autonomy, liberalism and the new contractualism--kanishka jayasuriya

7/27/2019 Autonomy, Liberalism and the New Contractualism--Kanishka Jayasuriya

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Autonomy, Liberalismand the New Contractualism

Kanishka Jayasuriya

Jayasuriya seeks to address issues of agency and autonomy implicit incontractual social policy thinking of the new welfare state. One of thedistinguishing features of the new social policy thinking of contractualwelfare proponents is the emergence of strongly agent centred social

policy frameworks tinged with a high degree of paternalism. The newsocial policy raises an interesting paradox: the entanglement of illiberal social policies within liberal notions of individual autonomyand agency. Jayasuriya suggests that the resolution of this paradox liesin identifying some of the problematic assumptions about agency andautonomy implied in the new neo-liberal contractualism. The core of neo-liberal contractualism resides in a notion of responsible agencythat is conceived in a highly moralistic manner. Such a moralism ismost evident in neo-liberal welfare contractualism. This, above all, is a

point of view which serves to marginalise the public or the politicalattributes of agency, and in particular, one which elides the direct aswell as indirect coercive context of individual action. In other words, it

presents a deeply anti-political understanding of the nature of agency.However, the author argues that contractualism remains deeplycontested, and an alternative notion of democratic contractualism is

proposed. While contesting individualised notions of responsibleagency, the article seeks to advance an alternative vision of individualagency that accords primary emphasis to the embeddeness of agencyand autonomy on its relational context. Adopting a relational notion

of autonomy enables us to locate a conception of individualisationwithin structures of power and domination.

IntroductionThe new policy coinage of contractualism is reshaping the basis of membership of the political community. Contractualism represents asignificant restructuring of the relationship between state and citizen,

and reflects much more than simple changes to the administration of thebenefit or entitlement programs. The argument advanced in this articlehas three central elements. First, following King (1999), it is suggestedthat the liberal language of contractualism stands, rather paradoxically,alongside a fundamentally illiberal and paternalistic set of outcomes;


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second, the answer to this paradox of liberal intent and illiberal outcomeis to be found in the broadly anti-political and privatised understandingof individual autonomy, that not only informs much of the recent work oncontractualism but also has important continuities with the earlyBeveridge type (Beveridge 1942) theorising on social policy; finally, theessay proposes a more public or democratic view of autonomy. Buildingon the work of Raz (1986) and Sen (1992), it incorporates an under-standing of welfare as a central element of a broader republican projectof democratic contractualism.

This broad contractualist agenda swings on a very specific under-

standing of the autonomy condition which subordinates all otherelements of the contractualist agenda. It is essentially a policyprescription which highlights the notion of autonomy as economicparticipation, and devalues a more political understanding of autonomyand agency. It fails to recognise that individual autonomy requires thatwe acknowledge that individuals make choices within the context of institutional arrangements or structures, some of which may work toinhibit the exercise of choice. Contractualist welfare programs, through

the insistence on economic independence as the defining attribute of individual autonomy, fail to acknowledge how a system of domination orsubordination which cuts across the public/private divide influencesthe shape of individual autonomy. This mode of analysis, fits in neatlywith Yeatmans (Yeatman, 2000) more political approach to theautonomy. She argues that:

Where the economic model of participation assumes that individuals arenecessarily autonomous because they are independent, it is the distinctive

strength of the disability-led approaches to participation to separate thesetwo conditions, autonomy and independence (Yeatman, 2000: 200).

Stated differently, the claim being made here is that individualautonomy is a political notion that sits at odds with a privatised conceptof individual autonomy as economic independence. Yeatmans work isvaluable because it contrasts economic independence with a broadermore political notion of participation. Of course, this is not to valorise aconception of public autonomy as against private autonomy, but to make

the point which in fact underpins Habermass (1996a; 1996b) recentwork that public and private autonomy are conjoined.

In this article, public autonomy and politics more generally refer topublic contestation and engagement in the sense identified by Habermas


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(1996). Further, the notion of the political is employed in the sense thatstructures and arrangements that shape individual agency areinfluenced by political relationships of domination and subordination.The model of responsible agency that underlies the new contractualismuncouples agency from structures of systemic coercion which constrainthe exercise of individual autonomy.

From the vantage point of the responsible agency model, economicindependence or economic participation is at the core of recent develop-ments in welfare contractualism. The recent Howard Government Reporton welfare reform in Australia (Department of Family and Community

Services, 2000: 4) places the highest premium on the development of economic independence. To be sure, the Report does seek to locate theparameters of participation in broad terms but the overall thrust of theReport is geared towards using social policy to move people from welfareto work. Economic independence is set in stark contrast to publicdependency on welfare. This particular understanding of autonomy,as we shall argue, is particularly problematic and one which leads totroubling illiberal consequences.

