New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 16 April 2015
MODERNITY, COMMODIFICATION AND
Paul Havemann *
In 1996 I gave a paper entitled Post-Fordism, the Risk Society and the Contract State: Implications for Rights Talk to a Waikato School of Law staff seminar. This essay is based on that presentation. I wanted to survey for colleagues some contextual frameworks and conceptual grids for understanding the condition of modernity. These frameworks and grids are interesting and useful for teaching law in context and for the contextual analysis of law, both core goals of the School of Law. To my mind, taking context seriously requires that we try to avoid "anything goes" eclecticism and "legocentrism"; the latter is a tendency to examine social phenomena through a narrow legal lens.
The essay follows a long jurisprudential and sociological tradition of zeitdiagnostische sociologie in which intellectuals attempt to classify particular periods by identifying and describing the key attributes of the age. This tradition has included, for example, diagnosing the relationship between the social, political and economic structure and the legal form. Legal ideology is treated as a form of social consciousness expressed through legal doctrine.
Henry Maine's statement that "the movement of progressive societies has hitherto been a movement from Status to Contract" t concludes a classic illustration of this approach to this type of socio-legal analysis. I am conscious, though, that Maines's conclusion suggests a crude periodising "before and after" contrast, a type of theorising which fails to analyse the complex weave of periods.2 It is tempting, therefore, to speak of modernisation as a process, rather than of modernity as a period.
Claus Offe draws the helpful distinction between modernisation and modernity. He defines the farmer as a sociological-historical term connoting "westernisation" and a euphoric view of progress. The latter is a theme of social scientific theorising involving a sceptical self-scrutiny of the structures
Paul Havemann LLB (Hons), LLM (Lon), Professor of Law. I would like to acknowledge Joan Havemann's generous assistance on many fronts; the very helpful comments by the 2 anonymous reviewers; the meticulous help of the editor Nan Seuffert; and the willing assistance of the Law School general staff, notably Sue MacLeod and Raewyn McGregor. Henry Maine, Ancient Law (1861) 174.
and normative premises, and crisis-ravaged features, of already "modern" societies.3
This essay is a sceptical inquiry into contemporary dystopian and utopian trajectories of modernity. When the word "modernisation" is used here it does not imply progress in the terms of "western" triumphalism.
The essay is structured around two themes: the pernicious consequences of the commodification of social relations for notions of citizenship and human welfare, notably contractualism and the rise of the contract(ing out) state; and utopian realist readings of features of advanced modernity such as a growing "ethic of humanity" through, for example, social citizenship and second and third generation human rights.
In the contemporary New Zealand state, contractualism rules. By contractualism I mean the use and appropriation of the contract form to structure social exchange relationships in a commodified or re-commodified form. Public and private are intentionally conflated, and the distinction between them blurred. The apparently consensus ad idem based classical or pure "contract" between equal market players is mimicked to legitimate a variety of pseudo-contractual transactions between decidedly unequal parties. Some of these transactions replace relationships between citizens and state in the social contract equation with relationships between surrogates which are neither citizen nor state. Others are "contractual" transactions, but with gross power imbalances designed into them, contradicting their legitimating freedom talk. The protective framework of the Keynesian Welfare State ("KWS"), such as a citizen status conferring benefits as of right, is weakened or virtually removed. The key element of the KWS, class compromise, is now moot or negated. The social is re-imagined as a form of the economic, and the individual human life increasingly lived as an "enterprise of the self' within a culture of contractualism.4
The hegemony of contractualism and its underpinning "rationality" is highlighted by a raft of recent legislation in New Zealand. The Employment Contracts Act 1991 removed status words like "union" from the labour law vocabulary. This Act's aim was to promote the individual contract rather than status as an employee employed under a collectively bargained award as the paradigm employment relationship. The State Owned Enterprises Act 1986 promotes corporatisation and privatisation of citizen-owned public utilities.
Entrepreneurial governance becomes the dominant form, in the jargon of the New Public Management ("NPM") "letting managers manage", separating "steering" (policy-making and funding) from "rowing" (service provision) through the State Sector Act 1988 using the medium of a synthetic contractualist form. This legislation introduces contractualist assumptions based on agency theory into the public sector; ministers of the Crown become the "owners" of departments and the public service becomes the agent from whom specified outputs are purchased. The management of public services is shifted into a "transaction costs" mode of economics based on accountability for contracted outputs rather than controlled inputs and medium-term outcomes. Notions of stewardship and responsibility for longer-range social goals are gradually disappearing from the "culture" of public administration and public service, to be replaced by a short-term compliance mentality merely concerned with a checklist of specific outputs.5
The New Zealand experience is the stimulus for this essay but I am not here, offering a detailed critique of the New Zealand case in specific terms. I draw on literature from OECD countries to highlight general trends and issues concerning the rise of the contract state as a global phenomenon. My project is partially an exercise in what Giddens conceptualises as "utopian realism";6 at its core are general questions about the place of rights, social citizenship as a fundamental status, the threat posed to social citizenship by the currently
hegemonic ideology of commodification, the reduction of all human transactions to monetary equivalents for sale, and the technology of contractualism.
Part II of this essay highlights some dimensions of modernity, including social reflexivity, detraditionalisation, globalisation, and the "risk" society. Part III examines the logic of the commodity form after feudalism, questions the assumption of progress in the movement from status to contract, from gemeinschaft society to gesellschaft society, and identifies the power imbalances structured into "contractualised" social relations. Part N explores the scope and limitations of the mid-twentieth century experiment to decommodify social relations through the KWS and a notion of social citizenship. Part V interrogates the conceptual underpinnings of post-Fordist contractualism, the contractualisation of citizen/state relations through the medium of the NPM and its ethos of entrepreneurial governance. Part VI sketches out signs of a revived notion of social citizenship to sustain the ethic of humanity and universalise membership in the social order beyond nationalism, as defined in traditional terms either as constitutional patriotism or as ethnic exclusionism.
The project is tentative and partial but aspires to identify not only the threats to, but also the prospects of, an alternative social order recognising social citizenship.? Such an order is based, globally and locally, on a post-scarcity economy, dialogic democracy, negotiated power, and the sustainable reconciliation between nature and the needs of humanity.
II. ADVANCED MODERNITY
The contours of advanced modernity provide a contextual framework for exploring the trajectory of social, political, economic and legal change. Important features of the topography within the conceptual grid I am using include: simple and reflexive modernisation; detraditionalisation; globalisation; and the phenomenon of ecocidal manufactured risk— captured in the "risk society" concept.
7 Nancy Fraser and Linda Gordon, "Reclaiming Social Citizenship: Beyond the Ideology
of Contract versus Charity" in Paul James (ed) Critical Politics (1994). On autonomy versus nautonomy in the context of power, participation, democracy and cosmopolitan governance, see David Held, Democracy and Global Order: From Modern State to Cosmopolitan Governance (1995).
A. Simple and Reflexive Modernisation
Avoiding crude before-and-after theorising, sociologists Giddens, Lash, and Beck, jointly and separately, analyse the character of modernisation in terms of movement from "simple modernisation to reflexive modernisation", meaning in part a movement from post-feudal to post-traditional society.8 The period in which we are living is presently characterised by the contract state and the post-Fordist, liberal productivist political economy.9 There remains a considerable interpenetration and interplay among dimensions of simple and reflexive modernisation in both local and global terms.
Briefly, simple modernisation includes these attributes: I°
geographical segregation of peoples and cultures despite colonisation;
an epistemology based upon Enlightenment truth derived from rationality and positivist methodology;
simple reflexivity in which conceptions of self and identity remain given by fate though founded on minimally re-negotiated traditional conceptions of status, social position and gender.
10 Supra n 6 at 78-103.
Reflexive modernisation is characterised by, for example:
continuing polarisation around competing ethno-nationalism;
the rise of the ethic of humanity and the human rights nexus;
de-traditionalisation and re-traditionalisation;
epistemologies privileging and negating multiple truths; majoritarian "democracy" of elective dictatorships;
Giddens summarises this in terms of four sets of global "bads" which threaten "modern civilisation" (Diagram 1, expanding on Giddens13).
11 Chris Wilkes, "The State as an Historical Subject: Periodisation of State Formation in New Zealand" in Brian Roper and Chris Rudd (eds) State and Economy in New Zealand (1993) 192-209 (classifies the periods as follows: minimalist state 1840-1890, pre-Fordist state 1890-1935, Fordist Keynesian welfare state 1935-1984, and Post-Fordist state 1984 onwards). For another valuable New Zealand periodisation scheme see Pat Shannon, Social Policy (1991) 64-85.
