Peter Herrmann

Social Quality - Looking for a Global Social Policy

Attempting an Approximation to the Analysis ofDistances 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 SocialSystemsStudien 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 ein Unternehmen der CT Salzwasser-Verlag GmbH & Co. KGwww.europäischer-hochschulverlag.dewww.salzwasserverlag.deAlle Rechte vorbehalten

Die Deutsche Bibliothek verzeichnet diesen Titel in derDeutschen Nationalbibliografie. Bibliografische Daten sind unter http://dnb.ddb.de abrufbar.

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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 Ara tırma 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 .......................................................................................................................... 11Social Quality in the Perspective of World Systems Theory – Methodological Considerations ........................................................................................................... 11Social 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: ....................................................................................................................... 87An Interim View – Where Are We Now, and How Can We Start From Here? ....... 87Part III: ...................................................................................................................... 91The Social Quality Approach – Presentation and Difference to Other Claims for Holistic Alternatives................................................................................................... 91Dimensions of social being and dimensions of social quality .................................. 91

Understanding Development – A Review of Modernisation ......................................... 93Socialisation..................................................................................................................................94Processes of Shifting Patterns of Determination...........................................................................95Interim Summary: A Critical Review of Welfare Regime Analysis .............................................96

Empowerment – a Core Concept of the Social Quality Approach ............................. 101On the Character of Individual and Social Power.......................................................................101Empowerment and Social Intervention .......................................................................................105Summary.....................................................................................................................................106

Indicators of Social Quality – What is New About Social Quality Indictors ............. 106Quality of Life Indicators............................................................................................................112Human Security ..........................................................................................................................115Human Development Approach..................................................................................................118

Social Quality and the Meaning for Social Policy Practice ......................................... 121The Policy Triangle.....................................................................................................................121General Rights and their Implication ..........................................................................................122

Part IV: .................................................................................................................... 125Social 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 ........................................................................155Vita Activa – Recognition of Various Practices .........................................................................155Protection and Practice as Constitution of Inter-Being ...............................................................155Welfare Society – Merging L’État Providence, Welfare State, Sozialstaat, Welfare- and Care State ............................................................................................................................................156

Matrix for a Global Assessment..................................................................................... 161Responsibility, State and the Law...............................................................................................176Excursus: Some Reflections on Asia ..........................................................................................179Excursus: Some Reflections on Islam.........................................................................................189The Common and the Law..........................................................................................................208Law and Space of Regulation .....................................................................................................212Power: Individual, Social and Society ........................................................................................214

Globalism, Values, Dominance ...................................................................................... 221

Part V:...................................................................................................................... 230Cursory 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 .....................239Interim Conclusions: Bedding the Tiger Economy – Between Belief and Rights ......................283(b) Accumulation Regime and Mode of Regulation ...................................................................285Conclusions: The Political Economy of Refeudalisation............................................................290

Part VI: .................................................................................................................... 291Conclusions 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

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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

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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

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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

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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

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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

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‘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:

Now as for myself, I do not claim to have discovered either the existence of classes in modern societyor the struggle between them. Long before me, bourgeois historians had described the historicaldevelopment of this struggle between the classes, as had bourgeois economists their economicanatomy. My own contribution was 1. To show that the existence of classes is merely bound up withcertain historical phases in the development of production; 2. That the class struggle necessarilyleads to the dictatorship of the proletariat; 3. That this dictatorship itself constitutes no more thana transition to the abolition of all classes and to a classless society.(Marx, 1852 a: 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.

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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

12

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

13

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 has to be said again in advance: that ‘rationalism’ can mean

very different things

(Weber, 1915 b: 20)

and even

[t]he kind of rationalisation of the conduct of life we are here

dealing with can take a variety of forms.

(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

14

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).

15

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:

16

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.

17

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 .

CONDITIONAL FACTORS CONSTITUTIONALFACTORS

NORMATIVE FACTORS

socio-economic security social cohesion social inclusion social empowerment

personal (human) securitysocial recognition social responsiveness personal capacity

social justice (equity) solidarityequal value human dignity

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

18

* 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

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.

19

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.

20

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

actors, being – with their self-referential capacity – competent to act

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

21

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

22

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

23

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.

24

structures have no independent existence beyond the way in

which they are reproduced in action, ‘structure only exists in and

through the activities of human agents’ (Giddens, 1989, p. 256).

Giddens (1984) also argues that we are reflexive agents. By this he

means that, when asked, we are always able to give an account of

the reasons behind a decision that we have taken; we are

knowledgeable actors. Whilst we may not be able to give a clear

articulation of the rules that we follow we nevertheless

demonstrate a practical or tacit knowledge of them through the

action that we take.

(Hoggett, 2001: 38)

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

Structuration theory may not be very helpful to us in our effort to

understand this kind of ruptural agency. Clearly, and for much of

the time, agency understood primarily in terms of coping, ‘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

an institution such as a housing department does not exist and is

not put into motion, so as to speak, only when workers and service

users interact. Structuration theory plays up the impact of agency

too much. Archer (1990, p. 79) argues that its ‘voluntaristic bias’

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

resistance and opposition. In other words, when we seek to change

things a dualism of agency and structure inevitably returns

(Craib, 1992, pp. 151–2). And this is equally true in terms of a

person’s own life.

(Hoggett, 2001: 38)

As Margret Archer elaborates

25

[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

consequences of previous social interaction, they exert systematic

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

are ephemeral and contain inconsequential items, but rather only

to a special sub class – that is emergent properties, whose

differentiating features are relative endurance, natural necessity

and the possession of causal powers. Since the existence of effects

cannot serve to explain origins (a prime error of functionalism)

then the task of social theory cannot be restricted to the mere

identification of social structures as emergent properties, it must

also supply an analytical history of their emergence which

accounts for why matters are so and not otherwise. Equally, once

they are so, they constitute part of the social environment, and, as

with any other environmental influence, we can neither assume

that agents are determined by them nor are immune from them,

but can only examine the interplay between the powers of the two.

(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

26

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]ne might conclude … that ‘activity is alienated … when it takes

the form of a shism or opposition between ‘public life’ and ‘private

life’,’ and that the two spheres must be replaced by a

comprehensive praxis or ‘social practice.’

