state
Anna Yeatman
INTRODUCTION
The topic of gender and social policy makes sense only in relation to the historical project of the welfare state. It is time to re-evaluate this project not least because of how neoliberal policy settings have all but dis-established the welfare state. Even though the neoliberal political class has not successfully persuaded the public to abandon its histori- cally acquired expectations of a welfare state, neoliberal governments at least in the USA, Australia, New Zealand and the UK have adopted a tri-pronged attack on the institutions of the welfare state: cut back and reduce the scope of welfare state services; stigmatize so-called welfare dependency, remove a rights-based conception of welfare benefits, and substitute publicly subsidized private decisions concerning the management of the vicissi- tudes of life for a collective system of social security; and take the core service institutions such as schooling, hospital and primary health care out of a public bureaucratic ethos and turn them over to market principles of business efficiency and consumer choice. As Philip Mirowski (2009, 2013) has emphasized, neoliberal governance has been driven by a political philosophy that centres on making a competitive market order the basis of social organization. Neoliberals sell these ideas by making it seem that this kind of social ordering advances individual freedom because it enables consumer choice in a way that the expert-driven bureaucratic structures of the welfare state could not. The argument is that ‘the state’ is inherently opposed to individual freedom, and that only a society-centred approach such as one that makes the principles of market society the basis of institutional design can enable individual freedom. The suggestion is that the public collectivism of the welfare state is antipathetic to individualism.
As Hegel (1991) argued, the ethos of subjective freedom is the hallmark of modernity, and if the neoliberals are right that the welfare state is a threat to freedom, then our choice is that which Hayek (2007) suggested in 1944: either serfdom or freedom. However, the neoliberals offer a privatized and privative conception of freedom, which centres on ownership of private property, and they deliberately sidestep and obscure the rich republican tradition of thinking about freedom to which Hegel contributed, and which influenced the intellectual traditions of social liberalism and socialist republicanism. The republican approach to freedom is collectivist, publicly inclusive, and relational: it centres on the state as the only form of social cooperation that makes it possible for all individuals to be personally secure and free from domination within the different relational settings of their lives. Where the early modern tradition of political republicanism emphasized a form of state power that was designed to protect the individual against subjection to the arbitrary will of another, the welfare state elaborated the idea of personal security in offering a range of publicly provided welfare services that enabled individuals to feel
secure in managing their lives, parenting their children, and meeting the vicissitudes of accident, disability and old age.
In this chapter I argue that in T.H. Marshall’s famous ‘Citizenship and social class’ we find a powerful exposition of the welfare state form of republicanism. If we approach what he offers as political philosophy, we can see that his argument for the welfare state turns on what he calls ‘the status of freedom’. Curiously this foundational aspect of his argument has been neglected in its reception and criticism. Feminist critics especially have focused on those aspects of Marshall’s account that do not meet contemporary feminist standards of inclusion and have not met Marshall in relation to his idea of the status of freedom and the political philosophy that supports it. It is all very well to suggest that a historical iteration of the idea of freedom is inadequate to feminist criteria for inclusion, but the question must be whether the feminist critic is seeking to revise the idea, or to substitute for it another. Why does this question matter? Because what is at issue in Marshall’s welfare state republicanism, as in any form of republican political philosophy, is institutional design; if we are to enjoy the status of freedom, how do we agree on and then put in place the kind of institutional order that makes this possible? The neoliberals accept the question of institutional design, but their conception of freedom is quite dif- ferent, and they substitute the institutional order of market society (what Polanyi called the self-regulating market economy) for that of the (republican) state. Feminist critics of Marshall divide into those who go only so far as to point out his inability to earn contem- porary feminist credentials, and those who like Carole Pateman and Nancy Fraser adopt a society-centred pro-democracy and anti-state perspective. In both cases the fundamental question of a shared ethical responsibility for institutional design is evaded.
I began by suggesting that at this time of an extraordinarily successful neoliberal assault on the institutional order of the welfare state, a time when we cannot take for granted the stability or persistence of this order, we have an opportunity to reconsider the normative rationale for the welfare state. If such a rationale must be the backdrop for
‘gender and social policy’, perhaps it is time to bring it to front of stage. It is for this reason I offer a commentary on Marshall’s conception of ‘the status of freedom’. It is a relational approach to freedom, which in sustaining the republican emphases on freedom from domination and personal security should be of interest to a feminist political philosophy.
To suggest that a conception of the welfare state is dependent on a political philosophy is to point out that, among other things, social policy depends on an intellectual frame- work (Harris 1992, pp. 117–18). T.H. Marshall understood this; he provided the political philosophy that made sense of the post-war welfare state project that the Attlee govern- ment in Britain developed. This government implemented William Beveridge’s proposals for a universal health system, a comprehensive insurance system and family allowances (Harris 1977, ch. 16), which went far beyond the also adopted goal of full employment.1 As F.X. Kaufman notes in relation to the post-war welfare state in Europe more generally, this welfare project was universal in character, providing coverage for the entire popula- tion. It was ‘based on the notion of social rights as key elements of human rights, on par with liberal and democratic rights’:
Whereas the international paradigm for social policy before World War II remained selective, especially with regard to industrial workers and the poor, but also with regard to the risks cov- ered, the new international paradigm was universal, providing coverage for the entire population.
