Between kinship and the state: Social security and law in developing countries 9783111552187, 9783111182667


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Table of contents :
Contents
Preface
General Orientation
Introduction: Between Kinship and the State
Traditional Solidarity and Modern Social Security: Harmony or Conflict?
Social Security in Third World Countries
Change in Local Social Security Systems
Person-Centered and State-Centered Social Security in Southeast Asia
The Decline of Folk-Law Social Security in Common-Law Africa
Traditional Systems of Social Security and their Present-Day Crisis in West Africa
Changing Relations Between Traditional and State Social Security in Taiwan
An Anthropological Perspective on Filial Piety versus Social Security
Changing Traditional Patterns of Social Security: Access to Land in Karo Batak Society
Traditional Social Security as Practised in Comtemporary Tanzania's Urban Centres
Informal Social Security Among Moluccan Immigrants in the Netherlands
Social Security and Legal Pluralism
Formal and Informal Social Security in Ghana
Formal and Informal Social Security - A Case Study of Tanzania
Social Security in a Peasant Society: The Case of Boyaca, Columbia
Coping with Adversity: Preliminary Research Findings on Social Security in the Rural Philippines
Support Among the Bakwena
The Situation of Unmarried Mothers and Their Children in Tanzania: Protective Legislation and Social Reality
Islamic Law and Social Security in an Ambonese Village
Bureaucrat-Client Interaction: Normative Pluralism in the Implementation of Social Security Disability Laws
Law, Politics and Social Security Strategies
Social Security in the Context of French-African and Intra-African Labour Migration
Dilemmas of Formal and Informal Social Security in Third World Countries: The Case of Egypt
Retribalization as a Strategy for Achievement of Group and Individual Social Security in Alaska Native Villages - with a Special Focus on Subsistence
Social Security and Small-Scale Enterprises in Islamic Ambon
Social Security and Free Legal Aid in the Philippines
About the Contributors
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Between kinship and the state: Social security and law in developing countries
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Between Kinship and the State

F. von Benda-Beckmann, K. von Benda-Beckmann, E. Casino, F. Hirtz, G.R. Woodman and H.F. Zacher (eds.)

BETWEEN KINSHIP AND THE STATE Social Security and Law in Developing Countries

¥

1988 FORIS PUBLICATIONS Dordrecht - Holland/Providence RI - U.SA

Published by: Foris Publications Holland P.O. Box 509 3300 AM Dordrecht, The Netherlands Distributor for the U.SA and Canada: Foris Publications USA, Inc. P.O. Box 5904 Providence RI02903 U.SA

OP-DATA

Between Between Kinship and the State : Social Security and Law in Developing Countries / F. von Benda-Beckman ... [etal.] (eds.). - Dordrecht [etc.] : Foris ISBN 90-6567-380-2 SISO 329.2 UDC 368.4(1-772/773) Subject heading: social security ; developing countries.

Published for the Max-Planck-Institut fur ausländisches und internationales Sozialrecht and the Commission on Folk Law and Legal Pluralism The publication of this book was made possible by the financial support of the Max Planck Gesellschaft.

ISBN 90 6765 380 2 © 1988 Foris Publications - Dordrecht No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording or any information storage and retrieval system, without permission from the copyright owner. Printed in the Netherlands by ICG Printing, Dordrecht

Contents

Preface G.R. Woodman andH.F. Zacher GENERAL ORIENTATION Introduction: Between Kinship and the State F. von Benda-Beckmann, K. von Benda-Beckmann, B. O. Bryde and F. Hirtz Traditional Solidarity and Modern Social Security: Harmony or Conflict? H.F. Zacher Social Security in Third World Countries M. Fuchs CHANGE IN LOCAL SOCIAL SECURITY SYSTEMS Person-Centered and State-Centered Social Security in Southeast Asia E.S. Casino The Decline of Folk-Law Social Security in Common-Law Africa G.R. Woodman Traditional Systems of Social Security and their Present-Day Crisis in West Africa R. Schott Changing Relations Between Traditional and State Social Security in Taiwan Chang Chih-Ming

vi

Contents

An Anthropological Perspective on Filial Piety versus Social Security Choong Soon Kim

