The relationship between the welfare state and globalisation is complicated,
because it shifts over time. The "welfare state" today spans and integrates a
wide range of policies and disciplines, and some facets of the welfare state are
supposed to be afflicted distinctively than others by globalisation. This study
aims to explain how the principle of laissez-faire evolved into the welfare
state. We'll also look at how globalisation affects a country's sovereignty.
We'll look at how the rule of law is codified in a modern welfare state.
Definition of state given by Aristotle was "a body of citizens sufficing for
the purposes of life.
Max Weber tried to define the modern state as:
"A modern state is a system of administration and law which is modified by state
and law and which guides the collective actions of the executive staff; the
executive is regulated by statute likewise, and claims authority over members of
the association (those who necessarily belong to the association by birth) but
within a broader scope over all actively taking place in the territory over
which it exercises domination".
A state which believes in modern welfare, its goal is to safeguard and enhance
people's economic and social well-being. Some of the most important tasks of a
government are to provide equality of opportunity and equitable distribution of
income, among other things.
Scope Of Research
The paper aims to understand the idea of modern states and how they transition
from laissez faire to modern states. We've discussed instances where the
principle of laissez faire was defined in courts, and attaining modernity. We've
also tried to discuss how modern welfare governments have embedded the rule of
law and its value. The impact of globalisation on the modern welfare state's
sovereignty was also discussed in this paper. In this study, the data is
collected through various online articles, blogs, websites, etc.
Transition Of The Doctrines With Special Reference To India
The welfare state was born out of the principles of liberalism, socialism, and
conservatism in the British historical context. During the concept's infancy, an
intriguing application of ideology and empiricism to the problem of hunger and
poverty was made. Within the liberal paradigm, the welfare state entailed a
broad social consensus on a variety of socioeconomic policies.
The concept's emergence was substantially fuelled by two sociological factors:
first, increased wealth, which resulted in a sudden rise of expectations of the
people; and second, the optimism and anxiety induced by the newly gained
franchise of so called manhood. The lack of orthodoxy in gradual social
engineering created the stage for increased local involvement and interest of
the government in social transformation. This was an inauspicious start, to say
In this setting, state assistance and self-help were the two main aspects of the
'principled' debate on the welfare state. As a deductive framework, Herbert
Spencer's liberalism, as the immortalization of self-help, has deeper
implications for welfare state action. It is a fallacy to believe that Spencer
was anti-welfare state. His theory of non-intervention and positivistic
connotation appears to be at odds with laissez-faire, yet it is consistent with
the concept of government assistance as a supplement to self-help.
The notion of laissez-faire describes an environment devoid of state
involvement, such as restrictive rules, taxes, tariffs, and imposed monopolies,
in which private parties can deal freely. "Let it be" is the direct
translation of this French expression. While enacting the concept of a welfare
state, the British political system has demonstrated a remarkable ability to
maintain a liberal identity in the face of German and French socialism.
Resistance to abstract aspirations, as well as adaptability to new problems and
responsibilities, was phenomenal in the United Kingdom.
Democratic compulsions were causing political leaders of all complexions and
hues to redefine their ideas. In reaction to pragmatism, they were abandoning
their pitched positions on issues affecting labour and the poor. Transportation,
finance, agriculture, industry, and trade; in other words, a significant portion
of the economy was regulated.
Various court decisions in India have addressed the concept of laissez faire.
"The motto Laissez faire is derived from the 18th century in France," the court
said in Vishnu Agencies v. Tax Officer. It expresses the mercantile
community's desire for the state to stay out of their business.
"Article 14 of the Constitution, which guarantees to every individual a just,
fair, and reasonable procedure before terminating an employee's services", was
ruled to have struck a fatal blow to the notion of laissez faire in Bombay
Telephone Canteen Employees' Association v. Union of India.
In Government Branch Press v. D.B. Belliawpa
, "The doctrine of Laissez
faire has been eroded by the judicial decision and the legislation particularly
in its application to persons in public employment to whom the constitutional
protection of Article 14 and Article 311 is available."
The emergence of the welfare state is based on the political concept that the
greatest social and economic good for the largest number of people necessitates
more governmental intervention. The Supreme Court concluded in Modern Dental
College and Research Center v. State of Madhya Pradesh that the country's
economic policy has progressed from laissez faire to welfare state to
The Indian economy has undergone significant policy changes
as a result of the following factors:
- Privatization; and
The expression "Salus populi est suprema lex" means "the people's happiness is
ultimate law." Any welfare state must provide the greater public good. It refers
to a form of government in which the state is responsible for the promotion and
protection of its citizens' economic and social well-being.
The notion of "parens patriae" relates to the state's ability to protect
individuals who are not able to care for themselves. In Charanlal Sahu v.
Union of India
, it was held: "It has to be borne in mind that
conceptually and jurisprudentially, the doctrine of parens patriae is not
limited to representation of some of the victims outside the territories of the
country. It is true that the doctrine has been so utilized in America so far.
