by
applying the concept of different kinds of crisis as turning point of the regulation of
social conflicts and also of social standards, interpreting them as matters of striving
for hegemony. Referring to the six crises of development, mentioned by Gabriel A.
Almond and Lucian W. Pye (see Pye, 1968), Stein Rokkan writes:

Three of the six crises arise out of the conflicts in the extensions and
differentiation of the administrative apparatus of the nation-state:
- the penetration crisis – the crucial initial challenge of the
establishment of a co-ordinated network of territorial
administrative agents independent of local power resources and
responsive to directives from the central decision-making
organs;
- the integration crisis – clashes over the establishment of
allocation rules for the equalization of the shares of
administrative offices, benefits and resources among all the
culturally-territorially-politically distinct segments and sectors of
the national community;
- the distribution crisis – conflicts over the expansion of the
administrative apparatus of the nation-state through the
organisation of services and the imposition of control measures
for the equalization of economic conditions between the different
strata of the population and between localities differing in their
resources and levels of production.
The other three crises arise out of conflicts between elites and
counter-elites in the definition and differentiation of the territorial
population:
- the identity crisis – the crucial initial challenge in the
establishment and extension of a common culture and the
development of media and agencies for the socialization of future
citizens into this community of shared codes, values, memories
and symbols;
- the legitimacy crisis – clashes over the establishment of central
structures of political communication, consultation and

228
representation commanding the loyalty and confidence of
significant sections of the national population and ensuring
regular conformity to rules and regulations issued by the
agencies authorized by the system;
- the participation crisis – the conflict over the extension of rights
of consultation and representation to all strata of the territorial
population and over the protection of rights of association,
demonstration and opposition.
(Rokkan, 1970: 670)

The advantage of developing such perspective further is twofold:

First, we arrive at having a scheme that combines the orientation on relationality with
the orientation on processuality. This means as well that it allows the detection of
ruptures that highlight the central frictions between system integration (establishment
and adhesiveness of the given entity as state, nation, tribe …) and developmental
challenges (changes of the accumulation regime).

Second, applying this approach allows as well combining the different levels of
analysis, namely the Social Quality Approach which had been presented earlier, the
analysis of economic developments and the investigation of social law.

229
Part V:

Cursory Deliberations on Asian Welfare Regimes – The Case of Taiwan as


‘Asian Welfare Regime’ – Determinants of Social Quality in the Perspective of
Globalising the SQ-Approach

Especially from the perspective of a newcomer in research on the country’s


development and status, information on Taiwan and not least its social policy and
even welfare system seems to be overwhelming. Moreover, starting working on the
topic it seems that perhaps not everything but the most important had been written:
Analytical works looking at the ‘welfare regime’, not least discussing its Confucian
character or the lack of it, then classifying it as an ordinary residual system in the
understanding of Gøsta Esping-Andersen, historical analysis, looking at the overall
emergence of the modern welfare system or as well at detailed analysis of specific
issues and debates on the position and meaning of different approaches to welfare
(e.g. the role of certain policies, the understanding of different social professions as
for instance law and social work professions, the role of different actors as NPOs, the
state, informal help providers can be found – the catchwords mentioned are only some
examples taken from a wide array of publications (see detailed references in the first
parts of this book and as well in Herrmann, 2007).

Of course, analysing in depth the debate and the used terminology would be
interesting in itself – research that can only be undertaken by somebody who is fluent
in both: Chinese/Taiwanese and English. At least for the English-speaker it is
noticeable that much of the English literature is filtered in three ways. (a) Much had
been written by English speaking colleagues who came from outside, only few
knowing the language; and many coming from a specifically coined professional,
political and national background. Working on comparative welfare analysis for quite
a while now, I know even from own experience within Europe how limiting the lack
of fluency in other languages is – and fluency in language is going far beyond the
ability to have a reasonable knowledge in another language. (b) Without being able to

230
give final evidence it seems that many writers with a Taiwanese background, native
speakers … actually went to a large extent through third level education in non-Asian
countries. Much of the work published in English is written by colleagues who had
been trained outside of Asia. In this light it as well striking that we find in many
written work reference being made to English documents, especially as far as the
foundational work in terms of the history of ideas in political thinking is concerned.
And in acual fact there are fundamental difficulties in the analysis and appraisals,
depending on the ‘true’ national backround of the writings. (c) Being thus already to a
large extent limited in scope, a further dimension can be seen in the fact that – for
different reasons and in different ways, according to subject – in social work and
social policy (outside of law at least) the dominant influence is coming from the US
of North America and the United Kingdom (an exception seems legal studies where a
strong German influence can be noticed). Without exploring this further, at least a
brief note is appropriate, suggesting that the dominance can be seen for different
reasons. Of particular importance is the colonial and neo-colonial practice. The
interest and influence, although many scholars probably turned to the UK and the US,
was originally more interest the other way round. The role of the Commonwealth of
Nations, though not in Taiwan at least in the Asian-Pacific area and later the direct
US-American influence has to be emphasised. Similar is recognised by John Doling
and Catherine Jones Finer who ascertain that

[t]he USA and Britain were the two western countries exercising
most direct influence on the shaping of emergent and recovering
societies in post-World War II Asia Pacific: the USA as a result of
its military presence (in respect of Japan, Taiwan and South Korea
especially) and Britain as result of legacies of colonialism still
operational (albeit with some post-war shame and embarrassment)
in respect of Hong Kong and Singapore.
(Doling/Jones Finer, 2001: 294)

And they continue by noting that

[t]he 1950s and 1960s saw the old and especially the new tigers of
Asia Pacific variously adapting to and building upon such legacies
and impositions in respect of what was thought to be ‘useful’

231
western social policy. They were encouraged to do this mot least by
the hefty presence of western social policy ‘experts’, supplemented
by western-trained assistants, not least in the teaching departments
of leading Asia Pacific universities.
(ibid.: 295)

It is then important to provide at least a brief historical sketch of the complex


dependencies that are of special relevance not necessarily for the emerging
institutional shape but for the economic and ideological foundation and orientation.

L.H.M. Ling and Chih-yu Shih speak of

a society nurtured on U.S. liberalism since World War II but


conceived in Confucian hegemony at least since the Ming Dynasty
(1368-1628).
(Ling/Shih, 1989: 55)

The authors continue by pointing on the

confluence of Chinese, Japanese, American, and local Taiwanese


legacies.
(ibid.: 56)

Taking the variety of influences and the blurring of borders over history into
consideration, it is surely justified to follow the interpretation of

postcolonial theorists [who] underscore that absolute


categorizations of ‘us vs. them’ dissolve in face of the
‘carnivalesque’ and ‘contrapuntal’ effects of global life. The very
act of colonialism and imperialism, they claim, force interactions
that result in hybridity, simulacra, and mimicry. Accordingly;
postcoloniality signals a systemic open-endedness and
unorderliness that resist attempts at control or prediction.
(ibid.)

On a more descriptive level we read:

232
Taiwan, in particular, exemplifies postcoloniality. Colonized by Han
Chinese into a province of the Middle Kingdom in 1885, it was later
occupied by an expansionist Imperial Japan from 1895 to 1945,
only to find itself once again under external rule when Chiang Kai-
shek’s Kuomintang (KMT) retreated to the island in 1949. Chiang
Ching-kuo officially inherited his father’s political mantle in 1978
and reconstructed the KMT regime into one of benevolent
dictatorship. During the 1970s-1980s, Chiang fils raised the
standard of living, subsidized massive infrastructurebuilding,
extended public education, privatized several public enterprises,
and promoted a thriving consumer economy. In 1986, he legalized
the Democratic Progressive Party (DPP), a vocal critic of the KMT.
A year later, he permitted direct dialogue with the Chinese
Communist Party (CCP) on the mainland. With Chiang’s death in
1988, Lee Teng-hui, a native Taiwanese, assumed the helm of the
ruling party. Lee himself personifies Taiwan’s multicultural,
postcolonial history: born and raised during the Japanese
occupation; Lee is more at home speaking Japanese and Taiwanese
than Mandarin, Taiwan’s official language. Lee’s nativist
sentiments surface most prominently in his dealings with China. He
has refused, for instance, to facilitate trade and investment between
Taiwan and the mainland--much to the chagrin of Taiwan’s
economic elites such as Wang Yung-ching, himself a native
Taiwanese. Lee is also well-acquainted with American society and
politics given his years as a doctoral student at Cornell University
in the 1960s. Note, for example, Lee’s masterful lobbying of the U.S.
Congress and President in 1996 ostensibly to attend a Cornell
reunion. Once in the U.S., he campaigned openly and
unapologetically as the presidential incumbent of ‘the Republic of
China,’ despite vocal objections from the CCP government in
Beijing.
(ibid.: 67)

233
This lengthy quote is not given to provide a complete picture. Rather, reason for it is
to point at least on the complexity and even more so the historicity of relationships of
which the understanding is necessary in order to elaborate a non-institutionalist
analysis of welfare policy development.

This implies a critique of many of the analysis existing that time: To a large extent it
remains enmeshed in analysis of details neglecting to understand the specifically
national understanding of the social. In Part I of this work it had been made clear that
any analysis has to aim on ascending from the abstract to the concrete (see page 21 f).
Referring to this methodological aspect means that many of the works provided
remain – in the present author’s interpretation – very much on the abstract-general
level, thus making important contributions to the overall analysis, but failing to
present a clear understanding of the overall problematique. – Sure, saying failing is
not entirely correct, as the claims there and here are simply different. At stake is to
develop a deeper understanding of the overall social system and not least the
distinctiveness of the construction of the social. This does not mean to take a
fundamentally constructivist perspective. However, it means that we have to look for
a way to distinctly understand the social, recalling the definition from above

* the constitutive interdependency between processes of self-realisation and


processes of the formation of collective identities
* is a condition for ‘the social’, realised by the interactions of
¾ actors, being – with their self-referential capacity – competent to act
¾ and their framing structure, which translates immediately into the context of
human relationships.
We have to understand now the specific way of the social in its historical and national
context and determine social quality as the extent to which people are able to
participate in social relationships under conditions which enhance their well-being,
capacity and individual potential. The referral to ‘social relationships’ encompasses
economic, juridical, cultural, political and other relationships. In other words it
embraces the economic, cultural, juridical, welfare and environmental aspects.

In mainstream terminology it means to look if, in which way and to which extent we
can speak of a specifically Asian socio-political system or welfare state. With regard

234
to the contemporary analysis, a summarising picture is given by Sarah Cook and
Huck-ju Kwon who state

Thestartingpointforanalysisisthediversityinlevelsofeconomic
andsocialdevelopmentacrossEastAsia.Theregionencompasses
countries ranked among the world’s wealthiest (Japan) to the
poorest(MyanmarandN.Korea),variationwhichismirroredin
indicatorsofhumandevelopmentofhumandevelopmentsuchas
health and education … . Politically, the region includes both
stable and fragile democracies and dictatorships. The Confucian
heritage of many States exists alongside predominantly Moslem
countries. These contrasts, as much as the widely (though not
universally) shared experiences of rapid economic growth and
rising inequalities, shape the needs, challenges and provisions of
social protection across the region, and the range of responses
thatemergeindifferentpolitical,socialandculturalcontexts.
(Cook/Kwon,2008:513)

And they continue with view on social policy that

[t]he composition of social protection and the institutional


configurationofthewelfarestatevarygreatly,especiallybetween
NorthǦEast and SouthǦAsian countries … . Social insurance
schemesformthemaincontoursofthewelfarestateinnortheast
AsiancountriessuchasKoreaandTaiwan,whileprovidentfunds
havebeentheiranchorinsomeSouthǦEastAsiancountries, such
asSingaporeandMalaysia.Inothers,notablythePhilippinesand
Indonesia,socialpolicyinstitutionsprotectonlysmallnumbersof
peopleagainstaverylimitedrangeofrisks,andsocialprotection
remains principally the responsibility of community and families
although new social assistance programs have been introduced
sincethecrisis.Transitioneconomies,facingthedualchallengeof
dismantling State protection to the elite State work force while
expanding provision to those made vulnerable by exposure to
market forces, are experimenting with a range of approaches

235
includingsocialinsuranceand‘providentfund’Ǧtypemechanisms,
most recently adopting a heavier emphasis on social assistance
programs. In short, across the region the complexion of social
protectionhasbeenundergoingsignificantchange.
(ibid.)

However, reading the following should keep the caveat in mind that it is more to show
a frame for developing a methodological framework rather than actually providing
any analysis of the concrete and contemporary systems. – Though this is admittedly
somewhat superficial and in some respects amateurish it avoids the presentation of
evidence without reasoning that can be found in many studies which only look at
matters in a more institutionalist and formal way.

Although there is such specificity - thus the thesis put forward here – this cannot be
easily detected and especially the reference made to Confucianism has to be treated
with extreme caution. This has to be underscored as well because it is questioned that
Confucianism is as value system in all its respects fundamentally distinct from the
‘European’ value system as frequently claimed. In this regard the further deliberations
will suggest that

a) many of the supposedly typical Confucian values can actually be found to a large
degree as well in allegedly entirely different value systems as the Western
traditions, usually being traced back to the systems of thought emerging form
Aristotel, Plato and Socrates; if these are translated into contemporary matters and
if we take the standard values from the repertoire of still valued ‘modern societies’,
we would agree with what Gordon White and Roger Goodman suggest as repertoire
of Confucianism which
(has been) [s]ince the 1970s … – in a protean variety of versions –
has been discovered as a positive historical force. It is now
commonly cited as having provided the fundamental cultural
underpinnings for East Asian economic success, particularly
through its perceived emphasis on education, strong family
relations, benevolent paternalism, social harmony and discipline,
respect for tradition and a strong work ethic.
(White/Goodman, 1998: 8)

236
In other words, looking simply at the traditions and value systems, there is a large
overlap.
b) There is much convergence of social reality which can be traced back to general
and recent developments of economic structures but as well in terms of a process of
globalisation of debates of socio-political thoughts
c) there is, however, equally much divergence and/or specificity due to different
concrete pathways, depending on the concrete pathways (i.e. the concrete
development especially of the accumulation regimes) and the concrete ways of
exchange of political and institutional thinking and institution building. For this we
have to acknowledge that already since a long time we cannot presume any ‘purity’
and in particular today the processes of globalisation means not just a new step of
colonialisation but the emergence of new and different systems by way of megering
different cultural traditions.

Of fundamental importance is to overcome the in principal static approach of


mainstream analysis that defines one side – usually the Western welfare systems – as
given reference, looking from there at the other countries as supposedly ‘developing’.
This is even the case when the analysis is directed to make out changes on both sides.
Even those approaches are insofar static as they take a Western ‘ideal of modernity’
as point of reference. Especially today we find a paradox in many approaches.
Namely we find occasional reference being made by Western politicians looking
towards an assumed Confucian welfare state in order to find solutions for the crisis of
the problems of the three worlds of welfare capitalism. A matter in question with this
approach is, however, that the understanding of welfare continues to move in the rails
of Western thoughts.

Saying this does not mean to make a plea for uncritically abandoning all fundamentals
of that approach. However, it requires a more critical understanding of the worlds of
welfare capitalism. However, it is using this reference to clarify the limitations from
another angle. The work to which is alluded here another time, though via the title
claiming to refer to three worlds of welfare capitalism, actually only refers to the one
world of capitalism. Sure, via drawing attention on the question of the relationship of
the welfare state to the class question as central concern of the welfare state, Gøsta
Esping-Andersen introduces via the backdoor the elusiveness of capitalism itself (see
page 71 of the present book). However, this seems to be largely insufficient – the

237
backdoor was in history usually reserved as entrance for servants; however, this
cannot be sufficient for main deliveries. In other words, a building cannot be erected
by delivering its foundation via the backdoor of the already finished edifice. Though
slightly simplified: the necessary treble step has to start from looking at capitalism –
in economic terms and in terms of the respective political structure from where it can
move on to the review of the welfare system.

This means not least – in contradistinction to Alan Walker and Chack-kie Wong who
state that

[i]n fact, neither capitalism nor democracy are necessary


conditions for constituting a welfare state or explaining its
development.
(Walker/Wong, 2005: 4)

that the welfare state in the traditional sense is not much more than the complement of
capitalism, though admittedly not to democracy – the two being entirely distinct
features anyway. Capitalism is necessary though not sufficient condition for the
welfare state in the form of contemporary mainstream understanding in sociology and
even more in social policy. It is true that other ‘welfare systems’ can be easily
imagined. However, for the following simple reasons they are here not considered as
being welfare states: if they are pre-capitalist societies they are by definition not strict
states, as the state at least in the understanding of the modern system emerged only
with the capitalisation, i.e. with a specific interlocking system of division of labour
and the development of certain forms of property as they had been elemental for
capitalism. Hand in hand with the emerging economic structures we find the
emergence of specific political structures, being fundamentally concerned with (a)
certain orientations of modernisation/rationalisation, (b) specific establishments of
division of power and (c) the beginning institutionalisation of rights (see for instance
Herrmann, 2007 a with extensive further references; see as well Marshall, 1992). On
the other hand, if capitalism in the form as it had been outlined before does not exist,
it does not necessarily mean that the state in a general understanding of mechanism of
governance and regulation ceases to exist; still, the thesis is that it definitely will
change in a fundamental way, including a loss of welfare state functions in terms of
mediating the two poles of division of labour on the one hand and complementing

238
contradicting forms of property on the other hand. So far then, capitalism and welfare
state are complementing each other. The link between welfare state and democracy is
presented in another chapter, dealing with the connection between different
accumulation regimes and modes of regulation. A still open question from a
regulationist perspective seems to be in which way and to which extent the Fordist
system is actually compatible with very different modes of regulation. The apparent
clarity and uniqueness of the Fordist accumulation regime is not going as far as it
claims. In other words: Fordism comes along in very different forms. One obvious
differentiation has to consider the position in the international system of centre-
periphery and the respective differences with respeact of the modes of regulation.
Simple: A Fordist system of the centre and a Fordist system in a peripheral country
produces very different modes of regulation (cf. Jessop/Sum, 2006). And as such it
has of course very different impacts as well on the welfare state.