125

Changing Traditional Patterns of Social Security: Access to Land in Karo Batak Society H. Slaats and K. Portier

137

Traditional Social Security as Practised in Comtemporary Tanzania's Urban Centres A.H. Bakari

153

Informal Social Security Among Moluccan Immigrants in the Netherlands F. Strijbosch

169

SOCIAL SECURITY AND LEGAL PLURALISM Formal and Informal Social Security in Ghana A.K.P. Kludze

187

Formal and Informal Social Security - A Case Study of Tanzania A. Bossert

211

Social Security in a Peasant Society: The Case of Boyaca, Columbia J. Freiberg-Strauss and D. Jung

229

Coping With Adversity: Preliminary Research Findings on Social Security in the Rural Philippines F. Hirtz

269

Support Among the Bakwena A. Griffiths

289

The Situation of Unmarried Mothers and Their Children in Tanzania: Protective Legislation and Social Reality U. Wanitzek

317

Islamic Law and Social Security in an Ambonese Village F. von Benda-Beckmann

339

Contents Bureaucrat-Client Interaction: Normative Pluralism in the Implementation of Social Security Disability Laws P. de Koning

vii

367

LAW, POLITICS AND SOCIAL SECURITY STRATEGIES Social Security in the Context of French-African and Intra-African Labour Migration O. Kaufmann

399

Dilemmas of Formal and Informal Social Security in Third World Countries: The Case of Egypt A. Azer

419

Retribalization as a Strategy for Achievement of Group and Individual Social Security in Alaska Native Villages - with a Special Focus on Subsistence S. Conn and S. Langdon

437

Social Security and Small-Scale Enterprises in Islamic Ambon K. van Benda-Beckmann

451

Social Security and Free Legal Aid in the Philippines E.R. Pijuan

473

About the contributors

489

Preface

This collection of papers does not fall precisely into an established field of social study, but seeks to advance knowledge in two separate fields by examining, through a series of case-studies and discussions of theory, their relation to each other. The first field is that of social security, the other that of folk law (customary law). To our knowledge, little attempt has been made in the past to examine the mutual relevance of these. In June 1986 a number of researchers who had studied in one field or the other were brought together by the efforts of a very few who had begun to study the conjunction of both. The meeting, in Tutzing, Federal Republic of Germany, required from both sides unusual efforts to communicate and to understand the unfamiliar - and, perhaps, strong prophylactic doses of academic tolerance. It resulted, according to the unanimous opinion of the participants, in deeper understandings by each group of their respective subjects. The meeting and this publication are the fruit of an association between two institutions with distinct areas of academic and practical interest. The first of these derives from the establishment in 1976 by the Max-PlanckGesellschaft of a Project Group for International and Comparative Social Law. In 1980 this became the Max-Planck-Institut für ausländisches und internationales Sozialrecht (Max Planck Institute for Foreign and International Social Law). Although social law - a term which is to be understood as the sum of social security and welfare law - may appear to the outsider a somewhat limited category, the Institute has an extensive and multifaceted field of research. Social law as a subject of study is richly varied. It includes the study of the social law of foreign states, the comparative study of the social laws of different states, the study of supranational social law (the most outstanding being that of the European Communities), public international social law (where social law is considered as the object of international treaties and the functions of international organisations), and private international social law (which governs cases which are affected by the social laws of more than one state, and the legal character of which may be derived not only from national, but also from supranational and international law). However, social law also has multifarious external relations with other subjects of study. Even within any single legal order

