Vol. 10 No. 2 (February 2000) pp. 86-90.

FROM DISSONANCE TO SENSE: WELFARE STATE EXPECTATIONS, PRIVATISATION AND PRIVATE LAW by Thomas Wilhelmsson and Samuli Hurri (Editors). Brookfield, VT: Ashgate, Publishing Co., 1999. 636 pp. Cloth $148.95.

Reviewed by Bronwen Morgan, Faculty of Law, Oxford University and St Hilda's College.

"No change please, we're Germans..Where will the frightened country go?". So intones an article on the politics of the welfare state in Germany published in the century's final issue of PROSPECT, a British current affairs monthly. Anxiety and stasis are presented as characteristic of the northern European attitude to the changes wrought by globalization. The decade is ending with a dichotomy of capitalisms far more pallid than the divisions of the Cold War. The two dominant models are the Anglo-Saxon and Rhenish models - tagged in the same PROSPECT article as the "wild west and the nice north" (Dahrendorf 1999: 38). This is a book from the nice north. I t sets out to hold onto the dream of the solidarity of the European welfare state but to exonerate itself from the charges of fear and stasis. The dream is still within grasp, but the path has changed. The change is encapsulated in a move from public to private, not only as technique but also as ideology.

This edited volume explores -- and in part aspires to map out just -- such a new path towards solidarity. It publishes a selection of papers from an international conference that occurred in Finland in 1997 in connection with a three-year research project at the Department of Private Law of the University of Helsinki. The title encapsulates the aim of the project: to explore the potential of private law as a technique for fulfilling the welfare state expectations put at risk by the "privatisation" of the last twenty years. "Welfare state expectations" in this book are sometimes described broadly as "solidarity" or "social and ecological goals", though in practice
they most often mean "economic security, access to services and basic economic equality" (p. 242) -- the redistributive aspects of the welfare state which are rather conspicuously absent from many versions of the notorious Third Way. "Privatisation" has a broad meaning that may not correspond with everyone's common-sense attribution. That is, it includes deregulation, market testing of public services, contracting-out, reduction in social security spending levels, and the application of competitive pressures to the public sector.

Essentially, the book seeks to elaborate a new means for achieving the goal of solidarity, accepting as a premise of the conference (though not without regret) the demise of the traditional welfare state. In the opening chapter explaining the project and its themes and summarizing the contributions, Thomas Wilhelmsson acknowledges that a "welfare mix" combining the resources and strategies of both state and market has always existed, but

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he argues that the "contents and the proportions of the ingredients in the mix" are currently in much dispute (p. 5). By searching within private law for means
of pursuing welfarist goals, the book asks, "what are the implications for private law of the decline or metamorphosis of the welfare state?" (p. 5), a
parallel question to analogous recent inquiries within the domain of public law (Aman 1998; Harlow 1997; Taggart 1997). The book's intended audience is
clearly legal scholars; however there are reasons why political scientists may still be interested to which I will advert at the end.

There are really two dimensions to this inquiry, albeit interrelated: a technical exploration of practical strategies and an ideological reframing of the goals animating private law or what Wilhelmsson refers to as "a private law 2000" (p. xxii). In essence, the practical dimension explores "recipes for mixes [between market-based and civil-society based strategies] which could contribute to the preservation of welfarist values in a changed environment" (p. 5). The ideological dimension of the book's project is linked to its methodology. The volume is explicitly normative in aspiration, a stance perhaps not unrelated to the fact that all the contributors are law professors. "The aim was to develop new utopias for legal and social research [b]y linking together theories of the development of society and the concrete analysis of topical issues of (private) law (p. xxii). "The approach in this book is.both empirical and normative, with an emphasis on the latter. It is
not only a question of how society and law work at present and most likely will function at the beginning of the next millenium, but rather an analysis of the directions in which one could and should try to push the development. [T]here is still a need for normative models of social activity. The Great Utopian Narratives are dead - or perhaps only temporarily paralyzed - but small good stories on possible change can still be told. The book contains a collection of such stories" (p. 6).

