15DR, Vol. XV (1999) 29
Boπtjan Zalar*
THE (UN)ACCEPTABLE
LIBERALISATION OF THE
(WELFARE) STATE
ABSTRACT
Any state liberalisation policy is justified to the extent that expectations of reform
broadening the chances of all individuals for the better realisation of their human rights
(including rights with what is termed positive status’) are reasonable. In order to fulfill
this premise, justice should be combined with freedom and equality as the third basic
and obligatory principle of social regulation. This standard, together with some func-
tional conditions for liberalisation within the social services sector, leads to the con-
clusion that the state need not be the owner of social services.  However, it is necessary
that state officials exercise permanent and strict control over both the impact of liber-
alisation processes and the practice of social services in the private sector on all three
basic regulatory principles. This premise is also highly relevant for the liberalisation
processes within the executive and judicial branches of government, where special
attention must be given to the maintenance of the state monopoly over the repression
mechanism.
The author concludes by advocating a new development paradigm which favors
and connects the liberalisation of the external world with the privatisation of self.
Key words: equality, freedom, justice, human rights, privatization, ownership, con-
trol, welfare state
State responsibility for freedom, equality and justice
Liberal constitutional systems are based on the belief that individuals are free and
equal beings. In the following subject, the source of this enlightened position is of no
importance: whether it be God, the Laws of Nature or simply a social contract. The fact
is that with the adoption of the first universal human rights charters in the USA and
* Boπtjan Zalar is a Research Fellow at the Institute of Social Sciences (Centre for Evaluations
and Strategic Studies) -  Faculty of Social Sciences, University of Ljubljana. The subject of
this paper was prepared for the International Workshop Privatization of Social Services and
Its Alternatives, ISA, Research Committee No. 10, Bled, Slovenia, 26 - 29 September 1996.
16 DR, Vol. XV (1999) 29
France, freedom and equality were accepted as basic regulatory principles (conditions)
to ensure the individual’s dignity, agency and ability to pursue happiness.
However, it is legitimate to question the intended meanings of the principles ‘freedom’
and ‘equality’. At the end of the 18th century, the only suitable way for an institutional
system to embody the recognition of individuals as equal beings was to treat them
equally as bearers of a particular scheme of human rights.
The individual’s civil and (later on) political freedom was also guaranteed by the
state protection of a particular human rights scheme.1 However, freedom was not sim-
ply a legal status (as the principle of equality was). The liberal doctrine understands
freedom as an ability to function as an agent, to possess rationality, free will, moral
agency and the ability to regulate and guide one’s life in accordance with an overall
tenet that one chooses to accept. To be free means to be a reflected self-directed person
(Johnston 1994).
Political reforms of the liberal state should, therefore, be evaluated and justified to
the extent to which they promote conditions that foster both of the above-mentioned
principles: freedom and equality. The question is: how should state authorities promote
and upgrade conditions for an individual’s freedom and equality?
One possible solution is to passively accept the fact that individuals are born into
unequal starting conditions and that during their lives they have to bear the risk of
events over which they - as agents - have no influence whatsoever. Thus, the state
should formally ensure a particular scheme of human rights to all citizens, knowing
that in reality only some of them will enjoy the worth of liberty. A justification for this
solution is that a minimal state, which must not intervene in people’s lives, is the most
extensive state (Nozick 1974). Furthermore, this position holds that “human dignity is
placed in serious jeopardy by the legal features of the welfare state”(Machan 1995: 61).
It is even the cause of poverty and of the rise in income inequality (Gingrich 1995).
Thus, the welfare state has to be “eliminated” by allowing states and charities to try
some new ideas (Business Week 1995: 29, 31).
Accepting the postulate that a person counts if he/she chooses to count, which means
that it is an individual who holds the central responsibility for his personal develop-
ment and has a legitimate (but limited) claim to rewards that his/her abilities can bring
from the market, I turn to another possible solution. In my opinion, the following position
in no way undermines the above-mentioned existentialist postulate, although it gives
the state a much more active role.