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social law is intimately bound up with labour law, family law, tax law, administrative law, constitutional law, etc. On the other hand social law is dependent in the highest degree on social conditions: on political, cultural and economic circumstances and standards, on the levels of development and manner of life of the people concerned, on the international situation of a society, and finally on its historical background. In this regard social law is genuinely an interdisciplinary subject. Whoever studies social law must also work in virtually all the other fields of law, but no less in economics, sociology and political science, and on occasion in medicine and psychology, and finally, of course, in social philosophy. All this would make the study of social law a complex and major undertaking even if limited to studies of modern, urban, industrial societies, undertaken by those familiar with such societies. The problems take on a whole new aspect if the researcher turns his or her attention to the social law of those countries whose social conditions, when compared with the familiar pattern of modern, urban industrial societies, are characterised by as much dissimilarity as similarity. This is the case when research is centered on the social law of the countries commonly termed "third world" or "developing" countries. The very difficulty of reducing to a common denominator the features that distinguish these countries from modern, urban and industrial states and societies, is indicative of the problem. The differences have all too many dimensions, the "Anders-sein" all too many faces. Nevertheless, the Max-Planck-Institut has considered it necessary not to neglect these problems. There are many reasons for this: the indivisibility of our "one world"; the necessities of international cooperation; the interest of the "third world" in receiving technical aid; a better understanding of the problems of the "third world"; but, finally, also the opportunity for the "first world" and "second world" to learn from the problems and solutions of the "third world". Studies of the social law of developing countries showed early the narrowness of the boundaries of the researcher whose universe of experience was the social law of the Federal Republic of Germany or of Europe. The instruments of modern social security with which that researcher is familiar are of more or less limited efficacy in developing countries. Why is this? What norms and practices there fulfill the role of what has become indispensable in Europe under the title of social security? This cannot be investigated by the methods of legal research alone. Through economic, sociological, historical and other types of research we approach only inadequately the realities of the states and societies of the "third world". Among the features of these realities are not only their multifaceted character but also the fact that their legal provisions are not explicit, written or formalized. Consequently the requirement of interdisciplinary collaboration has had to be directed to those researchers who approach most

Preface

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closely the realities of the social life-forms in question - to the anthropologists, and above all the legal anthropologists. At an early stage the Institute's studies showed clearly that, if there was ever to be progress in research on the social law of the "third world", this could only be achieved in cooperation with legal anthropologists. Hence the Max-Planck-Institut was presented with a timely opportunity when the Commission on Folk Law and Legal Pluralism, which largely consists of legal anthropologists, planned to make "social security" the theme of a symposium. The cooperation between the Max-Planck-Institut and the Commission led to the organisation of the Tutzing meeting and the publication of this volume. The Commission was established in 1978 by the International Union of Anthropological and Ethnological Sciences (IUAES), on the initiative of Professor Geert van den Steenhoven. Today more than 225 lawyers, anthropologists and other social scientists, representing all regions of the world and concerned with folk law in both theory and practice, participate in its activities. The Commission has so far sponsored four scientific symposia, including that of Tutzing, in different parts of the world. The present volume is the fourth to present work of the Commission, others having been: "People's Law and State Law: the Bellagio Papers" (eds. Antony Allott and Gordon R. Woodman; Foris, Dordrecht; 1985); "Papers from the Vancouver Symposia" (a special issue of the Journal of Legal Pluralism, No. 23, 1985); and "Indigenous Law and the State" (further papers from the Vancouver Symposia, eds. Bradford W. Morse and Gordon R. Woodman; Foris, Dordrecht; 1988). The Commission publishes a Newsletter to maintain contact between its members, and fosters regional working groups. At its inception the Commission brought together scholars and practitioners with interests in at least three distinguishable varieties of folk law (also referred to in part or in whole by a variety of other terms, including customary law, unofficial law, living law, informal law, nonstate law, traditional law and native law). First, some were concerned with the folk laws of indigenous ethnic minorities in modern states, such as the Indians of the Americas, the Inuit of the circumpolar states, and the Aborigines of Australia. Secondly, others were concerned with the effects of colonialism on the folk laws of the colonised peoples, typically in those states where the indigenes had remained the majority. Thirdly, yet others were concerned with the emergence of new forms of folk law in modern societies, typically in the contexts of modern industry and commerce, including such phenomena as the folk laws of professions, of voluntary associations, of workplaces and of status-groups. The growth of the Commission reflects an increasing awareness of the contemporary existence of these forms of legal plurality - as also of other forms, such as those of ethnic immigrant minorities. The Commission's

