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Examine Whether The Rise Of Administration In 21st Century Has Been A Journey From Welfarism To Laissez Faire

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 the least.[1]

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.[2]

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.[3] "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.[4]

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[5]. 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[6].

In Government Branch Press v. D.B. Belliawpa[7], "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[8] that the country's economic policy has progressed from laissez faire to welfare state to liberalised economy.

The Indian economy has undergone significant policy changes as a result of the following factors:
  1. Liberalization;
  2. Privatization; and
  3. Globalization.

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.[9] In Charanlal Sahu v. Union of India[10], 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 need."

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.[11]

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.[12]

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.[13]

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.[14]

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.[15]

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.[16]

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 and training.

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 sections.

In Goldberg v. Kelly[17], 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 beatings.

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."[18]

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 negative/positive distinction.

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."[19]

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.[20] 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.

Conclusion
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.

End-Notes:
  1. M.M. Sankhdher, 'The Welfare State', (Delhi: Deep and Deep Publications) 17
  2. Ibid.
  3. Ibid.
  4. M.M. Sankhdher, 'Yogakshema: The Indian Model of Welfare State', (Delhi: Deep and Deep Publications) 3.
  5. (1978) 1 SCC 520
  6. (1997) 6 SCC 723
  7. (1979) 1 SCC 477
  8. (2016) 7 SCC 353
  9. Nolo's Plain-English Law Dictionary
  10. 1998 SCC (3) 255
  11. M.M. Sankhdher, 'Yogakshema: The Indian Model of Welfare State', (Delhi: Deep and Deep Publications) 5.
  12. Paras Diwan, 'Administrative Law', (Faridabad: Allahabad Law Agency) 2004 p 124
  13. 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.
  14. See Supra
  15. See Supra at 12
  16. Michael Lipsky And Steven Rathgeb Smith, 'Nonprofit Organization, Government, and the Welfare State,' 104 Political Science Quarterly 625 (1989).
  17. 397 U.S. at 278-80
  18. 489 U.S. 189, 196 (1989)
  19. 489 U.S. 189, 196 (1989)
  20. Gunther Teubner, 'After Legal Instrumentalism?: Strategic Models of Post-Regulatory Law,' in Dilemmas of Law in the Welfare State 299, 305-13.

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