It joined with the claim for equality of everyone, irrespective of race, religion, and gender. And
it extended the scope from policies of workers’ protection towards a broad concept of individual welfare. This shift is expressed by the change of leading terms from ‘social insurance’ to ‘social security’ and from ‘social policy’ to ‘welfare state’. (Nullmeier and Kaufman 2010, p. 85) In this context Marshall’s view of an adequate approach to rights as integrating civil, political and social rights is congruent with the human rights movement’s emphasis on the indivisibility of rights. Nullmeier and Kaufman (2010, p. 85) suggest that in integrating
‘social policy entitlements into the concept of universal rights’, the Universal Declaration of Human Rights ‘was mirrored in the academic sphere by T.H. Marshall’s threefold concept of liberal [“civil”], political and social citizenship rights’. Jose Harris (2010, pp. 19–20) proposes that Marshall would have been aware of the burgeoning human rights discourse both during and after the Second World War. She points out that his Cambridge lectures on citizenship and social class ‘were delivered . . . just a few weeks before the Universal Declaration of Human Rights of 1949; and the published version of his lectures exactly coincided with the public discussions that led to the European Convention on Human Rights’ (Harris 2010, p. 19).2
In ‘Citizenship and social class’ Marshall (1977, p. 84) establishes the importance of social rights as a derivative element of ‘the status of freedom’. It is the status of freedom that he has in mind when he uses the term citizenship. The reason for Marshall’s long excursus in this essay regarding the history of the three categories of citizenship rights (civil, political and social) in England is the proposition that social rights cannot be understood as independent of political and civil rights, or vice versa; each of these categories of rights is justified in terms of how it articulates a core element of the status of freedom. Thus, the historical achievement of a welfare state in regard to social rights has as its backdrop the historical processes by which the institutions of civil and political rights were also achieved. There is nothing inevitable about these achievements; if we value them it is important to understand the contingent and nationally specific historical processes by which they came about, especially the ideas which guided these processes.
Marshall proposes that each of the distinct components of citizenship has its own institu- tions. Thus he argues that ‘the institutions most directly associated with civil rights are the courts of justice’, the institutions associated with political rights are parliament and councils of local government (Marshall 1977, p.78), and the institutions associated with social rights are ‘the educational system and the social services’ (Marshall 1977, p. 79). All these institu- tions, including the legal-policy constitution of the market economy, are institutions of the state. Marshall is clear that his discourse is state centred; he argues that if the ‘socialist’
objective of basic, qualitative or citizen equality is to be primary, then it cannot simply co- exist with economic or class or quantitative inequality. The state in the form of the ‘Planned Society and the Welfare State’ (Marshall 1977, p. 102) has to take precedence over and contain the competitive market economy.3 For Marshall the state is ‘political power’: ‘the normal method of establishing social rights is by the extension of political power’ (Marshall 1977, p. 103). He does not say as much, but it is clear that he presupposes that ‘political power’ is sovereign power, and that, once the franchise is fully democratized, the legislative aspect of such power is democratized. For Marshall, then, rights are real only as they are instituted by the state or political power. The ideas of the status of freedom and the state go together. Thus for Marshall all the component rights within the status of freedom, including that of private property, are contingent on the agency of the state.
RE-EVALUATING MARSHALL’S ARGUMENT IN THE CURRENT HISTORICAL CONTEXT
In offering a philosophical rationale for the post-war British welfare state, Marshall’s account could presuppose his audience’s awareness of the creative, integrated and inclu- sive social policy of this Labour government which redirected the energies of wartime patriotic and cross-class solidarity into an ethical project of post-war reconstruction. He could also presuppose the continuing intellectual influence of social liberalism. Social liberal thinkers such as the Hegelian T.H. Green (1986) offered an inclusive conception of freedom in direct rejection of nineteenth-century market liberalism’s reduction of freedom to freedom of contract. Central to the social liberal approach is the idea of society as a collective ethical undertaking that is orientated in terms of the foundational value of the status of freedom (see Sawer 2003 on the idea of the ethical state).
In order to appreciate T.H. Marshall’s argument, to listen to and learn from it, we have to work with its complexity, especially with its status as rhetoric, as practical rationality, rather than philosophical doctrine. Marshall’s conception of freedom cannot be easily reduced to one aspect of freedom or another; among other things, it situates the related freedoms of contract and property ownership within a more expansive category of
‘civil rights’. The framing of his argument in ‘Citizenship and social class’ turns on the inherent tension between market freedom and the status of freedom or, its alternative name, citizenship. Thus, for example, wages are not to be reduced to ‘merely a market value’ (Marshall 1977, p. 124) but to be adequate to a decent standard of living, even as this is supplemented by ‘real’ or de-commodified income, by means of access to social services provided by the state. Marshall (1977, p. 122) emphasizes that this tension has to be accepted as such and worked with in a historically contextual form of practical rationality that is guided by the ultimate value of securing the status of freedom: ‘Social rights in their modern form imply an invasion of contract by status, the subordination of market price to social justice, the replacement of the free bargain by the declaration of rights.’ Market-based class differences are permitted to operate but not to the point that they threaten an equality of access to the status of freedom. The way in which the market economy is instituted through the agency of the state is shaped by this practical compromise between market price and social justice so that, for example, the distinct interests of trade unionism and the employers should factor into how the level of wages is determined (Marshall 1977, p. 123).
In addressing his audience, Marshall’s argument takes the form of rhetoric. Nancy Struever (2009, p. 1) proposes that rhetoric is informed by ‘the press of possibility’ rather than that of necessity, logical or otherwise. Rhetoric engages the modality of possibility as the primary quality of civil experience that comes about when we enter into a political association with each other. It is a civil practice that engages with, as it calls into being,
‘a community’s beliefs and shared opinions’ (Struever 2009, pp. 2–3). It is for this reason that the nature of this civil practice is persuasion.
With reference to Hegel’s practical philosophy, Robert Pippin (2008) clarifies the nature of practical rationality. Practical rationality concerns the constraints that a political com- munity places on itself, and by which the community constitutes itself. These constraints are argued for in relation to norms that are practically enabling of mutual recognition.