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primary purpose, according to its Constitution, is "to further knowledge and understanding of folk law and legal pluralism, with a focus upon theoretical and practical problems resulting from the interaction of folk law and state law". Besides the collection and analysis of information on particular systems of folk law, there is also a concern with the evaluation of state policies affecting folk laws, and much practical discussion of strategies and tactics in the struggle for justice for peoples governed by folk laws. Perhaps the most significant function of the Commission has been to stimulate exchanges of information and ideas between its members. Both comprehension of the subject of study and capacity for effective action have been fostered by these exchanges, not only between those within any one of the broad groups just mentioned (who would otherwise, because of geographical separation, often have remained unaware of each other's work) but also between members of different groups. The latter type of exchange is contributing to the understanding of the nature and potentialities of folk law and to the development of a general theory of legal pluralism. While such theory is still at an early stage, it promises to assist further each scientist's potential in his or her individual field of research, as well as advancing the understanding of law in society generally. Membership of the Commission is open to anyone with a serious and substantial scholarly or practical commitment to, or involvement in the field of folk law and legal pluralism. Readers interested in joining the Commission are invited to communicate with the Executive Secretary, Dr. Fons Strijbosch, c / o Institute of Folk Law, Catholic University, Postbus 9049, 6500 KK Nijmegen. The Netherlands. Various studies of folk law have in the past considered issues related to social security, although that term has rarely been used. It seemed to some members that further progress in this respect would be helped by a pooling of these experiences, and by an exchange with specialists who had concentrated on the study of social security to a greater degree than members of the Commission. Thus it was for the Commission also a timely opportunity when contacts with the Max-Planck-Institut offered the possibility of such a meeting. Nevertheless, the plan to meet, exchange experiences and discuss different approaches to research was subject to some risk. As the symposium showed, collaborative discussion between students of these two fields was not easy. The social security specialists had often given no thought to folk law, and were alarmed at some of the observations about social security which came from the folk law specialists, which, at the most charitable, they judged simplistic. The thoughts of the folk law specialists about the social security experts were similar. Possibly these difficulties could have been avoided, and the requirements of "conscientious" research better met, if certain terms had first been defined. What, for example, is "social security"?

Preface

5

What is "social law"? What are the alternatives, and can they be reduced to a common denominator such as "traditional solidarity", which can be contrasted with "modern social security", or "informal" as against "formal social security"? A n d is not talk of alternatives a priori an inadmissible simplification? But who indeed could have painted a clear picture here, where both the socio-legal and the anthropological researchers are themselves only just beginning to perceive these problems? The problems are discussed more fully in the Introduction. In preparing for the meeting, the organisers were forced to the conclusion that the only practicable approach was to throw into the ring terms like "modern social security" and "traditional solidarity" as stimuli, in order to see how those who had considered these matters, who had gained experience in the field, and who proposed further research, would react, and with what conclusions. The principal achievement of the symposium was the collection and exchange of such conclusions. Three goals were achieved: a wide variety of information was exchanged; everybody who initially did not understand another's point of view took this as a challenge to broaden the horizons of his or her knowledge and to dig even deeper in the search for a common denominator; and opportunities for cooperation were revealed. What could not be achieved was conceptual and systematic elucidation. This task remains, after as before Tutzing. Nevertheless, we believe that Tutzing has changed it, and that the prospects for progress in terminological and classificatory clarification have become a trace more favourable. Also this has changed: members of the small community of those who share an interest in the social law of the "third w o r l d " and "social security" in the developing countries have become a little better acquainted with each other, a little more conscious of the experiences and interests they have in common. This is no small matter in a research venture which still has so far to go before reaching its goal. In scholarship as in genetics, the finest specimens are often produced from an enterprising cross-breeding of contrasting varieties, and certainly not by a narrow concern for purity of the line. In our view the interchange gave birth to many insights which will permanently enrich the understanding both of social security and of legal pluralism in the modern world. We believe that even those readers who approach this book with a due measure of scepticism must learn, as we did, and will, after reading it, agree with us. Finally, we wish to express our thanks to the staff of the Akademie für Politische Bildung at Tutzing and of the Max-Planck-Institut für ausländisches

