WELFARE, DEMOCRACY, AND THE REFLEXIVE LEGITIMACY OF THE LAW

• Date: 11 June 2003
• Published date: 11 June 2003
• DOI: https://doi.org/10.1016/S1059-4337(03)29004-9
• Pages: 97-122
• Author: Kevin Olson

WELFARE, DEMOCRACY, AND

THE REFLEXIVE LEGITIMACY

OF THE LAW

Kevin Olson

ABSTRACT

The United States adopted a new welfare regime in 1996. The centerpiece of

this legislation is a notion of personalresponsibility that redefines the relation

between individuals and the state. I use this law as a foil to outline a new

paradigm of legal research. We must understand welfare, I argue, as part

of a self-referential legal system. Law is legitimated by particular kinds of

fair, democratic political agreement. When material inequalities undermine

political participation, however, the law must insure the bases of its own

legitimacy throughwelfare. Welfarelaw is thus vital to a nation’s legal system

as a whole. Seen from this perspective, the current American welfare system

fails to fulfill the basic presuppositions of legal legitimacy.

1. INTRODUCTION

In the late summer of 1996, Bill Clinton delivered on his campaign promise to

“end welfare as we know it,” signing into law the Personal Responsibility and

Work Opportunity Reconciliation Act of 1996. The most prominent feature of

this law was the termination of federal welfare entitlements. The act – often

called the PRA – overrode key components of the Social Security Act of 1935.

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 29, 97–122

Copyright © 2003 by Elsevier Science Ltd.

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ISSN: 1059-4337/PII: S1059433703290049 97

98 KEVIN OLSON

In particular, it replaced the most visible and controversial component of the

American welfare system, Aid to Families with Dependent Children (AFDC)

with a block grant program to states, Temporary Assistance for Needy Families

(TANF). The new welfare system thus holds true to a Republican commitment to

return welfare to local control. This commitment does not allow states free rein

in spending federal welfare dollars, however. Congress announces a strong social

agenda in its preface to the bill, one that imposes federal restrictions on the shape

and dimensions of state welfare programs.

The new block grant program is built around two clearly delineated goals: the

need to curb single motherhood and the need to “move people off of welfare, into

work.” TANF discourages single motherhood by giving larger and less restricted

benefits to married couples, as well as by giving states incentives to develop their

own programs to curb teen- and single-pregnancy.The program moves people off

of welfare, into work through a combination of time limits, work requirements, and

job creation. Most prominently it mandates job placement and caps a recipient’s

cash benefits after a lifetime total of five years.

The dramatic institutional changes brought about by this law have been widely

remarked upon, but its social and cultural significance has yet to be assessed.

Most obviously, the symbolic import of the shift from social security to personal

responsibility says volumes. It signals the end of federal commitments to a

society-wide system of security, announcing the need for individuals to take

responsibility for their own fates. This law marks an important milestone in

American culture, then. It caps two decades of rollback in New Deal social

programs, exemplifying a shift from the progressive politics of the Depression to

our current neo-liberal paradigm of self-sufficiency and minimal government.

Because of its vast social impact and cultural significance, the PRA is a perfect

test case for legal research. The Act falls squarely under the purview of many of

the field’s critical paradigms. Its strong stand against out-of-wedlock birth and

single motherhood can be criticized as a morally punitive attempt to naturalize

a particular vision of the nuclear family. Its requirements for paternity disclosure

can be seen as invasions of privacy. Its emphasis on controlling women’s behavior

and reproduction appears to be paternalistic and anti-feminist. The economic

impact of the PRA also invites comment. Its lifetime cap on benefits and its

mandate to move welfare clients into work makes individuals significantly more

vulnerable to the forces of the labor market. Rather than sheltering people from

the vagaries of the economy, the PRA can be seen as promoting exploitation,

failing to alleviate poverty, and trapping the poor as a reserve army of labor.

None of these critical paradigms really gets to the heart of the current welfare

reform legislation, however. None of them adequately traces the full impact of

the cultural shift from social security to personal responsibility, nor unlocks the