13 Supra n 6 at 100.
Institutional Global and local
Institutional Global and local
“Badsy, Dimension "Bads”
Capitalism Post-Fordist new world Industrial mode The Risk society
order of production Ecocide
Polarisation of poverty Global epidemics
Surveillance: Denial of Democratic Means of Large- and small-scale
control of information Rights Violence: war
and communication Demise of citizenship Nuclear proliferation
(I & C) systems User Pays access to Ethnic cleansing
I & C systems Male violence
Two aspects of the social reflexivity which is at the core of reflexive modernisation, namely detraditionalisation and globalisation, merit special attention by "utopian realists". These aspects of social reflexivity offer prospects of "goods" to counter the avalanche of "bads"—even, possibly, the almost overwhelming spectre of ecocidal risk being manufactured by humankind in the name of progress which Beck describes as the "risk society".
B. De-traditionalisation and re-traditionalisation
Social reflexivity 14 provides the individual and the collectivity with a capacity for detraditionalisation,15 or liberation from some traditions and the ability to construct new ones. Tradition consists of sets of seemingly unchallengeable "givens" which have constructed, for example, class, ethnic, national, denominational and gender identities, as natural. Detraditionalisation, as used here, does not mean the radical demise of tradition conceived in terms of movement between oppositions (such as closed v open, fate v choice, security
v risk) but the co-existence of the old with the new and indeed the construction of tradition.I6
14 Ibid, 82-85.
15 Supra n 2.
16 Ibid, 2-3.
In individual terms, the consequence of theories of detraditionalisation is a focus on the possibility that the self and identity may be constructed through conscious and deliberate narratives for understanding and reconstituting one's ascribed and achieved identity. Everyday life is lived as an experiment in shaping identity, both body and soul. Either liberation or bondage can result, as the phenomenon of anorexia sadly illustrates. Detradtionalisation is likely to destabilise the equilibrium, such as it may be, of our dominant institutions including those of cultures such as indigenous First Peoples where traditions, invented and otherwise, continue to have great salience.
A key attribute of advanced modernity consists of social movements to challenge those traditions embedded in, and constituting, the authoritarian structures and ideological apparatuses of political, economic and interpersonal/ familial governance which are inimical to human wellbeing. These challenges have come from the global and local "new social movements" for social equality, for minority and indigenous rights and racial tolerance, for peace and international understanding, for ecumenicalism, for women's rights, and for a post-material understanding of the relationship between humankind and nature.
These "new social movements" are examples of social reflexivity in action. Humble and beleaguered as they are, they generate the human rights discourses which constitute a vision of global and local social citizenship. The movements, and the individuals whose self-constituting narratives are influenced by and influence them, are at the heart of the process of detraditionalisation, creating a so-called "post"-traditional civil society." In post-traditional society traditions are declared, justified and re-invented in the face of a multiplicity of alternative practices, mores and identities.
Detraditionalisation and retraditionalisation lie at the core of what Gramsci would call counter-hegemonic struggles against hegemonic "commonsense" (traditional) ideological narratives,18 discourses which shape the way people understand reality and their place in the social order, constituting that social order.
Some theorists highlight a paradox posed by this focus on a greater social reflexivity in the process of identity construction: just as it should be possible to bring about meaningful social change to combat global and local "bads", a process of individualisation inhibits collective initiatives for change.I9
19 Scott Lash and Jonathan Friedman, "Introduction: Subjectivity and Modernity's Other" in Scott Lash and Jonathan Friedman (eds) Modernity and Identity (1992) 8.
Heelas prefers to focus "on things not being worse" 20 and argues that the essence of the counter-hegemonic struggles of the post-WWII epoch is the "ethic of humanity" represented by the proliferation of human rights.21
From a utopian realist perspective, the ethic of humanity is now the dominant humanistic liberal tradition of advanced modernity and can provide some of the ideological material from which to build "glocal" (both global and local) social citizenship based on universal rather than national personhood.22
It is important to distinguish between the meanings of globalisation. Is it an empirical assessment about, say, the economy? Or are we talking about trajectories of ideological change in, say, cultural values, or normative justifications for institutional design?
Paul Hirst and Graham Thompson argue cogently that the extreme thesis that we now have a globalised economy controlled by transnational companies ("TNC"s) is a myth.23 They suggest, instead, that there is still predominantly a highly inter-nationalised economy. News of the demise of the nation state is exaggerated—indeed, the nation 'state and supra-national entities have become all the more important agents of international governance. Globalisation of the economy controlled by feral TNCs beyond the law and accountable to no organised polity, is but one scenario. It is one which is invited by the re-commodification of social relations and the contraction of citizenship.
I am principally concerned with globalisation in terms of the global and local trajectories of ideological change in advanced modernity. In particular I am concerned with dimensions of change which may be identified as countervailing forces against an amoral, global lawlessness. My focus is the aspect of globalisation reflecting processes through which the multiplicity of dystopian and utopian alternatives gets disseminated and popularised.
Ronald Robertson delineates phases of "political economy" globalisation culminating in the present uncertainty phase, which he identifies with the
20 Paul Heelas, "On Things Not Being Worse, and the Ethic of Humanity" in Heelas et al (eds) supra n 2 at 207-210.
21 Scott Davidson, Human Rights (1993) 163.
rise of human rights discourse. These phases are paraphrased as follows:
consciousness, inclusion of the Third World, accentuation of post-materialist values, polyethnicity and multiculturalism, etc. Conceptions of individuals are rendered more complex by gender, ethnic and racial considerations. Civil rights movements develop. International relations become more fluid and bipolarity ends. Concern with humankind as a species-community is greatly enhanced. Interest in world civil society and world citizenship grows. Consolidation of global media system.24
Robertson argues that globalisation is not only about the modernisation of yet more voracious forms of capitalist development, the racialised international division of labour, and gross regional inequalities.25 His focus on "goods" as opposed to "bads" provides a useful counterbalance to the pessimistic, and possibly disempowering, analysis contained in this paper. The close juxtaposition of "goods" and "bads", though, must be kept continually in sight.
Mass air transport and the information and communication ("I & C") "superhighways" produce a global culture. The question is whether these super highways promote understanding and active trust, or merely constitute
24 Roland Robertson, "Mapping the Global Condition: Globalisation as the Central Concept"
in Mike Featherstone (ed) Global Culture: Nationalism, Globalisation and Modernity (1990) 26-27.
25 Anthony M Richmond, Global Apartheid: Refugees, Racism and the New World Order (1994).
a community of strangers consuming and coveting the same material symbols in the night-free business day, highlighting bizarre juxtapositions of wealth and poverty, traditional and post-traditional values, and so on?
Far from offering access to alternatives which empower individuals and communities and protect cultural identity, modern globalisation—like its precursor phases—may fragment and deskill local cultures. The mass tourist industry supposedly redistributes wealth while at the same time domesticating "difference", which becomes commodified into synthetic and marketable exotica. A "McDonaldized"26 global society is emerging in which the choice of "good cheap food" diminishes for growing numbers of people. Race, ethnicity, region and gender continue to be markers of superiority and inferiority in numerous, high stakes, violent contests over scarce resources.
The new information technology has revolutionised access to local and global communication systems for countless people and serves many beneficial purposes. Yet new elites have emerged to control the information and communication expert systems. A "new" poor, incorporating the "old" poor and a few more besides, emerges whose impoverishment now acquires an added dimension through their lack of access to the I&C systems in the information age.27
Whether social reflexivity is enhanced or stultified by the I&C "superhighway" will depend on how many free passes are allowed through its toll-gates. Some hope that the new I&C systems will enhance and universalise the capacity for social reflexivity. A real fear, however, is that as social public institutions are replaced by I&C systems organised on contractualist lines, people who are unable to access these largely commercial, user-pays, systems28 will be disenfranchised from incorporation as glocal citizens of the cyber-polity. They will thus become powerless non-persons in an age when information-based social reflexivity is the essence of identity and information is the key to participation in public affairs.29
In after-Fordism, the state's relationship with local and transnational capital has been significantly changed. Fordism was the era of mass production
26 George Ritzer, The McDonaldization of Society (1993).
27 Gosta Esping-Andersen, "Post Industrial Class Structures: An analytical framework" in Gosta Esping-Andersen (ed) Changing Classes; Stratification and Mobility in Post Industrial Societies (1993) 9-23.
28 In New Zealand the Labour Government 1984-1990 sold off the Government Print; a private sector retailer now sells access to the laws of New Zealand, and a licence to sell access is held by the Knowledge Basket, a user-pays electronic data base. The scene is set for creating prohibitively costly toll gates on the super highway unless rights of access to this type of information are quarantined into a decommodified 'public' domain.
29 Beck, supra n 8 at 110-113.
economies and KWSs. Capital is now re-organising itself into new forms of monopoly, oligopoly and transnational entities. The "community" of nations struggles to respond, rather than defining how to respond, institutionally and normatively, to modern aspects of globalisation such as ecological devastation, labour force mobility and continuing, geo-politically disruptive, regional inequalities of wealth.