As such, these norms provide reasons to act that are distinct from interests and desires.
At the same time these norms are profoundly historical and social; they emerge and, once established, they are revised in relation to new claims on recognition. Their achievement is contingent, and the sustaining of this achievement is contingent. If something disrupts the common sense that keeps these norms alive, then they may lose coherence of the kind that sustaining them requires. Thus, where a community is able to assume such internal coherence or cohesion that it can collectively determine its own normative mode of self-regulation this is an extraordinary achievement. Practical rationality belongs to the domain of collective and historically situated normative practice that has both subjective and institutional aspects (Pippin 2008, ch. 9); it is a social practice (Pippin 2008, p. 240).
It is not an inferior form of philosophy but a distinctive expression of ethical competence (Pippin 2008, p. 267). Philosophy can come after the historical fact of the achievements of practical rationality, and provide one way of clarifying them, but philosophy cannot substitute for practical rationality.
Marshall offers his argument in full awareness of its historical situated-ness and its dependence on such a collective achievement of self-regulation in a particular national- historical context. This means that his way of conceiving citizenship is not independent of the specific national-historical idiom in which it developed. In sharing this idiom with his audience, Marshall reminds them that if the institutions of citizenship command loyalty, this is loyalty of the kind that is freely given because these institutions make their rights possible, and it is a loyalty that is infused with awareness that these institutions and the rights they make possible have to be fought for. It is such loyalty that articulates what Marshall calls the bond of citizenship, and what Hegel calls the relationship of mutual recognition: ‘Citizenship requires a bond . . . based on loyalty to a civilization which is a common possession. It is a loyalty of free men endowed with rights and protected by a common law. Its growth is stimulated both by the struggle to win those rights and by their enjoyment when won’ (Marshall 1977, p. 101).
At the end of his essay, Marshall refers to the economist Lionel Robbins’s dismissal of the idea of the welfare state and ‘the mixed economy’ that it involves. Robbins was responsible for recruiting the neoliberal economist Friedrich Hayek to the London School of Economics in 1931. For Robbins welfare-state thinking involves a simple-minded error;
to ‘run an egalitarian real income system side by side with an inegalitarian money income system seems to me somewhat simpliste’ (Robbins cited in Marshall 1977, p. 133). Robbins plays the role of the doctrinal philosopher, the economist, for whom logic, in this case
‘the logic of a market economy’ (Marshall 1977, p. 133) is more important than practical rationality. In rejecting Robbins’s mode of argumentation, Marshall demonstrates practi- cal rationality at work. It is not logic that should be at issue, he argues: ‘a human society can make a square meal out of a stew of paradox without getting indigestion – at least for a long time’ (Marshall 1977, pp. 133–4). He goes on: ‘I believe . . . that this conflict of principles springs from the very roots of our social order in the present phase of the development of democratic citizenship. Apparent inconsistencies are in fact a source of stability, achieved through a compromise which is not dictated by logic’ (Marshall 1977, p. 134). Yet Marshall presciently warns ‘[t]his phase will not continue indefinitely’. He seems to be aware that Robbins’s mode of rejection of the welfare state may signal a breakdown of the historic compromise it represents: ‘It may be that some of the conflicts within our social system are becoming too sharp for the compromise to achieve its pur- pose much longer.’ Concluding his essay, and in the spirit of rhetoric’s modality of civil
possibility, Marshall summons his audience to realize that if this should occur then they/
we must examine even more carefully than has occurred before what may be at stake, and make a decision about our collective future:
But, if we wish to assist in their [these conflicts’] resolution, we must try to understand their deeper nature and to realize the profound and disturbing effects which would be produced by any hasty attempt to reverse present and recent trends. It has been my aim in these lectures to throw a little light on one element which I believe to be of fundamental importance, namely the impact of a rapidly developing concept of the rights of citizenship on the structure of social inequality. (Marshall 1977, p. 134)
Marshall invites us to accept the paradox of mixing the market-orientated incentive of ‘personal gain’ with the ‘public duty’ of supporting the institutions of citizenship.4 He emphasized that ‘[i]f citizenship is invoked in the defence of rights, the corresponding duties of citizenship cannot be ignored’ (Marshall 1977, p. 123);5 ‘These do not require a man to sacrifice his individual liberty or to submit without question to every demand made by government. But they do require that his acts should be inspired by a lively sense of responsibility toward the welfare of the community’ (Marshall 1977, p. 123). In 1949 Marshall could assume that the idea of public duty still resonated and that the incentive of personal gain was offset by substantial material advantages accruing to shared citizen status.
Lionel Robbins’s assertion that public policy should be logical and that it should follow the logic of the institution of a modern market economy was a forerunner of the neolib- eral economics orthodoxy that prevails in contemporary public policy. In this framework, there is no reference to the status of freedom or citizenship, or to the state as the agency by which this status on both a collective and individual level is realized. The role of the state is to institutionalize the principles and rules of a market economy in which the incentive of personal gain is operative, and where the consumer’s right to choose justifies the extension of the principle of market competition to all the social services that Marshall argued for as central to ensuring that the status of freedom could be a reality for everyone. In this framework, too, responsive to the equality claim of late twentieth-century feminism, the normative expectation is that all adults achieve economic self-sufficiency through participation in the market economy. Instead of being a political community of citizens or a society of equals, society is made over in the image of the market economy. This has returned us to a new gilded age, and an increasingly serious problem of inequality. Our era is marked off from Marshall’s by a qualitative break. Perhaps it is precisely this reality that may enable us to look with fresh eyes at Marshall’s argument and to consider it in relation to what it may offer us now.