The following investigation will pursues this along some major lines of the analysis of
the political framework and some aspects of the economic development, in
conjunction with the politics, directed towards economic development. This will
concern the macro-level and equally important the micro-level at least in terms of
some aspects of the development of management and enterprises. This will be closely
knit in with reflections on some considerations concerned with the value basis,
looking at both the generally claimed values and their interpretation, application and
meaning.

(a) General Political Framework – Trying to get hold of the Mode of Regulation

Some remarks had been already made with regard to the political framework, namely
the brief look on the varied structure of political influences in a history of varied
dependencies. Of course, this should not be overestimated – as much as we can agree
with the statement that

[t]he history of all hitherto existing society is the history of class


struggles
(Marx/Engels, 1847: 482),

239
it is also correct to state that the history of nation states63 is the history of changing
borders due to the class struggles between the ruling classes. There are still at least the
following moments that make the case of Taiwan remarkable.

(a.i.) The International Agenda

(a.i.i.)
Though not in absolute terms, it is somewhat contestable if and to which extent
Taiwan can feature a truly indigenous character – personally, being too aware of very
early population movement, problems arise with such terminology nevertheless. In
general terms Taiwan as island had been characterised since long by immigration, and
already

[a]s early as the ninth century there have been several pushes of
Chinese emigration to Taiwan. Until 1650, about 100,000 Chinese
have arrived on the island. … A great deal of Chinese immigrants
came with Cheng Cheng-kung, known as Koxinga, and his army of
25,000 men in 1661 and thereafter. This major influx of Chinese
immigrants drove the aborigines from the plains in the south and
from the foothills in the north towards the remote central mountain
range and the mountainous east coast.
(Aspalter, 2001: 2; cf. e.g. Fitch, 1953: in particular chapter 1)

However, as much as this suggests a strong Chinese claim, historically Taiwan had
been colonialised since 1624.64 Here the colonial history is not of interest as such.
Important is to note that the ‘early globalisation’ left an indigenous population behind
– this would be similar to the United States of Northern America; different to the
Northern America’s, the development in Taiwan equally did not allow buiding up a
strong and unequivocal national identity nor a melting pot identity, in this respect one
could draw parallels for instance to Ireland, where openness of society is still on the
verge, and where independence from the British colonialiser is not truly reached
either.

63
Nation state is here meant in a very broad understanding.
64
First by the Dutch and Portuguese, then, from 1661 by a Chinese ethnic minority [non-Han Manchus]; later, from 1895,
from Japan; and later again, namely from 1949 by KMT.

240
Still, the major differences are obvious: lacking a strong ‘independent and indisputed’
indentity, the indigenous people – being economically, regionally and legally
segregated – had been suffering from discrimination.

The major particularity araising from here in a global perspective is the fact that the
island developed as match-ball for the relationship between the West and the East in
general and the US and the PRC in concrete (see as well the quote from Douglas
Mendel’s text, page 253 of this document; cf. Cohen/Teng [eds.], 1990).

All this has to be read as explanation for a great number of conflicts, at the end an
important factor to understand today’s issues around identity building and the
constitution of elites. With regards to conflicts at an early stage of the history of
invasion

Taiwan was not known as an abode of peaceful peasants. On the


contrary, revolts against the local administration, feuds between
groups of immigrants from the mainland, and conflicts with
aborigines were endemic. The island gained the reputation of being
a place with small revolts every three years and large revolts every
five years (sannian yi xiaoluan, wunian yi daluan). The idealized
social structure of Great Tradition China, which placed scholars
first and merchants last was the opposite of reality on Taiwan,
which had a history of extensive cross-strait and regional
commerce.
(Phillips, 2003: 5)

(a.i.ii.)
Taiwan, whatever this means in ethnical terms, had been for many times victim of the
struggles amongst her occupiers. This refers in particular to the peculiar history of
Japan and the U.S. of North America as imperial powers and the relationship to China
(see as well above, page 231). In general it has to be seen that the influences had been
very different, leaving their marks depending on their specific interest. Early
influences in particular with regard to Taiwan have to be mentioned by the Dutch,
who established themselves in the region by using Taiwan as trading-base. However,
Dutch colonialism can be seen at least in this case as rather ‘liberal’, barely intruding

241
into national affairs (on this topic Wertheim, 1954; van Goor, 2004; Steengaard,
1973).

Early influence from China can be seen as well as relatively limited, more a matter of
utilisation from outside rather than complete occupation and penetration. The first
severe intrusion goes probably back to the time when

following the Sino-Japanese war of 1894-1895 the island was


ceded to the Japanese.
(Preston, 2001: 326)

Although detailed analysis would definitely qualify Preston’s Japanese friendly


interpretation, it is sufficient for the picture here, painted with a broad brush that this
Japanese influence was not a simply a matter of imposing an imperial power from the
outside as it is for instance known in the extreme from Apartheid politics in South-
Africa. Rather, the Japanese interest was the utilisation of the island, seeing the
imperial power in a position of supporting the development of relative independence
to islanders (see as well page 253).

So far the development meant as well, that up to then there was a local elite, not at all
strong, let alone meaningful as players on the international level, however
maintaining or even gaining some power in the own country. It is important as well to
emphasise the last part of the quote: the further development towards the end of the
presence of imperial Japanese power created a kind of vacuum which can be seen as
undertow, complementing the push effect which moved Kuomintang (KMT). Being
(or feeling to be) forced to leave the People’s Republic of China, Taiwan can be
considered as welcoming resort – amongst others, one reason being the readiness of
Japan to hand power over to the nationalist aspirant, the other reason the lack of a
‘modern elite’ and the failure of the traditional elite to rule the country on its own.
Sure, in reality things had been much more complicated, intermeshed; however it is
probably reasonably uncontested that KMT was the first intruder that really occupied
key positions, not only building a new elite but as well fostering a new stage
construction of collective identity.

242
(a.i.iii.)
The position on the international stage had been marked by two major poles: One
aspect is concerned with accessing the developmental status of Taiwan (see in this
context the general considerations on development/underdevelopment thesis page
109). Though being by and large categorised as ‘developing country’, it had been not
an underdeveloped colony in the sense of many other so-called developing countries.
The reason for this is simply that Taiwan, not availing of any raw material, had been
very much a supplier nation. Furthermore it is of relevance that the island nation had
been – and still is – characterised by the orientation towards two centres, namely the
United States of Northern America and Europe – an orientation that has to be seen in
close connection to the paradoxical relationship to ‘the other China’. Furthermore this
position is somewhat broken by Taiwan’s position as semi-centre. This more recent
development actually complicates the relationship as the country remains in a global
perspective peripheral, remains furthermore too small to play an economically and
politically influential role towards the People’s Republic of China, but emerges at the
same time as a specifically influential player – being together with Singapore, Hong-
Kong and others a springboard and safety-net at the same time (see in this context as
well pages 253 f.)

The importance of this positioning is not least a matter of the perception of the
country’s ‘ranking’ within the international hierarchy. Although we are dealing with
objective matters – whatever the standards are for the ranking, the positioning is
important as matter of a subjective attribution as it determines the developmental
model. In the beginning of this chapter it had been said that it is necessary to
overcome the principally static approach of mainstream analysis that defines one side
– usually the Western welfare systems – as static reference and looks from there at the
other countries as supposedly developing.

This remark (see as well the similar remark page 80 and the remark on page 236
regarding the meaning of differences and similarities of values) does not want to
suggest any relativism. On the contrary, with this approach the historical character can
be integrated in a systematic way in its objective context of justification.

Another, and for the recent time more important moment is the fact that the
international relations had been characterised by the deviousness of the international

243
community.65 Roughly speaking, being expelled not only from the UN but as well
from other international (including bilateral) relations, Taiwan had been nourished
especially by the US as anticommunist base against the PRC.

However, in a wider context this links closely into another matter of politics, now on
the Taiwanese side. Connected to a special feature of the development of the
economic side we find a development that is in this immediacy probably unique: the
direct economisation of politics. As in bilateral relationships the establishment of
embassies was not possible, the Taiwanese government found as way out of the
deadlock for instance the establishment of ‘Taipei Representative Offices’. Of course,
it would require a separate study to investigate the exact mechanisms; but it can be
taken as given that such constellation was especially favourable to open business-
friendly contacts.

Political relationships however had been developed to a large degree and with some
intensity by circumventing certain official pathways. Although many doors remained
and still are closed for Taiwanese policy making on the international stage, there
existed for a long time already various relations between various actors, including
intense cooperative relationships between national policy makers and advisors and
international bodies, including the United Nations, the World Health Organisation and
others. Of relevance here – though again awaiting detailed investigation – is the non-
governmentalisation and academisation of politics. Many of the contacts on the
international level are at least more indirect in nature, for instance as part of contacts
in research cooperations which may be of immediate meaning for policy making or as
part of policy projects as for instance the inclusion of Taiwanese partners into WHO-
Healthy City programme.

Of course, one can discuss the actual meaning and reach of such participation. In any
case we see direct channels for influencing not least the development of conceptual
frameworks of policy making.

(a.ii.) Political and Institutional Conditions


Formally it is quite easy to give an answer: Taiwan is a semi-presidential system, the
power of dealing with daily affairs being a matter of the prime minister and the

65
It is not of relevance here in which way and to which extent especially the earlier KMT had been itself ambidextrous.

244
president. In addition it is important to mention the rather recent change – the martial
law was lifted only in 1987. But going beyond this formal consideration the
difficulties of any assessment begin.

(a.ii.i.) Elites, Dictatorship and Democratisation


Taiwan
[s]ince the 1600s, Taiwan … defined as a small part of something
else
(Phillips, 2003: 3)

is as Republic of China historically a kind of artefact.

The island was home to non-Han Chinese peoples for millennia,


then became a prefecture of China’s Fujian Province in 1684, a
full-fledged province in 1885, a Japanese colony in 1895, a
province of the Republic of China (ROC) in 1945, the only province
of the ROC in 1949, and eventually a virtually independent nation,
which it remains today. With the exception of the last transition,
central governments located far from the island initiated these
changes.
(ibid.)

Recently then she emerged as secession of the formerly governing power from the
‘mainland’: being under severe threat and not able to hold any position within the
country against the Communist Party of China, Kuomintang (KMT) under leadership
of Chiang Kai-shek left the mainland to re-install the leadership on the island anew –
and this leadership was a leadership under martial law, not to say a dictatorship.

All this had been already said before but it is important to remember it here as it is
hugely relevant as well today, though going far back in history. In particular the
recent developments and political debates show the importance not least for the
development as well of the national elites – discussions with young people frequently
reach this topic at one stage.

A slight hesitation emerges to speak in a straight way of dictatorship with regard to


KMT-martial rule. This dithering evolves from a historical perspective on the one side
and the actual ‘governance’ on the other side.

245
KMT is historically similar to parties and movements in other countries in which
nationalist orientations contain strong anti-imperialist orientations on one side and
new-elitist conservatism on the other side.

(a.ii.i.1) Formation of KMT: Nationalism and Anti-imperialism – Between ‘Populism’


and Elitism
Characterising for the formation of Kuomintang is a hybrid character, at least four
moments determining its concrete shape.

First, at least for the early history, it can be seen as movement, forming itself to a
party. Surely, taking a nationalist, pro-KMT-position, Jan-chih Hsieh suggests that

[t]he history of the Kuomintang (Nationalist Party) is a record of


revolutionary struggles by modern Chinese to achieve political
liberty and equality and establish an independent, democratic and
prosperous new China.
(Hsieh, 1970: v)

But it is indeed important that Kuomintang was not without contradictions throughout
its history and changed even occasionally its organisational structure. For instance,
whereas on 25th August 1913 a manifesto of the Kuomintang platform still claimed a
strong orientation on traditional government policies, though aiming on ‘good
political order’ (see Manifesto of the Kuomintang Platform, August 25th, 1913),
already on the 1st of September 1914 we read in a manifesto of the Chung-Hua Ko-
ming-tang, dealing with the reorganisation.

Please pay attention to the fact that the Party is a secret political
party.
(Manifesto of the Chung-Hua Ko-ming-tang, September 1st, 1914:
54)

In this regard KMT is actually very similar to at least many parties in other countries
– just mirroring the general change which had been linked to the transformation of
national and global capitalism. Still, it played a special role, insofar as the emergence
of the party fell immediately in the wider historical context of a revolutionary change
and has to be seen in its origins more comparable with working-class parties in the

246
west rather than with parties of the bourgeoisie. 66 In tis context it is justified to say
that in China a bourgeoisie in the classical sense initially did not emerge (see page
184).

Second, being anti-imperialist meant in this case that the initial KMT emerged not
against an external imperial power but against the national imperial power, as such
being to a large extent concerned with building rather than defending eh national and
with this the collective identity. This was especially the case after moving to Taiwan.

However, third, this had been linked to principles that fitted well into national
traditions – not least traditional religious and philosophical thinking. It is in regard of
the party in question but as well in general, when looking at Asian countries, striking
that – in particular in the Chinese context – the issue of autarky and in general a high
degree of ‘self-reference’ and interlocking of individual within the social are strong as
enduringly characterising the interpretation of politics – not so much a matter of
values but a matter of a specific accumulation regime, not least defined by the
availability of resources.

Actually, this links as well into the specific class patterns, marked by the somewhat
paradoxical tension between extreme inclusiveness going hand in hand with a strict
demarcation (the most telling example for the latter being the Indian cast system).

Throughout the further analysis of both, the accumulation regime and the mode of
regulation it will get evident that these four notions play a huge role in the
development of the countries politics – and with this as well in socio-political matters.

(a.ii.i.2) ‘Legitimate Dictatorship’


In terms of day-to-day governance we can see the old KMT-system, though being a
dictatorial system, as strongly oriented towards gaining legitimacy (cf. as well Rigger,
1992).

In the final years of the 1940s, the Taiwanese witnessed a great


contradiction: the regime led by Jiang Jieshi67 crumbled on the

66
s. as general references to and reflection of the time for instance Lenin’s Imperialism, the Highest stage of Capitalism,
Hilferding’s Finance Capital – just as a few expressions of a reinterpretation of the world during a historically short period
of time; and the political developments as the overcoming of politically feudal institutions in many countries, the October
revolution, the overthrow of the Ottoman Empire in 1922, Roosevelt’s New Deal are major practical developments that
belong to the same range.

247
mainland while simultaneously consolidating its hold over the
island. Through a combination of authoritarianism and reform, the
Nationalists achieved a higher level of control in Taiwan that they
had ever enjoyed in a province on the mainland.
(Phillips, 2003: 89)

Christian Aspalter states in an equal vein that

[a] great contribution to the social and democratic success of


Taiwan’s postwar history was the fact that the Kuomintang had
learned from its defeat on the mainland and established a land
reform, reforms of the government (and military), and major
economic reforms to stay in power.
(Aspalter, 2001: 5)

Although such statement sounds opportunist-defeatist, ignoring the ruling by martial


law, the statement is justified as far as the KMT-leadership had been aware that the
only – and slight – hope to survive could be found in a double strategy:

* striving for economic success – for which in the view of KMT the orientation on
enhancement of capitalism and with this the support of an export-dependent
strategy had been seen as necessity;
* striving for legitimacy of a government based on martial law – for which some
welfare measures and political openness had been seen as being essential. Much
more important than for instance the approval of some kind of local democracy was
the elite-structure which is characterised by some remarkable specificities as
already outlined before.

This was even more important when looking at the situation in the beginning of
KMT-power on the island of Taiwan. To employ another time Steven Phillips, we
learn that

[e]ven as the Nationalists strengthened their regime on the island,


the mainland slipped from their grasp. From 1940 to 1950, Jiang’s
government endured military defeat, administrative collapse, and

67
Chiang Kai-shek (P.H.)

248
economic chaos. Taiwan faced an influx of approximately one and a
half million refugees with all its attendant problems, including
inflation, housing shortages, and declining morale.
(Phillips, 2003: 89)

Thus, the national(ist) government had to build an elite by dealing with

* a broken and further crumbling tradition


* a certain reservation from and even hostility by the indigenous population and
* a socio-economic challenge from its own and genuine clientele.

In a side remark it may be interesting to point on patterns of dictatorship in Europe


which are very different in several respects, but show at the very same time several
similarities: The Catholic Church in Ireland, based on blending of nationalism and
supporting a policy of economic ingratiation on the one hand and autarkist policies on
the other hand its own hegemony and dictatorial role – leaving the country itself very
much in danger of loosing its identity under recent economic pressures.

(a.ii.i.3) National Identity and Elite-Building


Taking the points from (a.ii.i.1) and (a.ii.i.2) together and seeing them in a wider
context, not least by linking them to the colonial and neo-colonial history, these
remarks provide a crucially important building block for developing an understanding
of how the social in Taiwan is constituted, here in particular the constitution of certain
elites. In this regard the following remarks have to do suffice.

It had been said that it would probably be uncontested to see KMT as the first intruder
that really and fundamentally occupied key positions, not only building a new elite
but as well fostering a new stage of constructing a collective identity (see page 242).
At the same time, however, we have to acknowledge the following paradox – a fact
with major consequences for the later development not least of welfare and social
policies. Connected with this step is a first stage of loosing genune identity. One can,
but does not have to identify with the historical development: the victory of the
Communist Party and the specific (re-)interpretation of communism – either way, one
has to acknowledge this victory as historical fact and deerminant of national
development. Not acknowledging this fact, KMT had to disengage in some way
though not from the national tradition, so at least from the national identity. KMT had

249
to build its identity on finding a way of legitimising its exceptional path. – A
symbolical expression can be seen in the fact that Chiang Kai-shek dislodged many
treasures from their historically authentic place, one can say: thus separating them
from life by hiding them behind museum doors. Sure, the Forbidden City in the
middle of Beijing has as well the character of a museum; but at least it remained in its
position, serving in its own way as vivd example from which to depart.