One of the most dystopian dimensions of contemporary modernity is the risk society, which is the age of local and global ecocide and genocide that poses manufactured threats to all life on the planet. It is no coincidence that the most evident manifestation of social reflexivity has been the counter-hegemonic, post-materialist, new green social movements, alongside and in tandem with the women's, peace, and social justice movements.
Rights talk reflecting the discourse of these movements has emerged at great pace since the 1960s. This talk articulates a multi-layered set of transformative human rights obligations within both national and international political-juridical structures which now inform and re-inforce each other.30 Underpinning this rights discourse is the universal application of the ethic of humanity to all by virtue of their personhood. This is intended to constitute a global social citizenship by challenging the gendered, ethnic and regional antagonisms arising out of structured inequality, as well as to promote stewardship of the ecosystem.
First generation civil and political rights, and second and third generation social and economic rights are now increasingly entrenched in municipal and international rights talk. For example, the International Covenant on Social, Economic and Cultural Rights (1976), the Maastricht Treaty on European Union, Protocol on Social Policy (1994), the European Union Charter of Fundamental Rights for Workers (1994) and some of the economic and social rights provisions of the new South African Constitution (1996) contain concrete provision for social and economic rights in increasingly justiciable forms. This concrete expression of the ethic of humanity is probably the most significant juridical-political statement made in the uncertainty phase of globalisation, and it provides a basis for global social citizenship anchored in nation states but carrying post-national membership in a supra-national polity.
Universality is inherent to such citizenship which must replace citizenship based on ethnic and national identity and their concomitant denotations of exclusivity.31
D. The Risk Society
Reflexive modernisation signals the end of nature and the end of tradition as they were previously understood:
Tradition, like nature, used to be an "external" context of social life, something that was given and largely unchallengeable. The end of nature—as the natural—coincides with the end of tradition—as the traditional. Social reflexivity is both condition and outcome of a post-traditional society.32
The age in which we live is one of "manufactured uncertainty"33 about unprecedented high-consequence risk. Beck's view is that post-traditional society is a world risk society: "risk societies are ... those societies that are confronted by the challenges of the self-created possibility, hidden at first, then increasingly apparent, of self-destruction of all life on earth."34
As territorial inequalities are magnified, international and local politics will increasingly become the politics of the management of scarcity and the management of high-consequence risks. Such risks frequently take the form of invisible but irreversible processes of ecological degradation and related pandemics.35 The new socially reflexive social movements such as the antinuclear movement must, therefore, continue to challenge the organic intellectuals (lawyers and scientists) of traditional state and corporate bureaux who have monopolised the social definition and construction of risk and the modes of harm attribution.
The costs of harm have been distributed via simplistic and monolithic causal paradigms in law, such as torts and criminal law. The hyper-specialised natural sciences reflected are employed to rationalise environmental policies based on the denial of, for example, the acid rain problem by the USA and UK, or the carcinogenic character of industrial chemicals almost everywhere. The "science" of positivist economics reduces harm to a transaction cost and the ecology to an externality. The limited and compartmentalised explanatory paradigms in science, law and economics divert us from an holistic understanding of the character of risk and harm for humankind.
Yet there are signs, such as the anti-nuclear and women's health movements, that detraditionalisation is gradually having the effect of decoupling the power
32 Supra n 6 at 85.
33 Ibid, 78.
34 Beck (1995), supra n 12 at 67.
and-knowledge-about-"science" equation from the traditional experts and re-coupling the equation to a more democratised expertism. Hitherto specialised "professional" expert knowledge becomes politicised. The development of the precautionary principle36 in international environmental law and the recognition of inter-generational" obligations and rights in municipal and environmental law perhaps signal an altered consciousness of risks, their aetiology and their consequences in the law.
In the risk society, avoiding risk involves fundamentally reorganising the political power and authority which presently legitimates the prevailing order, profit, and property interests. Today risk avoidance is not simply devising better "technical fixes", though much official discourse still sounds more like risk "evasion".38 Examples of this trend include attempts to commodify the uncommodifiable (irreversible ecological degradation, species extinction) through mechanisms such as carbon taxes, the commercial definition of "adverse effects" and other "economic instruments".39 Little robust institutional and normative legal regulation is yet in place at the municipal or international level to protect the environment and avert catastrophe. As Beck says: "the lack of provision for catastrophe exposes the bewitchment with reason...the false belief that the twentieth century is only a continuation of the nineteenth."4°
This mindset becomes all the more evident when we examine the resuscitation of nineteenth-century technologies for the re-commodification of social relations at the tail-end of the twentieth century. It is to commodification as a dimension of modernisation that I now turn.
38 See Alexander Gillespie, "The Contradiction between Comparative Advantage in International Trade and Environmental Protection" (1995) 3 Waikato LR 127.
4° Beck (1995), supra n 12 at 67-68.
Post-feudal industrial, or simple modernisation was effected by mass production and commodification in the form of coercive contractualism in the labour market. Deep class antagonisms resulted. By the 1930s an historic compromise of these class antagonisms was being forged to legitimate and sustain capitalism so as to "modernise" the modernisation process itself. The historic compromise (Fordism) consisted of the partial de-commodification41 of social relations through the KWS in the form of the proliferation of status relationships 42 This partial de-commodification was achieved under the umbrella of welfare state social citizenship and the moderating influence of consensual contractualism in the labour market.
In the twilight of the twentieth-century, which still eludes complete analysis, we are offered a range of labels for the present, such as advanced or high modernity, disorganised capitalism, "after-Fordist" or "post-Fordist".
The analysts of the new phase of modernisation on whose work I am drawing43 seem to agree that the current re-commodification of social relations is happening with the hegemony of the market, rather than the state, as an organising structure and dynamic. The current trend resembles the way law, state and social relations were engaged in the nineteenth century before the mediating influence of unions and humanitarians began to soften the hard-edged, draconian contractualism of the first industrial revolution. Social citizenship and other recently de-commodified status relations are again being commodified, while the state is being hollowed out by the use of innovative and traditional forms of the legal technology of contractualism.
A. The Logic of Commodity Form and Legal Form
Marx's critique of modernisation as he analysed it in Capital volume I centred on its "fetishism of commodities". Capitalism, he argued, fetishised the commodity form, "naturalising" the inherently unnatural, unequal, social exchange relations of the market. The process of commodification involved the construction of a coercive, though apparently consensual, social order in which every human transaction was seen as commodifiable, reducible to a
41 Claus Offe, Contradictions of the Welfare State (1984).
42 Roger Cotterrell, The Sociology of Law: An Introduction (1984) 170.
monetary equivalent and able to be traded in the market. These transactions were legitimated by the fictive freedom to make voluntary contracts. Egalitarian, property-owning post-feudal social relations would thereby be established.
Contract and legal personality (bestowed on individuals and corporate entities) were the legal forms which underpinned the structuring of society in terms of the market. For capitalism to operate, "persons" must relate to each other almost exclusively as commodity owners who are equal before the law," and who exchange property rights through contract (or through treaties between indigenous First Nation peoples and colonists)."
The universal legal subject, the recognisable legal person, is the entity, human or corporate, with the capacity to enter "freely" into contractual relations.
Contractualism lies at the centre of the societal paradigm of post-feudal modern society. Liberalism, the "Siamese twin" of capitalism, constructs citizen-state relations in terms of the "social contract" determining life, liberty and property. The social contract is both repressive in its contractualist form and emanicipatory in its elevation of citizen and state into the relationship of "bargaining partners".
B. Commodification: from status to contract?
Maine's identification of movement in progressive societies from status to contract illustrates the thinking of the organic intellectuals of modernisation. The centre of this universe was the new possessive (male) individualist, the rational actor. He became the ideal-types the template for the governing self-identity. The market became the organising framework for society's external forms of organisation" to accommodate his activities. In liberal ideology, public and private spheres became dichotomised. This binary allowed social exchange relations, such as those in the family or altruistic caring for strangers,47 which were resistant to commodification, to be relegated to the peripheral realm of supposedly non-market transactions based on love
47 Richard Titmuss, The Gift Relationship (1970).
and charity. The heavily gendered character of the public/private dichotomy is eloquently emblematic of the patriarchal capitalist societal paradigm.48
The idealised goals of individuals in post-feudal society were to own private property and to accumulate wealth in the free market. Capitalism and liberalism epitomised by legal possessive individualism and rhetorical egalitarianism49 were protected by the necessary but limited social contract-based state. Legal ideology expressed this form of social consciousness through the contractual form and the associated untrammelled "freedom" of contract which synthesised liberalism and capitalism. Interestingly, Weber even saw the exercise of public duties under feudalism as essentially contractual.50
The liberal ideal of contractual, consensual, choice-based transactions is a most laudable aspiration. A self-enforcing exchange system in which both parties benefit and neither is exploited seems perfect. The feudal command chain, on the other hand, connotes coercion, hierarchy, and probably benefit for only one party. As even the most humble consumer knows from the standard form contracts governing access to the necessities of life, such as utilities, insurance, mortgages, wages, and workplace health and safety,5I the promise of freedom and equality of bargaining power and the mutuality of being consensus ad idem are more vhetorical than real. Yet herein lies the contract-versus-command distinction which continues to make the post-feudal, commodified, modern social order so ideologically saleable.