Liberal Foundations of Illiberal Social PoliciesThe nature of some of these puzzles can be usefully identified through aconsideration of the perceptive study by King (1999) of recent Anglo-

American developments in contractual social policy. Contractualistlanguage resonates with liberal echoes in that it is premised on theactive participation of the individual in his or her welfare through anegotiated set of arrangements with public officials. The point that needsto be underscored here is that contractualism is justified in terms of theobligations that members of a liberal polity incur by virtue of exercisingcertain rights to the use of public goods. According to King, liberalpolities constantly need within certain boundaries of obligation tolegitimise the rights they grant and, in a contractualist model of welfare,these obligations are primarily couched in terms of promoting respon-sible behaviour through an array of rewards or sanctions.

But here is the intriguing paradox that King so well identifies:contractualist policies framed in the name of liberalism have oftenproduced deeply illiberal consequences. First, it has resulted in coercivesocial policies that fundamentally infringe individual freedom. Nothing


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illustrates this more than workfare type schemes where welfarerecipients are compulsorily required to undergo work training or performdesignated tasks such as country service, etc. For proponents of the newcontractualism such as Mead (1997c), the coercive enforcement of obligations is one of the defining characteristics of the new welfarecontract. Second, most workfare programs violate one of the cardinalprinciples of a liberal polity the right to equal treatment (Holmes1995). Welfare contractualism, by targeting a specific group or popu-lation for punitive treatment, breaches the notion of equal treatment.

The question then is to explain this puzzling accommodation of liberal and illiberal policies 1 within liberal polities. Kings answer is that:

[I]lliberal policies are intrinsic to liberal democracy itself and their adoptionreflects an internal contradiction in these polities: policies adopted demo-cratically conflict with expectations about the role of the state in such apolicy but governments use them, from time to time, to promote liberaldemocratic ends under the stimulus of electoral pressures. . . . [Illiberalmeasures reflect two issues]. First, that allegedly liberal democraticgovernments undertake, from time to time, illiberal policies and assume orproclaim their compatibility with liberal values, exercises which arerelatively unsurprising politically; and second that these measures are

undertaken, paradoxically, to advance liberal ends (King, 1999: 26).This mode of reasoning ironically pinpoints the role of such liberal

elements as rationality or autonomy in producing illiberal policies. Forexample, the notion of a competent and rational agent as a preconditionfor citizenship played an important role in justifying a eugenics policywhich was given a serious hearing in both the United States and theUnited Kingdom. Nevertheless, Kings work focuses on the need toidentify the political dynamics, such as electoral pressure or the pressureplaced on solving urgent social problems, that prompt liberal polities toimplement illiberal policies. This argument also proposes the moregeneral thesis that liberal polities have often to engage in shifting thebalance between rights and obligations which, as with the currentworkfare regime, often produce deeply illiberal outcomes.

While this is an attractive and plausible account of the politicsunderlying these illiberal measures, the answers to the puzzle of liberal

intent and illiberal outcomes are entrenched more deeply in the mannerin which liberal polities seek to justify and legitimise the provision of public goods; this ultimately highlights the problematic understanding of agency in liberal theory. Katznelson (1996), whose approach to thesequestions was a major influence on Kings analysis, has suggested that:


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[L]iberalism also remains vulnerable to illiberal temptations by virtue of its principled thinness. Precisely those features many of us considerliberal virtues its low-key approach to patriotism, its reticence inofficially sanctioning communal origins, its commitments to individualautonomy deprive liberalism of the resources with which to constructsatisfying political and communal identities or normatively groundedguides to public policy (Katznelson, 1996: 51).

On the contrary, it is argued here that what Katznelson refers to asthe thinness of liberalism reflects a failure to construct a justification of public or collectively provided goods on the basis of a political notion of individual agency. As a result, there is a fall back on justifying publicgood through thick non-political constructions of community and agency,all of which may, more often than not, involve the implementation of illiberal policies. Illiberal policies depend on embedding individuals inthick constructions of community that often involve the marginalisationof a public status of agency for individuals, which in turn, serves tolicense a range of illiberal policies. Part of the answer then to theparadox of liberal intent and illiberal outcomes lies not so much in theshifting balance of rights and responsibilities, as King would suggest, butrather in the periodic displacement of politics by notions of community.