The editors, in urging this "utopian legal analysis" (p. 7), quote Roberto Unger's desire to use law as a "master tool of institutional imagination" (p. 6). The bulk of the chapters draw on social theory, usually rooted in critical sociology, as a kind of interpretive heuristic. It is a sieve through which they strain the empirical and doctrinal details of their chosen focus, whether it is consumer credit law or the effects of contractual techniques within the public sector. For example, Iain Ramsay
reconceptualizes bankruptcy as a "welfarist institution" rather than a private law one, a "universal programme similar to public health care" (p. 471), and he draws normative conclusions about its appropriate scope and availability from this reconceptualization. The reconceptualization is done with the aid of theoretical concepts drawn from Ulrich Beck (1992), Anthony Giddens (1990), and Francois Ewald (1986), all authors, along with Zygmont Bauman (1991), who are repeatedly cited throughout the volume.

This particular mix of normative and descriptive elements has a number of implications for the project of the book. As one of the editors observes in his contribution to the volume (p. 222), it implies "huge - and perhaps unwarranted - jumps between different theoretical levels". The theory typically drawn on by contributors is "grand social theory", not empirical theory of the kind more familiar to political scientists seeking to test hypotheses and generate predictions. Although

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Wilhelmsson states his intention to explore both "in what respect and under what conditions" private liability law can be used to foster solidarity, his essay, and almost all the others in fact explore only the former, using the kind of "interpretive description" I have alluded to above. The question of" "UNDER WHAT CONDITIONS solidarity-focused private liability mechanisms would develop" is mostly elided. The exception derives from the comparative aspects of the volume, of which more in the next paragraph. However, suffice it to point out here the nature of this volume, one that tends to evoke, in the words of one of the contributors "sketch[es] of questions and speculations rather than a comprehensive exploration" (p. 461). This is not intended as a criticism; rather it is more a clarification of the extent to which this volume might relate to the particular concerns of many of the readers of this source of reviews.

The book is divided into nine portions and 21 chapters, each with its own bibliography, and at 636 pages, it is unlikely to lend itself to being read right through, especially since the usual qualifying comments about uneven quality of chapters in an edited volume apply. Parts 1 and 9 comprise opening and concluding chapters by the two editors, the first in a sociological vein, leavened with social theory, and the last in more philosophical mode. These chapters address the overarching themes of the book -- under the umbrella theme of exploring private law's utopian potential for securing welfarist goals; there are subsidiary themes of consumers and
consumption, risk, the new role of information, globalization, and fragmentation of social and legal institutions. To their credit, the editors have achieved systematic attention to these themes and sub-themes in the contributions to the middle seven sections, despite a rather wide variety of theoretical perspectives, the common normative-interpretive stance notwithstanding. The first two substantive sections are broad and sweeping, exploring first, in four chapters, the changes in the welfare state that motivated the project, and secondly, in two long chapters, each some fifty or sixty pages, the state of "private law theory" in the light of these changes.
Though most contributors take an approach that melds historical description with social theory William Lucy, querying the alleged "crisis" of private law, draws on analytical jurisprudence and political philosophy. Along with the accompanying essay in this section -- Udo Reifner's "The Lost Penny -- Social Contract Law and Market Economy" -- this section is perhaps the most successful of the book. It combines a mixture of breadth and depth, specificity and broad commentary. Reifner argues, for example, that technology may provide for the first time the capacity to load money with information about its origins and destinations in such a way that the capacity of market exchange to incorporate social objectives is significantly enhanced. He relates this both to broad social theory and to the specificities of contract law in an original and incisive manner.

Perhaps partly because of their comparatively shorter length, the remaining chapters applying the themes developed thus far to specific policy areas have rather mixed success. The five specific "test arenas" chosen to apply the search for utopian solutions are "liability," mostly for tortious wrongs, contract, credit, the environment and access to justice. To a very great extent, this categorization reflects a legal way of carving up the world, and most of the chapters use a rapid summary of a particular legal arena in which they are expert as a descriptive basis from which to launch their

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interpretative quest for "utopian" legal strategies. The trouble with this is that in quite a few chapters, the reader is either plunged into the midst of doctrinal complexities in an unfamiliar area of law, or given an inevitably shallow tour of a huge area of statutory law in just a few pages. In my view, the most successful chapters did neither of these two things but elucidated the main framework principles of their area of expertise and then, with the interpretive aid of a theoretical perspective, spun out possibilities for pursuing welfarist goals through a private law framework. Iain Ramsay's chapter on bankruptcy has already been given as an example earlier in this review. Other successful chapters in this regard are Thomas Wilhelmsson's chapter on liability mechanisms (suggesting, for example, credit obligations being altered to take account of unemployment, illness or poverty; or a general liability for businesses not to discriminate on economic grounds
between clients) and Jenny Steele's chapter on environmental issues, though her theoretical framework - drawing mainly on law and economics approaches -
is (like Lucy's) rather different from most of the contributors. Readers of course can dip into policy areas of particular interest to them by turning to the relevant section, but may find that not all articles in each section are equally helpful.