For all but powerful people the contractualist freedom-talk and the rights talk which purports to execute it are empty. Economic liberals such as Hayek and his followers52 have argued for the market as the best guarantor of freedom from serfdom. Yet the market is not a useful tool for distinguishing coercion from consent, or command53 from choice, as economic liberals would have us believe.
51 See Jane Kelsey, The New Zealand Experiment (1995) 180-206 (on the Employment Contracts Act 1991).
53 Anthony de Jasay, Social Contract Free Ride (1989) 16-22.
Norman Lewis has recently responded to Thatcherite economic liberalism from a social democratic perspective. He argues cogently that choice is only really possible from a position of relative economic and psychological wellbeing in a participatory, pluralist communitarian civic order in which second generation social and economic human rights, citizenship, and community are recognised as core values by the constitutional order.54 Human rights in a positive, communitarian framework are a far cry from negative rights designed to protect the atomised, possessive individual from interference from the state or another while pursuing "his" chosen public and private activities. The new contract state is predicated on classical contract assumptions, yet little constitutional or institutional apparatus actually exists to enforce contracts for public services.55 The lack of such apparatus compounds the problems of adapting this private law technology to the public sphere, a subject to which I return in detail below.
For weaker parties, the contracts which make a real difference to material wellbeing and survival are usually "unfree". Only if we are wilfully blind to power differentials can we see a distinction between contract and command in these transactions. Choices are mostly between bad and worse deals.
Even obedience to general laws, which supposedly reflects an honouring of the "social contract", is obedience to rules for reasons of prudential self-interest. Obedience is obtained not necessarily because of voluntary "ownership" of the norms. Often the norms are ones that few have participated in crafting. Women, the working class and indigenous peoples and minorities, for example, have had precious little voice in constructing the dominant liberal legal order.
C. Commodification: From Gemeinschaft to Gesellschaft Society?
Nineteenth century analysts of the societal form, rather than students of the legal form, detected the end of simple reflexivity and the start of detraditionalisation. They also coupled modernisation with the rise of contractualism. Tonnies, a zeitdiagnostische sociologist, charted the passage from Gemeinschaft (organic community) to Gesellschaft (contractual association) societies.56 For Tonnies, Gemeinschaft feudal society was characterised by tradition and by hierarchies of status and identity embedded in the permanence of kin-based communities. Gesellschaft modern industrial
54 Norman Lewis, Choice and the Legal Order (1996).
55 Ian Harden, The Contracting State (1992).
56 Ferdinand Tonnies, Gemeinschaft and Gesellschaft (C Loomis translation, Community and Society (1957)).
society is characterised by impersonal, bureaucratic, and transient relationships based on the voluntary contractual association of equals. Fraternal bonds and kinship are displaced by contractual relations between a community of strangers in the marketplace.57
Even prior to the Fordist period of the mid-twentieth century a lament for something lost in the progress to Gesellschaft, or at least a warning of what progress would bring, manifests itself in the writing of T6nnies and Weber. Weber recognised that radical changes to the distribution of power between classes, defined by their relation to the means of production, had come about. He wrote in 1909:
In an increasingly expanding market, those who have market interests constitute the most important group. Their influence predominates in determining which legal transactions the law should regulate by means of power-granting norms."
The KWS reflected recognition of the limits of individualism, and yearning for some non-commercial Gemeinschaft. By the first third of the twentieth century Gesellschaft was not regarded as an effective basis for the legitimation of all fundamental legal and political attitudes in liberal democracies. The architects of the KWS of the Fordist era were aiming for the partial de-commodification of social relations and the revival of the notion of "community", albeit in a synthetic form, to recapture the best dimensions of Gemeinschaft 59 society.
A. Citizenship: From contract to status?
The Fordist welfare state or KWS which began evolving in the 1930s represents an historic class compromise which was a trophy of working class struggle6° as well as being profoundly functional61 for capital and its growth. The KWS also reflected many aspects of the process of reflexive modernisation and progress towards a post- traditional society.
57 Ibid, 668.
58 Ibid, 669.
59 Stanley Cohen, Visions of Social Control (1984); Paul Havemann and Joan Havemann, "Retrieving the 'Decent Society': Law and Order Politics in New Zealand 1984-1993" in Kayleen Hazelhurst (ed) Perceptions of Justice (1994) 234-236.
6° Lipietz, supra n 9.
In 1950 Tom Marshall, a British social theorist, argued that the core idea of the welfare state was the expansion of citizenship beyond civil rights (individual freedoms such as freedom of speech, religious freedom, and the freedom to enter into contracts) achieved in the eighteenth century and earlier, and beyond political rights (such as the near universal franchise achieved by the start of the twentieth century), to include social rights (such as rights to welfare, education, healthcare and old age security).62 Citizenship was a cumulative bundle of civil, political and social rights to be realised through the welfare state.
Marshall promoted this idea of citizenship as a means of closing the cleavages of class arising from both feudal and capitalist social relations63 in postwar Britain. Citizenship was to serve as the integrative and emancipatory status to counter divisive class status. Marshall based his integrative strategy on the assumption that there was a common "civilisation" or style of life to which citizenship would give everyone access. His ambition might now be construed as a social engineering programme to assimilate the working class into the middle class. Interestingly, though, his idea parallels Therborn's proposition that the welfare state emerged out of a double historical process, "...a process of market expansion and a countermovement of protection against the market."64
The KWS revived status, not contract, to achieve a more egalitarian society.
The welfare state, recently though only briefly, became a vehicle for de-commodifying some social relations through recognition of social rights conferred by citizenship status. Esping-Andersen explains the contingencies for this:
If social rights are given the legal and practical status of property rights, if they are inviolable, and if they are granted on the basis of citizenship rather than performance, they will entail a de-commodification of the status of individuals vis-a-vis the market.65
62 Thomas H Marshall, Citizenship and Social Class (1950); Thomas H Marshall, Sociology
at the Crossroads (1963).
63 Barry Hindess, "Citizenship and the Market" in Freedom, Equality and the Market: Arguments on Social Policy (1987) 33-39.
64 Supra n 61 at 240.
65 Gosta Esping-Andersen, Three Worlds of Welfare Capitalism (1990) 21; supra n 41 at 197.
B. De-commodification? Citizenship, Fordism and the KWS
In the USA, citizenship-related welfare entitlements have been strikingly characterised as "the new property",66 rather than as "welfare rights", in order to legitimate their justiciable form. This development is consistent with Offe's assertion that the stability of the Fordist welfare state depends upon the reconciliation of divergent structural conditions by the incorporation of every citizen into a commodity relationship. Citizenship is an asset, yet the decommodification of some social relations is necessary to sustain the legitimacy of the welfare state compromise.
According to Lipietz,67 of the French Regulation School of political economy, Fordist modernisation rests on a tripod supported by: a mode of social regulation, a labour process, and a regime of accumulation. The mode of social regulation comprises the KWS social legislation, both regulating the labour market in terms of collective agreements and conferring decommodified welfare right entitlements which would sustain the citizen's ability to consume whether employed or not. The labour process is based on the scientific management principles of Taylorism which separate conception from execution, that is, mental from manual processes of production, within large vertically integrated enterprises. In compensation for the alienation arising from this labour process, workers are offered a share in productivity gains. The regime of accumulation is premised on mechanised mass production leading to substantial growth in productivity (and over-production) from economies of scale, stable profits, docile and productive workers, full production, and full employment.
The focus of this essay is the mode of social regulation and its role in balancing the tension between commodified and decommodified social relations. Aglietta, also of the Regulation School, usefully describes this mode of social regulation as comprising a complex ensemble of social norms and habits, state forms, institutionalised compromises, rules of conduct, and enforceable laws representing a set of codified social relations.68 In the Regulation school's paradigm of Fordism/after-Fordism69 for periodising phases of modernisation, the mode of social regulation can be understood as the social context, in particular the juridical-political framework, in which economic activity occurs. The mode of regulation guides and sustains the labour and accumulation processes. Social regulation and accumulation exist in a dynamic relationship.
66 Charles Reich, "The New Property" (1964) 73(5) Yale Law Journal 733; see Goldberg v Kelly  USSC 68; 397 US 254 (1970).