But the problem is deeper than suggested by these argumentsbecause, as with the new neo-liberal contractualists, it is not merely aquestion of displacing or avoiding politics, but the active constitution of anti-political actions of agency that intertwine liberalism within a set of illiberal practices. What has accentuated this tension between liberal

justification and illiberal practice within the new welfare contractualismis the notion of the welfare recipient as an active agent in the

determination of his or her welfare future. In itself, this emphasis onagency is positive, but what distinguishes the notion of agency within thenew welfare contractualism is its location within a rather distinctivemoral sociology which seeks to lay out proper modes of social conduct. Itis at this point that the link between illiberal practices and liberalmodels of social policy becomes most evident. Social policy is seen as themeans through which individuals can achieve responsible social conduct.It is a peculiarly moralised form of agency that lies at the heart of the

new neo-liberal contractualism.These ideas of active agency are constantly reiterated in various

government reports and documents that underpin the new welfarecontractualism. The Australian Interim Report on Social Welfare points


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out that there needs to be a shift in focus from simply meeting peoplesimmediate needs to help them maximize social and economic par-ticipation over the long term (Department of Family and CommunityServices, 2000: 12). What remains distinctive about these newcontractual modes of welfare then is the casting of the welfare recipientin an active role in his or her welfare future. The pivotal role of theindividual in the new practice of social policy brings with it a whole newarsenal of agency-centred theories that are now used to understand bothwelfare outcomes and behaviour (Deacon and Mann, 1999).

It is a model of choice and agency that resonates with terms such as

responsible conduct and social disorder, and is premised on a moralsociology that places great store on the failure of welfare claimants toproperly internalise the norms and practices of dominant social practices.This moral sociology is largely concerned with the role which welfarecan play in the regeneration of moral infrastructure of contemporaryWestern societies. This regeneration is in turn a precondition of theachievement of a proper balance of autonomy and order, of individualrights and communal obligations (Deacon and Mann, 1999: 426).

This fundamentally illiberal understanding of agency whichunderpins the new neo-liberal contractualism has three importantelements: first, that social policy should be directed at fosteringresponsible behaviour; second, that development of this responsibleagency can be provoked through a cocktail of sanctions and incentives;and, third, that responsible agency lies in the inculcation of new modes of social conduct. More importantly, the understanding of active agencyimplicit within this notion of active agency works through stripping away

the public character of agency and autonomy. Three central featuresillustrate this anti-political notion of autonomy. These refer to: (i)economic dependency and the new paternalism; (ii) civil society and thedispersal of public governance; and (iii) the marginalisation of legalformality.

(i) Economic dependency and the new paternalism

Agency and autonomy have become the key features of the new welfarecontractualism. The idea of dependency has, of course, a long andrather complicated genealogy that predates the influence of the newcontractualism. Its constancy in social policy highlights our thesis thatthe liberal justification of collective goods needs to invoke thick non-


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political conceptions of community and economic order. However, thenew language of dependency within the new neo-liberal contractualism isfar more sharply defined and brings into clear focus the contradictionbetween liberalism and illiberal practices, particularly around the so-called new paternalism (King, 1999).

Fraser and Gordon (1997) provide one of the best accounts of thegenealogy of economic dependency, distinguishing between variegatedusage in the pre-industrial, industrial and post-industrial periods. It isthe latter post-industrial phase which coincides with the developmentof welfare contractualism. In this context, she notes that dependency

has taken a more distinctively negative colouring which leads directlyto the kind of illiberal paternalistic policies characteristic of the newcontractualism. Fraser and Gordon (1997) note astutely that althoughsome forms of dependency (during what they term the industrial era)were seen as appropriate and natural (consider, for example, thegendered forms of dependency that were the hallmarks of the wageearners welfare state), this significantly changed in the post-industrialera where dependency was seen in a largely pejorative and negative

light.It is in this context that the new language of welfare dependency

has been accompanied by an emphasis on economic participation as themain goal of welfare programs. Public goods are not justified in politicalterms as enhancing participation in the public sphere or in enablingindividuals to pursue their freely chosen ends, but only so far as theyenable economic participation. Economic participation may well enhancegreater public autonomy for individuals but the relentless underscoring

of dependency in welfare contractualism highlights the role of welfare inpromoting a narrow view of autonomy as economic independence(although for an alternative conception of welfare contractualism,see Yeatman and Owler, this issue). Nothing more starkly illustrates thisanti-political notion of agency than the contrast constantly madebetween economic independence within the market system and thedebilitating effects of dependence on public goods such as welfare acontrast that leads inevitably to large doses of illiberal policies.

