by Agustín Ruiz Robledo, Professor at Universidad de Granada
Review on the book “La nueva relación entre el Estado y la sociedad”, by José Esteve Pardo, Ed. Martial Pons, Madrid, 2013.
The economic crisis has been studied almost from the moment it broke in front of European’s faces in 2008, a time in which many of us thought that the crisis was a purely American matter. Without intending to be very precise, we could say that this broad collective reflection has produced a specialization among economists, who analyse the causes, and lawyers, who focus on the consequences that the crisis is having on our system. However, José Esteve Pardo, Professor of Administrative Law at the University of Barcelona, has broken this pattern to try an approach to the background of the crisis, a crisis that he considers to be of all European states and not just one in particular. In his thesis, as he advances in the title, he considers that the balance between society and State which was gained in the Occidental world after World War II has been broken. This telluric movement, or “fault” as the author calls it, derives in economic problems, terrible unemployment figures, rampant corruption, etc.
Before reaching this thesis, Professor Esteve Pardo explains the evolution of the relationship between society and State over the last two hundred years, which, as we all know, can be summarized by saying that during this time there have been two large models: during the nineteenth and early twentieth Century, the liberal state advocated for the separation of State (governed by the Constitution) and civil society (ruled by the civil Code and contracts); a model which was subsequently replaced by the Welfare State. Far from claiming an impossible originality, the author narrates us with an agile and brilliant prose this well-known evolution, following the most famous authors, starting with Adam Ferguson –who invented the expression “civil society”- and the great Adam Smith, who explained the market dynamics created in society based on the notion – described by Harold Laski- that “the trader is a public benefactor.” After them, the author continues with Mercier de la Riviere and the French Physiocrats; Hegel and Otto Gierke (with its contrast between Genossenschaft and Herrschaft) in Germany; Martinez de la Rosa and Donoso Cortes in Spain, etc.
In addition to reference to the thinkers, the author also introduces sociological elements to his theory. He writes about the rise of the Welfare State in the Weimar Constitution of 1919, a compromise between the radical left (very dazzled at the time by the Bolshevik revolution, I might add) and the traditional liberal state that sought to stabilize the unstable economic and social situation that Germany and Europe were living at the time. The social state, based on the legitimacy of popular sovereignty, sought to correct the structural defects of society, a goal that is reflected in the legal system in various ways, among which two can be highlighted: on one hand, in the birth of social rights (the right to education, health protection, etc.) and on the other hand, in a new conception of property, an right that changed from being “absolute” to having a “social function”. To achieve the realization of these ideas it became necessary to transform the liberal non-interventionist State and to expand the public sector in an extraordinary way, strengthening the State administration (with the side effect of having society enter the State through new bureaucracy) to the point of transforming the municipalities, traditionally considered social corporations, into public administrations.
However, the aim of correcting the structural flaws of society through the Welfare State implies an exponential growth of the public sector on all fronts, from increasing the number of staff to increasing the tax burden, which leads to the key point of this type of state: its economic sustainability is based on continuous demand for more funds to cover their ever-increasing costs. This is why some thinkers (as prestigious as Max Weber and García Pelayo) had the erroneous idea that full integration between society and the state with predominance of the latter would occur. However, in the last third of the twentieth century there has been a relapse and society has not only regained some self-regulating capacity, but also reached a point in which functions previously considered inherent to the State are now carried out by society itself: from managing many public services to doing most of the scientific and technical research; without forgetting all the important economic resources that society has, so many that even States appear to be at the mercy of companies as opaque as rating agencies.
And in the same way that the Welfare State led to a reorganization of the public authorities, the new State -which we can call Post-Welfare State, although Esteve gives it a particular name- that is emerging now adapts to the new relationship between State and society with new institutions that are conceived as a retreat of the State in favour of society: traditional corporate administrations are reorganized, multiple independent administrations are created (which, in Spain, are more often than not “captured” by political parties and not that independent), and even the Administration of Justice suffers a loss of its monopoly in administering Justice that is evident not only in Civil Law (an area in which, after the reform of article 414 of the Code of civil Procedure, the judge can invite the contenders to an agreement), but also in criminal matters, allowing the contenders to reach agreements in certain cases. Ultimately, even constitutions are changed to guarantee the sustainability of the state, as happened with the reform of Article 135 of the Spanish Constitution.
Since he is not satisfied with this situation, Esteve proposes a change, which is not an impossible return to the traditional Welfare State but a transformation of the role of the State in the new society. Thus, the State should withdraw in order to become a State “guarantor” of rights and “regulator” of the economy, a theory that has been advocated by a sector of the German academy and, in a way, sustains German institutions; this theory is unlike that of “the frivolous irresponsibility of our Spanish political class”, a view with which most readers identify with. Indeed, from that sentence one starts mulling over the issues that the author sets forth because the current Spanish crisis is in part due to the frivolous action of our political class, famously described by Antonio Muñoz Molina in “Everything that was solid”, and that is manifested in many ways, which Esteve doesn’t deal with, or refers to very little, such as the invasion of politicians of the savings banks (whose disastrous management they have managed to represent as a “banking crisis”), or the political occupation of many technical positions, which has serious consequences. To cite some examples: most harbours being ruled by politicians or having many administrations in which political affiliation is a merit to become a public service manager. Other examples are the dark privatizations in favour of friends and fellow colleges, not to mention the contradiction between that continuous dereliction of public duties in private hands and the increase in the number of public employees (almost three million in 2013). At the global level, the books misses a reflection on supranational organizations, especially on the European Union which, for me, is a collaborative invention of European states that allows them to remain being States in a world that surpasses them, as well as an invention of central banks, which have a very active role in the global financial system. In short, these are very broad themes that perhaps the author has preferred to write about in a future book, which I am certainly looking forward to read.
Picture credits: library books by timetrax23.