67 Amin, supra n 9 at 2-8.
68 Michel Aglietta, A Theory of Regulation: the US Experience (1979) 282.
69 Elam, supra n 9 at 65.
The mode of social regulation is defined by the political-economy of the regime of accumulation but also plays a significant part in shaping the course of accumulation.7° In their time Maine, Weber, and notably Marx, with his base/superstructure dichotomy, were all attempting to understand and explain this interactive relationship.
Much Marxist writing, such as Pashukanis', adopts a rather instrumentalist approach, tending to over-emphasise the extent to which the state is a mere creature of capital. 71 The superstructure is seen as almost invariably determined by the economic base. The state, policy, and law are determined by the market. In the analysis of the Regulation school of political economy a more dialectical, "structurated", interplay between base and superstructure is recognised in the interactions between the mode of social regulation and capital accumulation.72 "Structuration" explains the dynamics of change in which structures such as the state and the market are understood as both constraining and changing in relation to each other."
Offe suggests four functional conditions74 for the maintenance of the political power which constitutes the KWS in its particular institutional form. These illustrate the structural interactions which constitute the Fordist phase of modernity:
Regime of Accumulation and associated labour process:
Mode of Social Regulation and associated societal form:
democratic legitimation flowing from the democratic process and the capacity of the state to deliver wellbeing in de-commodified and commodified forms.
71 Havemann, supra n 9.
72 Jamie Peck and Adam Tickell, "Searching for a New Institutional Fix: the Post-Fordist Crisis and the Global-Local Disorder" in Amin, supra n 9 at 281-315; Bob Jessop, "Post-Fordism and the State" in Amin, supra n 9 at 251-279.
74 Supra n 41 at 120-121.
The KWS is understood as a (crisis) management vehicle, in which de-commodification both mitigates the brutalising rationality of the market and promotes the viability of the market. The market is dependent upon non-market state interventions which are affordable only because of the market. The KWS maintains and protects the continuity of capitalism by establishing a set of institutions, rights and entitlements which transform it.75 This is the Fordist compromise.
Minimal (residual) states where commodification through contract defined social relationships and where the family and charity met private needs were replaced by the Fordist KWS. Successful welfare states compromised class antagonisms. They were a condition and outcome of increased reflexivity which came about through the extension of the franchise to all, the rise of labourist/social democratic parties, strong union movements, social democratic governments, sustained economic growth, class solidarity, weak ethnic, linguistic, or denominational cleavages,76 and war.
In the ideal, the proletarian welfare state77 of the Fordist period promised a mode of social regulation asserting workers' rights to a living, to occupational health and safety, to income security, to some redistribution of wealth, and to universal rather than selective access to public services. Social relationships would be significantly de-commodified beyond charity and family. De-commodification, while intrinsic to the Fordist societal paradigm (or organised capitalism), was not a harbinger of a socialist future. Yet de-commodification created important opportunities for a vulnerable yet expanded definition of social rights and citizenship. Such de-commodified social relations and notions of citizenship were, however, distorted78 to promote modernisation in a slightly more reflexive form.
The distortions created a compromised welfare state citizenship which privileged the productivist mode of capitalist development79 (reflected in the de-naturing of nature, fetishing of economic growth and racialising of the division of labour), and white male labour's interests.
New social movements from the Left (feminists, Marxists and anti-racists) and the Right (economic liberals or the New Right ["NR"]), as well as those
75 Bryan S Turner, Citizenship and Capitalism: The Debate Over Reformism (1986) 142.
76 Christopher Pierson, "Industrialism and Social Democracy" in Beyond the Welfare State (1991) 31.
79 Andre Gorz, Farewell to the Working Class (1982); Andre Gorz, Paths to Paradise/On the Liberation from Work (1985).
aiming to transcend both Left and Right (the green post-materialists) roundly critiqued the KWS and the Fordist compromise.8°
C. The Crises of Legitimacy for the KWS and Citizenship
In the 1970s the KWS faced two interrelated global and local crises, a fiscal crisis of the state and a crisis of legitimacy for the KWS consensus. The core contradiction of Fordism was the very essence of the local crises. It seemed no longer possible for many welfare states to sustain the compromise which allowed the conditions for profitable accumulation to continue and at the same time for sufficient tax revenue to be collected and for the spending power of individuals and the state to be sustained and enhanced in order to give legitimacy to the KWS.81
The most telling critique of the KWS came from the NR, which appropriated aspects of Left critiques. The welfare state was:
Inefficient: it was captured by public service provider monopolies to perpetuate their aggrandisement rather than respond to consumer needs,
Ineffective: it perpetuated a "cycle of dependence" through hugely costly and disabling social programmes in defiance of evidence that "nothing works",
The readily perpetuated conclusion was that the KWS was inimical to the interests of the very citizens it purported to assist.
80 Supra n 76 at chapters 2 and 3.
82 Supra n 76 at 48.
In spite of the libertarian tone of some of the freedom talk in the NR critique (and the associated Left critiques) which one might have expected to translate into rights and citizenship talk, these were themselves also targeted. Citizenship, it was argued, was not a one-sided set of rights; it included obligations as a condition of shared entitlement. Citizenship was conceptualised in social contract terms. A line in the critique was that the Judaeo-Christian (and Marxian) ethic "from each according to their ability; to each according to their need" had simply become "to each according to their need (desire?) as of right" in the welfare paradigm.83 Ignatieff suggests that the ethical foundations of the welfare state were eroded by the steady trivialisation of rights and obligations by welfare rights talk; he calls on the Left to abandon nostalgia for the compassion of "the old civic contract". 84
The fiscal crisis of the welfare state was even explained by social democrats in terms of the practice of welfare states to be needs- rather than resource-driven.85 It was argued that the insatiable needs of diverse interest groups endemic to the welfare state culture, when translated into rights, provided no criteria to rank competing claims for priority.86
Since the 1980s, rationing and regulating of social services, and the hegemony of market liberalism have displaced the so-called needs-driven Fordist welfare state in many OECD countries. Clearly emerging "after Fordism" and after the welfare state is a re-commodification of social relations. In particular this is evident in changes to the mode of social regulation, which is increasingly based on notions of contract rather than status. Many hitherto public services or publicly owned assets have been privatised. Selectivity and user pays access to public service is wider spread. The labour market is increasingly characterised by individual or site contracts rather than national collective awards. In the next part of the essay I turn to the phenomon of entrpreneurial governance or the re- invention of government. There has been a radical redesign of administration of the state (re-invention of government) based on the principles of the NPM, especially contracting out the "rowing" while retaining the "steering".
83 Ian Culpitt, Welfare and Citizenship: Beyond the Crisis of the Welfare State? (1992).
85 Geraint Parry, "Welfare State and Welfare Society" (1985) 20(3) Government and Opposition 290.
86 Supra n 83 at 52.
After Fordism, the contract state and the re-commodification of social relations seem to have become the central features of the new mode of social regulation and the further modernisation of modernisation itself.
A. Political Economies After Fordism
The neo-Smithian and neo-Schumpeterian schools of thought in political economy" attempt to explain the movement from Fordism to "after-Fordism" as a distinct epoch in economic or technological terms.
The Neo-Smithian school follows Adam Smith's postulate that the optimally functioning market uses each unit of labour to its fullest extent in executing a single task, thereby extracting maximum efficiency by the refined division of labour. The first epochal "industrial divide" was the industrial revolution, led by the division of labour which made economic growth possible by harnessing the technological innovation of mass production and, later, Taylorist scientific management techniques. The movement from Fordism to after-Fordism is explained in terms of an altered labour process which is bringing about a movement from rigid mass production to flexible, specialised production by means of another technological paradigm shift, the new information technology. This is described as the second industrial divide. After-Fordism market expansion is associated with an increasingly sophisticated division of labour, operating in many productive fora, using an increasingly specialised labour process yet exhibiting greater flexibility in its response to demands.
The Neo-Schumpeterian perspective 88 focuses more on the actual waves of change associated with techno-economic paradigm shifts. These paradigm shifts are identified with fundamental epoch-altering changes in the political economy. The industrial revolution is understood in terms of the changed techno-economic paradigm which cheap coal and steam allowed, while after-Fordism is associated with the information technology paradigm, globalisation, and the emergence of the I&C superhighways.
The Regulation school of political economy highlights the structurated interplay between the labour process, the mode of social regulation and the regime of accumulation. The regime of accumulation and the labour process
87 Supra n 69; Michael Piore and Charles Sable, The Second Industrial Divide (1984).
have been radically altered. A globalisation of mass production in pursuit of economies of scale has taken place to compensate for losses of productivity in national markets. Production in the form of flexible specialisation for niche markets has also emerged, altering and being altered by new patterns of consumption nationally and globally. A declining rate of profit, a declining tax base and the growing cost of social expenditure built into the KWS mode of social regulation in OECD countries has generated a structural crisis in the nation-state.89 Crisis management has taken the form of the globalisation of production by transnational capital, while the KWS has adopted austerity programmes for "downsizing" the public sector: public asset sales; privatisation; contracting out of state services; and other programmes.