(ibid.: 246; with reference to Meszaros, 1970/1972: 183, 184 f.;

159 161; 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).

27

(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

28

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.

29

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.

30

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

31

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

32

[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.

33

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

34

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

35

[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

therapeutic or stressed the importance of casework. Instead social

workers/care managers were intended to act as coordinators or

managers putting together packages of care for individuals.

(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.

36

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.

37

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

38

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

39

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' with the activities of the state. Second, the assumption that

the purpose of social policy is the enhancement of welfare. Third,

the subordination of social policy to the economy.

…

The second wave of social policy development came in the late

1970s and 1980s. The political economy of welfare … attacked the

second feature of social administration highlighting the dual

functions of state welfare:

It simultaneously embodies tendencies to enhance social welfare,

to develop the powers of individuals, to exert social control over

the blind play of market forces; and tendencies to repress and

control people, to adapt them to the requirements of the capitalist

economy. (Gough, 1979, p.12)

…

40

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

'welfare regimes'.

…

The next and latest stage of social policy development was to

examine the specific meaning of the 'social' and, thereby, to

question its subordination to the economy.

(Walker, 2008 (without date): 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

41

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.

42

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 .

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

43

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

44

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.

45

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).

46

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.

47

* 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

7 The following remarks draw heavily from Beck, Wolfgang/van der Maesen, Laurent J.G./Walker, Alan, 2008

48

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.

49

an immediate part of the entire productive system. If we return to , 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.

50

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

51

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

52

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-

53

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

54

[a]ny serious inquiry, then, of the differences in the origins of the

historical experiences and subsequent paths of development of the

various regions of the NewWorld must begin with an examination

of the historical process of capital accumulation on a world scale.

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

modes of production in the various parts of the New World which

corresponded to the differing – though related – roles these

regions played in that worldwide process. Differences in colonial

policies and experiences in the new World were much less due to

(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

55

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

56

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 Dervi 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

ranking of the Turkish economy. Turkey is clustered together with

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

present GDP per capita.

(Dervi /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.

57

Figure 7: Rule of Law and income and income among EU-27 (from ibid.: 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

58

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

59

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.

60

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)

61

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.)

62

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

63

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.

64

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

65

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.

66

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

emphasises the disinterest of the legal system as to the content of

the Basic Norm. That which is relevant within law making is that

the Basic Norm performs the funtion of transforming non legal

instances (or values) into valid law. The choice of the types of

instances tehBasic norm determines as leglally relevant is not

interesting to the legal actors, whether it is the political value of

obeying the first constitution or the value of obedience to the

Fuehrer.*

(Zamboni, 2008: 34; * with reference to Kelsen: General Theory of

Law and State; supra at 120, where the author points out how the

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, Professor Stone and the Pure Theory of

Law, 17 STAN. 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

67

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,

68

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

system of care for handicapped and its development in Taiwan:

* 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: 291 f.)

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

69

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

challenges in working across differences in experience, 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

development programs. Although these activists did not explicitly

start out with a human rights agenda, they quickly turned to

human rights activism as a means to (1) empower the

impoverished; (2) secure accountability of those who wield power

and control over resources; (3) increase participation of the

oppresses; and (4) assert values such as social and ethical values

that should underlie restructureing of asocial orders.

(Hom, 2001: 205 f.)

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:

It was recommended that priority be given to methods ‘designed

to promote the general welfare of the community rather than to

those which are more concerned with the adjustment of the

individual to his environment’, and that emphasis be placed on

70

prevention, with priority ‘to those social services which can be

made available to the whole population or the largest segment of

it …’

(Madison, 1980: 193; with reference to United Nations.

Department of Economic and Social Affairs, 1959: 60.IV.I: 21 f.)

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).

71

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)

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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

73

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’.

74

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

to learn the method of finding rules, not the rules themselves

(von Savigny, 1802 1842: 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)is theory of law as born from the people’s spirit (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.

75

that, although he approves of the primacy of legislation over

customary and scientific law1, he does not think highly of state

legislation in the area of private law in general.

(ibid.; with reference to Savigny, 1840: §13: 38 44)

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 , ‘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

76

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:

Opposing natural law paradigm, the historical school suggests the

other extreme: replacing the absorption of the right law by set

law, the value of law by the reality of law, the philosophy of law by

the science of law.

(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,

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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).

78

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

79

(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.

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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.

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.

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.

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),

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]he economic pressures constraining social welfare development

in Taiwan were heightened by the country’s diplomatic isolation,

81

due to its absence from bodies such as the United Nations, the

World Trade Organization and the World Health Organization.

This very specific contextual factor of isolation (Moran and Wood

1996) mediated between Taiwan’s social welfare policy and

globalization pressures (Gummett, 1996) and resulted in a

strategy of ‘substance diplomacy’ (Ku, 1997, p. 223). This refers to

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

connections with the outside world.

(Harris/Chou, 2001: 164 f.; with reference to Moran/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

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);

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

82

before mentioned processes of legislation. Here the following are seen as major

issues:

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.

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:

83

NATIONAL TAIWAN UNIVERSITY,DEPARTMENT OF SOCIOLOGY AND

SOCIAL WORK18

NATIONAL CHENGCHI UNIVERSITY,COLLEGE OF LAW19

TOTA

L20

TAIW

AN

OTH

ER

ASI

AN

US

EUR

OPE

TOTA

L21

TAIW

AN

OTH

ER

ASI

AN

US

EUR

OPE

Professors 28 25 3 26 2 3 4 17 AssociateProfessors

13 13 11 2 2 0 7

Assistant Professors

9 1 5 2 5 1 1 3

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

84

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.

85

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:

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

repercussion on global developments, immediately imprinting on the western

world;

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;

the emergence of the – though modified – old social question in the newly

capitalising world; and finally

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/)

86

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.

87

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

88

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.

89

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

as characterisation of god and good and

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

90

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.

91

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

92

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

93

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]en make their own history, but they do not make it just as they please; they do not make it under

chosen by themselves, but under circumstances diretly encountered, given and transmitted from the

94

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. The tradition of all the dead generations weighs like a nightmare on the brain of the living.