Another dimension of the "spread" problem alluded to above is that the contributors hail from Australia, Canada, Finland, Denmark, Sweden, the United
Kingdom, Germany and Brazil. Although most authors draw on their own legal systems, there is no systematic attempt to draw any conclusions from this
bricolage of comparative data. The one exception here is Hans-W. Micklitz's chapter on access to justice in the European community, which uses comparisons with public interest litigation and alternative dispute resolution in the United States to draw conclusions about "who is going to court in Europe and why" (p. 531). However, the space constraints make the comparative bite of even this very interesting chapter embryonic. It must be acknowledged that the aim of the book was not comparative institutional analysis. Still, it seems a missed opportunity, given the geographical spread of the contributors and the hint by one of the editors in his contribution (Wilhelmsson, p. 242) that the utopian potential of private law may be proportionate to "adherence to welfarist ideals" (implicitly, he means more realisable in Europe than the United States, in Scandinavia than the United Kingdom, etc.). Perhaps I am only making this quibble because in most respects, the "practical benefit" of coopting private law to secure the goals of the welfare state seemed from the contributions to be tentative, fragmented and scattered. It may be that a consciously comparative analysis of the "CONDITIONS UNDER WHICH" a "private law 2000" might develop would have given a greater sense of hope to the project. As it is, the weight of expectations placed on private law, at least as far as practical benefit is concerned, rather reflects the closing comments
of one of the more skeptical contributors: "[i]f we think of law as a system of rules and principles aimed at the implementation of some social vision, we will always be disgusted by its vulgar and chaotic reality" (Lucy, p. 216, citing Simmonds 1992).

I do not wish to end on that note, however, for the book deserves no association with vulgarity or chaos, even if the law it probes does. Where it is most interesting and also successful is at its second level, that of ideologically reframing the

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purposes and goals of private law. Here, whether or not it succeeds in providing some comprehensive vision is not the point (indeed, more than a few contributors are uncomfortable with closure and resolution). Rather, it does a very good job of enacting something that Samuli Hurri in his closing chapter makes explicit: the profound disenchantment with state politics, especially political institutions, as a source for a morality that will bind disparate citizens (consumers?) into a common sphere. The weight of the collection and the energy it puts into probing the interstices of private law could, and perhaps should, act as a spur to scholars of law and politics to refocus their gaze. Just as law and society scholarship has so long urged us to look for law beyond the state, so this book could be read as a call to look for the politics of social justice and solidarity beyond public law, to look in new places for old issues. It may well be in bankruptcy, corporate governance, or
consumer credit that the cutting edge sense of the normative and even institutional outlines of a 21st century politics will emerge. This book provokes questions and thought processes relevant to such an endeavour.

REFERENCES:

Aman, Alfred. 1998. "The Globalising State: A Future-Oriented Perspective on
the Public/Private Distinction, Federalism, and Democracy." VANDERBILT JOURNAL
OF TRANSNATIONAL LAW 31: 719.

Bauman, Zygmunt. 1991. MODERNITY AND AMBIVALENCE. Oxford: Polity Press.

Beck, Ulrich. 1992. RISK SOCIETY: TOWARDS A NEW MODERNITY. London: Sage.

Dahrendorf, Ralf. 1999. "German Notes: Bothered Berlin." PROSPECT (Dec.): 36-
39.

Ewald, Francois. 1986. L'ETAT PROVIDENCE. Paris: Grasset.

Giddens, Anthony. 1990. CONSEQUENCES OF MODERNITY. London: Polity Press.

Harlow, Carol. 1997. "Back to Basics: Reinventing Administrative Law." PUBLIC
LAW 245-261.

Simmonds, Neil. 1992. "Bluntness and Bricolage." In JURISPRUDENCE: CAMBRIDGE
ESSAYS. Ed. Hyman Gross and Ross Harrison. Oxford: Clarendon Press.

Taggart, Michael (ed.). 1997. THE PROVINCE OF ADMINISTRATIVE LAW. Oxford: Hart
Publishing .