It is as well important that the establishment of a power centre on Taiwan was in these
terms always thought to be provisional – though not always made explicit, the Taipei
government was by definition an exile government and the question of national
identity played in this light throughout the years a very important role, in the words of
Ya-chung Chuang

Since the advent of democracy in 1987, national identity has


become a touchstone of debate and conflict.
(Chuang, 2001: 54)

It is paradoxically, so the author, that

[i]n reality, compared with the previous blindness to difference and


heterogeneity, the curiosity about the possible differences in society
can be considered as somehow progressive.
(ibid.)

As

[t]he KMTs rule in postwar Taiwan, thus, started out with the aim of
legitimizing the problematic (re)birth of the island and its
prerogative to retake the mainland one day
(ibid.: 55)

it is no wonder that KMT-rule, seen from within, was very much perceived as
intrusion, as interference into Taiwanese matters – Taiwan here more in the
understanding of Formosa, as the island of Taiwan and the indigenous people. Ming-
min Peng puts his fingers on main points of critique in mentioning fifteen

principal issues, policies, actions, and institutions:

250
1. That the administration at Taipei represented a ‘government of
China’ was an absurd fiction which amounted to a gigantic
hoax.
2. This fiction enabled the Nationalist party government to
maintain two levels of organization, the so-called ‘national
government’ in which all positions of effective power were
reserved for continental Chinese who had come into the island
in recent years, and a subordinate provincial administration
partially open to Formosan participation.
3. It was advertised to the world that the national government was
a ‘constitutional democracy’ with elective participation in the
Legislative Yuan, although the legislative membership had been
elected in 1947, on the continent, in rigged elections. The
constitutional provisions requiring quadrennial elections had
been suspended in order to keep these refugee mainland Chinese
members in office indefinitely.
4. The governing elite, continental Chinese, justified this political
discrimination by taking the position that Formosans are
backward, tainted by fifty years of Japanese role, arid in need of
a long period of political ‘tutelage’ before hemming qualified to
enjoy full representational rights at all levels of the government.
5. By suspending elections after 1947, the government was able to
maintain the well-advertised but illegal ‘elective National
Legislature’ in which less than three percent of the island’s
actual population was represented.
6. By holding on to Quemoy and Matsu, and making a show of
military action there, the government maintained the fiction of
‘national emergency’ and a ‘state of war,’ thus justifying the
suspension of civil rights under continuing martial law. The
‘emergency’ was artificially and indefinitely prolonged in order
to curtail Formosan participation in normal constitutional
democracy.
7. Over eighty percent of the national budget was spent on military
affairs, including elaborate secret police organizations. … The

251
armed forces … was too small to invade the mainland or
effectively …, but it was far too large to be supported by the
island economy. Only massive foreign aid kept it going on this
scale.
8. No genuine opposition party was allowed to come into being.
The Nationalist party did not dare to face the challenge that a
genuine political opposition party might produce.
9. Corruption and inefficiency marked every office of government,
party, and army, creating a burden which the Formosan people
should not have been asked to bear.
10.From kindergarten to college the party and the Government
carried on an intensive political indoctrination that was warping
the minds of the rising generation, and was designed only to
produce blind support for the one party and its leader.
11.The Youth Corps was a para-military agency of the party and
government in which membership was compulsory…
12.Any unconventional behavior or creative thinking, any critical
mind or independent spirit is not only limited, and frowned
upon, but punished. …
13.No genuinely effective labor unions were permitted and labor
was exploited under the ‘emergency’ provisions of the law.
14.As in continental China before World War II, the working class
farmer and landless agricultural laborer were being exploited
by the government through compulsory exchange of farm
produce for fertilizer and by heavy taxation. The abuses of the
masses that brought about the Nationalist government’s
downfall on the continent in 1949 had been carried over into
Formosa and cannot be disguised by the widely advertised
‘Land Reform Program.’
15.In public it was compulsory to show outward signs of loyalty to
the party …
(Peng, 1972: 125ff.)

252
The nationalist undertone is already present in the analysis, and even more so in the
manifesto derived from there, stating in eight points what was seen as challenge for
the future. In any case it was getting clear that the democratic movement of the 1980s
was – another time – not least a nationalist one, though this time nationalist in terms
of ‘national nationalism’, i.e. starting with the self-understanding of a pro-nativist
outlook.

However, lessons from history do not necessarily support Chuang’s more optimistic
outlook. It is definitely true that there is a truly democratic potential not least in the
indigenous groups. It is as well true that the social situation especially of this stratum
can be seen as somewhat ‘natural opponent’ due to its social situation – a ‘social
periphery’ that is left behind even if and when mainstream society is prospering and
progressing – the following statement from 1970 by Douglas Mendel clearly shows
that this is by no means a recent occurrence.

The native viewpoint, however, emphasizes the contributions of the


Japanese heritage, American postwar aid, and the hard work of
Formosan farmers, workers, and businessmen. ‘The Nationalists
cannot claim credit for those things,’ insisted an economics student
at Soochow university, ‘and we could do even better under our own
system without the incubes of a refugee mainlander government.’
Yet Formosans tend to stress the seamier side of the island
economy, such as underemployment, low wages combined with
rising consumer prices, taxes that fall high on the poor, and the
burden of a bloated civilian and military bureaucracy. Go into the
villages and you’ll see plenty of poverty,’ advised the first hotel
floorboy whom I met in Taipei, ‘but you can start by touring the
slums of the city first.’
(Mendel, 1970: 66)

Geraldine Fitch clearly shows that this group is easily an receptive target-group for
the most blatant anti-communism, fitting well in her own paternalistic-friendly tirades
(see Fitch, 1953; in particular chapter 5)

Another dimension of the loss of identity can be seen as being closely linked to the
aforementioned (see already page 242): Although Japan did not place a rubber stamp

253
on the country, one has to qualify such a remark. Japan had been an imperial power
and used Taiwan, steering strategically the development of the future industrial
development – and with this the development of the future structure in its specific
shape of an early stage of industrialism coming to age.68

The pattern of agricultural and industrial development had the


effect of weakening established landed groups without the
emergence of independent industrial or working class groupings.
The territory developed firmly within the orbit of the colonial
system.
(Preston, 2001: 326)

So Steven Phillips can rightly state that

[i]n one important way, the colonial era did not end in late 1945, as
the Taiwanese elite relied heavily upon the collective memory of
Japanese rule to shape their political agenda after the resurrection.
Certain aspects of colonialism helped prominent Taiwanese
establish minimum standards of effective government. During the
previous fifty years, their had existed an implicit ‘deal’ between
rulers and ruled. Taiwan’s colonial masters made improvements in
education, sanitation, and health care, and major investments in
industry and infrastructure. In exchange, the Taiwanese accepted
second-class status, life in a police state, and strict limits on
political activity.
(Phillips, 2003: 9)

Still, in terms of identity building this culminates in three major moments:

* de facto domination by Japan


* the – though in part beneficial – subordination of the country’s development under
Japanese strategic interests and
* a long-term cultural influence via obtaining key-positions in terms of hegemony
building.

68
This formulation follows from the present author’s sceptical approach towards post-industrialism etc.

254
Looking at the latter moment it is important to see the contradictory character of the
structure of executing influence. Whereas the power holders from Japan had been
diffident in the overall execution of power, and leaving aside that the Japanese
actually invested hugely into the education system in Taiwan it has to be seen that on
the other hand we can speak in the area of education even of a kind apartheid-system.
One aspect of this is that certain institutions had been simply closed for aborigines;
another reason had been that taking up education depended on sufficient resources
which had not been available for Taiwanese people who commonly occupied lower
social strata. Finally, the language of instruction had been Japanese rather than
Chinese. All this had been especially meaningful for the later elite building as higher
education had been – even more than it is normally the case in capitalist societies – a
matter for the higher social strata, groups that would most likely be somewhat close to
the hegemonial thinking.

With the Japanese official retreat, in principal a third stage of loss of identity is
reached due to the particular – and peculiar – international situation. The international
isolation on the one hand, and the identification as welcome anticommunist spearhead
created from both the US American and the Taiwanese perspective a symbiosis on the
other hand. However the character of this symbiosis is contradictory:

* its mutualism is given by the US having a safe base in the region – a base of which
the limited own power secured a certain degree of US-hegemony; and by the gained
indirect re-entry of Taiwan which somewhat compensated for the loss of
international recognition
* its parasitism given by the additional mutual gain of economic development,
parasitic however as it meant the further loss of identity due to the externally
controlled growth which did not leave much space for upholding genuine identity.

In this light, it is probably justified to extend the argument which can be gained from
the works by Wu Zhuoliu (e.g. Zhuoliu, 2000), to the people living on the island of
Taiwan. Their self-interpretation was very much a negative one, one of highlighting
their exclusion from the hegemonic streams. First this casts light in the national power
relationships where it is indeed mainly concerned with the relation between
aborigines and people coming from outside as hegemons; then it is concerned as well

255
with the location of the islanders in a global setting – a matter having immediate
consequences as well on the national identity and the definition of the elite.

Looking at questions of the constitution of elites, all this has to be linked as well to
the Taiwanese class structure. Of course, only a few hints will be provide here,
however, after a broader overview over the question apparently a reasonable
reflection of the two main aspects.

First, Taiwan’s class structure was for a long time – more than in other countries –
characterised by the dominance of self-employed and unpaid family workers
characterised although we find a massive change in this regard over thy recent years.
Robert M. Marsh for instance presents with reference to the Taiwan-Fukien
Demographic Factbooks 1989 and 1991 following figures for the years 1963 and
1991 with regards to the employment status:

Employment Status 1963 1991


Employers 2.2 2.1
Self-employed 31.1 18.6
Paid employees (public and 40.1 70.3
private)
Unpaid family workers 26.6 9.0
100.0 100.0
N 3,474,000 10.130.130
(Marsh, 1996: 53)

Table 13: Employment Status, Men and Women (in percent) – All Taiwan 1963, 1991
Applying a differentiated approach, the result is even more interesting. Referring
again to Marsh, the following table reproduces what he calls the Weberian
Stratificational Position.

Weberian Stratificational 1963 1991 Total


Position
Unpaid Family Workers 0.4 0.6 0.5
Blue-Collar Workers 17.0 9.9 13.3
White-Collar Employees 30.1 21.4 25.5
Self-Employed, without 23.7 21.2 22.4
Employees 3.1 24.7 14.4
Managers 25.8 22.3 23.9
Capitalist Employers
100.0 100.0 100.0
N 489 543 1,032
Table 14: Weberian Stratificational Position (in percent), Taipei Samples, 1963
and 1991

256
Though the second table is highly problematic – the small sample seize and even
more the reduction on the Taipei area which, referring to statistically unspecified
statements from other sources, is atypical especially as the number of small
businesses is concerned – it is remarkable that we see a huge shift taking place,
moving only now to the more traditional ‘industrial patterns’ of the emergence of
dependent employment. However, even more remarkable is the continuing
exceptional; importance of the self-employed where we can see only a slight decrease
over the nearly thirty years. Taking it from here, the social/class structure seems to be
atypical for both an industrial society and for what is called a developmental society.
This is supported by a look at the unemployment figures that are marked by a rather
unexceptional contrast of an overall relatively low unemployment rate, going hand in
hand with a relative low labour force participation rate but a high unemployment rate
of young people, aged between 15 and 24 years (see Table 15).69

2001 2002 2003 2004 2005 2006 2007


Labour Supply –
Unemployment
Rate (in %)
4.57 5.17 4.99 4.44 4.13 3.91 3.91 Total
5.16 5.91 5.51 4.83 4.31 4.05 4.05 Male
3.71 4.10 4.25 3.89 3.88 3.71 3.72 Female
10.44 11.91 11.44 10.85 10.59 10.31 10.65 15-24
4.17 4.73 4.47 3.97 3.78 3.79 3.86 24-44
2.92 3.38 3.76 3.20 2.79 2.31 2.24 45-64
0.06 0.13 0.14 0.07 0.43 0.28 0.16 66 years and
over
4.71 5.14 5.17 4.31 3.76 3.21 3.22 Junior
high&below
5.12 5.92 5.60 4.87 4.54 4.36 4.31 Senior
high&vocational
3,72 4.28 4.09 4.06 4.01 3.98 4.00 Junior
college&above
(From: ␠ ᦩ ᜰ ᮡ ⛔ ⸘ ႎ . Social Indicators 2007; R.O.C.
[Taiwan]. Executive Yuan. Directorate-General of Budget,
Accounting and Statistics (ed.); Taipei, 2007: 55
http://www.dgbas.gov.tw/public/Data/87311841271.pdf 16/08/08:
5.46)

Table 15: Employment and Unemployment


Second, it had been the old elites who were pushing for democracy – not least aiming
on occupying the higher levels of the hierarchy of the system. Thus we cannot expect

69
The unemployment rate is even higher if we take the age bracket between 20-24.

257
them aiming on a fundamental change of the system itself. In this way a major
political pattern had not least been the dominance of the fight around claiming
hegemony as global economic player (though being very much meant to be [in danger
of being] a string-puppet of the United States of Northern America on the global
scene versus claiming an own national economic, political and social identity). – The
question may be posed if such a decision is actually a matter of real choice or even
real political struggle or if it is a decision that is determined by history and global
players, leaving only a marginal space for national players allowing them to shape the
development by way of defining how the gains and profits that remain within the
country can be distributed, perhaps thus defining in the long run an own identity.

In any case it is important to keep a certain two-tier class system in mind which
characterises the politico-economic class structure since a long time and which Steve
Chan and Cal Clark present in the following:

The transition to industrialization that occurred in Taiwan over


twodecadesbetweentheearly1960sandearly1980s,therefore,
was based on a seaǦchange reorientation in economic strategy
that was intertwined with considerable change in regime elite
composition.Thestateimposedafundamentalstructuralshiftin
theisland’seconomythatwassomewhatironicallypremisedupon
what John Fei (1989) has called a ‘deǦpoliticization’ of the
economy. Taiwan’s elite structure was also broadened quite
significantly. First, as a consequence of the privatization of
economy,adualelitestructurehadevolvedbytheearly1970sin
whichMainlandersdominatedthetoppoliticalandIslandersthe
top economic positions, with the latter acting as a link between
theregimeandgeneralpopulace.Second,liberalelementswithin
the regime expanded both because of Chiang ChingǦkuo’s
recruitmentpoliciesandbecauseofthegrowingroleofelections.
Finally, an increasingly articulate opposition subjected the
governmenttocompetitioninthemarketplaceofideas.Thesenew
elites both contributed vital skills and resources to the island’s

258
economic and political development and helped restrain
opponentsoftheongoingchanges….
(Chan/Clark,1992:88f.–withreferencetoFei,1989)

(a.ii.ii.)
In a way the politico-judicial pattern of Taiwan – and this is said against the
background of the predominant Chinese tradition of the country – is caught by a
fundamental tension, namely the extreme rationality and this-worldliness of the
thinking, the huge emphasis on the individual responsibility – not least expressed in
the spirituality of the world-view – and finally the interpretation of the individual
being as inter-being (see for the latter the brief exploration with references on page
143 f.). Looking at the juridical system, this can well be seen as a basis for
specifically shaping the understanding of the legal systematic. In general – and
formally – Taiwan can be classified as civil law country.70 This is very much
reflecting the rationalist tradition in the development of which the ‘professionals’
actually played a large role. In order to understand the underlying thinking, one has to
see that this rationality was very much oriented towards the individual conduct of life,
however it had been at the same time linked with the demand of subordination and
integration.71 In legal terms this links very much into the constitution of a civil law
system on the one hand, its strong orientation on social integration and the same time
the extreme selectivity of social provisions. From here it is also plausible to recognise
the specific form of ‘subsidiarity’, expressed for instance in a relatively strong role of
family support mechanism rather than individualised provisions.

The underlying principle is not only linked to the status relationship (see pages 171
and 183) but it is part of a wider understanding of social integration and social
constitution. Barbara Darimont presents this in the following words:

However, Confucian ethics does not refer to a morality purely based


on roles nor is it based on social and political order solely in
hierarchical terms. Instead, a just order is characterised by two

70
The problem of disrespecting and specifically bending law under martial rule is by and large left aside without aiming on
understating the political meaning and denying the breach of human rights.
71
It can be left aside if this is a logical inconsistence (as Western thinking would suggest by drawing on formal equality in
order to maintain substantial inequality due to its individualist stronghold) or if it is a logical outcome (as one could argue
for instance along the line of some notions of Buddhist thinking, valuating the individual by the extent to which he/she
reached maturity and inherent own value).

259
dimensions: Though a society without inequalities cannot be
thought of, but it can only function on the basis of mutual favour,
knowing the ‘shared benefit’ (tongli) of a special purpose
association [Zweckverband], in other words being beneficial for all
who are involved and prevent injustice. Individual utility [Nutzen]
(li) is principally secondary in the relationship to justice (yi).
Confucianism has not tried to fulfil the expectation of reciprocity
primarily institutionally, for instance through law; rather it oriented
towards developing ethicality and morality of persons.
(Darimont, 2005)

This has to be seen as very specific ambiguity between well-established social


provisions, going hand in hand with the ‘practiced’ family support mechanisms. Of
course, valuing the family is very high well in what on the scale of an imagined
European tradition; however, there we find it in a more individualised way – the
valuation of the person – whereas in the Asian tradition the valuation is part of the
inter-being, part of the valuation not of the role – to connect to what Barbara
Darimont stated – but on being part of the social fabric.