In our opinion, learned Attorney General was right in contending that where
citizens of a country are victims of a tragedy because of the negligence of any
multinational, a peculiar situation arises which calls for suitable effective
machinery to articulate and effectuate the grievances and demands of the
victims, for which the conventional adversary system would be totally
inadequate. The State in discharge of its sovereign obligation must come
forward. The Indian state because of its constitutional commitment is obliged to
take upon itself the claims of the victims and to protect them in their hour of
The welfare state was founded on the interaction of ideology and
empiricism-liberal, socialist and conservative—which embodied an agreement on a
wide range of socioeconomic policies. In a number of aspects, the development
was unique. It happened in a free society where men presented their ideas and
interests into conflict and where governments tended to make judgments based on
conversations and empirical investigations of situations. The welfare state
arose in reaction to the unique circumstances of a mature economy, a
laissez-faire ethos, and enlightened self-interest traditions.
By including the Directive Principles of State Policy, the framers of our
Constitution aimed to create a welfare state. However, because these directives
are not classed as justiciable like fundamental rights, they are not fully
applied. It is critical for the country's legislators to remember the directive
principles when drafting or changing legislation. Part IV of the Indian
Constitution contains these directive concepts.
These are social, welfare, and economic principles, according to the authors. We
attempted to construct a welfare state by enacting "directive principles of
state policy" in part IV of the constitution.
The state has tried to make numerous attempts to put the Directive Principles
into effect. The five-year plans and the Universalization of Elementary
Education Program have been given top importance in such a way as to providing
free education to all children up to the age of 14. The 86th constitutional
amendment of 2002 added a new item to the Constitution, Article 21-A, which aims
"to offer free and compulsory education to all children aged 6 to 14".
Both the federal government and state governments are implementing welfare
programmes for the poor. These welfare programmes of government include various
programmes like hostels for boys' and girls' and for students from scheduled
tribes or scheduled castes. In honour of B.R. Ambedkar, the year 1990-1991 was
designated as the "Year of Social Justice."
Is Rule Of Law Established In The Welfare States?
The welfare system is not free from the rule of law, which includes fundamental
principles of accountability of executive such as loyalty to legislative and
constitutional authority, consistency in decision-making of administration, and
transparency. Furthermore, in modern democracies, the assumed mechanism of
enforcing rule-of-law ideals in the administrative state - judicial scrutiny of
administrative action - is firmly established.
On the other hand, the rule of law extends to serve as a judicial safeguard for
an individual's private rights against state interference. Strong
interpretations of the "right/privilege" difference, which deny welfare
recipients more than the bare minimum of legal protection, have been rejected.
Many people, however, remain sceptical that the principles of executive
responsibility created in the context of individual rights can be logically
applied in the context of social programmes. Furthermore, individuals dedicated
to rule-of-law ideals in the welfare state cannot agree on how those values
should be institutionalised.
Standards Versus Rules
Lawyers are drawn to laws that limit administrative discretion in order to
foster consistency in decision-making. However, when it comes to the important
aims, the execution of a rule might sometimes be arbitrary. As a result, lawyers
are more likely to adhere to rules that promote customised examination of how
aims can be substantiated in the context of the specific applicant. The current
welfare state of America arose in the early twentieth century under the impact
of a viewpoint that favoured discretion in tailoring responses that are
programmatic to the circumstances of the beneficiary.
In juvenile courts, public assistance, education, and child protection, the
ideal was decision by fully trained professionals under standards. The perfect
option was made by highly qualified specialists under criteria in juvenile
courts, education, public aid, and child protection. There was a backlash
against this viewpoint in the 1960s and 1970s. The performance of the officials
who are street-level and therapy experts who manned welfare organisations drew
scathing criticism from both the right and the left. They were thought to be
obtrusive, harsh, and capricious.
A return to norms, discretion, and individuation has been motivated by a sense
of rule-based governance's inability to adjust to the fluidity and diversity of
beneficiaries' circumstances. On one hand, this unhappiness appears to be a
passing phase in an ongoing cycle of categorical and contextual standards.
However, another viewpoint considers the trend to be more basic and secular.
Individualization, or "tailored universalism," is a core feature of an emerging
"developmental welfare state," according to the Irish National Economic and
Social Development Office, which is surveying changes in Europe. Its argument
emphasises how recent social and economic upheaval has thrown European and
American welfare systems into disarray.
The populations supported by welfare programmes have become more diversified as
a result of increased geographic mobility and immigration. Traditional welfare
recipients, such as the elderly and women, have been increasingly dragged and
pushed into the job market, necessitating the redesign of programmes for them to
better fit the combining of public assistance and employment. Economic
development has made the less trained portions of the workforce more vulnerable,
necessitating transitional public assistance that includes both income transfers
Systematic Versus Discrete Judicial Intervention
Lon L. Fuller questioned the court's role in the welfare system, claiming that
"polycentric" claims were unsuitable for judicial involvement. Polycentric
difficulties develop in complexly linked systems when a court requirement
affecting one element has unforeseeable or controlled consequences for other
In Goldberg v. Kelly
, Justice Black expressed his opinion of dissent
– "If courts require welfare programs to afford pre-termination hearings, the
programs are likely to respond by making it more difficult to establish
eligibility in the first place." The number of verification needs has been
expanded, making the procedure even more difficult.