A state must accept the strategic challenge (responsibility) to secure the necessary
conditions for all citizens to become agents. According to Johnston (1994: 88-89), even
J. S. Mill regarded such a mission as “optimal”. It is an important social goal for many
modern liberal commentators. They plead not just for greater equality of human rights
protection, but for greater equality of opportunities overall. They especially endorse
equality of educational opportunities (Dahrendorf 1987), full democratic participation
by the entire population, a basic source of income together with the opportunity for
upward social and political mobility for each individual, low-cost housing, healthcare,
Boπtjan Zalar
17DR, Vol. XV (1999) 29
parks and recreational facilities, police, libraries and access to the arts, which is re-
quired to a greater extent by the underclass than by the affluent (Gailbraith 1994).
However, the question remains as to which principle could provide the grounding
for such a comprehensive mission of the state. It cannot be grounded on the basic prin-
ciples of freedom or equality, which have characterized modern human rights charters.
It is worth mentioning the utilitarian argument. For example, R. Dahrendorf warns that
the “underclass is a cancer of a society. If some have no stake in society, a society puts
itself at risk” (Dahrendorf 1987: 7). Similarly, Plato, Aristotle, Rousseau and Machiavelli
feared that the great inequalities between the rich and the poor cause disintegration and
instability (King, Waldron 1988). I believe that a utilitarian view is actually covered by
the conception of justice, which I intend to advocate as the third regulatory principle of
post-modern institutional arrangements.
The principle of justice
Differences which manifest themselves throughout the course of one’s life are in-
deed an essential component of any individuation process. However, not all of them are
welcomed and acceptable. The problem is that we are all susceptible to certain kinds of
genetic (dis)abilities. Actually, some of our fundamental characteristics (differences)
such as tendencies toward altruism or violence, predispositions to mental illness, men-
tal acuity or intelligence, and learning abilities are conditioned not only by social and
environmental factors, but are shaped by genetic (dis)advantages as well (Lappé 1995).2
Furthermore, we are born into very different social standings, and some of us become
victims of unfavorable events or accidents which are also out of our control.
The common characteristic of these three circumstances is that we - as agents - have
no influence over them whatsoever. To find an institutionalized challenge to this prob-
lem, it seems that Durkheim s theory of “justice as fairness” is still quite an appropriate
starting point. As one of the first European sociologists, E. Durkheim never changed
his early position that people are unequal in abilities, which is a result of (un)fortuitous
inheritance. Consequently, it is unfair to treat one individual better than another on the
grounds that he happened, by chance, to be born rich, titled or with a high IQ. Since
these inborn inequalities of merit are fortuitous, they cannot be objects of desert. The
theory of justice as fairness between persons contends that human talents are collective
assets, which should be employed for the collective good (Durkheim 1957).
It is beyond justice or injustice whether I was born into a wealthy or poor family, in
a safe or an unstable society, whether my parents are educated or hold an important
public office or are unemployed, or whether I possess any special talents or am handi-
capped. This stands as long as human beings are not genetically or otherwise institu-
tionally engineered.
However, it is unfair to establish an institutional system which mostly rewards those
who are accidentally advantaged, that is, those who come from favorable genetic, eco-
The (un)acceptable liberalisation of the (welfare) state
18 DR, Vol. XV (1999) 29
nomic, social or cultural circumstances and are able to obtain the best possible educa-
tional opportunities. The competitive motto: “The devil takes the hindmost” (Lukes
1994: 120) reveals the inappropriateness of such a concept.
Justice, therefore, cannot be done simply by eliminating the privileges of the most
advantageous - the wealthiest and noblest - which has already been significantly estab-
lished by the adoption of freedom and equality as universal regulatory principles at the
end of the 18th century in the USA and in France. This passive role of the modern state
has to be accompanied by its more active involvement through the incorporation of the
third basic regulatory principle, which would bind all three branches of government to
discriminate in favor of those who are at the greatest disadvantage, for example the
handicapped, victims of natural disasters, people who happen to be young or old yet are
unable to satisfy some basic needs which are part of an adequate standard of living,
people who need elementary social or health care but do not possess enough resources
to provide for this and, in certain cases, the unemployed as well. Respecting Durkheim’s
criticism of the concept of self-ownership, the institutional structure should, therefore,
also incorporate the Rawlsian (1971) premise that economic and social inequalities are
justified, as long as they contribute to the benefit of the least advantaged.3
From the budgetary point of view, the special treatment of those who are least able
to meet their welfare needs through the market would mean that an increase in re-
sources should be targeted exclusively towards them and, equally important, any cuts
in or denials of such an increase must be directed towards those who are able to substi-
tute through the market. Thus, public money could have a greater chance of increasing
rather than reducing the total welfare in society (Rose 1989). Similarly, a suitable model
of redistribution should be initiated in the taxation system.