– It cannot be elaborated though it seems to be highly important for further


investigating comparative law that the ‘shared benefit’ (tongli) on the one hand and
‘general interest’ on the other hand are concepts that are constitutive for the different
world views, marking rather distinct approaches towards the same challenge of
soci(et)al order.

Two examples can be taken in order to support the ambiguity which had been
mentioned before.

First, we find frequently the emphasis of the meaning of family support services. The
one reason is, of course, the material force of doing so. However, another dimension
of doing so can be seen in the overall pattern of the legal system, as for instance the
family law as being extremely supportive for pursuing the economic strategy of the
country.

Another factor in this regard, and this can be seen as the other side of the coin is what
Hill Gates looks at under the Dependency and the Part-Time Proletariat in Taiwan

260
(see Gates, 1979). Importantly the work points on a contradiction of the social
structure. On the one hand Gates mentions the relative social balance, already reached
at a relatively early stage – and definitely long before the country’s arrival in the
boom and in the roundel of democratic systems. With reference to Samuel P.S. Ho we
read:

With due caution, then, we see from these studies that a degree of
income equality appears to have been achieved by the early 1960s
with little change thereafter.
(ibid.: 384; reference to Ho, 1978: 142-143)

However, as mentioned we find at the same time a distinct class structure –


questioning the ‘equalitarian character’ as it is suggested in the foregoing statement.
Gates explores this and presents the following division:

Taiwan’s people can be categorized into five social classes, the


primary criterion for membership in each being a particular
relationship to a particular means of production. This divides them
initially into a group that lives from the proceeds of capital, another
that lives by the sale of its skills and labor, and an essentially un-
productive lumpenproletariat of the chronically unemployed,
beggars, and the underworld. This last class, potentially interesting,
as it probably contains a high proportion of dissidents and
‘subversives,’ has been little studied, though data on ‘poverty’
families has been summarized by Wu Yuan-li (1977: 26-32), who
notes that officially-classified poverty households make up a little
over 5% of all households. The miserly official income standards for
poverty – NT$1600, or about US$40 per capita per annum – makes
it possible to seriously underestimate chronic poverty in Taiwan.
The lumpen as a whole, is not a large group, however, probably
constituting roughly 5% of the population.’ It will be largely
ignored in this analysis. The other four classes are derived by
subdivision of those who live from capital into a grand and a petty
bourgeoisie, and those who do not, into a proletariat and a ‘new
middle class.’

261
(ibid., 389; with reference to Wu, 1977)

Important is that the class differentiation in the strict sense is in one or another way
persistently – and probably (still?) stronger than in other countries – transformed by
informal structures; informal economy plays as much a role as migration processes
and family bonds.

This pattern is very much supported from the analysis of the role of women in
Taiwan’s industry. We see an increasing shift in the employment orientation, many
women leaving behind the status of family dependents, and moving to employment in
production or services. However, it is in many cases that the entry into a job does not
equal gaining independence.

As much as we may talk of a landslide-like shift of the economy, we have to


recognise that this picture only holds true in an ex ante view on the development,
whereas in reality the country’s economy had been for some time characterised by the
split into three patterns, namely

* the ongoing meaning of peasant and subsistence economy – which actually is still
of high relevance and even in large cities as Kaohsiung, Nantou, Tainan or Taipei
the pattern is still alive, though it lost of course its peasant basis;
* a mixed economy, characterised by small production – in many cases aiming on
‘developing’ lager business – in this field the Schumpeterian entrepreneur meets the
one-man-enterprise – emerging from misery and in many cases remaining there or
soon moving back into it;
* a relatively small though meaningful grouping of ‘large scale Schumpeterian
entrepreneurs’, however, in many cases being build on foreign capital or being
direct part of foreign investment.

What interests here is not so much the fact of the concrete economic development.
We are only interested in the pattern that characterises both: the take off as such and
as well the ongoing – and furthermore future shaping – pattern. Norma Diamond says
that

[i]n some ways, the situation of these young women workers of the
late twentieth century resembles that of the female workers in
factories in the United States and England during the late

262
nineteenth and early twentieth centuries. We are dealing with a
period in which there is heavy migration from the rural to the urban
areas, a decline in the actual numbers as well as in the proportion
of the work force engaged in agriculture, a decline in the prevalence
of small-scale handicraft enterprises, and the rise of a new middle
class and working class. In many households, daughters are the first
in the family to enter the modern sector. …
Yet it is clear that women enter industry on a different basis than
men.
(Diamond, 1979: 319)

However, to look at where these women are going, is only one side, and not less
important is from where they are coming and in which overall environment they are
located and moving. It is in this perspective important to see that many women only
moved into new and not less severe dependencies. Diamond clearly points out that in
many cases such employment had been seen as real perspective but as well and not
least as some form of last effort. Surely, times changed – and they did so rapidly.
However, historically the 1970s may belong to anther century, but not really to
another era. And although we find today in the country – as in many others – a highly
educated female citizenry, we should not forget that at that time it could be rightly
stated that

[g]iven parental educational level and experience, it is not


surprising that they might see themselves as already having done
the best they could for their daughters by allowing them to finish
primary school and then sending them off to work in a factory until
they married. The sisters of most of the sample were either working
at Xinfeng or similar plants (55%), or helping out at home with the
care of younger siblings, farm work, or management of a small
family business. In only 20% of households where there were
unmarried girls over the age of 15 were any of them attending
school. Taiwan still is very traditional: the expectation is that sons
will carry the responsibility of caring for parents in their old age,
while daughters are ‘water spilled on the ground,’ a waste of
investment after a certain point. If a daughter cannot be useful

263
staying at home to help out then she might as well begin working
when she completes her primary education. It is sons who are the
hope for one’s future, and it is for sons that sacrifices should be
made. Nor do girls seem to resent working on their brothers’ behalf;
it is their family duty to do so.
(ibid.: 326 f.)

The same pattern – and its wider context – is confirmed in a study on industrialisation
in a rural area. It is especially important not to forget to look at the development in the
countryside. Following Tai-li Hu, there the industrial development is characterised by
some features that are still characteristic even in towns – the development in the first
apparently coining a specific ‘mental foundation’ for the emerging accumulation
regime. She writes in her study of the development of a small village in the middle of
the 1970s.

First, unlike industrial zones, Liu Ts’o’s small-scale industries


emerged spontaneously and without government planning.
Auxiliaries have been related to the expansion of export-oriented,
labour intensive manufacturing. …
Second, Liu Ts’o’s small-scale industries have emerged from the
small-scale farm economy of the post-land reform period. Their
establishment mainly depends on farm families’ supply of land,
capital, labor and skill. With reduced rents and improved
technology, the self-subsistent farmers were able to save some
money. Nevertheless, the amount of capital accumulated was
restricted by the government’s low rice-pricing policy, the norms
guiding family land division, and population increase. …
Third, at the bottom of the subcontracting system, Liu Ts’o’s small-
scale industries are all ‘auxiliary’ factories producing non-
agricultural-allied products for center plants. …
The male workers’ expectation of becoming capitalists and free
workers with higher income and social status was an important
stimulus to the emergence of Liu Ts’o’s industries.
Fifth, Liu Ts’o’s small-scale industries are not built on a juridical
base. Most of them do not have licenses from the Bureau of

264
Industry. They can neither apply for industry-use electricity, nor
have the right to bid for contracts and issue invoices. Their workers
do not participate in government-sponsored health and accident
insurance. They also work overtime, which is against national
Labor Law. …
Sixth, workers in small-scale factories of Liu Ts’o do not engage in
agricultural work. …
Seventh, all small-scale factories established I Liu Ts’o are family-
based enterprises. In two thirds of the total, the older generation in
the family provides capital and facilities, while the younger
generation contributes labor and skill.
(Hu, 1984: 93 ff.)

From another study we learn more about the injustice within the system – and one
may argue if this is a reflection of general gender inequalities, of the struggle of the
small an dependent family enterprises in an accumulation regime that is hostile
towards small business although it is entirely depending on this form of self-
exploitation or the endurance of Confucian traditions. In any case, what is in the
Confucian system of thought suggested as harmony and claimed as mutual benefit of
the family system, is in reality a harsh system of gendered exploitation. Susan
Greenhalgh points amongst others on the problem for men when setting up a
business:

To find a way to attract labor to the enterprise and employ it in a


variety of tasks requiring trust. Family labor was preferable
because, as we have seen, loyalty was part of the family contract.
Family labor was also desirable because it was cheaper – or more
accurately, could be convinced to work for less as part of the family
bargain. The evidence, reviewed below, suggests that the Taiwan
businessmen garnered family labor for their firms by promoting
cultural constructions of enterprise work as part of family
obligation. They filled the full range of positions by exploiting
traditional family hierarchies and cultural expectations about
appropriate roles for men and women. Building on traditional
inequalities, they fostered the formation of a stratified work force in

265
which women held high-trust but low-power jobs that did not
interfere with their reproductive tasks, while men worked at high-
trust and high-power jobs that advanced their productive careers.
(Greenhalgh, 1994: 759)

The following four points are of crucial importance and should be kept as well in
mind for the context of later consideration.

First, the developmental pattern of internal, i.e. national centre-periphery


relationships. Of course, this is in one way not much else than the replication of the
class structures (a cursory overview had been given earlier on pages 256 ff. and 261).
And in general – it had been implicitly already mentioned – this entails spatial, gender
and for Taiwan not least important ethnical divides. It is important to note that as part
of this process the development of agriculture itself played an important role. The
emergence of national centre-periphery relationships follows a similar pattern as we
find it when looking at inter- and transnational migration processes: the meshing of
push and pull factors. The emergence of large-scale capitalist patterns of production
as planned and government-fostered process depended on the development of
agriculture. Looking at South Korea and Taiwan, T.J. Byres emphasises that

[i]n both cases industrial development has been secured via a


continuing primitive accumulation in industry, and the respective
states have been effectively, pervasively and ruthlessly central to the
whole process. This was so throughout the 1950s and 1960s, and if,
thereafter, the squeeze on agriculture ceased, by then agriculture’s
contribution had been made: capitalist industrialisation was
securely based, and industry could proceed by capitalist, rather
then primitive, accumulation.
(Byres, 1991: 56)

In other words, the specific mode of accumulation in the agricultural area had been
very much the basis to the later large-scale industrialisation, as

[i]n summary, agriculture in Taiwan gave industrial capital a labor


force, a surplus, and foreign exchange. Even during the immediate
postwar years of economic chaos and a world-record rate of

266
population growth, agriculture managed to produce a food supply
sufficient to meet minimum domestic consumption requirements as
well as a residual for export.
(Amsden, 1979: 363; with reference to Hsieh/Lee, 1966: 90)

It is here where maintaining (Neo)Confucianism as ‘state ideology’ surely plays a role


– but only as supportive factor and it is more the maintenance of the ideology rather
than the construct of ideas itself that is of importance. Confucianism as such may be
seen as completely neutral in many regards.

Pointing on the meaning of such national reproduction of centre-periphery patterns is


in particular important as it provides at the same time an insight into regulatory
mechanisms. In a nutshell, we can say that the meaning of civil law is increasing as
closer as we come to the centre of regulated ‘social capitalism’. Mind, ‘social
capitalism’ is not meant to characterise a human face but it is the specific concern of
this form of capitalism to maintain an accumulation regime that recognises its
dependence on the reproduction of its own foundations.

Such orientation – if it is not interpreted as expression of humanitarian attitudes – is


of course concerned with a paradox – posing a question for further investigation. The
thesis is that the difference of capitalist patterns, most relevant in this respect, is the
difference between the orientations of competition:

* purely imperialist competition, competition that is directed towards extension of


production and distribution versus
* the orientation on more independent sustainability of production and distribution.

– Of course, it is worthwhile to develop this further – investigating empirically the


different patterns of juridical systems along then four ‘types’ of capitalist systems for
which the following figure may provide a heuristic rapprochement. It suggests what is
assumed as most likely and most appropriate system and orientation, starting on the
one hand from the optional orientation on social or class status (S) versus equity (E)
and on the other hand from different legal families, namely customary law (CU),
common law (CO) and civil law (CI).

267
DISTRIBUTION

Independently-sustainable Expansionist

small-scale large-scale small-scale large-scale


orientation orientation orientation orientation

S/CU E/CI E/CU S/CO

orienta
small-
Independently-

scale

tion
sustainable

orienta S/CI S/CI E/CI S/CI


large-
scale

tion
PRODUCTION

E/CU E/CU E/CO S/CI


orienta
small-
scale

tion
Expansionist

S/CO S/CO S/CO S/CI


orienta
large-
scale

tion

Figure 35:Capitalism and Competitive Orientations


The different orientations of economies can be different in terms of national patterns
of capitalism or they can present different phases of capitalist development. And of
course, the final distribution cannot be defined independently by the nation states but
is already to some extend pre-determined by the degree of (in)dependence of the
country and its economy in question.

Second, the ‘tolerated illegality’, i.e. the factual meaning of the juridical system, is an
important moment, showing a typical pattern for the development of social juridical
systems in more general terms. Although we find on the formal level the extension of
legally protective systems, the reality is for large parts of society that they are more or
less irrelevant as they depend on different provisions. However, it is exactly the
breaking up of these structures in form of a conflict between accumulation regime and
mode of life where the mode of regulation – here in form of extended social
legislation on the one hand and social service provision is especially demanded. We
can see this for instance as matter of urbanisation and the consequences for family
structures – though on the one hand certain patterns of family life and kinship
relationships are to a large extent maintained, we have to acknowledge as well another
side. As elaborated for instance by Arland Thornton, Hui-Sheng Lin and Mei-Lin Lee

268
[t]ransformations of a similar magnitude [compared to those in
‘Western societies’; P.H.] are currently underway in Chinese
societies today. These large scale social transformations have
altered the role of the family in social organization. Most
importantly the familial mode of organization has been altered so
that many of the activities of society that were formerly organized
along familial lines are now organized and conducted outside the
family. Accompanying these shifts in the place of the family within
the larger society have been changes in the internal family structure
and the nature of relationships across gender and generation.
(Thornton/Lin/Lee, 1988: 34)

This means as well and in more concrete terms that

[t]he dispersion of a family group (even within the same house) is


not uncommon, and very few families have a typical inclusive
economy. … Chuang Yin-chang, doing field work in a Taiwanese
village in 1971, discovered the individual ‘federal family whose
married sons’ households have separate residence and budgets.
(Hu, 1984: 108 with reference to Tang, 1978; Chuang, 1972)

Third, looking at the complex relationship of social stratification, gender stratification


and spatial stratification, we have to acknowledge at the same time the political
processes, on the one hand characterised by opening opportunities – the support of
economic development definitely played a huge role though it may be contested in
which way it had been an engagement reaching equally across the country or
regionally selective (see for instance the different notions in Hu, 1984; Byres, 1991;
Amsden, 1979). At the same time the undemocratic structures had – seen from the
official Taiwanese side – an adverse effect as well: people had been driven out of the
country, looking for ways of economic improvement and as well for political freedom
– or at least for escape politically tyranny. Be it as it is, the policies meant not least
that the class division had been another time multiplied by putting up internal borders
within the different classes. Another dimension to this is the emergence of a
meaningful Neo-Confucianism – considering the communist claims in the People’s
Republic of China it is only seemingly a paradox that opposition to ‘Mainland China’

269
opened the way for the resurgence of Chinese traditions, though in a revamped way.
Thus one can

explain why in an intellectual environment dominated by New


Confucianism and its accompanied idealism (escapism) the much
more liberal technocrats would still work out their scientific
rationalism. … first, in an again unexpected way, the New
Confucianism escapist idealism grown out of the separation from
reality is part of the reason. Because of estrangement from the self-
perpetuating and unchanging KMT polity, many intellectuals were
forced to move to other areas of action, and besides charity and
social service …, industrial and financial fields were the other
fertile ground. The second part [of the answer, P.H.] is the reality
that Taiwan was separated from the Chinese mainland. This
separation allowed Taiwan to participate in the modern industrial
world and actually the modern discourse.
(Lee, 1998: 151)

This actually connects well with Confucianism as well in regard of the strong
‘professionalism’ that had been mentioned on another occasion (see page 183 f. of this
book).

Many examples could be added – it is important to see that at least a substantial part
of the progress in regard to the living conditions and the life situation of women has to
be considerably qualified as

it would be a mistake to attribute these various changes (i.e. the


‘liberating’, ‘emancipating’ moves) to the fact that young women
now work in factories and shops rather than on the family farm.
Most of these changes, if not all, originate in the upper classes and
filter down to the working class. They are part of bourgeois culture,
and to the extent that they benefit women, working-class women will
to some degree share in those benefits.
(Diamond, 1979: 318)

270
This can be read as well against the background of Neo-Confucianism providing a
fertile soil for orienting on escapism and rationalism in terms of education – linked to
the traditionally strong influence by the United States of Northern America, it comes
as no surprise that at least traditionally that part of the world seemed to be easily
reachable whereas for instance moving to England was seen as being extremely
different – in the words the present author ones heard: ‘But that is an entirely different
world.’ – This may say as much about the United States of Northern America as it
does say about Taiwan and the Taiwanese.

– As much as the previous remark is meant to further develop the understanding of


the situation of women in the ‘developing world’ by looking back at the historical
background, it should not be forgotten that this pattern is by no means alien to
European developments. It is mentionable that as well for instance in Ireland the
progress was not made by a working class movement but by feminists, mostly
members (and aspiring members) of the middle and upper class. The meaningful
intervention by a working class oriented women’s movement is more the exception
when looking at today’s Western situations. However, it should be clear that a
considerable problem of the entire current – and future – development is

* on the one hand the present enmeshment of the country’s policy in a global
cobweb-like conflict of interests, as stated elsewhere: the life of the inhabitants of
the country being decided by interests outside of the country (see page 272 of this
work);
* on the other hand – and to some extent a consequence of the point mentioned
before – it is the lack of a maturely national correspondence of accumulation
regime and mode of regulation (as will be outlined on page 274 f.).