When a judge ordered special education programme of New York to improve its
eligibility decisions processing, it transferred employees away from existing
beneficiaries, and declined service to them. Polycentricity necessitates
systemic intervention, yet this intervention has its own set of issues.
The courts have given up hope of developing and enforcing definite norms for the
behaviour of an entire system. The more restricted and exact the legal mandate,
the more likely it is that the court's enforcement will have unintended or
unwanted consequences. However, broad involvement is difficult to establish with
certainty in legal authority.
Positive Rights And Negative Rights
DeShaney v. Winnebago Department of Social Services
, the definitive
assertion of the precedence of negative rights in American constitutional law,
emerged in the field of child abuse and neglect. The plaintiff was a child who
had suffered significant brain injuries as a result of his father's continuous
Despite considerable proof of the child's danger over a long period of time, the
state social services agency interfered ineffectively and failed to remove him
from the household. According to the complaint, the failure amounted to a state
loss of "life, liberty, and property" in violation of the 14th amendment (and
hence actionable under section 1983).
The court rejected the claim, holding in an opinion by Justice Rehnquist that
"the Due Process Clauses generally confer no affirmative right to governmental
aid [against lawless private action], even where such aid may be necessary to
secure life, liberty, or property interests of which the government itself may
not deprive the individual."
The preceding opinion will be unsatisfactory to those who believe that
constitutional theory must be a well-founded principle because it simply
acknowledges history and convention. Any conceivable assessment of the relative
importance of a citizen's interests does not significantly reflect the
DeShaney does, however, mention a significant problem in the final paragraph:
"In defense of [the defendants] it must also be said that had they moved too
soon to take custody of the son away from the father, they would likely have
been met with charges of improperly intruding into the parent-child
relationship, charges based on the same Due Process Clause that forms the basis
for the present charge of failure to provide adequate protection."
Rehnquist repeats the long-held notion that positive rights principles are
uncertain. Theorists argue that government programmes are not supported by a set
of changing but specific societal norms similar to those that provide judicial
decision-making about rights of private coherence. Welfare systems are
inadequate in providing the self-changing characteristics of private markets,
and therefore must be guided by bureaucracies under political control.
As a result, traditional rule-of-law court involvement disturbs political
accountability and risks rigidity, arbitrariness, or both. If the assertion
of indeterminacy is correct, it indicates a dreadful trade-off. Either we must
empower or burden the courts with the duty of defining and enforcing norms that
are not susceptible to meaningful judicial elaboration, or we must omit some of
the most basic and important interests of a large segment of the people from the
strongest rule-of-law protection.
The idea of modern states and how they exist- the transition from laissez faire
to modern states – has been briefly outlined in this paper. We've seen instances
like Vishnu Agencies v. Tax Officer, in which the principle of laissez faire was
defined in Indian courts, and we've seen constitutional measures in India geared
at attaining modernity.
We've also seen how modern welfare governments have institutionalised the rule
of law and its value. The impact of globalisation on the modern welfare state's
sovereignty was also discussed in this research.
It is vital to remember that, in order to modernise a state, governments must
adopt or alter current laws – such as labour laws, taxation laws, social
security laws, and so on – to reflect changing societal demands. It is stated
that the government of that country must be concerned about its people and the
cultures that exist there, but that at the same time, country must be in
agreement (while making laws) with the rest of the world.
- M.M. Sankhdher, 'The Welfare State', (Delhi: Deep and Deep Publications)
- M.M. Sankhdher, 'Yogakshema: The Indian Model of Welfare State', (Delhi:
Deep and Deep Publications) 3.
- (1978) 1 SCC 520
- (1997) 6 SCC 723
- (1979) 1 SCC 477
- (2016) 7 SCC 353
- Nolo's Plain-English Law Dictionary
- 1998 SCC (3) 255
- M.M. Sankhdher, 'Yogakshema: The Indian Model of Welfare State', (Delhi:
Deep and Deep Publications) 5.
- Paras Diwan, 'Administrative Law', (Faridabad: Allahabad Law Agency)
2004 p 124
- Noonan, K.G., Sabel, C.F. and Simon, W.H., 'The rule of law in the
experimentalist welfare state: lessons from child welfare reform'. Law &
Social Inquiry, 34, pp.523-89.
- See Supra
- See Supra at 12
- Michael Lipsky And Steven Rathgeb Smith, 'Nonprofit Organization,
Government, and the Welfare State,' 104 Political Science Quarterly 625
- 397 U.S. at 278-80
- 489 U.S. 189, 196 (1989)
- 489 U.S. 189, 196 (1989)
- Gunther Teubner, 'After Legal Instrumentalism?: Strategic Models of
Post-Regulatory Law,' in Dilemmas of Law in the Welfare State 299, 305-13.