The term "right" has a wide variety of connotations. On a very general level, it connotes a social commitment to the dignity and autonomy of the individual, an "affirmation of free human subjectivity against the constraints of group life." On a somewhat more specific level, one can distinguish procedural and substantive connotations. Procedural connotations concern official enforcement institutions. For example, in American legal culture, "right" often connotes judicial enforceability. Substantive connotations concern benefits or powers, such as freedom of speech or ownership of property, in civil society.
This essay is about the substantive connotations of the notion of "right" that has dominated liberal discussion of the welfare system for the past fifty years. By liberal, I mean to include officials and academics associated with the center-left politics of the mainstream of the Democratic party. Until very recently, this group has had a near monopoly in setting the terms of establishment discourse about welfare policy and an unusual degree of autonomy in influencing the design of the welfare system. Perhaps the central substantive theme of liberal welfare discourse is the analogy of welfare benefits to traditional private law norms associated with contract and property. The private law analogy is in turn linked to an ideal of individual independence and self-sufficiency and to an ambition to immunize distributive arrangements from collective reassessment and revision. On a practical level, it is linked to an aversion to direct or explicit redistribution, and especially to needbased or means-tested redistribution.
This essay suggests that the substantive rights theme has had a peculiarly conservative influence in liberal welfare discourse: It has tended to inhibit redistribution efforts that otherwise would have been supported by the distributive and humanitarian concerns of the broader liberal program. The substantive rights theme has been advanced as both jurisprudence and political strategy. As jurisprudence, it has replicated some of the problems that the Progressive legal scholars emphasized in the classical legal thought of the substantive due process era. As political strategy, it has suffered from the disadvantage that it succeeds only by virtue of the homage it pays to the order it seeks to change. I will try to illustrate these points with discussions of the two instances in which the rights theme has been most dramatically institutionalized: the Social Security program and the welfare rights movement, by which I mean both the ongoing practice of lawyer-initiated judicial review of administrative welfare decisions and the more ephemeral efforts at recipient mobilization of the late 1960s and early 1970s.
Although this essay is written from a perspective sympathetic to the general humanitarian and distributive concerns of the liberal program, it has been influenced by a variety of perspectives. Part of the argument resembles criticisms of the welfare system which have long been associated with conservatives. Part of it has been influenced by a few people writing from the left who have recently expressed doubts about some of the long-standing themes of liberal welfare rights discourse. Perhaps the strongest influence on it is the work of the New Deal social workers and their disciples, who developed from within the liberal welfare establishment an alternative conception of welfare rights that challenged but lost out to the private law conception.
My purpose is to trace a particular set of jurisprudential themes through the liberal welfare discourse, not to provide a comprehensive account of the welfare system. In social insurance, the substantive rights themes have been widely influential, but they are far from the only influence, and a full assessment of social insurance would require a variety of political and economic analyses that I do not intend to provide here. In public assistance, the greatest influence of ideas of right has been in terms of procedure. Substantive rights themes have played a narrow role. Accordingly, my remarks about public assistance concern only a narrow dimension of the development of these programs.
William H. Simon,
Rights and Redistribution in the Welfare System,
Stan. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/725