The advantage of the Regulation school perspective is that its recognition of structuration avoids conceptual frameworks which are excessively deterministic and it incorporates recognition of the continuing role of the state and the mode of social regulation. Other schools over-emphasise market forces or technological paradigm shifts in their explanations of Fordism, or their explanations for the shape of the political economy after Fordism, at the expense of analysing the scope and limits of the regulatory role of the state. The Regulation school perspective facilitates more contextual analysis of the changing legal forms and state structures in the post-Fordist phase of modernisation.
After Fordism, the mode of social regulation reflects and promotes structural competitiveness of the polarised, globalised marketplace in which the state must increasingly operate. Contract is the legal form which crystallises this competitiveness by facilitating re-commodification. All social relations and public goods can become commodities to be bought and sold. Social protections for workers are subordinated to accommodate labour market flexibility and the cost constraints imposed by international competition on the labour process. The KWS is hollowed out and its essential core functions sold off or contracted out.90 Not only is shedding of state roles a significant technical innovation for introducing market rationality in the public sector, but contractualism also signals "a major re-drafting of some of the strongest assumptions about altruistic social exchange integral to an understanding of the welfare state."9I
89 Elam, supra n 9 at 64-65.
9° Jessop, supra n 72 at 264-266.
91 Supra n 83 at 81.
The classical contract was designed to simplify the rules about the enforceability of legal promises between parties in the private commercial arena. A former New Zealand Law Commissioner summarises the contract form well:
In principle [contracts] are agreements concluded on an equal footing by two or more parties who freely consent and who freely settle the terms of the agreement. The parties usually are concerned only with protecting and advancing their reciprocal private interests... .92
The liberal legal discourse of contract reflects the post-feudal ideology of individual choice, enforceable rights and obligations, and consumer sovereignty. At its most simple, classical contract seems to be predicated on four elements:
Consideration —mutual benefit or detriment flow between the parties,
Privity—the contract made between the parties creates rights and duties between the parties only.
Mimicry of the classical contract form in the redesign of the processes and structures supporting exchange relationships in the "contract state" public sector occurs in a variety of settings. The elements of classical contracts are seldom, if ever, evident in these "contracts" from the citizens' viewpoint. They are really inter-agency compacts. Alford and O'Neill suggest that the chief forms are:
Privatisation/corporatisation: the creation of a context in which a formerly publicly owned and provided service is provided by a private provider to the individual consumer on market contract terms. 93
92 Kenneth Keith, "Medicine and Law: An Era of Change" (National Medico-Legal Conference, Auckland, 18-19 August 1992) quoted in John Martin, "Contracting and Accountability" in Jonathon Boston (ed) The State Under Contract (1995) 38-39.
In each instance there is an intermediary between the citizen and the state which triangulates their relationship so that it is no longer recognisable as a de-commodified, publicly delivered service delivered by an accountable state official or agency to the citizen. Nor is the exchange in the form of a classical contractual relationship between citizen and provider. A vagueness about the outputs the citizen can specifically expect abounds, as it did under the KWS. This vagueness is a phenomenon that gave rise to the welfare rights movement. Hence, from the citizens' point of view, these transactions merely mimic contracts, even though there is a contract between the funder and the provider.
A number of questions and issues arise when considering the vicarious relationship the citizen has with the state arising from these "contracts":
To what extent have citizens been given the opportunity to consent to these changes in the characteristics of the parties delivering services and the rights and obligations which flow between the citizens and these parties?
The assertion of social citizenship to overcome this lack of enforceability will entail a re-politicisation of rights claims, and the redesign and reinforcement of rights-enforcement mechanisms.
Contractualism has several other faces. Unions and collective awards, creating a status-like position for employees and employers, have been replaced by individual contracts in the labour market. Such contracts are now integral to the public service role, specifying outputs desired by government from senior public servants and offering incentives like performance bonuses to the public servants.
Governments are portraying the idealised public servant as super-efficient and ultra-accountable thanks to performance bonuses and rigorous output monitoring. The Schick Report raises questions about what has been lost as well as what has been achieved through contractualism. Schick speculates that the checklist approach to accountability may purge the ethic of public service responsibility.95 Job satisfaction, promotion and recognition within
94 Martin, supra n 92 at 39.
95 See Schick, supra n 5 at 52.
the service are not seen as sufficiently motivating to get the most out of public officials. Freedom of contract96 has become the rationale for de-regulation or re-regulation of market activities, environmental resource uses, and the labour market, privileging the needs of market players rather than the public good.
The revolutionary shift represented by contractualism can be highlighted by contrasting the distinctions between private enterprise and public service:
In the KWS model of public service provision, the state determined the eligibility of the individual citizen for services on the basis of rights, needs, and means. The state paid for or subsidised the service provided, and the state was the provider or selected the provider. Critics of the KWS consequently emphasised the paternalistic element of de-commodified state-citizen transactions, rather than its affirmation of citizenship as a status and the bundle of rights associated with freedom to live in modern society. In the private market model, by contrast, consumer sovereignty rules and the ethos of social Darwinism is affirmed. The "customer" decides whether or not to buy the service, "customers" pay for the service themselves, and "customers" choose the provider of the service. "The rich can sleep under bridges", if they choose, and public services "are open to everyone like the Ritz Hotel".99
98 Supra n 83 at 83-97.
The distinct approaches of the KWS and the contract(ing out) state to the management of needs, desires and scarcity are contradictory and difficult, if not impossible, to reconcile.
C. The Contract(ing [out]) State and New Public Management
The ideological underpinnings of contractualism and the contract state in the post-Fordist phase of modernisation are based on the deliberate conflation of public service and private enterprise. The clearest articulation of this administrative-legalistic technology is the NPM which has been very influential in New Zealand, the United Kingdom, the State of Victoria in Australia and the United States since the 1980s.10°
The NPM employs the contract form to facilitate the shift from needs-driven to resource-driven public services. The assumptions about human behaviour in the market which inform classical contract theory are extrapolated into the public sphere. The altruistic ethos of de-commodification is replaced by the egoistic ethos of commodification. The possessive individual of post-feudal modernisation is the rational actor in the contract state and the marketplace. The model of human behaviour as rationally egoistic, which was merely a heuristic device, an ideal type, for economic liberals, becomes the NR's defining paradigm for understanding human behaviour both normatively and ontologically.
At the heart of the NPM is rational (public) choice theory. Rational choice theory makes four basic assumptions:
people's preferences are based on good information which they can rank and compare easily,
people's preferences are logically consistent,
people seek the greatest benefit for the least cost,
people are egoistic and so base their choices on the consequences for their personal welfare. um
When the public services/servants of the needs-driven KWS are understood this way then its vulnerability to "provider capture" by self-serving
100 See Boston et al (eds) supra n 5; supra n 93; David Osborne and Ted Gaebler, Reinventing Government.' How the Entrepreneurial Spirit is Transforming the Public Sector (1993); Murray Horne, The Political Economy of Public Administration (1995); Patrick Dunleavy, Democracy, Bureaucracy & Public Choice.• Economic Explanations in Political Science (1991).
101 Dunleavy, ibid, 3.
bureaucracies remote from "customer" needs, welfare fraud, benefit and service exploitation by the greedy middle class,102 and incessant demands for growth in public spending, can all be explained and remedied. The remedies take the form of NPM contractualist techniques which build in rational choice assumptions about individual customer and public service bureau behaviour such as agency theory and transaction cost economics.103
Agency theory posits social, political and commercial life as a series of contracts for labour or services. In the contractual dyad, both principal (funder) and agent (provider) are assumed to be making rational choices by acting as self-interested utility maximisers. This rationality (including opportunism and guile) is assumed to make for efficient public service as well as profitable private enterprise.
Transaction cost economics is concerned with the optimal governance structures for organising the delivery of goods and services. It is assumed that rational actors will select governance structures that minimise aggregate production and delivery costs, by splitting "steering" from "rowing", for instance, or separating the parts of a vertically or horizontally integrated enterprise.
The NPM model assumes that the form of governance chosen ought to follow the function to be performed by the enterprise. A key NPM paradigm for the governance of the contract state is that government "steers" (the minister decides what to purchase and from whom) while public, private, voluntary, or non-governmental organisations "row" (provide actual services).1°4 Contractualism assists this split by formalising the transaction in terms of highly specific, contracted-for outputs which the government pays providers to deliver. Competing providers tender in a contestable marketplace for the contracts. Ministers are "owners" of the government enterprise responsible for outcomes. Public servants are their agents selling specified outputs to realise these outcomes. Schick identifies a major defect in this output-outcome nexus—it bifurcates government into management and politics.105 Between management, narrowly conceived, and politics the citizen and public service are getting lost.