And just when they seem engaged in revolutionising themselves and things, creating something

that has never yet existed, precisely in such periods of revolutionary crisis they anxiously conjure up

the spirits of the past to their service, …

(Marx, 1852 b: 103 f.)

95

* 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.

96

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 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.

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ratio

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: Ana

lytic

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ram

ewor

k: In

dica

tors

Acc

ordi

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a M

odifi

ed R

egul

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App

roac

h

31

Whe

reas

pov

erty

, exc

lusi

on e

tc. a

re p

reva

iling

pat

tern

s, th

e ne

w s

ituat

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ven

the

cent

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f in

tegr

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in te

nden

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isso

lvin

g. I

n ot

her

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reca

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pro

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of

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olut

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to s

elf-

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s, be

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as s

uch

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dual

ist s

ocia

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(the

latte

r mea

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e ha

ve c

apita

ls w

ith a

sup

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ower

[for

inst

ance

with

la

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gets

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nat

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stat

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ut la

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by in

divi

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s an

d/or

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as c

apita

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[qua

si-]

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. In

cons

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a ‘l

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rn’ t

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ains

val

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as

wel

l for

peo

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ntre

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ustif

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– A

ppro

achi

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atte

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ocie

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t dra

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ropo

sal f

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and

pol

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mew

ork

for

SUPI

– A

Net

wor

k on

Pre

cari

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ee fo

r thi

s net

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k in

gen

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http

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ww

.supi

-pro

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.eu/

inde

x.ph

p).

98

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

99

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.

100

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:

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.

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.

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.

101

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)

102

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.

103

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).

104

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

105

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.

106

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

socio-economicsecurity in terms of empowerment as

personal capability and relationships

Autonomy as dimension of

appropriating and utilising resources in order to be capable of actively participating in social relations and

actively influencing the immediate and

more distant social and physical environment

Systems,institutions,

organisations Participation as dimension of inclusion

in terms of empowerment in terms

of empowerment as civic rights

(comprising of civil, political and social

rights)

Control as dimension of cohesion in terms of

empowerment as accessibility of the

institutional system

Communities,configurations,

groups

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 ).

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

107

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

108

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 … – Accumulation Regime

Communities … – Life 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

109

* 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)

110

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

economies have the following features:

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.

111

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 or liberal market economies, by contrast, have the

following features:

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; with reference to Soskice, 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’.

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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

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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 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 FACTORSSQ QL SQ QL SQ QL

personalcapacity

personalcapacity

socialempower-ment

personalempower-ment

humandignity

humandignity

Contextuali-sing social recognition

social recognition of the individual

socialcohesion

socialcohesion

solidarity support

socialresponsiveness

personalresponsiveness

socialinclusion

personalinclusion

Democrati-cally based citizenship

utilitarianapproach to citizen-ship

personal(human)security

personalsecurity

socio-economicsecurity

socio-economic security

social justice (equity)

justice

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.

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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

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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.

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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

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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

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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

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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).

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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.

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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

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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.

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LEVEL OF ARGUMENT

democratisation as establishing a state based on law – formal constitution of a democraticsystem

international(global) re-cognition of standards

establishment of national systems forimplementation

development of rights-awarenessand claimant attitude

GUIDINGQUESTIONS

Is the enforcement based on internal or external considerations?

Does the adaptation of laws and rules follow a ‘peer pressure’ or can it be seen as expression of a genuine political discourse?

Are there sufficientmechanisms to guarantee the actualimplementationof the granted rights?

Is the claiming of rights a matter of protection and development of activities or is it reduced on a formal dealing with rights and a 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

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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.

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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’.

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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.

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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

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[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.

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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

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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

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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.

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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

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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

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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.

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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)

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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:

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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

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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.

143

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,

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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

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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.

146

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

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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)

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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.

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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:

the maintenance of the traditional framework of the nation state

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.

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:

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FINALITY SPECIAL DIMENSION OF

POLICY AREAS

INSTRUMENTS

Maintenance of nation

state: Common interest

based on immediate

relationality and

exclusivity

Socio-economic security

and empowerment in the

framework of different

‘welfare states’

Regulative systems (civil

law)

Globalisation: Common

Interest on basis of

competition and

emerging common

rationality

Socio-economic security

and inclusion on grounds

of redistributive policies

Discursive approaches as

mix of natural law,

discursive approaches and

transplants

Globalism: Interest of

all on basis of ‘total

rationality’, merging

objective and subjective

rationality

Empowerment and

cohesion on the basis of

open regulative systems

Common law-based

approach towards civil law

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

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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 , 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’.

Consciousness

Activation and democraticcontrol

Structuralcharacter based on secularpower

Equality/equity(problem to be overcome: anthropocentrism)

Extension of access:* more people * doing

more/being in control of more

* furthering collectivityand the social meaning of practice

Objective reason

Structuralcharacter based on sacral power

Empowerment (as matter of practice rather than a matter of choice)

Extension of meaning by developingintegrity and integration

Subjective reason

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

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* 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

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(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.

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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

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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

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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

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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

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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

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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.

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(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

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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.

162

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

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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.

164

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

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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 ). Clarke

highlights following moments contemporary of crises and challenges (see Clarke,

2004: 26 ff.):

Unsettledwelfare

Neo-liberal anti-welfarism Conservative anti-welfarism WorkfareRevalorizing the private/familial Individuation/consumerism

Expanding the social New constituencies New rights claims Residual and emergent solidarities

UnsettledNation

New mobilities New migrations Unsettled borders FragmentationNew ‘ways of life’

Traditional values Ethnicization NationalismMulti-culturalism Internationalism

UnsettledState

Devolution DecentralizationPrivatizationMarketizationManagerialization

Supra-national governance Regional blocks Meta-governanceDifferentiated and shared 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)

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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

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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.

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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

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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 PUBLICIMMEDIATE

RELATIONSHIPS OF RITES

MEDIATEDRELATIONSHIPS 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.

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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.

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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

), 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 Hsü said.