Pivotal to this anti-political view of agency is the notion thatdependency diminishes the competency of welfare recipients. Depend-ence is counterpoised not just to economic independence but to a deeperset of assumptions as to the prerequisites of responsible agency. For the


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proponents of new paternalism, social policy within this framework of responsible agency is designed to encourage and reward competence andresponsible behaviour, and this is always judged in terms of therequirements of the market economy. Mead, an influential advocate of the new paternalism, points out that paternalist programs do not takethe competence for granted; neither do they dismiss it. To set require-ments for clients demands more of them than policies of service andsubsidy that make no demands (Mead, 1997b: 24). Implicit in thisreasoning is that while traditional welfare policies assumed that welfareclients were competent, the new welfare contractualism is explicitlypremised on the fact that welfare clients do not possess competence. Assuch, this justifies a range of paternalist policies that aim to fosterresponsible agency; in so doing it makes possible the stripping of publicattributes of agency such as the right to equal treatment and, even moreseriously, allows for the grievous denial of voice in the determination of contractual arrangements. For the new paternalists like Mead, animportant cause of these illiberal policies is that long-term poverty ordisadvantage is seen to stem from the failure of individuals to internaliseproper norms or values. In fact, the logic of Meads argument may well beapplied to a range of other coercive programs such as eugenics schemesand racist assimilation 2 policies. In essence, the very assumptions of responsible agency lead inevitably to illiberal policies and shift the blameon to the deficient cultural attributes of individuals (Mead, 1997c).

Welfare contractualism seeks to promote a notion of responsibleagency that actively diminishes the capacity of individuals to act in thepublic sphere. By constituting the responsible agent in terms of economic

independence rather than political participation, it neglects and obscurespublic attributes of citizenship. Moreover, by locating the sources of individual culpability in the failure to internalise so-called communitynorms and practices it licenses a whole range of illiberal policies.

(ii) Civil society and the dispersal of public governance

This anti-political notion of agency can be further underscored byexamining the role of civil society in welfare contractualism. As we noted,one of the features of welfare contractualism is a new mode of servicedelivery that places a premium on techniques such as case managementand individual service delivery. However, in some approaches to the newcontractualism this re-specification of service delivery goes much further


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by assigning a leading policy role to civil society. This notion of civilsociety, rather than reinforcing the public participation, needs to be seenas the very diminution of democratic citizenship.

It is fair to point out that not all proponents of the new con-tractualisms are proponents of an active civil society. Mead (1997c)is both cautious and sceptical about the civil society or what hecalls privatisation, arguing that it detracts from the main issues of reci-procity and government enforcement of obligations. Nevertheless, mostadvocates of the obligation-based welfare have been keen enthusiasts of civil society. In Australia, John Howard has advanced the notion of social coalition to complement his notion of mutual obligation and theHoward governments Reference Group on Welfare Reform (2000) followsthe UK Field Report in advocating partnership models between govern-mental and non-governmental organisations.

These new mechanisms create a managerial civil society for theeffective implementation and control of services. There are three centralelements of this managerial civil society. First, civil society is oftenframed in terms of civic virtue and values or, as Cohen (1999) points out,

proponents of this managerial civil society talks about virtue and ethics,rather than rights and entitlements. Paralleling this civic virtue modelthere has been what Cohen aptly calls a re-traditionalising of civilsociety with an emphasis on institutions such as the family. Again, theemphasis on civic virtue, in moving away from rights and entitlements tothe cultivation of values, reinforces the anti-political understanding of responsible agency.

Second, the accent in partnership models of state civil society

relationships is very much directed to the effective management of government-defined goals or objectives. There is little in this model tosuggest a civil society that would enable individuals to contest andchallenge relations of domination. In other words, managerial civilsociety disengages individuals from active political participation.

Finally and crucially the argument of this essay the newmanagerial roles accorded to civil society do not displace governments,but disperse governmental powers to new agencies and networks.This redistribution of governmental powers is most apparent in the

Australian governments Job Network program. In this instance,previous public functions are now being performed by employmentagencies in both the public and private sector (Considine, 1999).


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Dispersing governmental powers in this way does not lead to thediminishment of government, but to the removal of a range of governmental functions from public purview, the effect of which is todiminish the rights and entitlements of individuals.

(iii) The marginalisation of legal formality

The marginalisation of the legal status of welfare recipients is a strikingillustration of the point that the underlying assumption of agency withinthe framework of welfare contractualism diminishes the public orcitizenship status of the individual. It exemplifies the distinction

between the notions of private and public autonomy in the argumentbeing developed in this essay. Indeed, while the language of welfarecontractualism suggests that the legal status of welfare recipients islikely to have greater protection under this regime than under the oldregime, the reality is that the legal status of the welfare claimants is lessprotected and secure. In fact, the marginalisation of rights is builtinto the very obligation-based structure of welfare contractualism whichin turn, as we have argued, is premised on a problematic non-political

conception of responsible agency. Diminution of these rights is evidentin the fact that obligation-based welfare contractualism is premisedsquarely on a punitive sanctions-based regime which further attenuatesthe legal status of the individual (Mead, 1997c). In fact, the acceptance of these terms under the threat of punitive sanction in any othercontractual arrangement may well serve to invalidate the entirecontract.