This NPM approach contrasts sharply with the KWS, outcome- oriented, approach. From the NPM perspective, Government now ceases to fund inputs to be processed through the "black box" of the state apparatus and converted
102 Rob E Goodin and Julian Le Grande, Not Only the Poor: The Middle Classes and the Welfare State (1987).
103 Boston, supra n 5 at 18-21.
104 Ibid; Osborne and Gaebler, supra n 100; Horne, supra n 100 (the classic popularisers of this approach); supra n 93 at 4-6.
105 Schick, supra n 5 at 62.
into nebulous outcomes. From the KWS perspective, however, outcomes were evaluated in terms of the provider's definition of outcome objectives, and could also be subjected to some modest cost/benefit analysis.1°6
The contract state's NPM culture, in theory, promises numerous advantages over the KWS approach:
In empirical terms the contract(ing [out]) state approach has yet to demonstrate its value as the cheaper and more effective way to manage the state.108 The necessary link between contracts and competition, and privatisation, contracting out, and expenditure reduction, is not proven.109 Contractualism, however, leads to many power-conferring "compacts" between steerers and rowers which bestow enormous discretionary powers to unaccountable providers and few rights to "consumers" or citizens.
106 Cass R Sunstein, "The Cost Benefit State" (1996); John M Olin, Program in Law & Economics (University of Chicago, Working Paper 39).
107 Supra n 93; Boston, supra n 5 at 19-30.
Jos Supra n 83 at 97-104; Ken Judge and J Smith, "Purchase of Services in England" (1983)
57(1) Social Service Review 209-233; The Economist, "Cradle to Grave" 21st September,
109 Supra n 83 at 29.
D. Contract State "Citizenship": a customer focus?
In practical terms, the classical contract form frequently serves to mask asymmetrical power relationships. NPM pseudo-contracts are no different. The government, not the citizen, becomes the client of the provider. Public and private are conflated to the point where everything can be commodified, even prisons, optimal public service, human blood (in some jurisdictions), and possibly human organs. Performance as measured in outputs does not necessarily compute into accurate measures of long-term outcomes. Neither does NPM suggest ready solutions to problems endemic to societies aspiring to social and territorial justice and "citizenship for all"— problems which can not normally be solved through market mechanisms.
How are the outcomes of strategic coherence and territorial justice to be achieved in a fragmented world conceived as a set of isolated quasi-markets, for example the health care funder-provider market? How can these outcomes be achieved through a series of contracts between public sector principals and private enterprise agents? "Customer" access in such a world depends on whether it is profitable to set up shop in the customer's area, and the quality of service is not enshrined in a universal right of citizens but depends on the exigencies of the local market where the customer happens to "shop" for services.
How are valuable outcomes basic to citizenship, such as access to services, equality of treatment, the Rule of Law, social justice, and cultural sensitivity constructed as measurable and enforceable outputs? Even the KWS found achieving and measuring these outcomes elusive; how will a series of quasi-markets fare?
The trend in education, for example, to create a quasi-market by funding schools on the basis of block grants, may reduce access to economies of scale, such as curriculum expertise, otherwise available in a national system. Budget allocation by the School within the devolved block grant/bulk funding/charter school contracts may be perverse in relation to wider citizenship goals. Schools may compete against each other for a market share of the middle class pupils at the expense of the rest.
Specified outputs in the health and welfare sectors also require an almost impossible degree of specificity about what constitutes need, which services are to be regarded as core services and which relegated to the penumbra, and how services are to be delivered. Need identification, monitoring, and accountability proved difficult for the KWS. These processes have proved equally difficult, if not more so, for the contract state as it steers a series of contracts through a maze of quasi-markets. "Contracts" have conferred new rationing powers upon providers, though few new binding obligations to citizens. But who defines the criteria for rationing?
Quasi-markets such as health may be colonised by insurance enterprises which have in effect become surrogates for the "customer/patient", just as providers in the quasi-market are surrogates for the state. Neither surrogate has an incentive to keep costs down, and the "customer" is left out of the transaction except to pay the premium."° In quasi-market health systems, unless insurance is compulsory and state subsidised, there is no universal right to quality health care. Interestingly, surveys of attitudes in the European Union found a majority of citizens willing to pay more tax for health services." Citizens also rejected the notion of a mixed system based on public provision for so-called "essential" health care and private provision through insurance for "non-essential" services which would be available only to those people who could afford the insurance cover for them.
In the steering mechanisms of the contract(ing [out]) state each ministry has now grown a contract management bureaucracy in an attempt to reduce the transaction costs (not necessarily to improve services) of contracting out. One may ask, who ultimately bears the costs of bidding, evaluating bids and enforcing contracts, or the impact of contract failures? Who prevents provider capture by private monopolies? Who prevents "cream-skimming"? Cream skimming appears to be endemic to quasi-markets where providers who are paid a standard fee for services will consistently look for the cheapest "customers" to service."2 General Practitioners in the health quasi-market will shun the elderly for the young and fit. Similarly, educational providers will cater to the most able students, and custodial providers to the most docile clients. The weakest groups of citizens may become a residual category for whom the state might, itself, provide minimalist care, like the provision of health services for "indigents" in the USA.
The fetishising of the contract form found in the NPM culture is threatening to notions of citizenship because it lacks mechanisms for guaranteeing accountability to citizens and for enforcing obligations owed by state surrogates. Contract is a private law form, whereas citizenship is a public law status. As British analysts Lewis and Harden have pointed out, hybrid notions of public law contracts are in a very early stage of jurisprudential development.) 3
Ito National Advisory Committee on Core Health and Disability Support Services, Core Services for 1994-5 (1993); Steven Globerman and Aidan Vining, Cure or Disease? Private Health Insurance in Canada (1996).
III Brian Abel-Smith et al Choices in Health Policy: An Agenda for the European Union (1995) 37.
112 The Economist, supra n 108.
113 Supra n 55 at 37-44; supra n 54 at 172-177.
Thatcher's much vaunted "Citizen's Charter" was set up in 1991 expressly as a quality assurance or standards-setting process, not as a rights-enforcement mechanism, despite the clever name. It has spawned a plethora of agency-specific charters: by 1994 there were 39 in Britain, covering agencies such as the London Underground, the Employment Service, and the Social Security Agency. British critics with insights from an advanced contract(ing [out]), after-Fordist state say that the result is a hollowed-out state, with a narrow, consumer-inspired conception of citizenship with little legal underpinning. This result is occurring despite the Charters, the Audit Commission, and other after-the-fact techniques for monitoring aggregate provider performance. They argue for combat with a robust Bill of (Citizens') Rights.114
New Zealanders have become keenly aware of the gap in the repertoire of remedies available to the citizen since the "success" of the Fourth Labour Government (1984-1990) in transforming the KWS into a contract state. In the quasi-marketplace "customers" may have considerable difficulty in invoking rights, and may even lack the right to services. For example a Code of Health and Disability Consumers' Rights, which elaborates on consumer rights and provider duties, became legally binding statutory regulations in 1996. However, New Zealand's Health and Disabilities Commissioner explains that it gives consumers rights in relation to how services are provided, but not rights as to whether they are provided.115 To have conferred the latter rights might have created a misunderstanding of the Commissioner's mandate. This mandate does not include scrutiny of whether or not the funder (state) ought to have purchased services from the provider on behalf of the consumer (citizen). In other words, no recognisable right of access to health care is codified and enforceable.
Wellington academic lawyer Janet McLean criticises the present constitutional vacuum with the charge that relatively little is said in the constitution about the provision of minimum services and the obligations which flow from the ownership of state assets: in fact, public choice theory represents "a very thin view of democracy". McLean calculates that the legislature is weaker than ever before (while the executive and administration are presumably stronger). Provider capture and self-serving interest group politicking are thus likely to be more effective than before.116
Even where the legislation enabling corporatisation explicitly attempts to
114 Leslie F Seidle, "Transforming the Public Sector in the United Kingdom: Executive Agencies and the Citizen's Charter" in Leslie F Seidle, Rethinking the Delivery of Public Services to Citizens (1995) 31-51.
115 Health and Disability Commissioner, A Proposed Draft Code of Rights for Consumers of Health and Disability Services (1995) 14.
116 Janet McLean, "The Contracting State" in Peters, Michael et al (eds) Critical Theory, Poststructuralism & the Social Context (1996) 213-217.
reconcile profit making and social responsibility, the citizen-focused obligations are subordinated to market forces. For example, the State Owned Enterprises Act 1986 section 4(1) requires that:
the principal objective of every state enterprise shall be to operate as a successful business and, to this end, to be—
(a) As profitable and efficient as comparable businesses...