A very important fact deriving from the proposed principle of justice is that welfare
provisions are not a matter of care, sympathy or a certain measure of charity, but a
matter of both justice and contemporary citizenship which see, for example, the right to
social security, the right to education, the right to adequate housing, the right to a rea-
sonable income as necessary needs for agency and for the meaningful practice of citi-
zenship activities.
Thus, justice receives quite a different role in the triangle of the three basic regula-
tory principles. It is, in fact, justice which stands as the paramount regulatory mecha-
nism in society and determines the other two principles. Freedom becomes balanced by
its counterpart - responsibility - which means the more someone enjoys the value of
liberty, the more he/she is socially responsible. On the other hand, the principle of
equality acquires important corrections through the legitimate positive discrimination
of the least advantaged.
Although private companies, public corporations, voluntary organizations and indi-
viduals are directly or indirectly subjected to the basic regulatory principles, it has to be
emphasised that only the state - members of parliament, government, courts and other
state officials - should hold the ultimate and decisive responsibility for pursuing all
three basic principles. Any reform that aims towards the liberalisation of the state and
its functions should entirely respect this premise.
Boπtjan Zalar
19DR, Vol. XV (1999) 29
Regarding the theory of human rights, it has to be pointed out that the above de-
scribed institutional structure demands further clarification of the structural system which
tries to ensure universality of civil and political rights. Universality is also valid for the
protection of economic, social and cultural rights. However, this does not infer that, for
example, social services should be free of charge, that social services have to be owned
and performed by the state or that the institutional arrangements which discriminate in
favor of the least advantaged are not in accordance with the principle of universality or
legal equality.
The above described institutional structure also requires abandoning the system
which sustains the divisibility (disintegration) of human rights. At the international
level, the deterioration of human rights was legalized by the adoption of both the
International Covenant on Civil and Political Rights (in which human rights are subject
to justification) and the International Covenant on Social, Economic and Cultural Rights
(in which human rights are not unconditionally guaranteed or protected by legal features).
On the contrary, political, civil, social, economic and cultural rights are closely
interconnected and interdependent, as human personality (dignity) can only be regarded
as integral.
Private rights vs./and public interest
The right to education is perhaps the best example which demands the indivisibility
and interdependency of civil, political, social, economic and cultural human rights and
it is very suitable in opening the debate over the relationship between an individual’s
freedom of choice and public interest, which is usually controlled by certain govern-
mental involvement.
Today it is hard to imagine a successful promotion and meaningful realisation of
human rights - especially basic liberal freedoms such as the right to personal dignity, to
own private property and to participate in political and civil activities - without a se-
cured educational opportunity. However, education becomes a more problematic issue
if we attempt to place it exclusively into the private or public sphere.
From an individualistic point of view, there is no doubt that the role of education
should lie in developing special capabilities and talents that promote an individual’s
autonomous agency and self-respect to the highest possible degree. On the other hand,
the public benefit of education cannot be neglected. In contrast to, for example, Kant
and Mill, who placed education in the private sphere, Durkheim lectured that education
is an immanently public issue. According to Durkheim, a society can survive only if
there is a certain homogeneity among its members, and to maintain this homogeneity is
primarily the role of education. However, education has to be differentiated, otherwise
there would be no cooperation or development. In order to achieve this aim, Durkheim
proposed a private initiative to be incorporated into the education policy, since it is
more likely that innovations will come about through private initiatives, not through
the state. Nevertheless, the state must retain control over private educational initiative
The (un)acceptable liberalisation of the (welfare) state
20 DR, Vol. XV (1999) 29
in order to protect the homogeneity within society (Durkheim).4 This thesis from the
early 20th century could, in my opinion, be the guideline for the modern privatisation
reform within education.
There are certainly many other issues, including the state of people’s health, unem-
ployment, poverty, environmental damage and destruction of biological capital, which
cannot be regarded as a matter for some particular interest or responsibility and of no
public concern whatsoever. Some even argue that these “economic” issues are, in es-
sence, moral ones (Harmin 1989). Similarly, Drucker rejects the assertion that the “in-
dividual market and public communal world are intrinsically separated and antagonis-
tic. Economics and social policy are indissoluble” (Drucker 1969: 9-10).