Furthermore, the highly ambiguous and subjective legal standards of many contractual agreements add to the lack of legal formality withinthe new contractualism. As Carney and Ramia (1999: 134) point out, thecriteria for case management are more diffuse and more subjective.Significant levels of professional judgement and discretion on the part of case mangers are entailed. In the Australian context, Carney and Ramia(1999) argue that the welfare contractualism turns welfare adminis-tration into a relationship between welfare officials and recipients, but arelationship that is narrow and that limits the bargaining power of welfare beneficiaries in many significant ways.

Though employing the language of contract, the new contractualismdepends on a high degree of punitive sanction and, as such, it makesproblematic any idea of a symmetrical contractual bargain. Such a


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coercive relationship can only be understood in terms of the ideal of aresponsible and competent agent that underpins much of the normativerationale of contractualism. To move beyond this limited paternalisticunderstanding of contractualism whilst at the same time retaining thevaluable notion of individual autonomy requires us to develop a politicalnotion of agency.

Towards a Democratic ContractualismClearly, welfare contractualism as currently constituted in both policyand practice in the United States, the United Kingdom and Australia is

based on a high degree of coercion and manipulation; and the level of tolerance for this degree of coercion is simply incompatible with a conceptof individual autonomy (see Plant, 1985). This anomaly is an inevitableconcomitant to the anti-political notion of autonomy and independence,which lies at the core of the current practice of welfare contractualism.

As the public rights and status of individuals become marginal there is acorrelative increase in the degree of coercion as well as in the likelihoodof paternalist and illiberal outcomes.

Coercion acts to distort individual autonomy in two ways. First, itreduces the availability of options that are open to individuals. Anautonomous individual must not only be given a choice but he or sheneeds an adequate range of options to choose from: not just a number of options but also, as Raz (1986) argues cogently, a variety of options, andthese options must relate in one way or another to individual projectsand goals. Paternalist welfare contractualism limits the number as wellas the variety of options open to individuals. On this basis, welfarerecipients are subjected to a coercion that is quite incompatible withindividual autonomy. It is essential that the criterion of adequacy of options be incorporated in a more democratic contractualism which isnon-coercive and takes seriously the concept of individual autonomy.

But options, as Raz goes on to suggest, are socially defined becausethe range of choices open to individuals are determined by the kindof social structures and institutions they inhabit institutions and

arrangements which are constrained by relations of power. Hence, anymove to widen the range of options open to individuals will inevitablyengage in the task of assessing these arrangements in terms of thedegree to which they constrain the ability of an agent to exercise choice.


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We shall return to these issues, but the argument that needs to beunderlined here is that the consequence of adopting an adequacy of option standard is to give a more political understanding of individualautonomy than that provided by welfare paternalists.

The coercive character of the relationship within welfare con-tractualism can also be illustrated in the highly limited bargainingcapacity of individual agents. One of the means through which coercionlimits autonomy is by distorting the way individuals form goals andreach preferences, or by the extent to which procedures shapingpreferences are subject to coercion, thereby constricting the capacity of

individuals to make their own choices. In essence, the autonomycondition of contractualism requires the presence of what may be termedprocedural autonomy, 3 that is, the absence of coercion in the processthrough which an individual determines his or her preferences. Welfarecontractualism by limiting the bargaining capacity of individuals severely limits the procedural autonomy of individuals. More pertinently,these restrictions on procedural autonomy reflect the broad hostilityof proponents of welfare contractualism towards any notions of rights

or public participation in the determination of individual preferences;procedural autonomy requires a more public and political understandingof individual agency than what is found in policies of welfarecontractualism.

Any non-coercive welfare contract must at the minimum involve asignificant broadening of the bargaining relationship. It must beconceived as a political relationship that places a premium on thepolitical capacity of an individual to bargain with an availability of

adequate range of choice and options. Yeatmans (1998; 2000) recentwork on contractualism suggests ways in which a focus on the activeparticipation of individuals can contribute to a more democratic setof contractual arrangements. From this perspective, contractualistarguments may well provide a powerful tool to enhance the proceduralrights of contracting agents. For example, in the area of work placebargaining, Yeatman argues that contractualism could be interpreted asrequiring that the presumption of employer prerogative in the employ-

ment relationship be statutorily disestablished, and that contractualcapacities of both employees and employers be socially developed andresourced (1998: 240). But this democratic emphasis is not a simplematter of modifying this or that element in the current contractualism; it


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needs a more radical reconstitution of agency in the direction of a publicand political notion of autonomy which avoids the damaging illiberalimplications of the current coercive contractualism.