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)

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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

justice is a quality of a thing in relation to persons, and they hold

that for persons that are equal the thing must be equal. But

equality in what characteristics does this mean, and inequality in

what? This must be made clear, since this too raises a difficulty,

and calls for political philosophy. For perhaps someone might say

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

exactly alike, because men that are different have different rights

and merits. Yet if this is true, those who are superior in

complexion or stature or any good quality will have an advantage

in respect of political rights. But surely the error here is obvious,

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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.

In an earlier book, The Liberal Tradition in China,[.] I highlighted

the less well recognized ‘liberal’ features of Zhu’s community

compact, pointing first on his efforts at popular uplift on the local

level through his proclamations to the people. Typical of this

genre was Zhu’s proclamation in Zhangzhou (1190 1191), 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, were to be the basis for the proper conduct of public affairs

56 As it is the case as well with the various Christian traditions. See in this context Lubis, 1990.

174

on the village level. Here the appeal was to a combination of self

respect and mutual regard among persons as the natural means

of upholding a voluntaristic social order, which was seen as

preferable to ay enforcement of state control from above.

(De Bary, 1998: 58 f.; with reference to de Bary, 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

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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.).

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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

177

The ancient Chinese sought to use duties and ceremonial etiquette

to increase social integration. They tried to build macro social

relations on micro ones. The macro relations included

organizations and social strata as defined by the feudal hierarchy.

The micro relations were dyads such as husband wife and ruler

subject.

By 1100BCE, the state of Chou’s government had developed into a

well articulated bureaucracy. …

Before 250 BCE when China became an empire, the Chinese

concept of effective leadership emphasized self improement.

(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,

they do not temper a growing inclination to assert the sovereignty

of majoritarian interests over the independence of certain

political and judicial institutions. Notions of liberty and equality in

rights also need to be put to work as effectuating means in

developing mechanisms for intelligent practices of discussion and

deliberation between policy makers, experts, and the public and

between different groups and organizations within the public. But

the success of such practices, for pragmatists like myself,

presupposes the existence of stable communities and associations

within which publics can become established and articulate. …

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Pragmatists, with their relational conception of selfhood, and

their desire to augment liberal talk of individual liberty with the

acknowledgment of the community grounds for articulate

expression of such liberty, would have many sympathies with the

political and philosophical orientation of contemporary

Confucianism.

(O’Dwyer, 2003: 51 f.)

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.

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(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

It was the lesson of our great ancestor:The people should be cherished,And not looked down upon.The people are the root of a country;The root firm, the country tranquil.When I look at all under heaven,Of the simple men and simple women,Any one may surpass me.If the One man err repeatedly,Should dissatisfaction be waited for till it appears?Before it is seen, it should be guarded against.In my dealing with the millions of the people,I should feel as much anxiety as if I were driving six horses withrotten reins.The ruler of menHow should he be but reverent (of his duties)?(Sacred Books, 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 y nyáng, the inter-being … – all being concerned with the

following three key moments:

(cf. in general Chou, Tun-i [ ], 2002).

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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’ (or universalism) as a ‘Chinese culturalism’

is to see it not as a form of cultural consciousness per se, but

rather to see culture – a specific culture of the imperial state and

Confucian orthodoxy – as a criterion defining community.

Membership in this community was defined by participation in a

ritual order that embodied allegiance to the Chinese ideas and

ethics centred around the Chinese emperor.

(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

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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

often conflict internally and with each other. Not only did Chinese

people historically identify with different types of communities,

but … when these identifications became politicized they came to

resemble national identities. To be sure, this does not validate the

claim of some nationalists that the nation had existed historically

as a cohesive subject gathering self awareness and poised to

realize its destiny in the modern era. Pre modern political

identification do not necessarily or teleologically develop into

national identifications of modern times. A new vocabulary arises

within which a political system selects, adapts, reorganizes and

even recreates these older identities. Nonetheless, the fact remains

that modern societies are not the only ones capable of creating

self conscious political communities.

(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

office prebendary appears in ethically hallowed form. It is the one

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position becoming to a superior man because the office alone

allows for the perfection of personality.

(Weber, [1915 a]: 160 [Weber, 1915 b: 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

opposed to that feudal enjoyment of lavish expenditure prominent

in statements of the prophet in early Islam, and it is opposed to

the Buddhist rejection of attachment to worldly goods. It is

opposed to the strictly traditionalist, vocational ethic of Hinduism

and to the Puritan hallowing of inner worldly ascetic and

profitable work in a rationally specialized vocation. If, for once,

we may disregard this fundamental contrast, there are all sorts of

particularized affinities to be found between Confucianism and

the sober rationalism of Puritanism.

(ibid.: 161 [English edition] 149 [German edition])

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

man and live in anarchy.’

(quoted in Weber, ibid. 169 [English edition] 154 [German

edition]; with reference to Tscheng, 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

183

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: chapter 6)

And then

Mencius said, 'Benevolence brings glory to a prince, and the

opposite of it brings disgrace. For the princes of the present day to

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:

184

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,

moreover was recognizably ‘modern’ in the Western sense, in that

it comprised a proletariat, an urban middle class, merchants, and

businessman.

It was, however, still a basically agrarian society, and even at the

close of the dynasty most of its tax revenue was still collected in

185

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 re create a nation of

smallholders …, but from the beginning of the fifteenth century the

peasant proprietors began to disappear. Some abandoned the

land and found employment in the towns, the mines, or the army

and a large number became déclassés – wanderers, drop outs, or

bandits. But most became not so much tenants as bondsmen …

Not merely were there immense latifundia worked by tenant

farmers but often this status implied personal subordination.1 This

was true, in many cases, of hired labourers also. 2 The risings that

destroyed the Ming in 1644 were often revolts by serfs, and also by

tenants revolting against their dependency.3

(Finer, 1997: 809; with references 1: Elvin, Pattern of the Chinese

Past, 236 7; 2: Ibid. 238 44; 3: Ibid. 246 7)

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

the brush.

(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.

186

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

power was the most striking feature of his style of management. …

This stringency derived its justification from the failures of

previous dynasties. When the Mongols were expelled, the alien

dynasty was of course discredited. The laxity of the Song was also

under criticism. It was argued that China would never have been

subjected to the domination of foreign minorities if discipline and

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

under heaven.