In theory, it is indeed senseless to argue whether or not the superior value to be
maintained is private choice or public interest, and I doubt that it is possible to prove
Norton’s philosophical thesis (1976) that in the virtue of continuity there is no conflict
of principle between true personal interest and true social interest.
My argument is that any reform based on the consequences related to the liberalisa-
tion of the state should avoid extreme freedom of choice and overexaggerated govern-
mental paternalism.5 In searching for the equilibrium between the freedom of choice
and governmental paternalism I would like to point out the following facts, guidelines
and predispositions.
Liberalisation within the judicial
and executive branches of government
The liberalisation of the state in the field of the legislative, judicial and executive
branches is, in principle, unacceptable, but there are some very reasonable exceptions.
For example, in the judicial branch it is commonly accepted that particular disputes
- especially within commerce - are subjected to special mediators or arbitrary commis-
sions organised within the civil society. Thus the disputes are settled within an appro-
priate period of time by arbitrators who specialize in a particular subject area; this
usually cannot be the case in the state court procedure.
The important factor to stress is that the decisions of arbitrary commissions have
the same legal power as the decisions taken by the state court, but they must be ex-
ecuted neither by the arbitrary commissions themselves nor by their officers. The sworn
coercive authority which enforces the arbitrary decisions must remain under the juris-
diction of governmental agencies.
Another opportunity for liberalisation within the judicial branch could be the no-
tary. The civil courts are usually overburdened with routine disputes. For example, the
report from the largest district court in Slovenia shows that 47.2% of all its civil cases
received in 1995 were divorce cases (District Court of Ljubljana 1996). All consensual
divorce cases could fall under the jurisdiction of the notary.
Boπtjan Zalar
21DR, Vol. XV (1999) 29
In addition to the judicial branch, the executive branch of government also has
some acceptable opportunities for liberalisation. Innovative approaches and private
initiatives are in fact welcomed in community correction activities. Various programs
such as job training, education, drug treatment for those who are under supervision and
sophisticated technologies for the surveillance of probationers will more likely emerge
in either private for-profit or non-profit organisations (Nellis 1989; Feeley 1991). Fur-
thermore, policy makers have turned to the private sector in order to provide a variety
of prison services, for example food and laundry services. This sort of contractual transfer
of functions from state agencies to the private sector should not cause any serious ob-
jections, as long as the state maintains ultimate and permanent control over these practices
in respect to the three basic regulatory principles. However, I agree with Gormeley
(1991) and DiIulio (1988) in that any further privatisation of punishment, which would
be manifested in the private ownership of prisons, the promulgation of disciplinary
rules made by owners of prisons and the employment of private guards, should not be
the order of the day, even in case that the state formally retains control over these
activities. Under such privatised circumstances, I assume that it would be much more
difficult to fully secure and monitor the respect and the realisation of basic principles of
justice, freedom and equality according to appropriate human rights charters. The risk
of violating these principles and basic human rights of prisoners would be too high.
Furthermore, it has to be emphasised that the privatisation of punishment is a dan-
gerous starting point for the eventual further privatisation of the institutions which should
be exclusively entitled to use force in relation to individuals and organisations in the
territory of the state. This sort of privatisation probably poses the most serious threat to
the existence of the civilised state.
In the field of public security, it is quite acceptable for public police to encourage
the formation of what is called neighborhood crime watch programs which are staffed
by community members who observe strangers who access private places and monitor
and report suspicious behaviour to the public police. Such crime watch participants do
not have the authority to enforce public or even private laws, though.
However, the fact is that private security businesses, which are under immense pres-
sure partly due to the accumulation of capital and private ownership, have gone much
further than this. The public police monopoly is now drastically changing (Reiss 1991;
Bayley, Shearing 1996).
Since private engagement in law enforcement is quite a common and extensive
practice in post-modern societies, it is worth considering how we should minimise the
problems regarding this matter, in order to eliminate the danger of the privatisation of
state repression mechanism. The case of the Japanese Security Business Act is perhaps
a good example in demonstrating the right way to regulate the supervisory power of
public police over private security companies.