Fourth, of course, part of the patterns presented before has to be attributed to the fact
that the large-scale industrialisation is more or less recent – and the patterns will
outgrow with the change of the pattern of industrialisation. And this is very likely to
happen, indeed. However, it is equally likely that such a change will be slowed down
by the prevailing socio-structural and socio-political patterns. What is more, these
patterns will (a) remain heavily shaped by the mix of different regimes – what had
been developed above while talking about (i) the elite building and (ii) the
overlapping of various dependencies. This does not advocate for a dominance of the

271
superstructure, socio-cultural and socio-cultural patterns. Instead – and this will
hopefully get clearer when a brisk look follows on more economic moments – it is the
specific interplay between the mode of regulation, the socio-political/socio-cultural
patterns and the accumulation regime that can only be understood in the mutuality of
the relationship – this had been already emphasised before, when the focus had been
laid on the condition and constitution of the accumulation regime (see ‹‰—”‡ʹʹ).

(a.ii.iii)

At the very heart of the mode of regulation in Taiwan we can locate two moments
with an ongoing effect – though being historically located early in the development
they appear as mark of Cain with continuing meaning. First it is the fact expressed by
Marc J. Cohen in the folwing words:

If the history of Taiwan (or Formosa) had to be summed up in one


single sentence, it would be the following one: the people living in
Taiwan have always had to cope with the consequences of decisions
that had nothing to do with Taiwan itself.
(Cohen, 1988: 3)

This dependency is actually further complicated by today’s status. Shelley Rigger


points on three important aspects of Taiwan’s current nationhood – not least being
‘constitutional problems’.

First, under its constitution, the ROC on Taiwan is incomplete, so


recovering the mainland is imperative. Since its constitution defines
the nation as all of China, the legitimacy of the ROC state depends
upon maintaining the notion that the separation of Taiwan and the
mainland is temporary. …
Following from this dilemma is a second problem: what is the status
of Taiwan itself in a ROC whose effective control is limited to
Taiwan? In theory Taiwan is one of the provinces of the Republic of
China; in fact, Taiwan is the Republic of China, at least for the time
being. …
A third constitutional problem facing the ROC is its international
status.

272
(Rigger, 1999: 60)

This ‘dependency’ coined as well the second momentum. Though it is concerned wit
a more recent matter – namely the martial rule under the KMT during the period from
1950 to 1991 – it goes as well back in history, namely to the orientation of the founder
of KMT and his political orientation. Marc Cohen writes in this regard:

Although Sun believed passionately in democracy he also believed


that China’s exploited peasant masses could not immediately
participate in a democratic political order until a benevolent
authoritarian government had educated them properly. Sun saw the
fundamental purpose of both the KMT and government in China as
upholding the three principles of nationalism, democracy, and the
people’s livelihood (a vaguely conceived welfare state doctrine).
(ibid.: 17)

And of course, it can be said that such orientation fits well into the traditional idea of
man as brought for instance forward by Confucianism – seeing human beings as good
in principle, however in fact in need of sophistication through guidance and inner
refinement (see on this issue already pages 259 f.).

One could see this perspective even as attempting to build a specific bridge with
regard to the contradiction between Confucius and the so-called legalists – in the
words of Barabara Darimont:

Confucius and his disciples argued that by nature human beings are
good and can be oriented towards virtuous behaviour by education
and by the ideal of the ruling elite. In contradistinction the
adherents of legalism saw the human being as egoistic by nature,
only being interested in pursuing own interests. To motivate him
towards social order, humans have to be guided and disciplined by
legal rules as he doesn’t have the capabilities by himself.* The
legalists introduced the term ‘Fazhi’ (ruling by law). Laws had been
seen by legalists as tool to maintain power. Moreover jurisdiction
had been in their understanding a disciplinarian means and
consequently criminal law. It is until today that the term ‘Fa’

273
(law/jurisdiction) has the negative connotation with ‘punishment’.
Jurisdiction is understood as instrument with which the ruler
governed, controlled or suppressed the people in a one-sided
way.** This understanding maintains its validity until present time
amongst the legalists.***
(Darimont, 2005: 5 f.; with reference to * cf. Kötz, 1996: 283. **
Shao, 1999: 85; *** Senger, 2001: 69)

We find a similar notion with respect to Confucianism and law highlighted by Joseph
Chan who states

Confucianism, as represented by the thought of Confucius and


Mencius, does not incorporate the idea of human rights. Rather, it
put great emphasis on duties arising from social roles, especially in
what are considered the five basic human relationships …; on the
virtues …; and on mutual trust and care … .
(Chan, 1997: 44)

Sure, all this is not more than the attempt to answer the universal question which is as
well at the core of the social quality approach: the relationship between the poles of
the two dialectical tensions of social quality. In a more specific historical perspective
it is characterising for many movements of the time – and a brief reminder at the
discussion of the development from the Ottoman Empire to the Turkish Republic is
useful and the same holds true for instance with respect to the Irish case and as well
for may nationalist/anti-imperialist movements on the African continent though an in
depth comparative perspective is surely lacking – that the strive had been in many
cases top-heavy. By arguably orienting first on national independence, it had been
difficult to establish a sound basis for any sound development. Obviously the problem
had been a historical paradox: the lack of a real and mature bourgeois society largely
hindered a development that allowed going beyond it. The historical quantum leap,
the performance of a society build on three principles, namely the principle of
nationalism, of democracy and of livelihood (see Sun, 1925; the three principles are
still referenced in the current constitution)72 proved to be impossible. This was not
because of a shortfall of economic resources or lacking economic responsibility.

72
Though the text and its interpretation are a matter of own research – see e.g. Whiting, 1955

274
Rather, the problem was more one of an inbuilt jeopardising relationship of
accumulation regime and mode of regulation which could not cope with the pressure
from an overwhelmingly strong global capitalist world. And it had been again the
fundamental of the traditional Chinese orientation on autarky that came to the fore,
determining the KMT-orientation already under the leadership of Yat-sen Sun. – The
group of socialist countries had to cope with a similar problem – though there had
been a bourgeois revolution before the socialist movement gained power, this as too
weak and too short in power to allow a consolidation of the system that had been a
condition on which further dialectical development – had been possible. In simple
words, the contradictions which socialism claimed to overcome needed to be fully
developed before such overcoming was in actual fact possible.

Coming back to Taiwan, it the top-heaviness was not least getting clear in Yat-sen
Sun’s notion of ‘democratic tutelage’. From here it can be asked as well if the
relatively strong local democratic government had been indeed only an expression of
a strive for legitimacy or if it is not more plausible to see it as expression of the age-
old pattern of maintaining pre-contractual regulation as dominant. It is salient that
local democracy had been for a long time relatively strong – alongside the martial rule
– and at the same time it had been – and still is – a pattern of politics that the electoral
system can be seen as heavily relying on tutelage, be it ‘democratic’ or ‘personal’. In
any case, this patterns fits neatly into and shows a possible negative side of what the
tradition of inter-being can mean as tiau-a-ka, a specific mechanism of vote buying
which is of ongoing meaning

is more than a mere economic transaction; instead it is a


combination of economic exchange and social ritual. Taiwanese
customrequiresaguesttogreethisorherhostwithasmallgift.A
tiauǦaǦka [vote broker] usually makes the pitch for a candidate
duringavisittothe voter'shome;candidatesalsovisitpotential
tiauǦaǦka. In both situations, it is easy to see how political
hopefuls might have found themselves caught between the
demands of ‘clean’ elections and goodmanners. In most parts of
Taiwan, local convention proved more powerful, and the
presentation of gifts as part of the campaign visit became the

275
norm. GiftǦgiving also demonstrates respect for the recipient; to
give someoneagiftistogivethatpersonface
(Rigger,1994:219;quotedin:Schaffer,2002.Draft9Ǧ3Ǧ02:1).

And the ongoing meaning is getting clear in the presentation given by Ming-fang
Chen. On the one hand we see that

due to the establishment of new political parties (…) the
competitionbetweenparties(is)increasinglycompliated
(Chen,2008:chapter5:12)

however the traditional system pertains:

Withinsixmonthaftertakingofficenearlyallpublicenterprises,
banksandmediaandalsothestatefundedresearchinstitutesand
foundations had been streamlined by president Chen; key
personnel had been replaced by politicians from the DFP and
individuals who had been closely linked. ‘As DPP has moved to
createalevelplayingfieldforitself,fewbranchesofthestateand
organized social sectors have been truly able to free themselves
from partisan politics’ (Chu 2001: 294). Subsequently the
externally established party DFP build a government based on
patronage,leadingwithinafewyearstocorruptionandpolitical
scandals.
(ibid:26;withreferencetoChu,2001)

The difficulty of establishing a fully-fledged system of civil law as foundation of


social policy is obvious.

This is, however, not only a matter of policies, but perhaps even more so a matter of
polities, here as well showing the clear dependency of national strategies in a
peripheral country from the central power(s) – this is the main point in the following
brief look. Tzong-ruay Shen presents the development, stating that

[t]he first stage was 1945-1965, during which the United States
utilized U.S. foreign aid, the International Labor Organization
(ILO) of the United Nations, the U.S. embassy, and U.S. labor

276
groups (i.e. AFL/CIO) to affect Taiwan’s labor policy, with the aim
of setting up a labor system corresponding to the international
standards of free-trade. However, after 1965, once Taiwan had
successfully implemented a policy of expanding exports, U.S.
businessmen used Taiwan as base for export processing. Cheap
labor in Taiwan was beneficial to U.S. businessmen, which
significantly diminished the pressure on the KMT labor policy.
(Shen, 1998: 112)

Though continuously interested in the exploitation, the American strategy changed,


adapting to the new global conditions, not least answering the pressure coming from a
general though vague call for ‘global justice’. Thus

[t]he second stage began in 1979. Owing to a decline in the stability


to compete in trade, the U.S. government began to assert principles
of protectionism and faire-trade and stressed that the KMT should
upgrade the welfare of labor so as to promote faire-trade between
U.S. and Taiwan – this had both direct and indirect effects on the
passage of the Labor Standard Law of 1984 and the lifting of
martial law.
(ibid.)

With respect to Taiwanese developments, but perhaps even more with respect to the
international and global patterns it is interesting that apparently only after initialising
the process of democratisation a more nationally driven policy towards trade unions
arose – one, which is characterised by a fundamental paradox of strengthening control
by loosening the reins. It is again Tzong-ruay Shen who states that

[a]fter 1990, in order to slow down the politization of the labour


unions, the KMT began loosening its control over the unions. It
undertook the following policies
(ibid.: 128 f.).

Then measures as the following are listed

* change of regulations in order to undermine the basic-level organisation while


maintaining the existing labour system;

277
* raise of diverse welfare mechanisms in order to gain legitimation by lowering
dissatisfaction;
* shifting the orientation towards the labour-management dispute;
* allow strikes by making it at the same time difficult for labour unions to participate
– and simultaneously not preventing ‘capitalists from laying off employees, closing
factories, or moving investments off-shore’ (ibid.: 129)
* shift the trade unions’ organisational mode and orient them on the politically lesser
conscious craft unions (see ibid.).

However, it has to be seen that this lack of systemic integration goes hand in hand in
hand with a strong community orientation. According to Hans-hsien Tsai we find a
cantilevered net of civil society engagement – the empirical material he provides
refers to the 1980s (see Tsai, 1988). Looking at the material Tsai provides and after
scanning other relevant material, there is evidence for a distinct pattern if compared
with some European traits – although one should not overestimate them. First, the
engagement seems to a much larger degree based on the activities by members of the
middle and upper class. Although the extent of it is remarkable, one should not draw
premature conclusions, as this is actually a very similar pattern if compared with
Western organisations. Still, it is remarkable if considered in a wider context of the
development of elites in Taiwan and the process of democratisation as being a kind of
pliers – the opening of the institutional system on the one hand and the emergence of
a soci(et)al movement on the other hand. The latter had been characterised by two
broad strands, the one being a fundamentally system-critical movement (be it
nationalist or other), the other being more conservative, striving for a foothold within
the system, near to the feeding troughs of power. – As Catherine Jones writes:

Ifthelittletigersarecomingofagepolitically,thismayratherbe
in the sense that there are now fresh interests pressing for
‘appropriate’accommodationinthehierarchy.
(Jones(Ed.),1993:203)

Taking this together with the traditional Confucian professionalism (see page 183 f.
above and as well page 270), we can see a fruitful soil for integrating a community
approach into the system. On the one hand this is expressed in the huge role played by
the voluntary and community sector – from own investigations the system can be

278
described as ranging from self-help organisations, more importantly philanthropic
organisations (including on the one hand the global players in the field as Lions Club
or the like and as well individual philanthropists) to a kind of net of outsourced
voluntary and community organisations, being hugely supported by the various
statutory organisations and incorporated into their work (in this context see for
instance Regulations on the Work of Community Development [Amended on
December 14, 1999]). On the other hand, this translates well into social professional
strategies of communitisation. In the words of Yuan-shie Hwang

the community has since the 1960s been regarded as an important


base for carrying out welfare services under the guideline of the
‘Present-Stage Social Policy of Ming-Shen Principle 1965’
(Hwang, 2001: 261)

the reference is made to an official document which had been issued by the
responsible Executive Yuan, the governmental executive body. In this context

the meaning of community care in the Taiwanese context may


include the following four elements:
1. Community care is a part of social welfare communitization.
2. Community care provides medical, nursing and social care for
those who need to be cared for or for carers at home or in the
community.
3. The providers of community care may include government,
informal networks and non-profit organizations.
4. Community care stresses the capacity of communities for self-
help and autonomy as its final goal.
(ibid.: 250)

However, looking at the organisational side one may become sceptical, reading for
instance in the presentation by the Ministry of the Interior

Civil organizations of our nation can be divided into three
categories: i.e. vocational, social and political groups. While a
political party may commence activities after it reports to the
authorityǦinǦcharge for registration purposes, other civil

279
organizations may not be set up before a given organization’s
sponsor obtains prior approval from the relevant social
administration agency. However, any given group must also be
guidedandsupervisedbythegovernmentagencyinchargeofthe
businessengagedinbythisgroup.
(Ministry of the Interior, Taiwan: Social Affairs;
http://www.moi.gov.tw/english/SocialAffairs.asp 19/08/08,
07:41)

Nevertheless, though under somewhat restrictive conditions,73 the number of relevant


organisations and the increase is remarkable as the following figure shows.

(from: Ministry of the Interior, Taiwan: Social Affairs, here:


http://www.moi.gov.tw/english/images/flgure4Ǧ1.gif; 19/08/08,
07:41)

Figure 36: Civil Organisations in Taiwan-Fuchien Area


It is surely in many cases Mere Talk, No Policy – not only with respect to Community
Care (cf. Chou/Kroeger, 2004). But at the same it is the approach that provides an
official guideline and is in theory and practice the guideline that has not least a
meaning for moulding outsourcing policies.

It is then not merely a picture on a professional pattern that Yueh-ching Chou and
Teppo Kroeger provide with the graph on the relationship between social welfare,
community development, social welfare communitisation and community care.

73
The restrictions are not due to control of professionalism.

280
Figure 37: Relationship between Social Welfare, Community Development,
Social Welfare Communitisation and Community Care
This becomes even more important when considering the socio-economic and
demographic shifts. A document on family policy which passed the Social Welfare
Promotion Committee of the Executive Yuan describes the challenges for family
policies in 2004 in the following words – a description that shows the wide range of
challenges not only for this policy area:

I. Background of Formulating the Policy


Considering Taiwan's recent changes in society, economy, and
population structure, influences on the family are profound, such
as:
1. Natality dropping: Decreases in birth rates will make Taiwan's
population reach zero-growth within twenty to thirty years in the
future and then turn toward negative growth. This may result in
socio-economic problems such as insufficient labor, accelerated
aging of population, overburdening of supporting the old.

2. Aging of population accelerating: Taiwan's percentage of aged
population has risen noticeably due to the prolonging of the
nationals' life expectancy and the fall of birth rates. It is
estimated that the population aged 65 or above will nearly
double within the next twenty years, from 9% of the total
population to 16%. Care for the aged population and the burden
of supporting them will become heavier.