(a) A good employer; and
(a) An organisation that exhibits a-sense of social responsibility by having regard to the interests of the community in which it operates... .
Courts have chosen to avoid the issue of obligations to citizens imposed by the "social responsibility" requirement by saying it is too large and subjective a concept to give rise to public duties, and that any breaches of obligations are private contractual matters.117 The citizen as a juridical person to whom public duties are owing appears to be dead in the eyes of the courts of the contract(ing[out]) state.
Mike Taggart, the former Dean of Law at Auckland University, has challenged economic rationalists on the Court of Appeal who suggest that the public law which evolved under the KWS is no longer relevant. He writes:
The fundamental values of public law—openness, fairness, participation, impartiality and rationality—not only provide a yardstick against which to measure the activities of privatised enterprises with market power but should be embodied in the design of institutions and regulatory schemes at the outset.118
How can we bring citizenship back into life? I will conclude by addressing this key question for the present after-Fordist phase of reflexive modernisation.
VI. SOCIAL CITIZENSHIP: A CONCLUSION
A. Institutionalising Altruism: Beyond Charity and Contract
Social citizenship synthesises civil, political and social rights in a synergistic dynamic which is necessary to empower people, locally and globally, to
117 Ibid, 220; Mercury Energy v Electricity Corporation of New Zealand Ltd  2 NZLR 385; Michael Taggart, "State Owned Enterprises and Social Responsibility: A Contradiction in Terms?" (1993) New Zealand University Recent LR 343.
118 Michael Taggart, "The Impact of Corporatisation and Privatisation on Administrative Law" (1992) 51 (3) Australian Journal Of Public Administration 368, 371-2.
challenge and overcome the dystopian trajectory of the high risk society and the after-Fordist, contract(ing [out]) minimalist state order of the present phase of modernisation. Nancy Fraser and Linda Gordon identify our present predicament in the following terms:
The centrepiece of the cultural mythology is an ideological opposition between two very different forms of human relationship: contractual exchanges of equivalents, on the one hand, and unreciprocated, unilateral charity on the other. These perversely appear to exhaust all social possibilities. The result is that there seems to be no conceptual space for the forms of non-contractual reciprocity and solidarity that constitute the moral basis for social citizenship.119
Universal citizenship is essential for an inclusive rather than an economically polarised, undemocratic society. Communitarian values of solidarity, shared responsibility, and active participation in decision-making as well as material and post-material prosperity are essential to universal citizenship. Elites have recently privileged the rational actor of public choice theory to explain human conduct and constructed the contract state around this ideal type. Diversity can be accommodated in universal citizenship by recognising the right to diversity while stressing the affinities flowing from the hybridity of identity and hence multiplicity of memberships which are such a feature of the diaspora spaces growing up in advanced modernity.120 Altruism and enlightened communitarian self-interest have a longer pedigree and more empirical support as explanations of human behaviour than economic rationalism; they also offer greater prospects for humankind's survival.
Non-contractual reciprocity is only possible when exchange relationships are decommodified. To paraphrase Richard Titmuss,121 public policy must encourage and foster the individual and communitarian expression of altruism and regard for the rights and needs of others (intergenerationally and globally); altruism is the only bastion against, and fetter on, the egoism of the marketplace. Instruments of public policy such as social rights must enshrine values which must not and cannot be commodified. The social contract and the mutual obligations flowing from it in terms of citizens' rights must be revitalised. Second-generation human rights, whether couched in substantive or procedural terms, must become justiciable. Above all, altruism must be re-institutionalised as part of a decommodified set of universalised social relationships defined with a sacrosanct status for all, namely "social citizenship".
119 Supra n 7 at 60-61.
120 Avtar Brah, "Difference, Diversity and Differentiation" in Avtar Brah, Cartograpies of Diaspora: Contesting Identities (1996) at 95-115.
121 Supra n 47 at 12-13.
B. Utopian Realism and Citizens' Rights Talk
The state remains, for all its many dehumanising yet essential characteristics, such as sovereignty,122 the only public forum for articulating the local claims of citizenship in their national and global contexts. Social reflexivity offers the intellectual capacity to conceive of alternative and emancipating identities. Globalisation offers the technological medium and cultural climate of receptivity for claiming these alternative identities123 and potentially creating the institutional forms which make realisation of them possible. Citizenship rights, therefore, constitute a fundamental legal form for the change of structures.
Rights talk" consists of both the politics of rights as ideological resources for counter-hegemonic social defence and change, and the active practice of rights enforcement by administrative agencies and the courts.124
Giddens' 125 "utopian realist" manifesto provides a framework of global and local "goods" for which social citizenship is a condition and an outcome:
Global and Local
Global and Local
In human rights discourse within national and international law we can already find bundles of so-called first- and second-generation human rights126 which can be collected together towards some charter for social citizenship. For
122 Joe Camilleri and Jim Falk, The End of Sovereignty: The Politics of a Shrinking and Fragmented World (1992).
123 Peter Lawler, "Constituting the Good State" in James (ed) supra n 7 at 168-70.124 Paul Havemann, "The Pakeha Constitutional Revolution'? Five Perspectives on Maori Rights and Pakeha Duties"  WkoLawRw 5; (1993) 1(1) Waikato Law Review 53-77; Alan Hunt, "Rights and Social Movements: Counter Hegemonic Strategies" (1990) 17 Journal of Law and Society 309-320.
125 Supra n 6 at 100-103.
126 See Paul Hunt, "Reclaiming Economic, Social and Cultural Rights"  WkoLawRw 8; (1993) 1(1) Waikato Law Review 141; Joel Bakan and D Schneiderman, Social Justice and the Constitution: Perspective on a Social Union for Canada (1992); European Union's Charter of Fundamental Social Rights for Workers 1994; Maastricht Treaty on European Union, Protocol on Social Policy 1994; Bill of Rights of the Constitution for the New South Africa (approved December 1996).
example, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Right (ICESR) offer a glimmer of the sorts of social citizenship all human beings should enjoy. Yet how many citizens enjoy these rights, even in the First World after-Fordist contract(ing [out]) states?
The post-scarcity economy recognises the scarcities of supply and growing demands. Its defining character is that the pursuit of economic growth must not trump other claims: economic activity must be ecologically sustainable; suboptimal economic, social or cultural consequences must be avoided; and individuals and groups must be enabled to make post-materialist life choices. Social relations must not be commodified and polarised by the means of economic management imposed upon them.'"
The humanisation of nature requires that, instead of being concerned with what nature can do to us, we must analyse individually and collectively what we have done and continue to do to nature in manufacturing the high-risk society. Ecological sustainability requires the harmonisation of economic and social activities within a holistic frame of analysis in which the enforcement of the precautionary principle in international environment law and the principle of inter-generational rights to a clean, bio-diverse ecosystem are crucia1.128
Dialogic democracy requires public dialogue between citizens and mutual tolerance coming from a continuingly developed social retie xiv ity.I29 Meaningful participation in political processes is a key to citizenship. Generative politics, to achieve dialogic democracy, require nurturing individual autonomy in spaces where hierarchies are flattened, active trust is earned, and power is decentralised and detraditionalised. Authoritarianism manifested in the control of knowledge and information must be rejected. Meaningful economic participation is also crucial for citizenship to serve as an integrative force. It is not liberation from work, or even from joblessness, that is required, so much as a radical re-definition of work.I30
.127 See ICESCR, Article 6: The Right to Work; Article 11: The Right to an Adequate Standard of Living; and Article 12: The Right to Physical and Mental Health.
128 Such so-called third generation human rights are, as yet, the least well developed human rights in both municipal and international law.
129 See ICCPR; ICESCR, Article 8: Trade Union Right; Article 13: Right to Education; Article 14: The Principle of Compulsory Education Free of Charge to All; and Article 15: Right to Take Part in Cultural Life and to Enjoy the Benefits of Scientific Progress and the Protection of the Interests of Authors.
130 Jocelyn Pi xely, Citizenship and Employment: Investigating Post Industrial Options (1993) 268-9.
Negotiated power must replace global, local and interpersonal violence in its psychological and physical manifestations. Damaged solidarities dividing people along ethnic,131 gender, sexual-orientation and class lines must be obliterated and new compromises achieved which are far more inclusive than the KWS could be.I32
Let us hope that there will be a thorough-going rejection of the ideology of commodification, of egoism over altruism. The imposed consensus around the competence of the market will, hopefully, soon look as shallow as the one which ushered in crude statism. Now is the time for the re-politicisation of claims for social citizenship, because radical peaceful change towards a socially just society and an ecologically sustainable world order surely depends on social citizenship.
131 Will Kymlicka, Multicultural Citizenship (1995).
132 See ICESCR, Article 9: Right to Social Security; and Article 10: Protection of the Family, Mothers and Children.