THE STATUS OF FREEDOM
It is a little noticed feature of Marshall’s argument that he makes status of freedom the foundation of the idea of citizenship. I think that this is because Blandine Kriegel (1995, p. 42), to whom we will return, is right when she says, ‘the importance of the status of liberty has been underestimated’. The crucial thing to grasp is that liberty or freedom is a status. As such it is a question of cultural, social and institutional artifice. Status concerns
the normative aspect of society; how people value and regard each other. In this case, the issue is whether people value and regard themselves and each other as free beings. To think of freedom as a status is an inherently universal and equalizing way of thinking for, as Hegel (Rauch and Sherman 1999) so powerfully demonstrated, it is a practical contradic- tion and a thoroughly unstable social situation if one actor demands to be recognized by another but refuses to give this other recognition as an actor in her own right.
If the status of freedom is the foundation stone of Marshall’s argument then feminist criticism (Hobson and Lister 2002 is exemplary) of the androcentric character of his argument, as a historical account of the rights of men, is off the mark. Even if Marshall is caught in a historical androcentric specification of the status of freedom, it is not clear that this status is limited to that specification, as indeed the argument of feminists for a more adequately universal specification indicates. That is, the feminist criticism should be conducted more in the spirit of immanent critique than a rejection of Marshall’s conception of citizenship.
It is true, and indeed Marshall has some awareness of this fact, that how he conceives the status of freedom is profoundly informed by the historical androcentric tradition that gave it form in the (not only) English case. When this status was first historically consti- tuted as the status of a free man, as distinct from someone who was a serf or a slave, in the context of a patriarchal household economy, this status was conflated with that of being a male freeholder who is recognized as such in law. Yet the situation is muddy because the distinction between freeholder/free man and slavery or servitude also applied to women;
that is, there were women whose status was the same as their husband’s and thus free if he counted as a free man as distinct from women who, along with their husbands, were in some form of servitude.
At the same time, even within a patriarchal type of family, the status of freedom recast this set of relationships, and subjected them to the normative anti-patriarchal force of individualization. The status of the freeman in a patriarchal household economy placed him as head of the household who represented it in relationships with extra-domestic bodies and associations, including the law. Yet the way in which the male household head’s will ‘covered’ that of his wife’s was not a relationship of subjugation or domination, as political thinkers such as Locke and Hegel make clear.6 Rather the relationship was thought of in terms of a collaborative partnership and the wife’s willing cooperation in relation to this partnership as it is expressed in parenting and other ways was central to its ethical character.
Marshall is emphatic that the status of equality cannot be reconciled with any form of hierarchical class or caste order, which justifies an unequal status order. He shows that the modern (neoclassical economist), Alfred Marshall being his case in point, may embrace a market-based class type of inequality but rejects a hierarchical class or caste order, one that involves not just quantitative but qualitative inequality. Market-based class differences are acceptable if the quantitative inequality they establish does not undermine qualitative equality where each is accepted as a citizen (T.H. Marshall’s conception) or as
‘a gentleman’ (Alfred Marshall’s conception). Thus T.H. Marshall distinguishes ‘two dif- ferent types of class’ (Marshall 1977, p. 93). The first ‘is based on a hierarchy of status, and the difference between one class and another is expressed in terms of legal rights and of established customs which have the essential binding force of law’ (Marshall 1977, p. 93).
This form of class has a caste-like character: ‘In its extreme form such a system divides a
society into a number of distinct, hereditary human species – patricians, plebeians, serfs, slaves, and so forth’ (Marshall 1977, p. 93). It is this idea of a hierarchical status order that provides the negative case against which Marshall can establish what he means by qualitative equality or equal standing as a citizen.
Marshall (1977, p. 84) terms this status ‘the status of freedom’. It is important to correct a common error in the reception of Marshall’s argument. This status is not the same as civil rights, but precedes civil rights: ‘The story of civil rights in their formative period is one of the gradual addition of new rights to a status that already existed’ Marshall (1977, p. 84), the status of personal freedom. He argues that it is constituted in the English case at a time when monarchical authority was centralized and established one law for the land.
It involved the replacement of the feudal distinction between serfs and lords by the single status of citizenship. Marshall’s historical periodization of this transformation in status centres on the period from the twelfth to the seventeenth century. The first important step dates from the twelfth century, when royal justice was established with effective power to define and defend the civil rights of the individual – such as they then were – on the basis, not of local custom but of the common law of the land (Marshall 1977, pp. 79–80). This was when circuit courts were established (Blandine Kriegel 1995, ch. 5, agrees with this historical account). A further important step occurred with the ‘change from servile to free labour’ by the seventeenth century. Here is the key passage in full:
The story of civil rights in their formative period is one of the gradual addition of new rights to a status that already existed and was held to appertain to all adult members of the community – or perhaps one should say to all male members, since the status of women, or at least of married women, was in some important respects peculiar. This democratic, or universal, character of the status arose naturally from the fact that it was essentially the status of freedom, and in seventeenth-century England all men were free. Servile status, or villeinage by blood, had lingered on as a patent anachronism in the days of Elizabeth, but vanished soon afterwards.
This change from servile to free labour has been described by Professor Tawney as ‘a high landmark in the development both of economic and political society’, and as ‘the final triumph of the common law’ in regions from which it had been excluded for four centuries. Henceforth the English peasant ‘is a member of a society in which there is, nominally at least, one law for all men’. (Marshall 1977, p. 84)
That this status of freedom or citizenship destroys a hierarchical caste-like system of class is quite clear in Marshall’s (1977, p. 93) account: ‘National justice and a law common to all must inevitably weaken and eventually destroy class justice, and personal freedom, as a universal birthright, must drive out serfdom.’
