Interpreting the events of 1989 one can say that Orwell's novel did not finish in 1984. A new drama took place in the former communist bloc countries and the public enjoyed the first part very much. So what is the reason for the disillusionment after the interval? I guess, it is because the second act raises serious concerns about turning our romantic drama into an absurd tragedy.
Translating the metaphor into the language of social sciences, we can say that the early support for the transition is vanishing. If we take the protest votes of Polish, Slovakian, Hungarian etc. electorates that helped reformcommunists back to power in 1993/94, popular dissatisfaction with the process of regime change seems quite obvious in the region.
After forty years of communist dictatorship being associated with antidemocratic political practices, massive violation of human rights and economic inefficiency, the primary goals of 'velvet revolutions' were about establishing political democracy, laying the foundation of a strong constitutional order, and introducing in a market economy. Unfortunately the relationship between these objectives is more than problematic: there are serious questions about their compatibility. The introduction of market economy requires the establishment of private ownership and genuine market prices what makes privatization and dismantling subsidies necessary. Since this transformation is politically instituted, it requires democratic legitimation. However, each of these steps produces great inequalities in society: they enrich the lucky few and impoverish the unlucky many that make difficult to establish popular support for marketization. The possible answers to this dilemma were categorized as follows:
(1) Economic miracle: by mobilizing economic forces in society being hidden under communist rule. For several interconnected reasons (such as the loss of traditional markets without substituting them for new ones at adequate extent; bankruptcy of whole industries and the respective emergence of mass unemployment; disintegration of the agriculture as a consequence of privatizing the lands) this scenario failed to work in Hungary.
(2) External [monetary] supoport from the international system. The share of Hungary from all monetary assistance reached the region was so small that the country had to pay off much more in return of former credits than the amount of this new financial help.
(3) Using an extensive social policy to mitigate the pains of 'creative destruction'. It was done, but it could not stop the impoverishment of Hungarian society while welfare redistribution was made responsible for the failure of accumulating enough capital to make a breakthrough.
(4) Using the support of civil society to make reforms acceptable. In Hungary, the early promise of free elections during the first stage of transition resulted in a fast transformation of the strongest civil movements into parties, while TU s became affiliated with parties.
(5) Developing a strategy to use the electoral mechanisms, party politics and parliamentary decision making to narrow the channels of democratic participation. Such a minimum democracy was institutionalized in Hungary it cannot work properly in the current constitutional setting: in their strive for influencing politics, people are able to use their constitutional rights to express their will (initiating referenda; freedom of speech, assembly; right to strike etc.) or to appeal to these rights by addressing the Constitutional Court. For different reasons the last alternative turned to be the most effective.
The smooth operation of this system was based on a compromise: people endured with patience the hardships of the transition and in exchange for it the government refrained from radical cuts on welfare. However, facing insolvency in March 1995, the government broke this compromise and launched an attack on the 'premature welfare state'. Appeals to the constitutional right to social security were done, and the Constitutional Court was addressed to annull the most criticized provisions of the stabilization package. Strangely enough, the Court reinterpreted its former decisions, and declared many of the provisions of the new legislation unconstitutional.
Under such circumstances there is a growing support among market liberals for withdrawing the right to social security from the constitution in order to abolish the ground for constitution-based claims for welfare provisions. Since the project of giving a new constitution to the country is under way, this could be done easily, without causing a public outrage.
There are three possible solutions for regulating social rights in the constitution. (1) Social rights must be neglected by constitution-makers, they must not be incorporated in the constitution at all. (2) Social awareness of the state could be mentioned in the preamble of the constitution or among the general provisions without establishing a fundamental right to welfare. (3) Establishong a fundamental right to social security that is applicable to all.
If we take the requirement of the stability of the constitution into seriously, we have to take other factors than current incentives into consideration. Thus, a thorough analysis of the problem of the validity and constitutional status of social rights is neccesary. It makes indispensable to specify the legal nature, and the advantages and disadvantages of their incorporation in the constitution. Since there are two streamlines of the debate over these issues : a legal and a socio-political one, I will analyse these dimensions separately.