The first private security companies in Japan were established in 1962 when the
Japanese economy was starting to grow. From 1962 to 1972 this industry grew to 775
companies with 41.116 employees. In 1970, even while private officers assisted the
police (in 72 cases), they also committed 95 Criminal Code offences; additionally, many
The (un)acceptable liberalisation of the (welfare) state
22 DR, Vol. XV (1999) 29
presidents of the security companies were convicted criminals. The Security Business
Act of 1972 finally gave the police the legal basis to regulate the security industry
directly. The Act prohibited certain convicted criminals from starting businesses or
being employed in the private security business. In 1973, the Public Safety Commission
received the authority to take disciplinary action, including the supervision of security
businesses. Nevertheless, the National Police Agency stated in its report that there re-
mained a strong need to strengthen control over security companies in the future. In
1981 there were 1513 violations of the Act. Approximately 200 companies had corpo-
rate officers who had spent time in prison. In 1982 there were already 3546 companies
with 133.946 employees, and the Act was amended to further expand the regulatory
power of the police over private security companies. Under the amended Act, private
security companies can be established only upon approval by the Prefectural Public
Security Commission and must be re-approved every 5 years. The Prefectural Public
Security Commissions received authority to exercise the knowledge and skills of em-
ployees in private security companies. In 1987 there were 4586 companies and 202.611
employees. The private security industry now provides the police with an enormous
network of cooperating private officers who are better skilled, trained, organised, and
equipped than any other neighborhood or citizens’ group and is almost as large as the
police force itself (Miyazawa 1991).
Of course, there are many other more specific issues (no less important) which are
related to the privatisation of security and law enforcement. Two such issues include
the possession of weapons and the question as to whether or not private security offic-
ers should be allowed to collect evidence at the crime scene; these topics are, however,
far beyond the scope of this paper. One point not mentioned in the Japanese case that
should be pointed out is that legislation must be clear, strict and detailed in regard to the
regulation of private security agents’ powers. Regulation must include the methods of
(minimum) force (required) in exceptional circumstances, because liberalisation of the
state’s activities within the judicial and executive branch of the government is acceptable
only if it does not result in the privatisation of the repression mechanism. This must be
an essential condition for any liberalisation reform. Furthermore, hybrid models of
joint cooperation between government agencies and private organizations are in some
cases very desirable, as long as the state retains and exercises ultimate and permanent
control over those activities in order to protect basic regulatory principles which constitute
a civilised state.
Liberalisation of the welfare state
Outside the executive and judicial branch of government, there is a variety of other
social activities which are also subjected to governmental paternalism. In principle,
though, the unacceptability of the liberalisation policy should be limited only to those
activities which can in some cases be classified as dangerous or ruinous, such as the
production of nuclear facilities, explosives, and poisons. Nevertheless, state paternal-
Boπtjan Zalar
23DR, Vol. XV (1999) 29
ism is far more extensive. It usually means that the government owns (and runs) hospi-
tals, schools, kindergartens, museums, art galleries, transport companies, gas, electric-
ity and petroleum companies, streets, roads, traffic signals, airports, parking garages,
convention halls, land, mineral assets, and refuse disposal companies, among other
things.
Speaking of the following items: education, health-care, arts, culture, social serv-
ices such as retirement funds, securing the livelihood of children after their parents
divorce, securing adequate food, clothing, housing and special protection of mothers
during a particular period before and after childbirth, and security in case of unemploy-
ment, sickness, disability or work accidents it is interesting to see that states still hold a
very strong interest in these subjects, despite the fact that these subjects are related to
the realisation of social, economic and cultural human rights which have, according to
international human rights law, only a positive status. Nevertheless, the state’s interest
is expressed in the ambition to own, control and manage the above-mentioned activi-
ties.
The question I intend to answer is whether or not there is any justification in the
international human rights law for such extensive government involvement, or if, for
any state which does not provide full realisation of social, economic and cultural rights,
there is an obligation for it to liberalise itself.
According to the International Covenant on Economic, Social and Cultural Rights
(hereinafter ICESCR), a state party must take steps “to the maximum of its available
resources, with a view to achieving progressively the full realization of the rights in the
present Covenant, by all appropriate means” (ICESCR 1988: Art. 2). As Robertson
(1994) states, the above sentence raises questions such as: What is a resource? What
resources must be made available? How can state compliance be measured? Which
means are appropriate?
During the drafting process of the ICESCR, some delegates asserted that the re-
sources of the state should be interpreted broadly to include budgetary appropriations,
technical assistance, and international cooperation (Alston, Quinn 1987).