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und internationales Sozialrecht at Munich for the friendly and effective way in which they provided the infrastructure for our symposium. Gordon R. Woodman, President, Commission on Folk Law and Legal Pluralism

Hans F. Zacher, Director, Max-Planck-Institut für ausländisches und internationales Sozialrecht September 1987

Introduction: Between Kinship and the State Franz von Benda-Beckmann, Keebet von Benda-Beckmann, Brun Otto Bryde and Frank Hirtz*

I

Social security in developing countries, as a major aspect of social policy and development, is gradually emerging as a recognized field of research. We can observe a process in which different scientific universes, demarcated by specific research interests and different sets of assumptions, and inhabited by scientists from various disciplines, slowly move towards each other. On the one hand, we have the universes of social lawyers, economists and social policy analysts, traditionally concerned with the social law enacted and maintained by state institutions and the provision of social security by the state or under state regulation. On the other hand, there are the worlds of economic and legal anthropologists who traditionally have been more concerned with normative systems, forms of social and economic organisation, and strategies followed by the rural population. The latter have increasingly come to realise that the processes of social and economic change in rural areas, and the economic and social differentiation and marginalisation involved, cannot be adequately understood without drawing upon the knowledge, empirical and theoretical, which has been gathered by scientists mainly concerned with state regulations and practices. Conversely, social policy scientists, lawyers and macroeconomists have found that the actual performance of government institutions cannot be understood, nor alternative government strategies devised, without having recourse to the descriptions and analyses of scientists who have made in-depth studies of social and economic change and the effects of governments policies at local level (Bossert 1984, Midgley 1984). As has been declared repeatedly by academics and practitioners alike,

* This introduction is largely based upon the opening statement "Social security and legal pluralism" given by F. von Benda-Beckmann at the beginning of the symposium and on the concluding address given by B.O. Bryde at the end. In addition it draws upon the summaries of the discussions which were made available by Mr. A. Bakari, Ms. E.M. Hohnerlein, Ms. A. Huck, Mr. P. de Koning and Ms. G. Schatte. Their full texts have been published in Newsletter XIII of the Commission on Folk Law and Legal Pluralism. We gratefully acknowledge their contribution. Between Kinship and the State (F. von Benda-Beckmann © 1988 Foris Publications

et al.)

8 F. von Benda-Beckmann et al. knowledge about these local systems and the changes they undergo is crucial mainly for two reasons. In the first place, we have to assume that third world states will in the near future not have the organisational or economic capacity to extend conventional social assistance schemes to the rural populations. Large parts of the populations of these countries will continue to be heavily dependant upon their own local mechanisms of social security, however strong or weak these may be. For a realistic assessment of the social security available to these populations knowledge of the causes of change, the incipient trends, and the elasticity of local systems is particularly important. Moreover, it is now appreciated that it is not fruitful to view in isolation the structures, institutions and actors which historically have been associated with any one of these spheres of society. State mechanisms of social security, welfare, and public assistance, the legal regulations pertaining to them, and local mechanisms of mutual help and redistribution of goods and services, whether traditional or newly emerged, are linked in a complex web of relations of interdependence. An assessment of the level and quality of the social security provided for various groups of people also requires knowledge and understanding of the effects of local forms of social security on the actual working of government-provided social security and vice versa. Secondly, such knowledge is also crucial for policy planning. Unless we come to understand the relations between state-provided and other forms of social security, and know of the emergence of new forms, policy planners and bureaucrats will continue to work with stereotypes about the modern state and traditional society. Such stereotypes are likely to give rise to a host of misunderstandings and misguided policy recommendations. Answers to the existing policy dilemmas can only be found in new innovative linkages in which state and folk rules and resources are coupled, on the basis of an adequate understanding of the interdependences between the various mechanisms of social security.1 The symposium upon which this book is based was an attempt to contribute to these insights by bringing together scientists from different disciplines interested in social security problems, who would look at them from different perspectives. In our introduction we discuss some conceptual, empirical and theoretical issues concerning social security in developing countries, and indicate how the contributions to this volume relate to them. To give some structure to the volume, we have distinguished some major fields of inquiry and have grouped the contributions accordingly. Together with this introduction, the contributions of Zacher and Fuchs serve as "general orientation". Zacher's article (a shorter version of which was also delivered as one of the opening statements to the symposium)