…

State and society after the bloody inquisition appeared unusual

even by Chinese standards. The position of the prime minister was

abolished, not to be revived for the duration of the dynasty. The

emperor himself dealt with a large number of officials on matters

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

granted immunity in carrying out their functions. Throughout the

Ming period, many censors suffered the vengeance of the throne

and died ignominiously for their outspokenness.

Similar to the Bismarckian concept that Germany toward the end

of the nineteenth century was ‘saturated’, Zhu Yuanzhang was

determined to hold the center core intact without involving it in

external liabilities.

187

(Huang, 1997: 170 f.)

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 Both/and Interdependent opposite Time Circular Correlation and co-existence Process-oriented Go with the flow History and tradition Performance Group harmony and shared

accomplishment Qualitative and subjective People-oriented Economic and social concerns

Analysis of parts Either/or Exclusive opposites

Linear Causality Deadline-oriented Efficiency Future-oriented

Individual performance accomplishment

Quantitative-objective Task-oriented Economic indicators

(adapted from Chen, 2001: 94)

(ibid.: 187)

188

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

history that owed its origin to peasant rebellions, the adaptation

of a primitive economic base as the national standard and the do

it yourself type of service procedures met the requirements of the

time. … Intellectually unattractive his [Zhu Yuanzhang’s] schemes

were nevertheless effective at least for the short term. Sacrificing

quality for quantity, he united a nation of peasant masses.

But the long term 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

developing service facilities of its own, the dynasty also remained

thoroughly apathetic towards diversifying the nation’s economy.

There was even less concern for providing a legal apparatus to

facilitate diversification.

(Huang, 1997: 174)

And with this

189

[b]ureaucratism under the Ming … appeared to be the most rigid

of its kind. The reliance on social values as the basis of governance

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

190

* 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

‘adapting’ to changes in terms of changing themselves,

supporting changes of reality or

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

191

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

192

[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

193

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.

194

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,

part being under public control,

part being entirely dependent on foreign capital and not much more as

subcontractors,

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

195

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:

Richard Rose Yusuf

Özcan

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

conditions tend to depress such people’s quality of life; moreover,

living in an area of armed conflict further undermines citizens’

quality of life.

(Rose/Özcan, 2007: 12)

196

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

M. Umar Chapra writes that

[s]ome of the essential functions of the Islamic welfare state with

respect to the economy may be stated to be:

(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, without date [1979]: 9 f.)

197

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:

The very objective of the Shari'ah is to promote the welfare of the

people which lies in safeguarding their faith, their life, their

intellect, their posterity and their wealth. Whatever ensures the

safeguarding of these five serves public interest and is desirable

(Chapra, [without date] 1992: 1; with reference to al Ghazal)

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, well being and wisdom. Anything that departs from

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 al Jawziyyah, I’lam al

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, as conceived by Marx, is basically amoral and based on

the concept of dialectical materialism; while capitalism, being a

secular ideology is, at best, morally neutral. In contrast Islam lays

emphasis on both the moral and the material aspects of life and

erects the edifice of economic well being on the foundation of

moral values. The foundation being different, the superstructure is

bound to be different too.

(ibid.: 27; cf. e.g. Haneef, 1995: 58 ff.)

198

* 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)

199

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.

200

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

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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.

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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

religion contributes to the misunderstanding of such crimes, …

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(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 RESOURCES

REGULATION

internal external

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:

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By EU 15 standards, Turkey has been late to industrialise.

However, unlike the ten new Member States of eastern and central

Europe, its economic development was not distorted for four

decades by the imposition of a non market economy. Instead,

following decades of unsuccessful state led initiatives, its economy

has developed by producing goods and services for export, without

access to the rich energy resources that have characterised

development in parts of the Middle East. Turkey’s acceptance of

market led growth is in fact more comparable to that of the

Republic of Korea. Unlike many countries with a small population,

Turkey is big enough to sustain economic conglomerates that

possess the resources to finance development and support the

country’s application to join the EU.

(European Foundation for the Improvement … , 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

the EU Member States, Turkey’s aggregate gross domestic product

(GDP) is now greater than that of 16 EU countries.

(Rose/Özcan, 2007: 5)

This has to be seen against the background that

[e]conomic growth reflects the activities of indigenous

entrepreneurs in Anatolia in classic early industrial products such

as textiles, as well as the growth of financial conglomerates based

in Istanbul.

(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

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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:

(from ibid.: 28, with reference to Tüík, 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.

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disproportionally high level when it comes to equality in the labour market and

overcoming existing patterns.

Striking gender differences emerge in the employment patterns of

men and women. Men are more than five times as likely as women

to participate in paid employment … . Moreover, women are more

than twice as likely as men to be unpaid family helpers rather

than working in paid employment. Since a majority of female

adults are homemakers, who are unpaid and have no retirement

age, women are much less likely to be eligible to avail of the social

security benefits of retirement.

Gender differences account for the substantial discrepancy

between labour force participation in Turkey and in the EU

countries … . While no statistically significant difference emerges

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

many women in the EU15 are in paid employment than in Turkey;

conversely, three times as many women in Turkey are

homemakers compared with women in the EU15.

(ibid.: 39 f.)

This is seconded by Ali Murat Özdemir and Gamze Yücesan-Özdemir, who state

When women workers in Turkey are considered, the striking issue

is the relatively low level of labour force participation. Compared

to many OECD countries (especially Nordic countries and some

central European ones), with female participation rates of almost

80 per cent, female labour force participation rates in Turkey are

very low, at less than 30 per cent (OECD, 2004). When we consider

urban employment, the female participation rate decreases to less

than twenty per cent (Table 5). Following immigration to urban

areas, women, because of their low level of skills, cultural

conditioning and traditional family responsibilities, stay out of the

labour market.

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(Özdemir/Yücesan Özdemir, 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 and 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; with reference to State Institute of Statistics)

Table 10: Female Labour Market Participation Wage and

saleryearners

Causalworkers

Employers Self-employed

Unpaidfamily

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.; with the same reference)

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

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that only 4 % of the youth who participated in the State of Youth

Survey were members of NGOs. The fact that NGOs in Turkey are

still in the process of developing their capaicuty accounts for the

low participation rates. Moreover for NGO projects where the

international dimension stands out, more educated young people

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

language adequately so as to be able to read a publication is 28.4

%. (.) Regional differences should not be forgotten either. When we

look at the distribution of National Agency projects among cities

we see the remarkable gap between large and small cities and

between the east and the west … .