Considerations about the (legal) nature of social rights
Since law is a highly integrated system of legal rules, and the constitution is a legal document itself, the constitution must be a subject to the requirements common to all legal materials. Constitutional declaration of rights is an expression of their indispensability for protecting human life. That's the reason for identifying them with human rights. Consequently, establishing a fundamental right to social security has at least two preconditions. At firts, it must have the same characteristics as rights in general, and human rights in particular have. Secondly, it must be consistent with other fundamental rights declared in the constitution. If the structure of social rights is identical to that of human rights, there is no legal reason for denying the possibility of their incorporation in the constitution.
The nature of claim- rights that is what follows:
A has a right to X against B by virtue of Y
Where:
- A is the subject of the right
- B is the respondent of the right
- X is the object of the right
- Y is the justifying ground of the right
- moreover the implementation of X must be physically possible, anyway B would not make responsible for completing his duty to do X
Applying the formula to a human right to social security, the structure of them is what folows:
Every human being has a right to social security against every other people by virtue of being human (where the right to welfare must be practicable)
Justifying principle: Human rights are usually treated as a subset of moral rights which 'do not owe their special status as rights to previous actions or agreements but are rights that human beings have by virtue of being human'. On the basis of the common fragility of human beings human rights are regarded indispensable for life because their absence endangers one's physical existence. However, they are needed not for life but for a life of dignity. In this regard, social rights are as essential as civil or political freedoms for the maintenance of respectation necessary for being treated as a diginified member of mankind.
Universality: Human rights are universal in two senses: they must be held by everyone, and the corresponding duties must be fulfilled by everyone else. There is no difference between civil, political and social rights in that respect: at an abstract level each of them is available for everyone but their realization is dependent on the fulfilment of several conditions. In regard of the universality of the respondent of human rights, the state's involvement is necessary for guaranteeing civil and political freedoms as well as the fulfillment of personal duties (by paying taxes) in the case of social rights.
Practicability
1) Lack of resources: Rights cannot be held if the duties corresponding to the do not comply with the moral imperative of 'ought implies can'. The related argument is that in the lack of resources social rights cannot be held. But: (a) there are more than enough food and other resources in the world to satisfy the most urgent needs of everyone; (b) in Hungary, where per capita GDP is above $4000, we cannot speak seriously about an extreme shortage of resources impeding the satisfaction of basic needs.
2) Conflict between the right to welfare and property: If there is an irreconcilable conflict between fundamental rights, priority should be given to one or the another in order to maintain the consistency of the constitution. In my view, an irreconcilable conflict is only between an unlimited right to the accumulation of property and social rights. However, the justification of an unlimited human right to the accumulation of property is problematic (why should it be indispensable for a life of dignity?). If property rights are real human rights, they must be available for everyone - thus one's accumulation of property is restricted in that measure.
3) Measuring the right to social security: There are statistical calculations about the minimum of goods and services necessary for a decent living (living a life of dignity) at the disposal of legislators. Judicial review is also possible: the judges should not detect the correct measure of welfare provisions; the only thing they should do is to decide whether there is an uncommon disproportionality between the calculated level of social minimum and the actual level of benefits available for the recepients of welfare. (It also requires to set up a well arranged system of benefits.)
Socio-political considerations
Social rights and modernization
General patterns of modernization are what follows: (a) a free operation of functionally separated subsystems of society [the lack of it was the weakness of state socialism as a social system]; (b) the availability of all citizens for social interactions through mechanisms of inclusion; (c) innovation [being prepared for changes enforced by technological and social developments]. For us, inclusion is the keyword of modernization. It requires full membership in society that has three components: civil and political freedoms (guaranteed by civil and political rights) and a certain level of general welfare (guaranteed by social rights, preventing segregation). Thus, modernization requires to take the guarantees of public welfare seriously. Those want to give an ultimate priority to economy over public welfare try to modernize society without meeting all the requirements of modernization. A possible result of such a policy would be the Caribbeanization and not the Europeanization of Hungarian society.