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further elaborates the general problem of the book, the relationship between 'traditional solidarity and modern social security'. Fuchs gives an overview of the social policies in third world states and discusses some fundamental dilemmas facing the policy makers. The first major field for empirical inquiry and theoretical discussion is that of local-level, non-state forms of social security and the changes which they undergo. This inquiry is not limited to what tends to be referred to as traditional solidarity. New forms of social security which people generate, and the ways in which individuals and institutions adapt to changing circumstances are discussed as well. The contributions in the section on "perspectives on changing social security" deal with these problems from a variety of angles. The articles of Woodman, Schott, and Chang deal with the changes in law and social security at the level of entire societies and give their main attention to the colonial and postcolonial period. Casino takes a deeper historical perspective. Slaats and Portier describe the changing patterns of access to land in Karo Batak society, where land is an important resource for social security. Kim traces the relevant changes through the life history of individuals. Bakari's study on Tanzania and Strijbosch's on the Ambonese in the Netherlands are more concerned with the adaptations of traditional rural social security systems to new contexts, to urban Tanzania and to a European industrial society respectively. While in the first set of papers the change in local systems is analysed as a consequence of legal, social, economic and political factors in general, the contributions in the section on "social security and legal pluralism" are mainly concerned with the co-existence, confrontation and interpénétration of different types of social security norms and practices. These descriptions vary in scope, from that of the whole plural system of a state (Bossert, Kludze) or of a region (Freiberg and Jung, Hirtz), to the detailed functioning of state bureaucracies (de Koning). Other contributions focus ori specific domains of social life like child maintenance and support for women (Wanitzek, Griffiths) or zakat distribution (F. von Benda-Beckmann). More than in the first set of papers, the social security options and strategies of individual actors are highlighted. Finally, the contributions set together under the heading "policy, law and social security strategies" emphasize matters of social security policy from the point of view of social policy planning (as described in Fuchs' article), of international relations (Kaufmann), or of local interest groups (Conn and Langdon), and discuss state social security and legal aid policies (Pijuan), social security projects (K. von Benda-Beckmann), and political aspects of social security (Azer). These fields of inquiry are, of course, not sharply separable. There is considerable overlap between them, and most contributions address several

10 F. von Benda-Beckmann et al. relevant aspects of the social security problem. On the other hand, some regions or societies are discussed by several authors from different perspectives. Thus the West African region is discussed by Woodman, Kludze, Schott and Kaufmann. Bakari, Wanitzek and Bossert all deal with social security in Tanzania. The contributions of Strijbosch and the von BendaBeckmanns are all concerned with social security among the Ambonese, although in two different national contexts.

II

By relating social security to both kinship and the state we wish to indicate our intention to dissociate social security from any specific type of normative regulation or transfer of goods and services. Rather than looking for clear boundaries of the concept, we use the term social security to indicate, perhaps illuminate, a field of social problems. All over the world, and in developing countries in particular, social conditions are such that a multitude of people suffer from insecurity: from uncertainty about whether they will have enough to eat tomorrow, have a roof above their head next month, be cared for when they are ill, be helped when they are young and old, have money when they have no means to earn it, and suchlike. In the most general sense social security can be taken to refer to the efforts of individuals, kingroups, villages and state institutions to overcome these insecurities. The term can thus be taken to refer to social phenomena on a variety of levels. On one level it indicates values, ideals, ideologies, and, in a more concrete form, policy objectives. At this level we see that within any single society there is rarely only one notion of social security. Different agents, distinguished by gender, age and social class, may define social security differently. There is no need, we think, to chose only one such definition. We have to note the differences, inquire into their underlying causes, and establish their various significances but we can relate them all to the same problem, that is, whether old people are cared for, poor people are provided with sufficient food or income, and, generally, the insecurities mentioned above, removed. At the level of institutions the same holds true. Here again we encounter great variety. In some societies institutions have been established with the specific purpose of providing assistance to needy persons under given circumstances. In other societies no such institutions exist; no specific social security institutions have been differentiated from social organization in general. Again we may notice these differences, try to explain them, and analyse their significance. But again we need to regard all cases as variations in relation to the same problem of social security.