Danilo Türk, the Special UN Rapporteur on the Realization of Economic, Social
and Cultural Rights, asserts that in recognising such inadequacies, states should en-
courage people’s movements, campaigns and private initiatives, thus creating condi-
tions which aim to satisfy the citizen’s needs which are regulated in the charter (The
New International Economic Order and the Promotion of Human Rights: Progress Report
1990; The Realization of Economic, Social and Cultural Rights: Second Progress Re-
port 1991; The Realization of Economic, Social and Cultural Rights: Final Report 1992).
The Committee on Economic, Social and Cultural Rights, which is responsible for
ICESCR monitoring, interprets the ICESCR’s formulation as the state’s obligation “to
move as expeditiously and effectively as possible towards that goal” (Committee on
Economic, Social and Cultural Rights 1990).
The Limburg Principles on the implementation of the ICESCR declare that “states
parties are obliged, regardless of the level of economic development, to ensure respect
for minimum subsistence rights for all” (The Limburg Principles on the Implementa-
The (un)acceptable liberalisation of the (welfare) state
24 DR, Vol. XV (1999) 29
tion of the International Covenant on Economic, Social and Cultural Rights 1987).
The basic idea is that the state is obliged to consider all domestic and internationally
available resources when determining strategies for the satisfaction of economic, social
and cultural rights. This means that state responsibility extends well beyond the re-
sources over which it exercises direct control, and, what is more, it is not influenced by
the present level of economic development, in the case of ensuring the minimum sub-
sistence rights for all (Robertson 1994).
ICESCR, therefore, represents a strong legal basis for liberal reforms within the
social services sector, although it is very unlikely that anyone could provoke a court
decision which would burden the state policy makers with this sort of obligation.
However, in the case that the liberalisation of social services is accepted as the
reform process, it should fulfill the following conditions.6
1. All alternative strategies have to be open to public discussion participated in by all
relevant experts, state policy makers and representatives of civil society (associa-
tions of consumers, professional chambers) before adopting any regulation in par-
liament. Experience shows that many privatisation policies came out as “a political
bundle (put together in a confused way) not logically, but ideologically connected”
(Starr 1991). The process has to be constantly assessed by the state and civil institu-
tions. The political responsibility rests on the government.
2. Liberalisation should reduce state bureaucracy and its power in order to increase
both the freedom of individuals and their (civic) responsibilities. This individual
empowerment would mean:
- greater consumer choice;
- greater freedom of choice for providers to pursue their work, professional and
entrepreneurial initiatives;
- employees within the social services sector should have a comparable status
regarding participation rights of economic and industrial democracy with the
emloyees in commercial companies; they must be entitled and encouraged to offer
suggestions and to participate in the planning process and especially in self-regula-
tion of the working environment. However, neither group of employees, in both
commercial and non-commercial companies, has the constitutional right to partici-
pate in ownership or profit-sharing schemes within organisations, which comprises
one of the main obstacles for the real empowerment of individuals, democratisa-
tion, decentralisation and fair distribution of income. Participation rights of eco-
nomic democracy should form an indispensable component of the principle of justice
(or the welfare state).7
3. Liberalisation reforms should introduce new possibilities for higher quality and better
access to social services.
4. Privatisation reforms should reduce costs of government and public debt.
5. From the human rights point of view, it should be summarised that liberalisation reform
is acceptable if it leads to the better realisation of economic, social and cultural rights
(at least) for those who are least advantaged. Therefore, universality of human rights
in addition to the principle of equal opportunities should be challenged.
Boπtjan Zalar
25DR, Vol. XV (1999) 29
6. The previous challenge can only be met if the state authorities retain control and
power to exercise the basic principles of justice, freedom and equality in the field of
the social services sector.
Control vs./and ownership
Charles Horton Cooley (1864-1929), one of the fathers of American sociology, sug-
gested in his doctoral thesis in economics (1894) that the problem of the railroad indus-
try, which was troubled either by the monopolies or by the opposite problem of cut-
throat competition, should be offset by a flexible system of public control, but not
ownership. For Cooley, public control is a normal and inseparable part of the economic
process - always growing with it (Yonay 1994).
Throughout this paper, the right (and obligation) of state authorities to have control
over activities which are related to the realisation of social, economic and cultural rights
has been the main constant. Therefore, there is no need for the state to own social
services as long as state officials permanently exercise control over these activities.