Personal freedom means that any and all forms of relationship between individuals have to be constituted so that their personal freedom is both secured and made an active ingredi- ent in how the relationship functions. It is a global status, which implicates all aspects of life, and which is constituted in law. As such a global status that the law of the land makes possible, it originally involves, Marshall proposes, an undifferentiated weaving together of what later become distinguished as separate categories of rights: civil, political and social – ‘In early times these three strands were wound into a single thread’ (Marshall 1977, p. 79).
What is the status of freedom that Marshall refers to? How does it implicate, as he sug- gests, the authority of the state and the rule of law? Quentin Skinner offers an explanation of this idea of ‘liberty before liberalism’. It denotes a status condition that is not that of slavery, which in Roman law, means that the individual ‘remains at all times in potestate
domini, within the power of their masters’ (Skinner 1998, p. 41). As John Locke explains in the chapter ‘Of slavery’ in his Second Treatise on Government, to be a slave is to be subject to the ‘Absolute, Arbitrary Power of another’, who can ‘take away his Life, when he pleases’ (Locke 1967, p. 284).
The question of status concerns how the various kinds of interdependence between individuals operate. This point is obscured in the historical masculinist discourse that equates personal freedom with ‘independence’ (in relation to the will of another), and slavery with ‘dependence’ (on the will of another). An example of this thinking is the declaration of the French revolutionary Bertrand Barère: ‘Anything that may establish the dependence of man on man should be proscribed in a republic’ (cited in Rosanvallon 2013, p. 29). It is true that the status of freedom means that, considered as a centre of subjective experience, each individual is to be regarded as autonomous, and in this sense independent, in relation to any other individual. However, ‘independence’ comes to mean something very different from the status of freedom when it is informed by the liberal idea of ‘the individual’ as naturally free and, as a private property owner, economically self-sufficient. Liberal discourse naturalizes, privatizes and de-socializes freedom, which is reduced to a contracted form of civil rights (freedoms of property ownership and contract).
Marshall is somewhat equivocal on this point, but like other social liberal thinkers, he cannot leave unquestioned the liberal thinker’s tendency to reduce freedom to freedom of contract because this approach leaves out precisely the fundamental and relational ques- tion: whether the contract as a form of relationship can assure the personal freedom of those party to it. In equating freedom with the freedom to do as we like with what is our own, liberal thinkers embrace a story of how individuals are progressively freed from the claims on them of a kinship-based status order. Thus Henry Sumner Maine’s dictum that
‘the movement of the progressive societies has hitherto been a movement from Status to Contract’ (Maine cited in Marshall 1977, p. 96) is dogma for such thinkers. To make this point permits us to see more clearly the significance of T.H. Marshall’s counter-move. His argument is there is not a movement from status to contract, but a movement from one kind of status order to another. Contract is not something that can stand on its own, the point that Durkheim (1964, p. 211) makes in arguing that there are non-contractual components of contract. Rather, contract implies the status of freedom: ‘modern contract is essentially an agreement between men who are free and equal in status, though not necessarily in power’ (Marshall 1977, p. 96). On the terms of Marshall’s argument, contract is just one component of the status of freedom and, accordingly, contract must be institutionalized in such a way that it supports the status of freedom both as such and in its distinct elements.
The effect of the status of freedom is to undermine and transform the status of the male householder as someone who can will and contract on behalf of his dependents.
They have wills of their own even if for a long historical time they are not permitted to exercise these wills independently in relation to the will of the household head. Even in the early modern era, Locke (1967, Second Treatise, chs 6 and 7) suggests that the issue is whether these relationships are consensual or not. In reconfiguring the status relations within the household so that they are congruent with the freedom of those involved, the early modern political thinkers refuse the legal doctrine of patria potestas in relation to the household head. As Locke summarily puts it after a detailed discussion on this matter, the master of the family ‘has a very distinct and differently limited Power, both as to time
and extent, over those several Persons that are in it’; ‘he has no Legislative Power of Life and Death over any of them, and none too what a Mistress of a Family may have as well as he’ (Locke 1967, p. 323, original emphasis).
Just how we conceive the status of freedom will have a good deal to do with the histori- cal context in which we find ourselves. Marshall’s context was one where social liberalism was agonistically pitted against the powerful ideology of nineteenth-century market liberalism and where a newly emergent reassertion of market liberalism was attacking the idea of public planning that was inherent in the welfare state. Our context is one profoundly influenced by second-wave feminist thinking about the status of personal freedom (see Yeatman 2015), and by the agreement (knowing or otherwise) of feminist thinkers with Hegel on the fundamental point that human beings are always found in relationship with each other. The question concerns how these relationships function, and whether they are ethically responsive to the principle of subjective freedom. In this context it becomes possible to clarify the status of freedom in a way that was denied to Marshall.
I use Blandine Kriegel’s (1995) work as a case in point.
Blandine Kriegel, a student of Foucault, and belonging to a generation for whom the
‘central socio-political experience . . . was the Algerian War and the student uprisings of May 1968’ (Kriegel 1995, p. 6), found herself giving up an undifferentiated conception of power where power and domination are the same. In this conception ‘society’ is valor- ized as that which lies beyond power, while the state is viewed as the epitome of power/
domination. It was her study of early modern French juristic and political thought that led her to appreciate a form of power that is something other than domination; this is the state and the rule of law: ‘in the course of my research on historians and power in the seventeenth and eighteenth centuries’, ‘[m]y prejudices gradually but ineluctably gave way to a conviction that the classical state did not function in the ways that a despotic state did’ (Kriegel 1995, p. 7). In the classical state, power is subject to law, this being the only way that power can be something other than domination: ‘the law is the obligation of the body politic in its entirety to submit itself and subject itself to juridification’ (1995, p. 62).
