This essay engages in a normative analysis of the conditions under which social
welfare law becomes legitimate. By social welfare law, I mean any effort to encode in
law positive duties to respond to the needs of others. I frame the concept in this way to
highlight one of the central features of social welfare law, namely, that such laws do
more than distribute an equal set of negative liberties. Rather, they are an effort to
support others in some positive way. In any case, this normative analysis relies on the
idea that, like any other social practice, legal practices “embodies the idealized content of
a form of practical reason” (Benhabib, 1996, p. 68). The theory presented in this chapter
is designed to elucidate articulate this content in order to help clarify what the legitimate
goals of those practices are, and how they ought to operate. So, for example, normative
theorists of social welfare law have argued that such practices they carry the supposition
that they should aid the vulnerable members of society, or that citizens must participate in
constructing those practices in an inclusive or democratic manner. To be sure, these sorts
of suppositions often function as an ideology that obfuscates the ways in which welfare
practices become dominating or exclusionary—a problem I will take up at length in
chapter four. Nevertheless, through a rational reconstruction of the normative
presuppositions of social welfare practices, we can help define the goal of progressive
political action. My thesis is that the principle that society is obligated to respond to the
needs of the vulnerable is conceptually linked to the principle that a legitimate society
must preserve the public and private autonomy of its members. This conceptual link, in
turn, has important implications for how we should conceive of the status of social
welfare rights.
I conceive of this thesis as a synthesis of two (apparently) contrasting approaches
to elucidating the legitimacy of legally enacted social welfare. The first approach adopts
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Convention