Consequently, the right to private ownership should be reformulated since there will be
cases when liberalisation of social services will result in the transfer of ownership rights
from the state to private entities and the state will be authorised - in spite of private
ownership - to intervene.
However, the state’s right to control is not a synonym for public control. Theoreti-
cally, and even in legislature, it is usually stated that the government has (only) a man-
date to manage politics in the best interest and for the general good of the people, but
that is not a reason to consider state ownership (or control) as the same phenomenon as
public ownership (or control).
Public control over a hospital, for example, would be established if the supervisory
board worked together with the representatives of all legitimate interests involved in
the hospital activities, for example doctors and other employees, users of health serv-
ices, financial asset investors, insurance companies and state officials.
Unfortunately, there is a very important obstacle in the way of the implementation
of such a public control model, especially in the Eastern and Central European coun-
tries. Institutions of civil society are not yet strong enough due to the pressures during
the previous political system. Today, after the democratic reform, the luxuriant growth
of the state - especially the overextended spread of political parties within society -
again undermines the autonomy and self-regulation of civil society institutions. In the
West there are some obstacles, too. It is reasonable to expect that the concept of public
control will have a better chance to succeed in countries with corporatist structure, and
it is probably less feasible under the liberal individualist conception of citizenship. In
this conception of citizenship, citizens have no obligations to the wider society other
than those they freely enter into on the basis of contract, and apart from duties such as
paying taxes or respecting similar rights. The social bonds between individuals are thus
contractual. In contrast to such a passive and private conception of citizenship, there
The (un)acceptable liberalisation of the (welfare) state
26 DR, Vol. XV (1999) 29
are discussions which advocate a more active and public conception of citizenship. In
the so-called “civic republican” conception of citizenship, a discharge of duties is nec-
essary in order to establish individuals as citizens. Citizens retain autonomy, but only if
it is exercised not only with respect to the autonomy of others, but also in accordance
with a practice being socially defined, and which they have a duty to engage in. The
social bonds between individuals are not only contractual, but are based upon sharing
and determining a way of life. By practicing citizenship through public service,
individuals demonstrate they are citizens and create the social solidarity and cohesion
of the community. Still, in order to practice citizenship, individuals need empowerment.
This empowerment must be given partly by securing opportunities to fully realise human
rights, which are necessary for agency, and partly by opening the “arenas where
potentially everyone can take part, where everyone can do something. In modern states
this requires the decentralisation of political tasks and functions /.../ to create a widening
of opportunities for responsible self-government of citizens” (Oldfield 1990: 178-179,
183).8
Favoring the right to (public) control over (private or state) ownership in the case of
social services is perhaps a theoretical example of Cohen s political philosophy which
is considered by some commentators to be an alternative to the classic liberal concept
and Rawlsian political liberalism (Moulin, Roemer 1989). G. A. Cohen opposes the
idea that things in their native state are unowned and suggests that we regard the external
world as jointly or collectively owned by all persons (Cohen 1986).
The future paradigm would therefore be: “Private Ownership of Self and Public
Control of the External World”,or, in other words: “Privatisation of Self and Liberalisa-
tion of the External World”.
Conclusion: towards the new development paradigm
Until recently, the subject of this paper was focused only on the second part of the
above proposed paradigm, while the first part - “private ownership of self” - remained
unexplored. But, it cannot be neglected, since it is encountered at the very foundation
of the liberal system. According to the founders of liberal doctrine, “self ownership” is
a synonym for the right of each to his/her faculties - to what each of us can privatise in
the open market (Locke (1690) 1992; Mill (1848) 1995).
I find this conception of “self-ownership” very much oversimplified and mislead-
ing. In fact, it is the major obstacle to the real (above-mentioned) liberalisation of the
external world.