(Aytaç et altera, 2008: 82 f.; see as well Rose/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

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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:

Is it a mechanism that is immediately controlled by the people concerned and

thus a mechanism of self-determination and self-regulation?

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?

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:

Does the regulation concern individuals or social groups?

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])?

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:

Does the regulation result in possible monetary benefit or compensation

respectively?

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).

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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:

The scope is the national (or local and regional) level in the understanding of a

recognised historical entity?

The scope in question is an international and comparative one?

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’.

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(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

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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-CONTAINEDPERSONALITY

SELF-SUSTAINING 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

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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

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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 SPACESINDIVIDUALITY 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.

215

* 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

216

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).

1 –

clas

sica

l cha

lleng

es

2 –

clas

sica

l wel

fare

syst

em

3 –

new

acc

umul

atio

n re

gim

e 4

– re

-feu

dalis

ed w

elfa

re sy

stem

Po

verty

due

to u

nem

ploy

men

t W

orkh

ouse

, soc

ial b

enef

it Lo

ng te

rm u

nem

ploy

men

t; pr

ecar

ityW

orkf

are

appr

oach

es –

‘cha

lleng

ing

and

supp

ortin

g’Po

verty

due

to il

lnes

s;

ill-h

ealth

Hea

lth in

sura

nce,

pub

lic h

ealth

se

rvic

es.

Mea

sure

s of p

ublic

hyg

iene

Incr

easi

ng n

umbe

r of

furti

ve/h

idde

n he

alth

pro

blem

s H

ealth

-insu

ranc

e an

d pu

blic

serv

ices

– w

ith

incr

easi

ng m

ulti-

laye

r stru

ctur

es a

nd p

rivat

e co

ntrib

utio

ns.

Als

o: c

omm

erci

alis

atio

n an

d m

anag

eria

lisat

ion

of se

rvic

es d

ue to

pub

lic c

ontro

ls

Pove

rty d

ue to

dis

abili

ty

Hea

lth in

sura

nce,

pr

otec

ted/

shel

tere

dem

ploy

men

t/wor

k; p

ublic

hea

lth

and

reha

bilit

atio

n se

rvic

e

New

mas

s epi

dem

ics;

reoc

curr

ence

of

‘cla

ssic

al e

pide

mic

s’, e

.g.

tube

rcul

osis

Two-

tier s

yste

m o

f sup

port

mec

hani

sms,

incr

ease

d ‘f

orce

d in

tegr

atio

n’ in

to th

e la

bour

m

arke

d, p

aral

lel w

ith in

crea

sed

offe

rs o

f rea

l op

portu

nitie

s Po

verty

/lack

of r

esou

rces

due

to

age

Old

age

/pen

sion

fund

s; p

ublic

car

e pr

ovis

ion

Incr

easi

ng n

umbe

r of p

eopl

e in

ne

ed o

f lon

g-te

rm c

are.

D

emog

raph

ic c

hang

e

Old

age

/pen

sion

fund

s, su

bjec

t to

the

incr

ease

d ne

ed fo

r sup

plem

ents

; pub

lic a

nd in

crea

sing

ly

priv

ate

care

pro

visi

on, b

uild

ing

up a

stro

ng

mul

ti-la

yer s

truct

ure,

leav

ing

man

y ca

ses f

or

char

itabl

e w

elfa

re.

Als

o: c

omm

erci

alis

atio

n an

d m

anag

eria

lisat

ion

of se

rvic

es d

ue to

pub

lic c

ontro

ls

Lack

of e

duca

tion

Publ

ic e

duca

tion

and

scho

olin

g C

ontin

ued

lack

of e

duca

tion,

in

clud

ing

ongo

ing

soci

al

ineq

ualit

ies;

Con

tradi

ctio

n be

twee

n hi

gh le

vels

of

form

al e

duca

tion,

how

ever

, due

to

hig

h de

gree

of f

orm

alis

atio

n sh

ort-t

erm

orie

ntat

ion

Form

alis

ed a

nd ‘d

iver

sifie

d’ e

duca

tiona

l se

rvic

es w

ith in

crea

sing

ly p

rivat

ised

and

se

gmen

tised

ele

men

ts.

Goi

ng p

aral

lel w

ith so

cial

div

ides

: de

partm

enta

lised

serv

ices

. A

lso:

pol

itica

l eff

ort o

f inc

reas

ing

acce

ssib

ility

Tab

le 1

2: C

hang

ed C

ondi

tiona

lity

of W

elfa

re

218

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 ) and the variety of potential

combinations of the social quality factors (see ) – 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.

219

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.

220

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).

221

Linking this to what had been developed in connection with , ,

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

222

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).

223

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 – presenting a simple centre-

periphery understanding of the traditional kind, presenting a complex and

polycentric centre-periphery structure and presenting a diffuse-hierarchical

structure.

Figure 31: Simple Centre-Periphery-Structure

224

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

225

– 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

226

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]he term … refers to a sector of society (or community) in which

certain activities which have special significance of functions are

relatively more highly concentrated or more intensively practiced

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, or emulation.

(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

227

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

‘availing of property’62 and

adequacy

* equality as

contestable legitimacy (‘control of the system’) and

empowerment in terms of developing capabilities (‘control of the own life and

development’)

appropriation

property adequacy

legi

timac

y

equa

lity

empo

wer

men

t

Figure 34: Societal Scope of Legal Functionality

62 Not to be confused with a property formation under private law

228

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

229

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.

230

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

231

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’

232

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:

233

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)

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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

actors, being – with their self-referential capacity – competent to act

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

235

to the contemporary analysis, a summarising picture is given by Sarah Cook and

Huck-ju Kwon who state

The starting point for analysis is the diversity in levels of economic

and social development across East Asia. The region encompasses

countries ranked among the world’s wealthiest (Japan) to the

poorest (Myanmar and N. Korea), variation which is mirrored in

indicators of human development of human development such as

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

that emerge in different political, social and cultural contexts.