Systemic Coercion and the Capability ApproachEven granting that contractualism is able to deal with the problems of direct coercion, we still face a more fundamental problem of indirectcoercion. We have already noted that the range of options and choicesopen to any one person depends, in part, on the kind of structuralarrangements that confront the individual. Choices that are intrinsic to

the exercise of individual autonomy may be subject to the constraininginfluence of social institutions. In this context, it is possible that coerciveinfluences may be more structural than individual. In other words,coercion is indirect and systemic. Acceptance of the idea of systemiccoercion leads us to a vastly different understanding of individualautonomy and one which has significant implications for the design of ademocratic contractualism.

One way of dealing with this critical issue is by examining somerecent discussions of the legal idea of responsibility in criminal law,particularly arising in the work of Lacey (1998) and Norrie (1993),with a view to bringing out its bearing and relevance in addressingthe problematic issues of welfare contractualism. A responsible subjectis defined by familiar terms such as intention, voluntariness andrationality (Norrie 1993). However, this notion of the legally responsibleindividual constitutes the subject in an abstract way that results in thediscounting of the specific social and political context of individual action.Norrie points out that, in this model, legal responsibility abstracts theissue of intention from its twin concept of motive (Norrie, 1993: 1).Motives, he suggests, are socially constituted and their incorporation intoa notion of agency would point in the direction of a more contextualisedaccount of agency.

Models of responsible agency function by excluding those contextsthat force us to acknowledge the political relations of domination in

which agents are located. In essence, the problem is not so much theabsence of context but the failure to address the issues of systemic orindirect coercion in shaping individual autonomy and choice. The failureto acknowledge the role of coercive structure reflects the more generalabsence of a notion of politics in the idea of responsible agency because it


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requires whether in the criminal law or welfare contractualism theruling out of systemic sources of coercion in shaping individual choices.Understanding the sources of indirect coercion moves us towards a model

of individual autonomy that is more embedded, and that acknowledgesthe connectedness of individuals.

Razs (1986) work provides some important clues as to how we canelaborate a political understanding of individual autonomy. Autonomy,Raz argues, needs to be understood not just in terms of leading an auton-omous life but also in terms of the conditions and the capacities forautonomous life. The capacity for autonomy provides the second orderconditions that sustain an autonomous life. And this is what is mostvaluable in Razs argument because the development of the capacities forautonomous life depends on attending to though this is not thelanguage he uses the indirect coercive structures and arrangementsthat influence peoples lives.

By implication, adopting the standard of individual autonomyrequires us to attend to the condition that impedes or constrainsautonomy; it requires us to discard the model of responsible agent with

its problematic assumptions about the causal influences on autonomy.There is a close similarity between these ideas and the capabilityargument developed by Sen. Briefly, Sen argues that capability is acombination of the kinds of functioning (beings and doings) that peoplecan achieve (Sen, 1985; 1990; 1992). 4 These functionings range frombasic elements such as nutrition and adequate health, to other morecomplex functionings such as self-respect. Sen makes the important pointthat the capability for autonomy depends not just on the choices, but on

the very capability to make choices. Again, what is evident with thecapabilities approach is the emphasis placed on the second orderconditions for the full achievement of capability. Sen, like Raz, makesexplicit the background conditions that enable the exercise of autonomy.The point here is that if choice is an end in itself, then we have todirect our attention to those structures and institutions that constrainautonomy or enable these choices. It points us towards the second ordercapabilities needed for the achievement of first order conditions.Moreover, it provides a political theory for public goods. Public goods arethose that provide the second order capabilities which shape individualautonomy by providing a range and variety of options.

The ramification of these considerations for our understanding of individual autonomy is significant. First, it means that autonomy can


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only be understood in terms of the kind of connections and relations thatpeople have. These relationships can influence the kind of options orchoices that people have. In Sens terms, it either enables or disables the

achievement of certain capabilities or, in Razs terms, the capacity to leadautonomous lives. Much of this argument has a strong resonance withrecent feminist writings on relational autonomy, which, despite anumber of significant internal differences between various theorists of relational autonomy, tend to emphasise the influence of an oppressivesocial context (Mackenzie and Stoljar, 2000). Brison (2000: 284) hasnoted the affinities between Sens notion of capability and relationalautonomy, and strongly argues for the adoption of a historical approach

to autonomy. Hence, to:

determine whether or not someone is autonomous or is choosingautonomously now , we need to how that person came to have herpreferences, including those leading her to the present choice. We need toknow whether she developed the competencies necessary for autonomouspreferences formation and ranking.

This interpretation for a causal model of individual autonomy differsmarkedly from the anti-political model of autonomy that lies behind theidea of the responsible individual; it is not just historical, it is a politicalmodel of agency.

The second implication of adopting the notion of systemic or indirectcoercion is that it allows us to re-contexualise the model of theresponsible agent. Recall that a key element of the responsible agencywas its social and political decontexualisation of the agent. Using theidea of systemic coercion enables us to now recontexualise the agent.