I divide the concept of “self-ownership” that the post-modern institutional system
should be based upon into two components. The first component is highly relevant to
the state. It can be defined as a particular scheme of human rights that the state must
ensure for all citizens (in some cases also for residents) in order to constantly improve
conditions for their autonomous agency and to protect their dignity. Apart from certain
civil and political rights, which are already sufficiently protected, there should also be
Boπtjan Zalar
27DR, Vol. XV (1999) 29
various other rights incorporated into the conception of self-ownership. The right to a
fair remuneration (ICESCR 1988: Art. 7; The European Social Charter 1992: Art. 4) or
the so-called participation rights of economic democracy are only parts of them, and I
would like to emphasise a few others, which are not yet sufficiently ensured:
- every person’s right to education (ICESCR 1988: Art. 13);
- every person’s right to an adequate standard of living, including sufficient food,
clothing, housing, medical care and necessary social services; also, the right to se-
curity in the event of unemployment, sickness, disability, old age or other lack of
livelihood in circumstances beyond his/her control (Universal Declaration of Human
Rights 1988:  Art. 25);
- every person’s right to take part in cultural activities and to enjoy the benefits of
scientific progress and its applications (ICESCR 1988: Art. 15 (a)(b));
- the right of physically or mentally disabled people to vocational training, rehabilita-
tion and social resettlement (The European Social Charter 1988: Art. 15).
The second component of the “self-ownership” concept represents no challenge to
the state whatsoever. It should be questioned, established and practised by each indi-
vidual, because this component of “self-ownership” entails his/her ability to pursue
happiness and to enjoy the true joy of life.9 Whether someone chooses affirmation or
renunciation or dialectics of both as a way to self-fulfillment is entirely a matter to be
privatised by him/herself.
NOTES
1. We cannot speak about the individual’s social, economic and cultural freedom, as long as
these human rights have only a positive status in the sense that they are not accepted as
fundamental human freedoms, effectively protected by the state legislature and judicial sys-
tem (See: International Covenant on Economic, Social and Cultural Rights 1988: Art. 2).
2. In 1926 the American Eugenics Society revealed that every 48 seconds a mentally deficient
person was born in the USA and that only every 7.5 minutes did the USA enjoy the birth of a
high-grade person who would have the ability to do creative work and be fit for leadership
(Kevles 1995).
3. Agich (1986) and DeNicola (1976) argue that the Rawlsian conception of justice is the only
conception of justice, which gives a handle for determining what might count as a just distri-
bution of genetic resources. Therefore, in genetic engineering a concept of eliminating del-
eterious genes and replacing them with their properly functioning version would have prior-
ity. Thus an individual with serious genetic disorders which cannot be effectively corrected
by any social practices (for example, very premature death or profound disabilities which
virtually exclude him/her from effective participation in any part of our society) have a le-
gitimate claim to be considered among those who are least well off and are, therefore, en-
titled to appropriate genetic intervention (Fleck 1995).
4. Modern commentators usually point out Luhmann’s argument that the basic problem of modern
society is to secure the necessary measure of social integration, which actually ensures the
continuity of Durkheim’s basic sociological thesis. For this issue it means that educational
organizations should openly accept challenges in the field of social (dis)integration problems
The (un)acceptable liberalisation of the (welfare) state
28 DR, Vol. XV (1999) 29
such as: unemployment, social security of youth and democratization of the political system
(Medveπ 1995).
5. One such extreme example was expressed on a television programme in November 1987 by
Baroness Hoger, one of the Ministers of Education, when she said that “if we are offering
freedom of choice to parents we must allow the choice to operate. If it ends up with a segre-
gated system - then so be it.” (Walford 1990: 111)
6. Liberalisation broadly includes all kinds of institutional changes that are aimed at the reduc-
tion of governmental involvement, for example: entry deregulation policy, de-monopoliza-
tion, more competitive pressures, commercialisation, paid transfer of state ownership to pri-
vate entities.
7. For the discussion on the the status of the participation rights of economic and industrial
democracy, see: Zalar, B. 1998. “The Transformation of Companies from the Standpoint of
Participation Rights: The Case of Slovenia”. Journal for East European Management Studies
3, (1): 26-45.
8. The new conception of citizenship is already on the agenda for some policy makers. In 1992
the Netherlands Scientific Council for Government Policy (WRR) published a “Contempo-
rary Citizenship”. The study, which was produced under the direction of H. R. van Gunsteren,
developed the theory of neo-republican citizenship. In the later publication “Citizenship in
Practice”, experts examine the scope of neo-republican citizenship in various practical situ-
ations (Netherlands Scientific Council for Government Policy 1993).
9. In contrast to this, “the pursuit of happiness” was incorporated into human rights charters at
the very beginning of universal human rights law. See: Virginia Declaration of Rights (1776),
Declaration of Independence (1776) or “Déclaration de droit de l’homme et du citoyen”
(1789).
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