Accomodating welfare legislation to a European standard
Although, pan-European legislation on social welfare is still in an embryonic state, there is a consent among experts that a revolution is on its way in this field. Declaration of the Social Charter of the EU in 1989, signing the protocol on a common social policy in Maastricht were clear signs of the resoluteness of the memberstates for making steps towards a pan-European legislation on welfare. The last factor impeding to put these plans into practice is the veto power of the conservative government of Great Britain. On the other hand, in the wealthiest memberstates (those being the main contributors to the EU's budget) there is a fear of welfare migration within the Union as a side effect of the four freedoms (especially the free movement of labor) declared by the Treaty of Rome. Taking all this into consideration, it is no wonder that the constitutions of the newest and poorest memberstates declare either a right to social security or the state's responsibility for the welfare of the citizens (Greece, Portugal and Spain). Expectations that the EU would grant a full membership to countries being potential producers of welfare migrants because of the lack of social security are ill-founded.
The symbolic meaning of constitutional declaration of the right to social security
Although it is true that a relatively high level of social protection can be provided without establishing a fundamental right to social security, one cannot forget that social rights are incorporated in the actual constitution of Hungary. All proposals for their withdrawal refer to giving a priority to economic interests over the demand for social security. However, in contrast to the West where welfare regimes could develope and stabilized without constitutional guarantees, in Hungary where most of non-contributory benefits are still given to the recepients on the basis of merit as a grace, repealing the constitutional protection of social rights sends the message of their unimportance and inferiority to the daily interests of the economy. Since the economy is admittedly not in a good health, there is a well-established fear that afer such a move the government will use its freedom to redesign social policy for the dismantling of the system of the still existing system of social welfare and deterioriating the level of benefits in a country where the polarization of the society is getting to reach an alarming level.
A side effect of withdrawing social rights on democratic transition
Taking the unfinished nature of the transition process into consideration, elimination of the basis for transforming the democratic will of people into appeals to constitutional rights while leaving the channels of democratic participation as narrow as it currently is could lead to unexpected tensions and, in case of (now constitutionally supported) unresponsiveness of the government to people's demand it could result in further disillusionment of a democracy acting as a step-mother towards its citizens. On the other hand, we cannot forget that withdrawal of social rights is promoted by a socialist dominated coalition in order to help adjusting benefits to the capacity of the economy. In this situation, when the left uses the rhetoric and implements the political objectives of the right, rightist parties are pushed out of the center, and forced to take a more and more radical approach to get support. The political history of 1995 and early 1996 was about the melting of the moderate right, and growing the possibility to create an extreme right bloc for the 1998 elections.
Conclusions
As we could see, legal, economic, and socio-political considerations are inseparable in search of the best device of regulating social rights. Although, legal and socio-political arguments are in favor of incorporating social rights in the constitution, while economic transformation cannot be implemented without cutting off on welfare by changing the conditions of eligibility and reducing the level of benefits. According to the current constitution, both steps can be blocked by an appeal to the right to social security that makes the revision of the provisions of the constitution unavoidable. While withdrawal of social rights is in the best interest of the economy, the goals of modernization, joining the EU, and preserving democracy reequires a more sophisticated solution. Here I present my proposal. Regarding that Hungary has the resources to meet the basic needs of every citizen, the constitution should guarantee the human right to the goods and services necessary for survival. The provisions of the constitution should not give a right to anything more (for example, for earnings related benefits) but they should impose a duty on the state to maintain the institutions of the social security system. It would help the government to adjust all benefits above the level of minimum subsistance to the capacity and goals of the economy, while making possible to raise the level of social security by the time the economy will have been recovered.
Appendix
Relevant sections of the Constitution of the Republic of Hungary
Article 8
[...]
(4) In times of emergency, national crises, or extreme danger, the observation of fundamental rights may be suspended or their excercise curtailed - except for the fundamental rights specified ...in Article 70/E.
Article 17
The Republic of Hungary sees to the wants of the needy through a long line of social mesures.
Article 70/E
(1) Citizens of the Republic of Hungary have the right to social security. In case of old age, illness, disability, being widowed or orphaned, and in case of unemployment for no fault on their own, they are entitled to the provisions necessary for subsistance.
(2) The Republic of Hungary upholds the right of peeople to being provided for through the social security system and its institutions.