Kriegel’s emphasis on the state and the rule of law as the fundamental condition for a form of power that is something other than despotism distinguishes her from all thinkers who conflate power and domination, including feminist political theorists such as Carole Pateman and Nancy Fraser who embrace ‘society’ in the form of an emancipatory and democratic movement of feminism against the state.7
Similar to Marshall, Kriegel argues that the idea of sovereign power and its object, the status of freedom, understood as a core subjective right to personal security, can only emerge in opposition to that which denies this right. In the case of the early modern juristic and political thinkers, this was feudal power based on the power of private property. With reference to early modern French juristic thinkers such as Bodin, Kriegel (1995, p. 21) argues that ‘[s]overeign power, in their view was the antithesis of feudal power’. Why? Because sovereign power is based neither in military might nor dominium (the relationship of mastery or ownership); these forms of power are based on force rather than right (Kriegel 1995, p. 22). Specifically feudal dominium ‘is subjugation, appropria- tion by a master of a human being as if he or she was a thing’ (Kriegel 1995, p. 24). It is also a personal and private relationship that subjects the dependents of the master to his will (Kriegel 1995, pp. 24, 25). He has the right of patria potestas over them, which includes the right to kill them.
The jurists reconstituted the status of human beings in terms of subjective rights; they become ‘individuals’ who are to have human liberty, or status libertatis, which ‘has to do with liberty and personal security, the right of each person to his own body, the right to life’ (Kriegel 1995, p. 35). The state is designed to establish status libertatis:
[S]overeign power is peace, security, and prohibition of the taking of human life. It substitutes law for force and order for death. It consists of a powerful constraint on the Roman patriae potestas, on the right to determine who shall live and who shall die. It pacifies society, guarantees individual security, and makes life its chief aim. It is the product of a negotiation of rights rather than an expiation of arms. (Kriegel 1995, p. 24)
The idea of sovereign power, Kriegel argues, emerged on the basis of a rejection of the feudal conflation of power and property. The nature of rulership was reconstituted – instead of the king as the seigneur or lord of a personal domain, it is a public jurisdictional sovereignty that is at issue: ‘Kings and states became sovereign over subjects residing in a given place but no longer belonging to a domain’ (Kriegel 1995, p. 59). Sovereignty was distinguished from the proprietary right of ownership, and the sovereign, being no longer a proprietor of a domain, could be thought of in terms of a lawful and public power that is exercised by means of government understood as a system of public office (Loughlin 2010; Lee 2013).
In feudalism, law served property: ‘The great landowners had become masters who governed, possessors of full jurisdictional rights over the workers on their land’ (Kriegel 1995, p. 58). With the separation of sovereignty and property, law could become the vehicle of liberation (Kriegel 1995, pp. 59–60). At the collective level, law ‘is the obligation of a body politic in its entirety to submit itself and subject itself to juridification’ (Kriegel 1995, p. 62). At the individual level, law constitutes individual rights (Kriegel 1995, p. 63).
Kriegel’s decision to highlight personal security as the core element of the status of freedom is not feminist as such though its salience for a feminist conception of freedom seems obvious. It is a relational conception of freedom. The question turns on the mode of human interdependence, whether it enables or threatens personal security. The sovereign state makes personal security real in a way that it cannot be otherwise.
SOCIAL RIGHTS
Marshall takes up the historical challenge of his time; how to reconcile the universal nature of the status of freedom, interpreted in terms of a ‘qualitative’ or ‘basic’ equality, with the exercise of market freedom, an aspect of civil rights that leads to quantitative inequality. He is clear that market freedom must be defended as an aspect of the status of freedom, but he is fully aware of the powerful force of a liberalism that seeks to pull this component away from the status of freedom and to equate it with freedom as such.
Referring to the liberal reduction of civil rights to the idea of freedom of contract at the time, Marshall says:
[T]he core of citizenship at this stage was composed of civil rights. And civil rights were indis- pensable to a competitive market economy. They gave to each man, as part of his individual status, the power to engage as an independent unit in the economic struggle and made it possible
to deny to him social protection on the ground that he was equipped with the means to protect himself. (Marshall 1977, p. 96)
It was at this time that the New Poor Law (1834) created a situation that if a man cannot establish economic independence, and is forced to be ‘dependent’ on poor relief, he (and his family) forfeits ‘the rights of the citizen’ (Marshall 1977, p. 88). They are legitimately subject to internment in the workhouse.8
Marshall begins the Marshall lectures (named after the liberal economist Alfred Marshall), and published as ‘Citizenship and social class’, by referring to Alfred Marshall’s paper on ‘The future of the working classes’ presented to the Cambridge Reform Club in 1873 (1977, p. 73). In this paper Alfred Marshall accepts that social inequality is a problem, and that the desirable end is one of bringing about a qualitative equality between those who in 1873 were divided between those who counted as gentlemen and those who did not (Marshall 1977, p. 74). As an economic liberal thinker, Alfred Marshall was against inter- vention with the competitive market economy with one important exception. He defended the, at the time, new and ‘socialist’ idea of the state compelling children to go to school
‘because the uneducated cannot appreciate, and therefore freely choose, the good things which distinguish the life of the gentlemen from that of the working classes’ (Marshall 1977, p. 75). As T.H. Marshall comments, education creates ‘the capacity to choose’, and thus the capacity to exercise an unconstrained freedom within the market economy.