281

3. Divorce rates rising: Taiwan's crude divorce rates (pair/1,000
persons) have risen from 0.36‰ in 1971, 0.83‰ in 1981, 1.38‰
in 1991, 2.53‰ in 2001, to 2.87‰ in 2003, which is twice that
ten years ago. The percentage of single-parent families has also
risen as a result.
4. Labor force participation rate for women rising: Women's labor
force participation rates in Taiwan have gradually risen from
35.37% in 1971, 38.76% in 1981, 44.39% in 1991, to 46.1% in
2001 to 47.14% in 2003. Though the percentage is not very high,
it is already enough to affect home care, family relations,
division of labor in house duties, and women's fair treatment in
workplace.
5. Cross-cultural marriages increasing: With migration of
transnational populations under globalization, Taiwan's cross-
cultural marriage percentages have rapidly risen from 15.69% in
1998, 18.62% in 1999, 24.76% in 2000, 27.10% in 2001, 28.39%
in 2002, to 31.85% in 2003. Not only are the percentages very
high, but the increase speed is considerably quick as well.
Families constituted by cross-cultural marriages are faced with
social and cultural adaption problems and are in urgent need of
assistance.
6. Unemployment rising: Taiwan's average unemployment rates
have risen from 2.6% in 1996, 2.72% in 1997, 2.69% in 1999,
2.99% in 2000, 4.57% in 2001, to 5.17% in 2002, but dipped
slightly to 4.99% in 2003. As globalized industries re-deploy
themselves and the high-tech industry rapidly develops, the rising
trend in unemployment seems hard to avoid. And the results will
affect changes in the financial maintenance and in the
relationship between household members.
7. Diverse family concepts looming: The traditional definition of
"home" is being challenged. Diverse family concepts such as
single-parent family, step-parent family, homosexual family,
minor family, individual (who does not want to marry) family,

282
etc., are being gradually accepted. But the well-being of their
family members should also be taken care of.
8. Care burdens inside family:
(1) Workload of household duties of employed women with
partners still high: …
(2) Percentage of senior citizens cohabiting with their children
dropping: …
(3) Percentage of women shouldering housework labor high: …
(4) Percentage of women caring for children by themselves
high:…
9. International trend of gender equality: The concept of gender
equality has already spread across all over the world, including
Taiwan. Gender equality not only involves social, political,
economic, and educational aspects, but the advance of domestic
equality as well.
10.Family-related social problems frequently taking place: Juvenile
crime, marriage violence, child abuse, elder abuse, mental
disease, vagrants, suicide, school children discontinuing
schooling, etc.—all these suggest that family's energy in
education, support, care, and meeting members' needs is
dropping. It needs to be "recharged" in order to reduce the
occurrences of social problems and lower the disbursement of
social costs.
(Social Welfare Promotion Committee of the Executive Yuan,
passed October 18th, 2004; http://sowf.moi.gov.tw/english/3.htm;
19/08/08, 07:07)

Interim Conclusions: Bedding the Tiger Economy – Between Belief and Rights

Coming to some summarising and concluding remarks, the following points can be
highlighted as highly important.

First, a central element for characterising the mode of regulation in Taiwan is the
probleamtique of its economic and political identity. Having on the one hand nearly
always been in a colonial position, we find on the other hand the semi-colonialising

283
claims at least for the recent history. Although such profess cannot be taken serious in
strict terms, this global position is relevant as it is historically marked by constituting
and maintaining a very specific alliance with the United States of Northern America
and defining a very peculiar role position in global politics – the ‘tiger politics’ of a
hurt animal that develops a certain strength as defence and opportunism on the ground
of weakness.

Second, the understanding requires at least to some extent the recognition of the
traditions – though this does not promote the argument for a strong and finally
defining Confucian value system as independent source. It is more about a fertile
ground, making policies in some respect and direction easier, acceptable. The
meaning of roles and inter-being, the maintained orientation of virtues and the
worldliness and at the same time the introvert character provide a ground on which
politics can be build that can accommodate on the one hand acceptance of non-
policies and on the other hand of policies of communitisation, i.e. self-help and
outsourcing. – This will be highly important again, or actually it is already important
when it comes to the question of privatised services and the re-mergence of religious
and nationalist fundamentalism, a thread not least in connection with the increasing
inequalities in connection with the slowing down of the ‘tiger-pattern’ of the
economic development.

Third, against this background the law as matter of the state based on the rule of law
gains a specific meaning. The civil law tradition is embedded in the ongoing meaning
of features that are supposedly continuing Confucian traditions (as for instance the
implementation of a five Yuan-structure rather than the Western-style three tier
system of legislative, judicial and executive, adding the Examination and the control
Yuan) and at the same time the perpetuation of subordination mechanisms, heavily
depending on mechanisms that actually belong to some ‘pre-modern’ forms of
regulation (see in this context Walker, 1947).

Fourth, it is in this context highly interesting to look at the shift of human-rights-


question – and one can understand such a shift as move not only to a sound
legalisation of the political structure but also as substantial shift: One can say that
whereas under martial rule and even in the first years after lifting the KMT-rule
questions of human rights had been concerned with defining who is considered as

284
citizen, we find now more concern being directed towards what citizens’ rights are. It
is the shift from political rights to social rights (see the various contributions and
documents by the Taiwan Association for Human Rights on
http://www.tahr.org.tw/site/english/engintro.html 19/08/08, 18:07).

(b) Accumulation Regime and Mode of Regulation

In a case as Taiwan it is difficult to disentangle the different major strands featuring


behind the accumulation regime. The four threads are

ȗ –Š‡’‡”•’‡…–‹˜‡‘ˆ–Š‡Ž‘‰Š‹•–‘”›ǡ—†‡”•–‘‘†ƒ•“—‡•–‹‘…‘…‡”‡†™‹–Š–Š‡
’‡”•‹•–‡…‡‘ˆ–”ƒ†‹–‹‘•
ȗ –Š‡ ’‡”•’‡…–‹˜‡ ‘ˆ –Š‡ ‡†‹—Ǧ–‡” Š‹•–‘”‹…ƒŽ ’”‘…‡••ǡ „‡‹‰ ‹ –Š‹• …ƒ•‡ ƒ
ƒ––‡” ‘ˆ –Š‡ Š‹•–‘”› ‘ˆ –Š‡ Ǯ‡™ ƒ‹™ƒǯǡ ™Š‹…Š ƒ› „‡ †‡ˆ‹‡† ƒ•
†‡˜‡Ž‘’‡–ˆ”‘–Š‡ͳͻʹͲ•
ȗ –Š‡’‡”•’‡…–‹˜‡‘ˆ–Š‡–‹‰Š–•–”ƒ‰Ž‹‰‹–‘–Š‡‰Ž‘„ƒŽ‹•‹‰…ƒ’‹–ƒŽ‹•–•›•–‡ƒ†
ˆ‹ƒŽŽ›
ȗ –Š‡‡ƒ‹‰‘ˆ–Š‡”‡…‡–†‡˜‡Ž‘’‡–•—†‡”•–‘‘†ƒ••‘…‹‘Ǧ‡…‘‘‹……Šƒ‰‡
ƒ†–Š‡•Š‹ˆ–‘ˆ–Š‡†‡ˆ‹‹–‹‘ȋ‘”‘‡ƒ›•ƒ›ǣ–Š‡”‡†‡ˆ‹‹–‹‘‘ˆ–Š‡‹†‡–‹–›Ȍ
‘ˆ–Š‡ƒ……——Žƒ–‹‘”‡‰‹‡Ǥ

It is the latter that will be briefly looked at on the following pages.

At first site, there is not much special about the development of Taiwan – perhaps one
can even say that the entire ado on tiger-economies is in actuall fact nothing else than
(i) the concern of the global players that their own potential for genuine economic
growth is exhausted, (ii) that the growing awareness of these limits of growth coincide
with the need to pay for the lack of sustainability of previous developments (as for
instance migration, the ‘costs of social welfare’ and the demographic change) and (iii)
the fact that this goes hand in hand with the temporary success of some countries – as
Taiwan, as South Korea, as Brazil, as Ireland and as now the ‘newcomers’ in the
competitive global Manchester capitalism as Hungary, Ukraine or Turkey.

In very general terms, the development is easily grasped by (a) the ‘de-tertialisation’
of the economy and (b) the integration into a global economy. To be sure, there is
nothing fundamentally new about the latter as – this is the underlying thesis – there is

285
already since a long time a firm involvement of even peripheral economies into the
global structures of dependencies. However, at the same time we have to recognise
important specifications, as globalisation is not only concerned with lengthening and
concientisation of chains of dependency, but as well with the complication of these
chains. The latter is on the one hand simply a consequence of the concientisation, but
on the other hand it is as well consequence of the increasingly contradicting character
of the entire global socio-economic fabric. It had been mentioned throughout the work
that it would be wrong to assume a simple and mechanical understanding of a limited
centre-periphery relationship. As had been pointed out already we find confirmed that
these interactions are in actual fact extremely complex – one peripheral area can be a
centre of a larger peripheral region; and furthermore: a peripheral position in one
regard may well be a (close to) centre region in another regard.

This is an exceedingly important factor as it characterises the country’s development


not simply as catching up but as process that is in two respects qualitatively particular.
We have to see (a) that it implies to some extent a re-arrangement of the global
position(s) and (b) from here we see a specific accumulation regime emerging:
specific in the way it answers (i) the challenge from outside, (ii) the ‘plan’ or ‘vision’
of its own performance and (iii) the given conditions (including their ‘determination’
by existing traditions). Though we cannot determine a strict hierarchy of these
perspectives, we can nevertheless point on the huge importance of internal factors in
form of the accumulation regime as combination of economic conditions and its
reflection as well of the existing mode of regulation.

Developing a brief characteristic, the following moments are of crucial importance.

First, the specific meaning of family businesses had been crucial for the take-off of
the so-called tiger economy, not least as they provide a network of sub-contractors,
feeder plants, and as well to some extent disciplinary means – people working there,
trying to use these positions as springboard for other and more ‘regular’ positions.
This was not just a direct resource for large and foreign capital but as well an indirect
resource in the sense of a huge buffer which allowed a relatively flexible investment
strategy.

Even today, or perhaps it is better to say: today again in a very particular sense – as
we can speak of a settled economy without a majorly surprising booming or critical

286
developmental pattern – the meaning should not be underestimated. Though
demographic change means as well a serious change with respect of the potential of
family business and social networks as refuge, there is more than just the
demographic potential. Implied is as well the specific traditional orientation generated
by it: the readiness of looking for niches.

Finally, the small enterprises had been important as well to maintain some traditional
branches of the economy on which people could fall back in times and cases of crisis
developments. – Looking at the socio-economic side, it is in this context interesting to
look for instance at the results of an empirical study by Ming-chi Chen, titled
Industrial District and Social Capital in Taiwan’s Economic Development (Chen,
2002), confirming these patterns in a perspective of a social geography of cooperation
and competition (cf. ibid: 177 ff.). – All this interacts well with the fact of major
trends of concentration of capital, going hand in hand with structural changes, namely
the move from agricultural to industrial production and to some – though in the case
of Taiwan to a limited extent – the sercvicialisation of the economic structure.

Second, not least the last pattern – the change to a managerialist social structure rather
than the upholding of the pure, more traditional entrepreneurial-proprietor structure –
is a strong indicator of a roll-back policy towards Confucianism values and at the
same time the takeover by ‘Americanism’. Although there is a huge difference
between the patterns, it is important to recognise that there is at the same time a
certain overlap, namely the emphasis of philanthropist principles as guiding social
policy rather than the orientation on a strictly kept civil law orientation. The latter is
without any doubt the principally applied policy pattern. However, it is important to
consider that the prevailing set of values and orientations is rather consistent with the
new approach which had been previously described as tendency towards re-
feudalisation (see ƒ„Ž‡ͳʹ, page 217).

In this context it is as well remarkable that the 1980s brought a somewhat paradoxical
development. Whereas it had been on the one hand been a time of increasing
awareness about the welfare needs and with this the need of taking some kind of
public responsibility, we can see on the other hand an increasing trend of shifting the
implementation towards the private sector.

287
In the end, welfare privatisation becomes the major trend in welfare
service system in the 1990s. By means of welfare privatisation, it
takes the following forms:
1. Welfare services with public amenities but managed by private
non-profit welfare agencies.
2. Welfare services with contracted out project to private non-profit
welfare agencies.
3. Welfare services by subsidizing private welfare agency its staff
and services.
Private social services agencies have been more involved in the
delivery of social services as compared their past. The scope of
welfare privatisation has thus been enlarged as private welfare
agencies are more established to perform the role of services
delivery. One factor has contributed toward this competence of
private welfare agency. The professional social worker licence
system was established in 1997 with the enactment of Professional
Social Worker Law. Those private welfare agencies in order to be
contracted out by central or local governments in services delivery
have to recruit professional social workers with qualified licence.
This general trend directly upgrades the services quality of private
welfare agencies. Indirectly, welfare privatisation has facilitated the
growth of private welfare institution.
(Chan, 2001)

Remarkable is as well that general trends, actually changing the structure of needs –
demographic changes, urbanisation, changing educational and employment patterns
etc. – had apparently not been of major concern. This can be seen as well as
expression of the subordination of social concerns under productivity considerations.
The conlusion is that an integrated social planning cannot be considered as major
concern of the government.

This becomes as well clear when we look at the provision of statistics: although we
find a distinct section on social indicators and moreover although the work’s aim is
somewhat ambitiously stated by the words:

288
The basic statistics of social indicators in this country had been
compiled regularly by the respective competent authority until
1979. After then, the Directorate General of Budget, Accounting
and Statistics (DGBAS), Executive Yuan, has been authorized to
gather the data from all social spheres to publish the “Social
Indicators” based on the framework of ‘the System of Social and
Demographic Statistics, SSDS’ released by the United Nations,
providing the spirit and service conveyed by the comprehensive
socialindicatorstatistics.However,withincreasingcomplexityon
social and economic conditions, statistics figures along cannot
portraytheessenceofsocialissues.Furtheranalysisisneededto
find the historical and correlative relationship behind the
indicatorsandconsequently,thepatternandcompletepictureof
thesocialdevelopmentcanbederived.
(NationalStatistics.RepublicofChina(Taiwan),2008)

it is at least surprising that this approach is a stand-alone one and statistics that would
actually be relevant, are separately presented without providing a definite link.

Third, this links into a wider strategy of orienting the entire strategy on a strict multi-
tier and fragmented system: accepting increasing social divisions, orienting towards a
wide structural divide of the economic system as well in terms of a mass-production
for foreign capital and developing an own national strategy that is expansionist as the
previous orientation on exploiting family resources shifts now towards the
exploitation of foreign resources. Not least ‘Mainland China’ is considered to be a
‘natural target’ for expansion – and in this way it can probably be seen as well as
having a major politically integrative function as far as the middle classes and the
highly educated petty bourgeoisie is concerned.

The role of the state in this process has to be mentioned as fourth point. It is split
between at least three orientations:

ȗ –Š‡–”ƒ†‹–‹‘ƒŽ”‡Ž—…–ƒ…‡‘ˆ‹–‡”˜‡–‹‘ǡ–Š‘—‰Š‰‘‹‰Šƒ†‹Šƒ†™‹–Š–Š‡
’ƒ–‡”ƒŽ‹•–Šƒ–’‡”•‹•–•ˆ”‘™Šƒ–…ƒ„‡…ƒŽŽ‡†Ǯƒ–Ǧ•‡—†›ƒ•–›ǯ‘ˆ–Š‡
Ǧ”—Ž‡ǣ ƒ •‘ˆ– ™‡Žˆƒ”‡ •–ƒ–‡ǡ „—‹Ž† ‘ ƒ‹–ƒ‹‹‰ –”ƒ†‹–‹‘ƒŽ •‹ƒ

289
•—„•‹†‹ƒ”‹–› ƒ† Ǯ…ƒ”‹‰ ƒ…–‹˜ƒ–‹‘ǯ (for the traditional approach see 179 ff. in
thistext),
ȗ –Š‡ ‡…‘‘‹… ˆ‘”…‡ –‘ †‡˜‡Ž‘’ ƒ •‘…‹ƒŽ ’‘Ž‹…› ƒ• ’”‘†—…–‹˜‡ ˆƒ…–‘”
ȋǮ†‡˜‡Ž‘’‡–ƒŽ™‡Žˆƒ”‡•–ƒ–‡ǯȌ
ȗ ƒ† ˆ‹ƒŽŽ› –Š‡ …‘’‡–‹–‹˜‡ Ž‡‰‹–‹ƒ–‹‘ ™‡Žˆƒ”‡ •–ƒ–‡ǡ …Šƒ”ƒ…–‡”‹•‡† „› –Š‡
ƒŒ‘”’‘Ž‹–‹…ƒŽ’ƒ”–‹‡••–”‹˜‹‰ˆ‘”–Š‡‰”ƒ…‡‘ˆ–Š‡’‘’—Žƒ…‡Ǥ
Though it is highly contestable to speak of a Confucian welfare state or any other kind
of strictly ‘ideologically’ loaded welfare state doctrine – the only ideology being
capitalism in general and a rather liberal model in more concrete terms – the strong
Buddhist and even more Confucian tradition of thought and life can surely be
exploited for promoting the one or the other model.

Conclusions: The Political Economy of Refeudalisation

To conclude this brief look on the political economy of the accumulation regime and
by looking at other countries where similar booms are discussed we can see in some
cases parallels. If such developments take place in so-called developing countires they
are not simply a matter of establishing a capitalist economy. Important is to note the
way of doing so. As true as it is to speak of a process of colonialisation as true is that
this is a process that relies heavily on utilising pre-capitalist social structures. This can
be interpreted as ‘new feudalism’. To make the point even stronger, the
developmental welfare state shows its characterby combining three elements, namely

ȗ –Š‡ ’”‹‹’ƒŽ ‘ˆ –Š‡ ƒ…Š‹ƒ˜‡ŽŽ‹ƒ ”‹…‡ Ȃ ‘™ ƒ–‡”‹ƒŽ‹•‹‰ ‹ –Š‡
—Ž–‹ƒ–‹‘ƒŽȀ–”ƒ•ƒ–‹‘ƒŽ…‘‰Ž‘‡”ƒ–‡‘ˆ…ƒ’‹–ƒŠ‘Ž†‹‰•
ȗ –Š‡’”‹…‹’ƒŽ‘ˆ–Š‡•‡”˜ƒ–Ȃƒ‹–ƒ‹‡†‹–Š‡ˆƒ‹Ž›•–”—…–—”‡ƒ†‡–™‘”
‘ˆ‹•Š‹’•ƒ†”‡Žƒ–‹‘•Š‹’
ȗ –Š‡ ’”‹…‹’ƒŽ ‘ˆ ƒ”„‹–ƒ”‹‡•• ‘ˆ ’‘™‡” Ȃ ’—”•—‡† „› –Š‡ ”‡Ǧ‡‡”‰‡…‡ ƒ†
ˆ‘•–‡”‹‰‘ˆ”‡Ž‹‰‹‘—•”‹–—ƒŽ•ƒ†„‡Ž‹‡ˆ•›•–‡•ȋ„ƒ•‡†‘’—•Šƒ†’—ŽŽ‡ˆˆ‡…–•ǡ
‹Ǥ‡Ǥ„‡‹‰ƒ…–‹˜‡Ž›’”‘‘–‡†„›–Š‡”—Ž‹‰…Žƒ••‡•„—–ƒŽ•‘ƒ•™‡”‹‰–Š‡Ǯ‡‡†ǯ
‘ˆ’‡‘’Ž‡™Š‘–ƒ‡‹–ƒ•”‡ˆ—‰‡Ǥ

290
Part VI:

Conclusions and Outlook

In a way it is little satisfaction – for the author not less than for the reader – ending a
book by stating that the success is at most a clearer sketch, but still one that is far
away from presenting a concise answer.