(Cook/Kwon, 2008: 513)

And they continue with view on social policy that

[t]he composition of social protection and the institutional

configuration of the welfare state vary greatly, especially between

North East and South Asian countries … . Social insurance

schemes form the main contours of the welfare state in northeast

Asian countries such as Korea and Taiwan, while provident funds

have been their anchor in some South East Asian countries, such

as Singapore and Malaysia. In others, notably the Philippines and

Indonesia, social policy institutions protect only small numbers of

people against a very limited range of risks, and social protection

remains principally the responsibility of community and families

although new social assistance programs have been introduced

since the crisis. Transition economies, facing the dual challenge of

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

236

including social insurance and ‘provident fund’ type mechanisms,

most recently adopting a heavier emphasis on social assistance

programs. In short, across the region the complexion of social

protection has been undergoing significant change.

(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)

237

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

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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

239

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),

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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.

241

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

242

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.

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(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

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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.

245

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.

246

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 ElitismCharacterising 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

247

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.

248

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.)

249

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-BuildingTaking 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

250

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:

251

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

252

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.)

253

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

254

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.

255

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

256

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 1991EmployersSelf-employedPaid employees (public and private)Unpaid family workers

2.231.140.1

26.6

2.118.670.3

9.0 100.0 100.0N 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 Position

1963 1991 Total

Unpaid Family Workers Blue-Collar Workers White-Collar Employees Self-Employed, without EmployeesManagersCapitalist Employers

0.4 17.0 30.1 23.7 3.1

25.8

0.69.9

21.421.224.722.3

0.513.325.522.414.423.9

100.0 100.0 100.0N 489 543 1,032

Table 14: Weberian Stratificational Position (in percent), Taipei Samples, 1963 and 1991

257

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 – UnemploymentRate (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

over4.71 5.14 5.17 4.31 3.76 3.21 3.22 Junior

high&below5.12 5.92 5.60 4.87 4.54 4.36 4.31 Senior

high&vocational3,72 4.28 4.09 4.06 4.01 3.98 4.00 Junior

college&above(From: . 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.

258

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

two decades between the early 1960s and early 1980s, therefore,

was based on a sea change reorientation in economic strategy

that was intertwined with considerable change in regime elite

composition. The state imposed a fundamental structural shift in

the island’s economy that was somewhat ironically premised upon

what John Fei (1989) has called a ‘de politicization’ of the

economy. Taiwan’s elite structure was also broadened quite

significantly. First, as a consequence of the privatization of

economy, a dual elite structure had evolved by the early 1970s in

which Mainlanders dominated the top political and Islanders the

top economic positions, with the latter acting as a link between

the regime and general populace. Second, liberal elements within

the regime expanded both because of Chiang Ching kuo’s

recruitment policies and because of the growing role of elections.

Finally, an increasingly articulate opposition subjected the

government to competition in the marketplace of ideas. These new

elites both contributed vital skills and resources to the island’s

259

economic and political development and helped restrain

opponents of the ongoing changes … .

(Chan/Clark, 1992: 88 f. – with reference to Fei, 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 arguefor 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).

260

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

261

(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.’

262

(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

263

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

264

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

265

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

266

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

267

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).

268

DISTRIBUTION

Independently-sustainable Expansionist

small-scale

orientation

large-scale

orientation

small-scale

orientation

large-scale

orientation

smal

l-

scal

e

orie

nta

tion

S/CU E/CI E/CU S/CO

Inde

pend

ently

-

sust

aina

ble

larg

e-

scal

e

orie

nta

tion

S/CI S/CI E/CI S/CI

smal

l-

scal

e

orie

nta

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E/CU E/CU E/CO S/CI

PRO

DU

CT

ION

Exp

ansi

onis

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larg

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nta

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S/CO S/CO S/CO S/CI

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

269

[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’

270

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)

271

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

272

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 ).

(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.

273

(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’

274

(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

275

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

custom requires a guest to greet his or her host with a small gift. A

tiau a ka [vote broker] usually makes the pitch for a candidate

during a visit to the voter's home; candidates also visit potential

tiau a ka. In both situations, it is easy to see how political

hopefuls might have found themselves caught between the

demands of ‘clean’ elections and good manners. In most parts of

Taiwan, local convention proved more powerful, and the

presentation of gifts as part of the campaign visit became the

276

norm. Gift giving also demonstrates respect for the recipient; to

give someone a gift is to give that person face

(Rigger, 1994: 219; quoted in: Schaffer, 2002. Draft 9 3 02: 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

competition between parties (is) increasingly compliated

(Chen, 2008: chapter 5: 12)

however the traditional system pertains:

Within six month after taking office nearly all public enterprises,

banks and media and also the state funded research institutes and

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

create a level playing field for itself, few branches of the state and

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, leading within a few years to corruption and political

scandals.

(ibid: 26; with reference to Chu, 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

277

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;

278

* 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:

If the little tigers are coming of age politically, this may rather be

in the sense that there are now fresh interests pressing for

‘appropriate’ accommodation in the hierarchy.

(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

279

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

authority in charge for registration purposes, other civil

280

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

guided and supervised by the government agency in charge of the

business engaged in by this group.

(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/flgure4 1.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.

281

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.

282

…

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,

283

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

284

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

285

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

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

286

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

287

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 , 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.

288

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:

289

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

social indicator statistics. However, with increasing complexity on

social and economic conditions, statistics figures along cannot

portray the essence of social issues. Further analysis is needed to

find the historical and correlative relationship behind the

indicators and consequently, the pattern and complete picture of

the social development can be derived.

(National Statistics. Republic of China (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:

290

(for the traditional approach see 179 ff. in

this text),

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

291

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.

292

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

293

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

). 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 ). 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

294

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

295

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 and 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 ).

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).

