Between Liberalism and Social Democracy: A Comment on Tushnet

I construct Professor Tushnet's article1 as offering an account of societies on a legal continuum. At one end lies the classical liberal state. Here the legal system articulates a thin set of background rules that regulate the market transactions through which goods are distributed. Courts enforce rules against force, fraud, and breach of contracts. By means of police power courts have some discretion to identify forms of force, fraud, or breach of contract not explicitly articulated by legislated code. In the classical liberal state, courts also strike down laws that intentionally deprive a class of people of goods they would normally receive through market transactions in the absence of these restrictions. At the other end of this continuum lies the social democratic state. Constitutional rules and legislation set out a wide system of entitlements, for example, to goods such as pensions, healthcare, education, nursery care, basic income support, and protection for union organizing. These goods are either provided directly by the state and publicly-owned enterprises through tax revenues and income, respectively, or by regulated private institutions. Whatever form the implementation of social democratic entitlements takes, the state has well developed, legally coherent, and democratically legitimate bureaucracies for doing so. In the social democratic state the system of entitlements is a central aspect of the state's constitution, with which its other provisions must be consistent. The system also conditions the background rules of property, contract, and tort throughout the legal system. Between these extremes lie societies in which the state takes a more active role in regulating the distributive effects of market processes than in the classical liberal state, but are not fully social democratic states. These are societies that evince an "increasing commitment ... to social democratic norms,"2 but where legislative entitlements and executive institutional capacity do not guarantee fulfillment of substantive welfare IMAGE FORMULA4 rights. I construct this as a continuum; the degree to which legal rules or legislative programs express or instantiate social democratic norms and regulate distributive effects varies, as does the extent of state activism, as exercised by courts or other branches of government. In these societies courts come under pressure to reform background rules of property and tort to correct for market outcomes in which people do not have "enough" according to prevailing democratic norms. Professor Tushnet seems to think, and I agree, that most liberal democratic societies and legal systems today fall somewhere on this continuum. In his article, Tushnet reflects primarily on a tension within legal systems located between the two poles of the continuum. These legal systems seem to be committed to three principles that they cannot hold simultaneously: "(WJe think we know that courts can develop background rules of property and contract acceptably; we know that courts must develop some doctrine of state action or horizontal effect; we may believe that courts cannot develop social welfare rights acceptably."3 As I understand Tushnet s account, this trilemma tends to be resolved by moving toward one end of the continuum. Courts can "avoid elaborating social welfare rights by adopting the view that the constitution has no horizontal effect."4 This solution requires the kind of sharp separation between the constitutional court and ordinary courts that Tushnet finds unique to the United States, coupled with a passive or weak form of judicial review. In this option courts effectively do not recognize welfare claims as affecting private activity. "Alternatively, a thick system of legislatively developed social provision coupled with passive or weak-form judicial review eliminates much of the pressure on courts to elaborate social welfare rights. …