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And finally, at the level of practice, of collective and individual action, social security can colour the most varied sorts of social processes. Building a house, for instance, as a category of behaviour, is not as such a form of social security provision. But building houses for the poor, or in order to provide shelter after one's retirement, or for one's poor relatives whom one is obliged to help, is a form of social security provision. Such a conceptual approach may, of course, still be too wide and too vague. It is argued in some papers, and also was argued during the symposium, that more specific references should be made to types of needs, risks and crises in order to distinguish more clearly between "normal" life situations and those exceptional situations of distress, risk and uncertainty the institutional responses to which could more appropriately be labelled social security. This approach is exemplified by the definition of social security given in the ILO Convention No. 102 (and see also the conceptual discussions in the contributions of Fuchs, Woodman and Bossert). While we agree that the approach adopted in this volume may be in need of further conceptual refinement, we have proceeded on the belief that a wide definition would allow us to distinguish more sharply the unknown areas and conceptualizations needed. During the discussions it became clear that we would do better to avoid the grand dichotomies like formal-informal and modern-traditional, that are often used to distinguish different forms of social security. In the call for papers for the symposium the theme had been indicated as Formal and Informal Social Security. It was almost inevitable that much discussion would revolve around these terms, despite the cautionary note in the introductory speech of F. von Benda-Beckmann that these words were meant only as a loose reference to the wide variety of social security arrangements to be discussed. As in other spheres of social life (such as labour relations and credit arrangements) "formal" tends to be equated with western-style, state-initiated social security, and "informal" with security provided by family, kinship and village groups. As was argued by most participants, by this equation we are almost certain to miss the informal elements in the western, and the formal elements in the indigenous systems. De Koning's paper reminds us how little the actual working of western social security often resembles a model of formally rational application of universal rules. Several other papers (e.g. Freiberg and Jung, Azer, Hirtz) illustrate this vividly with respect to the functioning of state systems of social security in third world states. Local, indigenous forms of social security, on the other hand, can be very rational and formal. It does not help us to redefine, as does, for example, Fuchs, "informal" as "not legally regulated". Many of the papers show that in the local village and tribal spheres we are dealing with sets of quite well defined legal obligations and rights, on any reasonable view of what is "legal"

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F. von Benda-Beckmann et al.

(as is shown by the papers of Woodman, Kludze, Chang, Wanitzek, Griffiths, Schott, Kim, Bossert, Chang and F.von Benda-Beckmann). This legal nature of the obligation may be obscured by the fact that group members perceive the support relationship as governed by love and trust or "filial piety" (Kim), a feeling which is probably necessary if family relationships are to function well. However, even those who perceive family assistance in this perspective will be found to recognize that it also implies a legal obligation (see in particular Chang, Kim, Schott). Obviously, we do also find informal mutual help arrangements which transcend legal obligations. These, however, should be opposed to the arrangements of both state and local laws. So we can distinguish formal and informal aspects of social security in different societies, but cannot classify sets of social security arrangements (state and indigenous respectively) along the same line. The same holds true for such pairs of words as "traditional" and "modern". The use of "traditional" to describe, for instance, large parts of African village law, makes some sense. In African as in Asian villages we find many rules and principles which are of ancient origin and which have been maintained through tradition within local communities. By no means do we wish to subscribe to the notion of an "unchanging tradition" in African, Asian or Latin American societies, nor do we assume that the traditions "discovered" during the colonial period were not influenced or even created by economic and administrative measures of colonial governments. Yet it makes sense to describe as "traditional" those forms of social security which are rationalized by reference to tradition, and to distinguish them from historically more recent and innovative legal rules and institutions - the recently emerging local institutions of selfand mutual help mentioned by Woodman are a case in point. The important feature of those innovations for our purpose is that they consist of norms and institutions which have been generated by private citizens. They are, if you wish, a form of people's law. But they are not, or not necessarily, informal, traditional, archaic or customary. They may be modern phenomena, the highly rational responses of people united by a common interest in overcoming problems of need and risk through a cooperative effort. The functions of these subsystems, too, may not be "traditional". The form of social security to which they aspire may be detrimental to "traditional" social security. They may lead people to withdraw resources such as land and labour from the kinship/neighbourhood sphere (see Slaats and Portier, Freiberg and Jung), thereby decreasing the resources potentially available for kinship-based assistance, and strengthening their own particular social security at the expense of other forms. Such changes in local level social security are described in a number of contributions which show that changes in local, "traditional" systems