1

2 3

4

SPA

TIAL

D

IME

NSIO

NL

EAD

ING

AC

TOR

OB

JEC

TIV

E OF T

HE

A

PPLIC

ATIO

N O

F TH

E SO

CIA

L

QU

ALIT

Y A

PPRO

AC

H

CH

AL

LE

NG

E OF

UN

DE

RST

AN

DIN

G A

ND

BU

ILD

ING

CO

MM

ON

AL

ITY

LE

VE

L O

F LE

GA

L INST

RU

ME

NT

S

A

SPA

CE

OF S

OC

IAL

IM

ME

DIA

CY

OF

(SU

B-)UR

BAN

L

OC

AL

ITIE

S75

Local governance systems,

caught limited by the dependency

from central national governm

ent (and in cooperative conflict w

ith ‘alternative actors’)

Establishing spaces for developing local/com

munal

equality, empow

erment,

appropriateness and accountability

Overcom

ing constraints from

central government and local

traditions, caught in a gridlock and ow

nership of power positions

by-laws, adm

inistrative regulation

B

NA

TIO

NA

L A

ND

R

EG

ION

AL L

EV

EL

National governm

ents and contestants of pow

er (parliam

entary and civic co-actors, allies and opponents

Coping w

ith challenges of internal (national) contradictions, differences and diversity of interests

Power structures, in particular

based on availability of unequal distribution of resources

traditional legislation

C

BI- A

ND

MU

LT

I-L

AT

ER

AL

LE

VE

LN

ation states and multinational

enterprisesA

ttempting to reach equity as

principle countering hegemony

Existing and developing hegem

onies in their orientation on basically m

aintaining centre-periphery-relationships (w

hile the actors m

ay aim on changing their

individual/collective roles within

such a relationship)

international treaties and national im

plementation rules (law

s, regulations etc.)

75

It may be left open at this m

oment if tribes, fam

ilies, ethnic groups and the like should be included here – being characterised by imm

ediacy 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 w

ith and comm

ents by Yitzhak Berman.

297

D

CO

MPA

RA

TIV

EPE

RSP

EC

TIV

EA

cade

mic

s and

gov

ernm

enta

l le

gal e

xper

ts

Dev

elop

ing

an u

nder

stan

ding

of

the

spec

ific

real

isat

ion

of th

e so

cial

and

the

poss

ibili

ties t

o ov

erco

me

inhe

rent

pow

er

stru

ctur

es a

nd p

atte

rns o

f he

gem

ony

Diff

icul

ties o

f tra

nsce

ndin

g gi

ven

final

ities

and

dev

elop

ing

an

unde

rsta

ndin

g du

e to

de

partm

enta

lised

met

hodo

logi

es

n.a.

E

INT

ER

NA

TIO

NA

L

AN

D G

LO

BAL

L

EV

EL

Nat

iona

l gov

ernm

ents

and

ING

Os

Dev

elop

men

t of s

pace

s for

de

velo

ping

a c

omm

on

fram

ewor

k, b

alan

cing

soci

etal

an

d in

divi

dual

dev

elop

men

t alo

ng

the

prin

cipl

es o

f equ

ality

, em

pow

erm

ent,

appr

opria

tene

ss

and

acco

unta

bilit

y; in

clo

se

conn

ectio

n w

ith D

as m

entio

ned

befo

re

Lack

of f

orm

al p

ower

and

con

trol

over

pro

cess

es o

f int

erpr

etat

ion

and

impl

emen

tatio

n

hum

an ri

ghts

regu

latio

ns (m

ostly

de

clar

atio

ns),

com

plem

ente

d by

co

mpl

ex re

porti

ng a

nd re

view

pr

oces

ses

Tab

le 1

6: D

imen

sion

s of t

he R

each

of L

aw

298

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 ). It is important to distinguish between the specific rationalities of the

different politico-legal cultures.

299

1 2 3 4

ALLEGED SOCIO-

POLITICALTRADITION76

CHARACTERISATION OF THE

DOMINANT LEGALTRADITION

PRINCIPLE OF LEGALITY

PRINCIPLE OF EXCLUSION/INCLU-

SION

ASIAN Mixed: religious and civil law77

Prejudicial – secondary – primary

Communitarian and personal

EUROPEAN Civil law Prejudicial –primary - secondary Territorial and

personal

ISLAM Mixed: religious, customary and common law

Prejudicial – secondary – [primary]

Communitarian and consociationalist

US-AMERICAN

Common law Prejudicial – primary - secondary Communitarian,

territorial and 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.

300

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 , 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

, 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

the state’s civil code.

(European Foundation for the Improvement of Living and

Working Conditions, 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:

The sultan lived in the Inner Palace.[.] Here were situated his Privy

Chambers, along with the Privy Purse and Wardrobe offices that

pertained to them. The harem was adjacent. Here too lay the

chambers where embassies were received, or the Imperial Divan

held its meetings. Connecting this Inner Palace to the Outer Palace

was the Gate of Felicity, a spacious vestibule where the sultan met

with his vizier and dispensed justice. This Outer Palace housed the

agha (the commandant) of the Janissaries, and the ‘Gardener

301

corps’, who policed the grounds, along with various groups of

messengers and the like. It contained offices for those personnel

who served both the administration of the empire and the palace:

for instance the chief architect and his staff, the commissioners of

the mint, and the sultan’s physician, who was also the head of the

medical profession through the empire.. All these officials of the

Inner and Outer Palace formed a single complex and highly

regulated hierarchy. This vat corps, which numbered som 30,000

civilian personnel in 1609 as well as 60,000 military or military

related men, accompanied the sultan on campaigns.

(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.

302

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 ),

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.

303

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.

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.

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).

304

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

305

(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:

306

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;

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;

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.

CONDITIONALFACTORS

CONSTITUTIONAL FACTORS NORMATIVE FACTORS

socio-economicsecuritysocial cohesion social inclusion social empowerment

personal (human) security social recognition social responsiveness personal capacity

social justice (equity) solidarityequal value human dignity

tension between social integrity and individualism

tension between enabling and prescribing regulation

tension between equity and legality

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

307

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’

308

translate this – with reference to the different levels as they had been presented

above in and – 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

309

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:

82 And even more complex pictures arise if we include the dimensions of life regimes and modes of life

310

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

311

hav[ing] some trust in people’s ability to rule themselves, to make

the decisions that are best for them. We need to show some

humility where now there is so much arrogance and paternalism.

To believe in human diversity and local democracy is anything but

wishy washy. 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

for the ‘one no and the many yesses’.

(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.

312

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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.