Initially the issue at stake had been formulated as attempt to clearly define the points
of reference within the social fabric for analysing and as well for developing policies.
And it had been said that this will be shown as matter of the relevant points within in
the formations, being visible as well as a matter of determining the aggregate level
and their interaction – all this being valuable only if it can serve as means to
determine the validity of the concept for the concrete social situation of individualities
in their daily life in different contexts.

At this stage the answer can be put forward in six major points – more aiming on
provoking a new step in the debate rather than providing a complete and final answer
– more a concretised question than an analytical scheme already set in stone.74

I. Dimension of Policy Making

Social Quality is surely a useful concept in determining what the finality of public
policy – social policy in the traditional understanding, but not less economic policy
and policy of general system regulation – is about. However, within its own remit it
lacks the capacity of developing clear operational and binding mechanisms for
achieving a high degree of social quality, depending in this respect on a closer link to
legal and economic science. In particular chapters IV. and V. showed the need to go
beyond disciplinary approaches – moreover it showed that a legal and economic
perspective are inherent part of the approach itself. The analytical strength of one is
usually undermined by the operational and instrumental weakness of the other and
74
The disclaimer that the classification of concrete cases is in the following only tentative, meant to serve as heuristic tool is
even more important here than it is in general.

291
vice versa. Nevertheless, in its analytical perspective, the Social Quality Approach is
actually extremely useful where it goes (a) beyond its Eurocentric origins and (b)
beyond its orientation on the analysis of social realities. Though of ongoing
importance as well in regard of the original orientations, it will be crucial for the
further development of the approach itself – and for the development of policy
making – to apply it globally and with respect to analysing instrumental variables. As
such it may be said that the Social Quality Approach is an ideal monitoring tool.
However, it requires further investigation if we expect a real potential for the
approach to work as means of policymaking in cases going beyond ‘discoursive
policies’. Of course, on the local level it is thus easily applicable – provided that there
is sufficient will and commitment on the side of the local actors (see for instance the
work by the Social Quality Foundation in The Hague, e.g. http://socialquality.eu
projects – urban development; 11/08/08; 5:43; Nijhuis, 2007). Additionally it will be
applicable on the global level, for instance the United Nations, where a guiding
principle is that

[w]hen this agreement cannot be resolved by frontal attacks, the


silent persuasion of a factual report or a statistical return may yield
results.
(Nicholas, 1975: 148: in: Koehler, 1987: 36)

In any case it may also serve by kicking against the goads of conventional policy
makers and hegemons – and this is something valuable with reference to any polity.
Problems will arise where hegemonic power structures undermine the consideration
of alternatives and also the consideration of time.

II. Relationality, Processuality and Practice

The latter – discoursiveness and consideration of time – are crucial, frequently


mentioned throughout the work as relationality and processuality. Important is to
apply this in three respects.

(a) Relationality and processuality are important dimensions of the object of research.
As social quality is not only a normatively based vision, it is important to use the
approach also as an analytical tool to assess the state of a biographical or societal

292
development and the one of community and institutions with regard to their historical
aspects.

However, this does not mean to look in a second step for their success on a ‘ladder of
modernisation’ as it would be for instance suggested by Walt Whitman Rostow in his
outline of five stages of economic growth (see Rostow, 1960). Rather, at stake is a
wider assessment that is led by the ‘vision’ of social quality – a vision, however, that
is grounded by its own ‘analytical circularity of the various combinations as they are
available from the interplay of conditional, constitutional and normative factors (see
ƒ„Ž‡ ͳ). And as such, this vision is moving – dynamically – between the different
poles of (a) the biographical and the societal development and (b) the imprint by and
opportunities through the community at the one end and the institutional system at the
other end (see ‹‰—”‡ͻ). The process of developing and maintaining social quality is –
different to the mechanical-developmental view of modernisation – characterised by
the movement between different extremes on two scales of integration.

(b) This also means that the principles of relationality and processulity have to be
inherently applied when looking at ‘social quality as standard’. As much as it is
possible and necessary to work on the basis of having a vision for policy making –
and thus of public responsibility for social quality – and as much as it is possible to
define a status as one of social precarity, proposed as status that ‘denies social quality’
– social quality is itself negotiable (i.e. relational) and changing (i.e. processual).

(c) Finally, relationality and processuality are important as they consequently point
into the direction of an amalgamation of the object and the subject of research – today
again increasingly recognised as matter of so-called postmodernity. This is the
condition, opening a new perspective that allows for a dynamic, tough not arbitrary
approach to include ‘culture’, i.e. actual frameworks. As Martin Fuchs puts it with
reference to Johann P. Arnason:

The turn towards the self-transformative and self-reflexive powers


of actors in society … demands a turn to cultural interpretation.
‘The rediscovery of the self-defining (i.e. not simply goal-oriented
or knowledgeable subject as the ultimate presupposition of social
action would be incomplete without the corollary that the subject
defines itself through the constitution of a broader social and

293
cultural context as well as through distantiation from it, and that
different combinations of identification and distantiation result in
different overall configurations of subjectivity.
(Fuchs, 2000: 77 with reference to Arnason, 1986: 147)

This requires subsequently

a change in the relationship between the social analyst and those he


is analyzing. The analyst would have to be more of a hermeneute, an
interpreter of the ways in which collective or individual actors link
up with discourse and representations and appropriate or reject
(i.e., interact with) them; a listener to ideas and imaginations which
crop up in the ongoing negotiation of sociality (social
relationships). Instead of just a distant observer of society the
analyst has to become an interlocutor of the actors …
(ibid.: 72 f.)

The matter in question is the orientation towards ‘practice research’ as being a


genuine kin of the Social Quality Approach. Consequently it has to be emphasised
that this is approach is fundamentally based in and aiming at practice.

As much as we have to deal with hard economic and legal facts, we cannot reduce
policy making on its structural dimension. On the contrary, the Social Quality
Approach is genuinely a practice approach, be it with its concern for developing an
understanding or be it with regard to its policymaking capacity. It is what Silvia
Staub-Bernasconi calls Handlungswissenschaft, when she writes

the discipline and profession of social work, I characterise it as a


science of professional action, combining questions of a) general
science, b) applied science and c) science-based action/practice
(Staub-Bernasconi, forthcoming)

Important is that we can only understand this practice dimension if we consider its
three dimensions, namely practice of persons (polity dimension/empowerment),
practice of policy making (politics dimension/inclusion) and practice orientation of
policies (policy dimension/socio economic security). In this perspective, cohesion is
the outcome of the appropriate interplay of polity, politics and policy. From here the

294
dimension of appropriateness is introduced – on the one hand a matter of gaining
property, on the other hand a matter of bringing reality and possibilities together as
mutually enhancing forces and being led by the principles of equality and
empowerment (see ‹‰—”‡ͳͻ and ‹‰—”‡͵Ͷ in the present text).

From these two principles we can draw a cross-reference, where each of them is
dealing with two dimensions, namely:

Equality as being concerned with empowerment and legitimacy, and equality with
appropriation as matter of generating property on the one hand and adequacy on the
other hand. The social quality principles – equality and empowerment – and the scope
of legality – in their concern with appropriateness and accountability (see page 152
and page 219 f.) – are intrinsically linked.

III. Finality

Looking at public responsibility for social quality in combination with the orientation
on practice has to be concerned as well with the question of space. Indirectly this had
been already mentioned when talking about the dimension of policy making. As said,
we are dealing with the socio-spatial dimension and its inherent linkage to the
conditional, constitutional and normative factors (see ƒ„Ž‡ͳ).

There is another dimension of finality that concerns the social itself. Briefly before it
had been recapitulated that the Social Quality Approach is defined by two basic
dialectical tensions. These general principles have to be linked closely to different
‘social spaces’. We are now dealing with policies in the realm of social immediacy of
(sub-)urban localities, national policies, policies on a bi- or multilateral level, policies
in a comparative perspective and policies on the global and international level
respectively. The following table may show this in a more accessible way as it
combines the spatial dimension (column 1) with both, the major actor dimension
(column 2), the objective of the application of the Social Quality Approach (column 3)
and the main challenge of understanding and building commonality (column 4).

295
1 2 3 4
SPATIAL LEADING ACTOR OBJECTIVE OF THE CHALLENGE OF LEVEL OF LEGAL INSTRUMENTS
DIMENSION APPLICATION OF THE SOCIAL UNDERSTANDING AND BUILDING
QUALITY APPROACH COMMONALITY
A SPACE OF SOCIAL Local governance systems, Establishing spaces for Overcoming constraints from by-laws, administrative regulation
IMMEDIACY OF caught limited by the dependency developing local/communal central government and local
(SUB-)URBAN from central national government equality, empowerment, traditions, caught in a gridlock
LOCALITIES75 (and in cooperative conflict with appropriateness and and ownership of power positions
‘alternative actors’) accountability
B NATIONAL AND National governments and Coping with challenges of Power structures, in particular traditional legislation
REGIONAL LEVEL contestants of power internal (national) contradictions, based on availability of unequal
(parliamentary and civic co- differences and diversity of distribution of resources
actors, allies and opponents interests
C BI- AND MULTI- Nation states and multinational Attempting to reach equity as Existing and developing international treaties and national
LATERAL LEVEL enterprises principle countering hegemony hegemonies in their orientation implementation rules (laws,
on basically maintaining centre- regulations etc.)
periphery-relationships (while the
actors may aim on changing their
individual/collective roles within
such a relationship)
75
It may be left open at this moment if tribes, families, ethnic groups and the like should be included here – being characterised by immediacy of relationships – or if they belong to another group, lacking the
cohesions or relation to space. – Though not only here, but here in particular I am grateful for many inspiring debates with and comments by Yitzhak Berman.
D COMPARATIVE Academics and governmental Developing an understanding of Difficulties of transcending given n.a.
PERSPECTIVE legal experts the specific realisation of the finalities and developing an
social and the possibilities to understanding due to
overcome inherent power departmentalised methodologies
structures and patterns of
hegemony

E INTERNATIONAL National governments and INGOs Development of spaces for Lack of formal power and control human rights regulations (mostly
AND GLOBAL developing a common over processes of interpretation declarations), complemented by
LEVEL framework, balancing societal and implementation complex reporting and review
and individual development along processes
the principles of equality,
empowerment, appropriateness
and accountability; in close
connection with D as mentioned
before

Table 16: Dimensions of the Reach of Law

297
IV. Tensions of Socio-Legal Traditions

In a next step, this analytical finality of space and validity can be aligned with a
further finality, dealing with substantial orientations. Looking at the four poles that
determine social quality, we can see these closely reflected in different cultural
patterns of societal reproduction (column 1) and more specifically in different legal
traditions (column 2). Each of them is characterised by its own way of dealing with
the prioritisation of principles of legality (column 3) and exclusiveness (column 4)
(see ƒ„Ž‡ ͳ͹). It is important to distinguish between the specific rationalities of the
different politico-legal cultures.

298
1 2 3 4

ALLEGED CHARACTERISATIO PRINCIPLE OF PRINCIPLE OF


SOCIO- N OF THE LEGALITY EXCLUSION/INCLU-
POLITICAL DOMINANT LEGAL SION
TRADITION76 TRADITION

Mixed: religious Prejudicial – Communitarian and


ASIAN secondary –
and civil law77 personal
primary

Prejudicial – Territorial and


EUROPEAN Civil law primary - secondary personal

Prejudicial – Communitarian and


ISLAM Mixed: religious, secondary –
customary and consociationalist
[primary]
common law

Common law Prejudicial – Communitarian,


US- primary - secondary territorial and
AMERICAN
personal

Table 17: Social and Legal Cultures


It is worthwhile to mention that for instance Wikipedia comes to a quite different
classification (see http://en.wikipedia.org/wiki/Legal_systems_of_the_world 11/08/08;
7:26). This will not be disputed, though attributing the law of Vatican City to the
group of civil law countries and stating at the same time that it is ‘based on principles
of Code of Canon Law’ (ibid.) must come as a surprise. Any of these classifications
must however remain problematic. It is important to notice that in such possible
dispute the criteria for classification are themselves problematic as they suggest some
form of ‘purity’ of the different systems and detach them from the wider context of
the socio-political culture in which they are positioned.

76
These are only mentioned in their dominant form, thus for instance leaving aside that England as European country follows
the principles of common law, that up to recently consociationalism was hugely relevant as the cornerstone of the pillarised
system of The Netherlands, that it is of ongoing meaning in maintaining the different communes in Belgium and other
inconsistencies of such broad-brush attribution. However, these specific patterns should not be underrated as they make us
at least think about differences in a way that is more aware of the overlaps, thus making it possible to overcome certain
arrogances. Considering these overlaps is as well important in order to gain a clearer understanding of the pros and cons of
different systems.
77
Unlike jus utrumque.

299
This points as well to a different momentum of the analysis of reality – as it had been
briefly and indirectly pointed out in the context of looking at the Sharí ah and then
Turkey (see š…—”•—•ǣ ‘‡ ‡ˆŽ‡…–‹‘• ‘ •Žƒ, 189 ff.)– theoretically and
methodologically we come back to the introduction of life regimes and the mode of
life alongside with the accumulation regime and mode of regulation (see ȋ…Ǥ‹ǤȌŠ‡‘”›
‘ˆ‡‰—Žƒ–‹‘, page 44 ff.). First it has to be made clear that we probably had been
always dealing with spaces that had been mixed in terms of their socio-cultural
composition (though this may be of more importance today – see in this context for
instance Mallat, 2006: especially 628). This opens the mind for the contradictory
character of the systems themselves, taking the example of Turkey the problem of a
‘Muslim society in Kemalist state’, as

[a]n overwhelming majority of Turks identify themselves as


Moslems and a substantial majority regularly engage in prayer.
The state’s supremacy in civil affairs is recognised by the vast
majority who reject the idea of imposing Islamic law in place of
thestate’scivilcode.
(European Foundation for the Improvement of Living and
WorkingConditions,2007)

And without going into detail, it is interesting for the historical assessment to look at
the seclusion of the ruling class in the earlier periods, namely the ‘sultanic absolutism’
of the Ottoman Empire.

A large part of the underlying pattern of the mode of regulation gets clear in the
description Samuel Edward Finer provides:

ThesultanlivedintheInnerPalace.[.]HereweresituatedhisPrivy
Chambers, along with thePrivyPurse and Wardrobeofficesthat
pertained to them. The harem was adjacent. Here too lay the
chambers where embassies were received, or the Imperial Divan
helditsmeetings.ConnectingthisInnerPalacetotheOuterPalace
wastheGateofFelicity,aspaciousvestibulewherethesultanmet
withhisvizieranddispensedjustice.ThisOuterPalacehousedthe
agha (the commandant) of the Janissaries, and the ‘Gardener

300
corps’, who policed the grounds, along with various groups of
messengers and the like. It contained offices for those personnel
whoservedboththeadministrationoftheempireandthepalace:
forinstancethechiefarchitectandhisstaff,thecommissionersof
themint,andthesultan’sphysician,whowasalsotheheadofthe
medical profession through the empire.. All these officials of the
Inner and Outer Palace formed a single complex and highly
regulatedhierarchy.Thisvatcorps,whichnumberedsom30,000
civilian personnel in1609as wellas60,000 militaryormilitaryǦ
relatedmen,accompaniedthesultanoncampaigns.
(Finer,1997:1176)

As much as the European court societies had been apart from the rest of society, they
had been at least part of a densely knit net of not least economically founded
connections – a network on which as well the pre-welfare state support structure had
been build. The court society of the Ottoman Empire – and similar is true for the
Asian court societies – can be seen as comparatively highly secluded and detached.

V. The Social Quality Approach and Social Law

Supposed it is agreeable that law78 plays a central role when it comes to public
responsibility for social quality, we come to a further point of this work, namely the
presentation of a complex scheme for the analysis of law in a comparative perspective
that takes account of the need of considering the legal culture. For this, the underlying
thesis is that

[a] comparatist must understand law in the same way that people
who participate in its culture do. Such study must recognize the
integrity, identity, or coherence of the culture in which law exists
(Cotterrbell, 2006: 711)

but it has to recognise as well that this setting is, despite its integrity, characterised by
different interests, specific hegemonies and contradictions.

78
Understood in its widest meaning of set of defined rules of regulating individuals’ behaviour and their relationship to each
other.

301
The Social Quality Approach can now serve as a gauge, and starting from the
dialectical tensions which are frequently highlighted in the present book (see ‹‰—”‡ͻ),
we see the following important lines for assessment – and it has to be said that in this
case the perspective is geared to procedural terms, allowing from there in the
individual national or regional (and where appropriate: local) cases the substantial
analysis.