T.H. Marshall uses Alfred Marshall as an authoritative foil for reclaiming the norma- tive argument that qualitative equality is of first importance, and that it should not be permitted to be countermanded or eroded by quantitative or economic inequality. Yet while Alfred Marshall’s socialism was intended to ‘preserve the essentials of a free market’
(Marshall 1977, p. 75), T.H. Marshall emphatically declares that if the ‘socialist’ objective of qualitative or ‘basic’ equality is to be primary, then it cannot simply coexist with economic or class inequality. Rather, there has to be a state invasion of the freedom of the competitive market (Marshall 1977, p. 77) so that it continues to exist but within limits that secure basic equality. The state, in the form of the ‘Planned Society and the Welfare State’ (Marshall 1977, p. 102) has to contain the competitive market.
Just where do social rights fit into this story? Marshall agrees with the significance that Karl Polanyi attributed (in The Great Transformation, Polanyi 1957) to the Speenhamland system of poor relief that the 1834 New Poor Law disestablished: ‘The Speenhamland system offered, in effect, a guaranteed minimum wage and family allowances, combined with the right to work or maintenance’ (Marshall 1977, p. 87). He comments further:
‘That, even by modern standards, is a substantial body of social rights, going far beyond what one might regard as the proper province of the Poor Law’ (Marshall 1977, p. 87).9 Basic equality or an equality of citizenship is not on offer if people are unable to support themselves in such a way that they have access to all the services that constitutes ‘civilized living’ (the status of freedom). Not only should wages be sufficient to need, they should be complemented by ensuring that access to basic services is not conditional on private income, but instead conditional on citizen standing.
Marshall offers four different principles for how social rights should be conceived:
1. In matters of access to legal and other services that is constitutive of civil status, market price needs to be combined with ‘the scaled price’ or means-testing for people
whose market or class standing does not give them enough money to buy market- priced services (Marshall 1977, p. 111).
2. In relation to ‘certain essential goods and services (such as medical attention and supplies, shelter and education) or a minimum money income available to be spent on essentials – as in the case of Old Age Pensions, insurance benefits, and family allowances’, there should be ‘a guaranteed minimum’ (Marshall 1977, p. 111).
3. The provision of universal services that offer ‘a new common experience’ (Marshall 1977, pp. 113, 114), where ‘the qualitative element’ of equality (‘class fusion’ as Marshall puts it) ‘enters into the benefit itself’ (Marshall 1977, p. 113) which approximates ‘so nearly to the reasonable maximum that the extras which the rich are still able to buy will be no more than frills and luxuries’ (Marshall 1977, p. 114). ‘The provided service not the purchased service, becomes the norm of social welfare’(Marshall 1977, p. 114).
4. State recognition of collective civil rights, in this case conceived in relation to trade unions and employers’ associations: the state cannot ‘stand aloof from industrial dis- putes, not just in respect of the workers’ wage levels and standard of living’ (Marshall 1977, p. 123), but also in ensuring that trade unions do not engage in ‘unofficial strikes’ – the point being that neither trade unions nor employers should be permitted to use their collective strength to dominate the other.
Social rights, then, involve a significant degree of de-commodification of goods and services that are essential if individuals are to enjoy the status of freedom. This permits, as does a progressive taxation system that is required if social rights are to be publicly funded, ‘the compression, at both ends, of the scale of income distribution’ (Marshall 1977, p. 127). Shared access to universal services and shared citizen standing enables ‘the great extension of the area of common culture and common experience’ (Marshall 1977, p. 127) without which Rosanvallon’s (2013, 2016) idea of a society of equals cannot flourish. These two factors make it possible for class-based ‘status differences’ to ‘receive the stamp of legitimacy in terms of democratic citizenship provided they do not cut too deep, but occur within a population united in a single civilization; and provided they are not an expression of hereditary privilege’ (Marshall 1977, p. 127). Marshall argues throughout his essay that the egalitarian movement supports freedom of contract, and its articulation in terms of economic class differences, and that the fundamental challenge is one of ensuring that this form of the articulation of freedom does not overwhelm the core status of freedom or citizenship. He suggests that ‘a progressive divorce between real and money incomes’
(Marshall 1977, p. 131) makes this possible. At the time he offers his lectures in 1949, he refers to ‘studies of adult and child opinion’ that ‘have found that when the question is posed in general terms, there is a declining interest in the earning of big money’. He com- ments: ‘This is not due, I think, only to the heavy burden of progressive taxation, but to an implicit belief that society should, and will, guarantee all the essentials of a decent and secure life at every level, irrespective of the money earned’ (Marshall 1977, p. 132).
CONCLUSION
Feminist analysts have pointed out that the terms of Marshall’s argument fitted the mid-twentieth century male-breadwinner family where a ‘maternalist’ (Koven and Michel
1990) moral economy of women’s full-time care or part-time work plus care prevailed.
However, there are a number of reasons why we should beware of thinking that this point makes his argument limited in both universal ethical import and contemporary relevance.
First, on the terms of the male-breadwinner/maternalist familial model, the Beveridge/
Attlee welfare state was of extraordinary importance in making personal security possible for all members of this family, for this welfare state included children’s allowances and medical treatment.10 Secondly, while Ann Orloff (2005, p. 197) suggests of this conception of the welfare state, that it involves an understanding of equality in class terms, I have argued that while this is true, it is also a misapprehension of the idea of equality that underlies this understanding. The status of equality is a universal ethical conception of how human beings relate to each other as individuals who are to count as equal citizens of the social. Certainly the idea of the status of equality has to be constantly reinterpreted in relation to both old and new challenges of inequality, including those that bear on how gender difference intersects with power and wealth inequalities. There is no reason to think that the idea of the status of equality is unable to accommodate feminist concerns with ‘informal labor, care, dependency, dominance, and bodies’ (Orloff 2005, p. 201), just as I would argue that such concerns should be framed so that they take up and work with the idea of the status of equality. Thirdly, Marshall’s argument seems peculiarly relevant today when the neoliberal reduction of freedom to market freedom has done so much to disestablish the institutional order of ‘the ethical state’ as the public authority and its elaboration in the form of the welfare state. Neoliberalism has not only accommodated feminism in the form of an equal opportunity discourse of market freedom, it has cre- ated a situation where some feminists have formed alliances with neoliberal and social conservative elites (Orloff and Shiff 2016, p. 117). A corporate form of feminism is more concerned with women getting onto corporate boards than it is with the impact of welfare cuts on poor women. Market-based class inequality now divides women in a way that it did not when women’s class position was derived from that of their fathers or husbands.