From the viewpoint of the welfare contractualism, what this entails isthe development of legal strategies that permit this kind of contex-ualisation of agency. 5 But again, what needs to be underscored is thatthis recontexualisation forces us to adopt a political conception of agencythat contrasts sharply with that of the responsible agency model of thepaternalistic welfare contractualism. These considerations point to thefact that we need to develop a legal framework that accommodates amodel of both public and private autonomy.

Towards a Republican Model of ContractualismThe foregoing considerations would imply that a shift towards ademocratic contractualism would need to pay more attention to the


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legalisation of the relationship between the contractual parties notmerely legalisation but a legal structure that would enhance the rightsof welfare recipients. Certainly, this would be a move in the rightdirection. For one thing, it would reverse the process of deformalisationof law so evident in the new contractualism. A process of legalisationwould serve to broaden the contractual relationship; and, more import-antly, a rights-based approach to a democratic contractualism wouldserve to enhance the bargaining capacity of individuals. A welfare rights-based contractualism would significantly diminish the direct coerciveaspects of the current welfare contractualism.

But this approach fails to adequately acknowledge some of theconcerns that this article has identified. In particular, this approach failsto take cognisance of the elements of systemic or indirect coercion. Morepertinently, the type of legalisation described above would fail to respondto the kind of public autonomy required by a properly functioning demo-cratic contractualism. To put it differently, a democratic contractualismneeds to emphasise the private rights of individuals as well as the publicautonomy of the citizenry; it needs to be both democratic and contractual.

As such, we need to develop a jurisprudence and a legal framework thatprovides a nexus between public and private autonomy. The recentrepublican analysis of law developed by Habermas (1996a) provides animportant approach to these issues.

It is beyond the brief of this article to analyse Habermass (1996a)analysis of law and politics. But some comments are in order. The centralchallenge for Habermas is to account for the relationship between lawand legitimacy in a way which enables one to move beyond the tensionbetween law and legitimacy evident in most accounts of this issue. ForWeber, the formality of law the formal content which defines whatconstitutes a legal norm is distinct from what he felt was the irrationalfoundation of politics. Pivotal to this view is the latent conflict containedin the dualism between formal legal rationality and politics, and thiswas, in fact, a point picked by many critics of liberal legalism such asCarl Schmitt (Dyzenhaus, 1996). Habermass singular contribution to

jurisprudence has been to show that politics and law are not separate,but mutually constitutive. In short, legal procedures are intrinsic to thepublic autonomy of each of its citizens; democratic ideas are immanent inthe very procedures of law.


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The distinctive element of the Habermas argument is that there is aninternal relationship between private autonomy (or the private rights) of individuals and the public autonomy of the citizenry, which reflects thedemocratic self-constitution of society. For Habermas, this relationship isintrinsic to the very conditions of formal legal procedures. But unlike theformal legalism of liberal jurisprudence, it is a radical proceduralismthat is intrinsically democratic. It is this constitutive model of democracyand law that is the distinctive feature of a republican jurisprudence.

Crucially then, from the perspective of this article, Habermasdevelops an argument which suggests that public and private autonomyare linked or arise together. Habermass various shades of meaning canbe found in his development of the co-originality thesis, but the pointthat is relevant for our purposes is his insistence that our private rightsare rights about which a collective agreement is necessary; in short,private rights depend on the exercise of public autonomy, that is, rightsof public participation. Similarly, our right of public autonomy also mustbe determined collectively. For Habermas:

A legal order is legitimate to the extent that it equally secures the co-original private and public autonomy of its citizens; at the same time,however, it owes its legitimacy to the forms of communication in whichalone this autonomy can express and prove itself. In the final analysis, thelegitimacy of law depends on the undistorted forms of publiccommunication and indirectly on the communicational infrastructure of private sphere as well (Habermas, 1996a: 409).

In essence this democratic proceduralism allows us to ground rightsin the public autonomy of the citizenry, thereby avoiding legal formalismand the deformalised legal frameworks that are the hallmarks of the new

paternalism.There are three major inferences to drawn from this discussion.

First, it suggests that the very criteria of the adequacy of optionsdiscussed above must be open to public engagement and debate. There isno magic formula for determining what significant options are valuablefor individual autonomy. It needs to be subject to public deliberation.

Second, it also implies that in determining the capacity to take part

in this deliberative process, we need to take account of systemic coercivepractices that constrain the exercise of public autonomy. This wouldenable a recontextualisation of agency by placing the emphasis on thosepolitical factors which are precisely those aspects marginalised in theresponsible agency model.