The basic assumption suggests that – especially social – law is – as a regulative


instrument79 – fundamentally characterised by the tension between inclusion and
exclusion. In most cases it means that regulations are actually either excluding or
explicitly including individuals and/or groups with respect to some given social
setting – and of course the caveat has to be added that terms and conditions apply.
Exactly these terms and conditions, however, define the specific social quality of
social legislative systems. This is as well true when it comes to the indirect
exclusiveness and inclusiveness, meaning the implicit and underlying conditions that
define the validity of the regulation.

This is from a different perspective very much the same as what Franz Wieacker
states when he writes that

[t]he core of the phenomenon ‘law’ is evident to all of us. Legal


orders are societal systems of rules and as such two-faced by
nature: they require external enforcement, i.e., use of coercion, but
also inner acceptance by the people, without which, in the long run,
external legal compulsion will not work. In its external power
structure, the force of law is surpassed only by the unmitigated
violence of civil strife or war as ultima ratio regis; in its internal
aspect only by the religions (as long as they still enjoy life and
vitality), or by ideologies (not merely proclaimed but believed-in)
which drive human beings irresistibly (even against their own
interests or their very survival) toward evil or good.
(Wieacker, 1990: 3 f.)

79
In the widest sense, as in this instance (re-)distributive measures are also considered to be ‘regulative’ – see below for a
different disposition.

302
This statement is of special importance as it clearly marks two poles between which
these rules are set: the external power on the one hand, and belief systems on the other
hand.80

From here we can come finally to the following conclusion as proposal of three major
items with wich public responsibility for social quality has to deal with.

1. On the basic level for developing a comparative perspective for global policies we
have to look for the nearness of the juridical perspective to the people who are
concerned by the regulative system.
¾ First, this is a matter of the source of regulations, the basic question being here if
they are considered to originate in divine determinations, colonial ruling, any
abstract considerations based on ratio, or the immediate interpretation of living
together. Roughly, one could see this as question of deriving the regulative
system from above, from outside or from below, each having different possible
dimensions.
One, though not the only, important aspect in this debate is the distinction and
specific hierarchy of prejudicial, primary and secondary law.
¾ Second, this goes hand in hand (though not being identical with) the question of
the principle of law making, i.e. the process of establishing and controlling
regulations. Here, the major distinction is in legal science that between civil law,
common law and customary law – a more specific role is played by religious law,
canon law and others.
Important is to maintain the fundamental distinction: in the first regard we are
dealing with the structural dimension, in the second regard we are dealing with the
processual dimension of the regulatory system.
2. From here we can move a step further, achieving at a more concrete level of
generating law and its essential composition – this reflects to some extent the
foregoing, however, it goes at the same time beyond, inasmuch as it looks at the
process of concrete law-making, and in this sense, each of the following can be
distinctly linked to one of the foregoing patterns.

80
It can be discussed if and if so, to which extent some belief systems are (or appear to be) – by way of being defined as
divine in their origin, i.e. the jus divinum in the strictest sense– actually external powers (see for this the attribution in the
following first point).

303
Point of reference for the following is the analysis by Franz Wieacker and his
characterisation of the ‘European legal culture’, actually referring to a large
Atlantic-European (6) area. He points on three core issues.
If, following this survey of historical eras, I attempt to determine the
invariables in the historical evolution that give our legal culture its
peculiar character, I can only provide a first draft of such a
synopsis. With this reservation, I designate the following essential
constants of European legal culture: its personalism, its legalism,
and its intellectualism. For the time being, these are only labels that
do not gain in clarity if, in colloquial language, we speak of
orientation toward the individual instead of personalism, speak of
thinking in terms of legal enactments instead of legalism, speak of a
basic tendency to comprehend legal phenomena in the framework of
scientific thought instead of intellectualism. What matters is to
clarify the meaning of these broad key terms as much as possible; if
it should prove impossible to fill them with content and illustrations,
my undertaking to show ‘the foundations of European legal culture’
(a risky one in any case) would have foundered. I wish to add that
none of these three tendencies is altogether alien to any developed
view of the law in civilized mankind, and that they determine the
peculiar character of our legal culture only in their interplay and
relative weight.
(ibid.: 19 f.)

In the following it is proposed to underline the second part of the quote, and to take
these three dimension, i.e. personalism, legalism, and intellectualism consequently
not only as characterising European law. Rather, these moments can be redefined in
order to serve as poles that reflect the fundamental dialectical tensions that had
been brought forward by the Social Quality Approach. They provide a framework
that is on the instrumental level reflecting the substantial dimensions as outlined as
‘criteria’ for social quality. Thus, it is important to acknowledge that
[c]ulture ‘is too weak a concept to act as an epistemological model
in itself’ [and] [i]t seems impossible to specify the content, scope ,
or power of legal culture with clarity

304
(Cotterbell, 2006 a: 724 f.; with reference to Samuel, 2003: 50)

as Roger Cotterbell states. The reason for the limitation can be seen in a limited
understanding of culture – Cotterbell looks for a direct link between the judicial
system and a diffuse understanding of culture rather than specifying culture as
specific hegemonic system regarding the interpretation of how people are living
together. To overcome this shortcoming, a useful definition can refer to Antonio
Gramsci who – looking at the ‘culture of the working class and development of
dominance’ – underscores that
[t]his revolution also presupposes the formation of a new set of
standards, a new psychology, new ways of feeling, thinking and
living that must be specific to the working class, that must be
created by it, that will become ‘dominant’ when the working class
becomes the dominant class. … Together with the problem of
gaining political and economic power, the proletariat must also face
the problem of winning intellectual power.
(Gramsci, 1920: 70)

Then, culture is actually a sufficiently strong concept as it is not an abstract concept


anymore, but – and here we can come back to Roger Cotterbell – shades a specific
light on the way people are living together. Thus it accepts that
[l]egal analysis can no longer treat the social as made up only of
interchangeable ‘abstract individuals’, ‘citizens’, or ‘subjects’ –
persons uniformly addressed by law, owing allegiance to it, and
‘owning’ law jointly and severally through democratic processes.
(Cotterbell, 2006 a: 727)

Implicit is that such understanding of the law of culture is dealing with the complex
entirety of relationships. Context in this reading is a genuinely social and
socialising matter.
Returning to Franz Wieacker’s proposal of using personalism, legalism and
intellectualism as specific for European law culture, the following proposition is
made for arriving at an international and global level:

305
¾ what he proposes as personalism is translated into the tension between social
integrity and individualism, not aiming on establishing a contradiction but as
matter of genuine foundation of relations;
¾ what he proposes as legalism is translated into the tension between enabling and
prescribing regulation, again not suggesting a contradiction or mutual
exclusiveness but pointing on a tenuous balance between integration and
exclusion, between allowed variety and enforced homogeneity;
¾ what he proposes as intellectualism is translated into the tension between equity
and legality, another time not indicating a negation but a productive relationship,
not least by creating a feed back to the first tension, that between social integrity
and individualism.

The link to the social quality parameters is given by the fact that all these three
momentums can be seen as reflecting (expression of and expressing) the different
factors, the first being concerned with the conditional factors, the second reflecting
the constitutional factors and the third dealing with the normative factors.
Thus we arrive at the following extended 3x4 social quality table, now enhanced by
the aspect of dimensions for comparative law.

CONDITIONAL CONSTITUTIONAL FACTORS NORMATIVE FACTORS


FACTORS
socio-economic personal (human) security social justice (equity)
security social recognition solidarity
social cohesion social responsiveness equal value
social inclusion personal capacity human dignity
social empowerment
tension between tension between enabling and tension between equity and
social integrity and prescribing regulation legality
individualism

Table 18: Social Quality Factors and the Reflection of Cultures of Law
3. For a final stage of developing a comparative perspective, it is proposed to look at
the principle of exclusion/inclusion. As said, an entirely inclusive system seems to
be unlikely and especially public responsibility for social quality in general and
social law in particular is not least about defining the rules for inclusion and
exclusion – and of course as well the rules for policies that aim on a ‘more inclusive
and global system’. Being already relevant in the given frameworks (be they
territorial, communal, social-stratificatory or whatsoever), this is even more the
case when we open the traditional framework and confront different systems – and

306
this is exactly what we do when we make the step on the global level. In actual fact,
this step is nothing else than the reproduction or replication on another aggregate
level of the general principle which Hans F. Zacher reflects, writing that
[h]uman rights are selective. They are selective orders which bring
central values to the fore. Their meaning can go through and
characterise the entire legal order of a country. They are the result
of historical experiences of people with their Gemeinwesen81 and
their society. If and when people repeatedly experienced conflicts in
which the state or other, perhaps just factual executors of power
breached human dignity, human rights may emerge. Human rights
are the weals of human dignity. They protect where the experience
of friction indicates the need of protection.
(Zacher, 2007 b: 67)

Important is, however, to try to locate the pre-juridical dimension as careful as


possible. Zacher continues
Against this relationship of exception and rule, that exist between
human rights and the generality of a legal order we find another
complementarity that is essential for the actual law: the polarity of
positive law and the implicitness of a society, its inherent
understandings, its habits, its public opinion and factors that guide
behaviour, and finally the actual conditions that may be stronger
than all norms. Law is always supplemented by norms and norm-
like media that steer behaviour, all of them not being part of the
system of positive law.
(ibid., 68)

However, to gain a clearer understanding, we can supplement this political-legal


perspective by a perspective that is driven by the Social Quality Approach. The
norms are then not defined on the basis of subjectivity or voluntarism. Instead, they
are seen as resulting from the given power structures – the hegemonies, the
different interests and the way in which they are negotiated – a frame which had
been already developed under the previous headings. On the present level we can

81
Meaning something between polity and community, a kind of ‘communitarian polity’

307
translate this – with reference to the different levels as they had been presented
above in ƒ„Ž‡ ͳ͸ and ƒ„Ž‡ ͳ͹ – into the various concrete patterns as territoriality
and communitarian validity, social divisions and social inclusiveness, prescriptive
and enabling character etc. pp. We overcome the arbitrariness that is inherent while
we remain on the level of general cultural aspects of law or when we remain
content with the general reference to pre-juridical frames – although we continue
arguing outside of the strictly juridical system, we gain some clearer understanding
on developing a framework for developing the necessary political debate by
opening the way for discussing finality as part of the juridical process itself.
Part of this latter debate is in social law concened with the question whether a
policy is regulative, distributive or redistributive (see e.g. Majone, 1989). Arguing
more on the systemic level, we might be concerned with the notion of positive
versus negative integration (cf. e.g. Scharpf, 1997) and how governance is actually
performed.

VI. Globalisation as General Standardisation versus Creating a Global Space for


Defending and Maintaining Specifities

Frequently and increasingly it is said that the escalating depth and speed of
globalisation has the paradox effect of strengthening nationalism, regionalism and
localism – one interpretation for instance pointing positively on the emergent
‘thinking global, acting local’, another, more negative interpretation, seeing in it a re-
mergence of blunt nationalism.

Rather than following these pervasive interpretations, the present analysis suggests to
highlight two different dimensions of these developments. First – and rather obvious –
such development can simply be seen as consequence and – rather powerless –
rejection of the asynchrony (in social, spatial and temporal terms). Ivan Krastev raises
even the question if we can speak of an Anti-American Century (see Krastev, 2004)
which suggests – against Krastev’s own interpretation – that, in reality or in our
perception, Northern America is still the driving force and also major beneficiary of
this process. As such, this issues as well very much the establishment of mismatches
between different accumulation regimes and modes of regulations. We can then see
various possible variations: enforcement of an accumulation regime in a constituency

308
without considering its inappropriateness with respect to the natural and demographic
resources; enforcement of an accumulation regime in one constituency without
changing the mode of regulation; enforcement of a specific mode of regulation
without developing an appropriate accumulation regime and so on. 82 Second, from
here we may re-interpret the ‘clash of civilisations’, leaving aside Samuel P.
Huntington’s notion (see Huntington, 1993). At stake is the confrontation not of
different religious or faith systems, but the global process of settling between different
solutions for the problem of soci(et)al integration. Of course, this is centrally the
search for hegemonies of modes of regulation as means of establishing and
maintaining a global accumulation regime with the different options for centre-
periphery relationships. This is almost a trivial statement and obvious evidence is
given when we look at the different perspectives arising for the global traveller:
Though being on the one hand nearly everywhere exposed to a certain pride – ‘this is
how we are’ – we find at the same time on the other hand most frequently some kind
of jealousy – criticising the lack of spontaneous ability to deal with issues versus
mourning over the lack of accountability; disapproving the lack of personal freedom
for taking decisions in accordance with situational momentums opposed to the
rejection of clientilism; the expectation of public institutions to establish sufficient
support mechanism in dispute with the celebration of immediate and person-based
care; confronting formal considerations and substantial investigation; looking at legal
rights of equality versus the principle of equity; or the grief over the loss of values
against the rejection of subjectivism and arbitrariness etc.

Roughly, this can be transposed into a four dimensional scheme of analysis:

ȗ –Š‡‹••—‡†‹‡•‹‘
¾ ‹•‘Žƒ–‹‘Ȁ’—‹•Š‡–
¾ ’”‘–‡…–‹‘
¾ •—’’‘”–
¾ •‘…‹ƒŽ‹•ƒ–‹‘
ȗ –Š‡ƒ…–‘”†‹‡•‹‘
¾ •–ƒ–‡
¾ ‘”‰ƒ‹•‡†‘Ǧ•–ƒ–‡ƒ…–‘”•

82
And even more complex pictures arise if we include the dimensions of life regimes and modes of life

309
¾ ˆƒ‹Ž‹ƒŽ
¾ ƒ”‡–
ȗ –Š‡‹•–”—‡–ƒŽ†‹‡•‹‘
¾ ‹‹†ƒ–‡”‹ƒŽ•—’’‘”–
¾ Ǯ‘’‡ƒ–‡”‹ƒŽ•—’’‘”–ǯ
¾ ”‡‰—Žƒ–‹‘•ƒ†”‹‰Š–•’”‘˜‹•‹‘
¾ ‹…Ž—†‹‰…ƒ”‡Ǧ’”‘†—…–‹‘
ȗ –Š‡„‡‡ˆ‹…‹ƒ”›†‹‡•‹‘Ǥ
¾ Ǯ’”‹˜‹Ž‡‰‡†‡‡†›ǯȋ‡Ǥ‰Ǥ™ƒ”˜‡–‡”ƒ•ǡ‡„‡”•‘ˆ–Š‡”—Ž‹‰‡Ž‹–‡Ȍ
¾ Ǯ‡š…Ž—†‡†ǯƒ†Ǯƒ”‰‹ƒŽ‹•‡†ǯ
¾ ™‘”‡”•
¾ ‰‡‡”ƒŽ’—„Ž‹…Ǥ

Sure, this is the place for another caveat: such classification is limited as it entails
some exclusionary character. Talking of ‘actors’ as done before does not suggest that
‘beneficiaries’ are simply passive non-agents. Surely, there is a close link between
issue dimension and the question which instruments are suitable. Other links could be
mentioned. However, it is still useful to consider such approach as tool for further
investigation.

As simple as the result of the analysis appears, as difficult is to find a solution within
a world where relations are getting more complex and where the apparent shrinking of
distances between spaces is actually increasingly leading to the awareness of inner
distances.

One thing should be clear: if one agrees with Churchill’s lesser evil notion or not,
there is always the danger of getting caught by looking at the status quo, taking this
itself even as standard for improvement rather than allowing transcending the view on
the standards themselves and accepting their principally dynamic character without
denying their fundamental validity. It is surely a most difficult point in practice and
even in theory. However, the challenge is indeed to find a way of – as Naomi Klein
puts it – Reclaiming the Commons; and she is surely right to see this as overarching
matter, relevant for people in the most distant countries and regions (see Klein, 2001).
However, it may be especially from the perspective of social policy and human rights
and also from the perspective of social law questioned that is simply about

310
hav[ing]sometrustinpeople’sabilitytorulethemselves,tomake
the decisions that are best for them. We need to show some
humilitywherenowthereissomucharroganceandpaternalism.
Tobelieveinhumandiversityandlocaldemocracyisanythingbut
wishyǦwashy. Everything in McGovernment conspires against
them. Neoliberal economics is biased at every level towards
centralization, consolidation, homogenization. It is a war waged
on diversity. Against it, we need a movement of radical change,
committed to a single world with many worlds in it, that stands
forthe‘onenoandthemanyyesses’.
(ibid.:89)

The problem with such – left populist – stance is that it neglects indeed the simple fact
that it claims to defend and engage for: the need for reclaiming not only the commons
but as well the common, i.e. the search for a radical definition of a common vision or
– one can go further and say – one res publica that consists of respecting the
correspondence of the action and its control (see pages 23 ff., 152 f., 219 f. of this
document) on a global level.

311
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i
dr.phil. (Bremen, Germany). Studies in Sociology (Bielefeld, Germany), Economics (Hamburg), Political Science and
Political Economy (Bisdorf) and Social Policy and Philosophy (Bremen). Had been teaching at various Third Level
Institutions within and outside of the Europe; currently Correspondent to the Max Planck Institute for Foreign and
International Social Law (Munich, Germany), senior advisor to the European Foundation on Social Quality (The Hague,
Netherlands) and Advisor to the Social Policy Centre at the National Taiwan University, Taipei; Taiwan.
He is director of the Independent Research Institute European Social, Organisational and Science Consultancy
(Aghabullogue, Ireland). At the University College of Cork, Department of Applied Social Studies, (Cork, Ireland) he
holds the position of an adjunct senior lecturer. He holds also the position as Adjunct Professor at the University of
Kuopio, Finland, Department of Social Policy and Social Psychology.
ii
The present work presents a perspective on Social Quality and is based on the author’s involvement in the work of the
Foundation on Social Quality in Amsterdam, The Netherlands. However, the interpretation given here is the author’s
personal account and the opinion cannot be taken as ‘official’ position of the Foundation.
If in quotations small typos and obvious mistakes occurred they had been tacitly rectified.

334