Evolution of the Welfare State: From Formal to Material Rights
Formal Rights and the Need for Material Equality
The liberal state is characterized by formal equality before the law, meaning one law for all. However, this is insufficient; we must transition from formal to substantive rights, ensuring a minimum standard of living for all citizens. Personal rights and political participation are meaningful only if these material preconditions exist. Social constitutionalism aims to prevent the exploitation of disadvantaged classes, a consequence of the Industrial Revolution and urbanization, which led to increased population density and interdependence.
The rise of an urban proletariat and the emergence of trade unions and mass political parties (Labour, Socialists, Communists) challenged the single-class (bourgeoisie) state. The social state emerged as a response to pressures from fascist and communist models, forcing the liberal state to adapt and address social inequalities through reform, not violence.
The Government’s Role in the Welfare State
The liberal state initially safeguarded private property and free trade, serving the bourgeoisie’s interests. Government intervention was minimal, prioritizing freedom and non-interference, even at the cost of social disparities. However, industrial society revealed that individual effort alone was insufficient for balanced social development. The state needed to intervene to ensure a decent material existence for all citizens, promoting social justice and reducing inequalities (Art. 9.2).
This requires active legislative and administrative measures, including positive discrimination or “affirmative action.” The welfare state shifts from a minimal (police) state to one actively promoting fundamental rights and addressing social problems.
Several authors have categorized this shift: Forsthoff emphasized the state’s obligation to ensure existential needs; Hesse highlighted the transition from reciprocal rights to dependency, necessitating state-guaranteed social benefits; and Heller defined the welfare state as recognizing social rights and economic well-being, a compromise between the liberal state and Marxist ideals, without abandoning the rule of law.
The first social constitutions emerged between the wars (Mexico 1917, Weimar Republic 1919, Second Spanish Republic 1931), representing a pact between the middle classes and labor movements. Post-World War II constitutions (France 1946, Italy 1947, Germany 1949) further solidified social rights. The Spanish Constitution of 1978 (Art. 1.1) defines Spain as a social and democratic state upholding freedom, justice, equality, and political pluralism.
Historical Manifestations of the Social State
Early manifestations of the welfare state included charities, health, and education services, progressively universalized and improved. Labor laws regulating working conditions, child labor, and working hours emerged, recognizing the worker’s weaker position. Social security systems developed, evolving from private to mixed and then public models, covering work accidents, unemployment, and old age, including non-contributory pensions.
Even authoritarian states like Italy under Mussolini and Spain under Franco implemented social security, albeit within a corporatist framework. Post-war democratic governments established comprehensive welfare and health systems (e.g., Britain’s Beveridge Report, Nordic models). Communist countries also developed welfare states, though their effectiveness is difficult to assess due to lack of democracy.
Public services like postal, telephone, power, and television became state monopolies or regulated concessions. In France, this is termed “public service,” while in Germany, it’s part of the welfare state (Wohlfahrtsstaat). Spain’s Constitution (Art. 128) allows reserving essential services for the public sector.
Government intervention in the economy, particularly after the 1929 crisis, became crucial to ensure economic growth and employment. This involved increased public spending, anti-cyclical policies, and limitations on free enterprise to promote social transformation (Spanish Constitution, Title VII, Art. 128.1, 130, 133).
The welfare state also transformed administration, shifting from centralized models to decentralized democratic structures with functional decentralization, creating public entities to fulfill administrative functions. Public law gained primacy over private law, with administrative law granting privileges to the administration in the public interest.
The welfare state recognizes the significance of social groups, not just individuals, actively involving unions, business organizations, and political parties. Collective agreements gain normative force.
However, the welfare state’s sustainability is challenged by high public spending (30-50%), requiring adjustments such as benefit cuts or increased revenue. The efficiency of public versus private initiatives is also debated.
The Welfare State and Rights
The welfare state affects the conception of rights in three ways:
- Rights of freedom are not solely against the state but also require state action. They have a subjective and an objective dimension, obligating the government to guarantee their realization (Art. 17). Custodial sentences aim at rehabilitation and reintegration (Art. 25).
- Economic and social rights are recognized, such as the right to education (Art. 27), freedom of association (Art. 28), the right to strike, collective bargaining (Art. 37), and healthcare (Art. 43, also recognized in the EU Charter of Fundamental Rights, Art. 35).
- Guiding principles for social and economic policy are incorporated into the constitution (Title I, Chapter III, Art. 39-52). These principles, while not individual rights, guide legislative and administrative action. They can be classified into:
- Economic policy principles: equitable income distribution, full employment, economic stability (Art. 40), worker training, workplace safety, consumer protection.
- Protection of specific groups: children, single mothers, immigrants (Art. 42, 48), youth, the disabled, the elderly.
- New generation rights: physical education and sport (Art. 43), access to culture and research (Art. 44), a suitable environment (Art. 45), heritage conservation (Art. 46), access to housing (Art. 47). These require legislative development rather than being directly enforceable individual rights.