If our concern is with the idea of the welfare state, it surely has never made sense to embrace feminism as a total politics for the idea of the status of equality does not belong to women alone. ‘Gender’ understood capaciously is one, and only one, lens in relation to the idea of the welfare state, and it is important that how we deploy this lens is ethically accountable to that idea.
NOTES
1. Pateman’s (1989, p. 184) view of the patriarchal welfare state as predicated on the idea of full employment, and centring on the status of the male worker, is not adequate to this post-war welfare state where employ- ment was not the only basis of access to ‘welfare’, and where the needs of children, wives, and people with disabilities became core referents for how the scope of welfare was conceived. The status of married women was the object of several acts passed by the Attlee government designed to remove restrictions on their enjoyment of property, to improve financial benefits for them (the Married Women (Maintenance) Act of 1949), and to abolish the marriage bar in the Civil Service.
2. Marshall worked for the United Nations Educational, Scientific, and Cultural Organization (UNESCO) as the head of the Social Science Department from 1956 to 1960.
3. ‘Is it still true that basic equality can be created and preserved without invading the freedom of the com- petitive market? Obviously it is not true. Our modern system is frankly a Socialist system, not one whose authors are, as [Alfred] Marshall was, eager to distinguish it from socialism. But it is equally obvious that the market still functions – within limits’ (Marshall 1977, p. 77).
4. Referring to the mix of market and citizenship principles in national wages policy, Marshall (1977, p. 126) comments that this is ‘yet another paradox. The incentive that operates in the free contract system of the open market is the incentive of personal gain. The incentive that corresponds to social rights is that of public duty. To which is the appeal being made? The answer, is to both’.
5. It seems an egregious mistake to associate Marshall’s conception of citizenship with ‘passive entitlements and the absence of any obligation to participate in public life’, as Kymlicka and Norman (1994, pp. 354–5) 6. Here I am in disagreement with Carole Pateman’s argument in The Sexual Contract (1988) that the social do.
contract implies the subjugation of women to men (the sexual contract) in the private association of the family. See Yeatman (1990).
7. Pateman (1989, p. 204) advocates moving ‘from a welfare state to a welfare society’. Fraser’s conception of recognition, redistribution and representation as distinct components of emancipatory claims on justice might seem at first sight to be an exemplary contemporary feminist articulation of ‘the status of freedom’.
However, even as she specifies her ‘status model’ of participation as involving ‘the equal standing of partners in interaction’ (Fraser 2013, p. 11), status here has nothing to do with status in Marshall’s sense;
an institutional artifice where the institution at issue is ‘the state and the rule of law’. Thus, when Fraser (2013, p. 5) speaks of ‘the successes of the new social movements in breaking through the confines of welfare-state politics, and, invoking a contemporary global society’, she replaces the territorial state with social effectivity (Fraser 2013, ch. 8). Her argument is an example of what Kriegel (1995) and Dean and Villadsen (2016) call anti-statism.
8. Running alongside this restrictive idea of civil rights, which cannot support the universal idea of freedom, is a more expansive conception of civil rights that is more in accord with the idea of the status of the free being. This conception includes Habeas Corpus, the Toleration Act (religious toleration), freedom of collective organization (trade unions), freedom of the press, the right to work and the right to choose an occupation (these last two rights constituting what Marshall 1977, p. 82, calls ‘individual economic free- dom’). The extension of civil rights to women at the end of the nineteenth century precedes the extension of the franchise to them. Contrary to Marshall’s claim that civil rights understood in the restrictive sense as property rights qualified the franchise, which they did until the process of suffrage reform progressively abolished the property qualification, political rights were extended at the same time that civil rights were.
They go together as in fact he had claimed in his idea that civil and political standing were originally one. Thus when Marshall (1977, p. 86) claims that the 1918 Act that adopted manhood suffrage laid the groundwork for the idea of ‘citizenship as such’, that is for a universal conception of citizenship, this achievement was not specific to political rights but had as its backdrop the progressive extension of civil rights.
9. Jose Harris (2010, pp. 13–14) questions this ‘pre-history of welfare rights’, arguing (Harris 2010, p. 13) that
‘both English and Scottish Poor Laws had rested upon a fundamental civic entitlement to parish relief, rooted not just in Tudor Acts of Parliament but in common law as far back as the fourteenth century’.
10. William Beveridge’s defence of the idea of full employment in a free society offers this rich and interesting passage where it is surely not difficult to substitute a more universal understanding of ‘the individual’ for his masculinist one: ‘The Plan for Social Security is designed to secure, by a comprehensive scheme of social insurance, that every individual, on condition of working while he can and contributing from his earnings, shall have an income sufficient for the healthy subsistence of himself and his family, an income to keep him above Want when for any reason he cannot work and earn. In addition to subsistence income during interruption of earnings, the Report proposes children’s allowances to ensure that, however large the family, no child need ever be in Want, and medical treatment of all kinds for all persons when sick, without a charge on treatment, to ensure that no person need be sick because he has not the means to pay the doctor or the hospital’ (Beveridge 1944, p. 17).
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