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Finally, the kind radical legal proceduralism proposed by Habermasalerts us to the need to pay more attention to those procedural rightswhich need to be developed if there is to be any democratic contract.These rights, for example, may entail greater collective representation aswell as access to information denied to welfare clients under the newpaternalism. Accepting these arguments would force us to confront thefact that any shift to a more rights-oriented legalistic model albeit of arepublican hue reverses the legal deformalisation of the social policysystem: those elements of deformalisation which were always present butnow accentuated by the new welfare paternalism.

Conclusion

The crux of the argument in this article has been to suggest that we needto problematise the understanding of agency within the new neo-liberalcontractualism. Too often critics barring some notable exceptions have let neo-liberal contractualism off the theoretical hook by concedingtoo readily to its prevailing notion of what constitutes individual

autonomy. Against this trend, this essay has suggested that the core of neo-liberal contractualism resides in a notion of responsible agency thatis conceived of in a highly moralistic manner. Such a moralism is mostevident in neo-liberal welfare contractualism. This, above all, is a pointof view which serves to marginalise the public or the political attributesof agency and, in particular, one which elides the direct as well asindirect coercive context of individual action. In other words, it presentsa deeply anti-political understanding of the nature of agency.

More importantly, this mode of analysis and thinking reflects afailure to develop a liberal theory of public or political agency. It is afailure which results in the substitution of the language of community to

justify the provision of public goods. It thus intertwines liberal aims witha history of illiberal practice. Nowhere is the paradox of liberal intentand illiberal practice more clear than in the language of contractualism a language framed in the liberal terms of contract but in practiceimplemented with a harsh and coercive force that is deeply illiberal. It is

important to realise that these arguments have a broader significancebeyond the parameters of social policy. It is clear that a great manyrecent changes in the governance and management of policy confrontsimilar troubling questions in relation to issues of agency and autonomy.


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However, we need to be careful not to throw out the autonomy babywith the anti-political bath water. We need to develop a notion of individ-ual autonomy that enhances, rather than narrows, the range of optionsopen to individuals. 6 The notion of democratic contractualism advocatedhere, while contesting individualised notions of responsible agency, seeksto advance an alternative vision of individual agency that accordsprimary emphasis to the embeddeness of agency and autonomy on itsrelational context. Adopting a relational notion of autonomy enables usto locate a conception of individualisation within structures of power anddomination. Therefore, the attraction of a republican understanding of law of the kind that has been advocated by Habermas (1996a) is that sucha model allows the use of a republican model of agency that makesexplicit the criterion of non-domination in its account of freedom (Pettit,1998; Jayasuriya, 2000). In contrast to the constricted model of respon-sible agency which underpins the neo-liberal notion of contractualism, arepublican model allows us to move to a contractualism that locatesindividual autonomy in its public context from the private autonomy of neo-liberalism to a public autonomy of democratic contractualism.

Further, a consequence of adopting a democratic contractualismbased on a republican foundation is the centrality accorded to legal pro-cedures though this entails a legalism that is not disabling of democraticpolitics. This is a much needed correction to one of the weaknesses of thenew contractualism, namely, the significant marginalisation of formallaw, giving bureaucratic and often non-state actors considerable dis-cretionary power. In short, we need to constitutionalise contractualarrangements so that the structures would enable a high degree

of contestation of polices and procedures. Making contestability thedemocratic yardstick of contractual arrangements clearly demarcates thedeformalised legal arrangements of neo-liberal from the constitutionalarrangements of democratic contractualism.

The logic of this argument suggests that the new contractualism isdeeply contested. Neo-liberal contractualism depends on an under-standing of agency and individual autonomy that remains problematicfrom the perspective of developing the political capacity of individuals to

make choices within contractual forms of governance. The urgent task,therefore, is to develop a conception of democratic contractualism thatenhances the capacity of individual participation and democratises thestructures of contractual governance.


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Notes1. On the key features of illiberalism, see Holmes (1993; 1995).2. In fact the virtue of Kings (1999) analysis is to draw the connection between

workfare and a range of other illiberal and coercive programs includingeugenics.

3. For an analysis of these notions of procedural autonomy which have playedan important role in Feminist ideas of individual autonomy, see Mackenzieand Stoljar (1999).

4. I have discussed these issues in more detail in Jayasuriya (2000) where Iexamine the way in which the notion of capability together with the idea of republican freedom can inform

5. For a discussion of the strategies of recontexualisation as a critical resource,see Lacey (1998) who develops a particularly persuasive argument.

6. As Plant eloquently argues: I believe that those who defend the welfare stateas a means to freedom do have to be careful that the institutional arrange-ments which they endorse do actually secure the maximal range of choiceand maximal amount of responsibility for such choices by citizens (Plant,1985: 23).

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autonomy, liberalism and the new contractualism--kanishka jayasuriya

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