Between Kinship and the State

13

can be highly differential (see in particular Schott, Bossert). On the other hand, large parts of state law can be considered to be traditional, too. This is especially the case with those old rules which have been handed down through the generations within the community of legal scholars, judges and state bureaucrats. We might do better to speak, with respect to any society, of old rules and recent innovations, of historical and contemporary legal forms, if we want to give a temporal aspect to our conceptual usage. Alternatively we may distinguish normative rule complexes according to their degree of social differentiation and functional specialisation. But if we use the conventional pairs of terms to identify in a general way state law on the one hand, and traditional law on the other, we are certainly embarking on a mistaken voyage filled with false comparisons and false contradictions.

Ill Social security involves a redistribution of goods and services. Such redistributions are, of course, normatively structured. Zacher's distinction between internalizing and externalizing forms of social security may be helpful to a closer look into the relationship between the political level at which regulations are made and the socio-economic setting in which resources are redistributed. From several contributions it appears that there is no clear-cut overall correlation between transfers occurring in specific socio-economic settings and a particular type of law. Obligations of mutual help and redistribution of labour and income within the family, for instance, are usually regulated through both state law and indigenous law, as is shown in Wanitzek's and Griffiths' contributions. Laws with a wide normative scope of operation may actually operate within very restricted social boundaries, a possibility illustrated by the description of F. von BendaBeckmann of the distribution of zakat fitrah in Ambonese villages. Ambonese Muslims keep such transfers within the village, and if possible within the network of kin and friends, although the Islamic law defines the categories of recipients generally within the umma, the community of believers which transcends all territorial and ethnic boundaries. On the other hand, resource transfers with social security purposes based on non-state law need not be limited to narrow geographical spheres. Casino gives an interesting example of how relationships of 'vertical bonding' established redistributive linkages over large geographical areas. De Sousa Santos has referred to the great importance which remittances of Portuguese migrant workers in northern European countries have for the social security of their kin in rural Portugal. 3 He also points out that rural communities of origin serve as buffers for many of those who have migrated to urban

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F. von Benda-Beckmann et al.

centres. The relationships between Ambonese living in the Netherlands and their relatives in their villages of origin, described by Strijbosch, show a strikingly similar pattern. Remittances serve to provide assistance to the relatives who have stayed behind, but at the same time may be part of a long-term social security strategy of the Dutch Ambonese in preparation for a possible return to their home villages in their old age. A common feature of such transfers is that they are highly particularistic, based upon a common region or even village of origin. In order to generate the resources required for a general redistribution between villages and regions, to make general regulations to structure such redistribution, and to coerce people to conform to the regulations, political institutions operating on the highest level of political integration are inevitable. Differences in the politico-jurisdictional spheres of operation of laws thus give rise to important differences of character. If local laws can normally not be used for large scale redistributory processes, this is not because they are archaic, traditional or customary; nor is it because they lack the potential to develop solutions to "modern" problems or are intrinsically adverse to "development" and "modernization" as is often assumed. It is primarily because such laws operate within the political structure of the village, and villagers and village leaders have neither the power nor the authority to generate legal rules which would be applicable to, or could be imposed upon persons outside these ranges and levels of political integration. State law, in contrast, operates at an all-encompassing level of political integration, and therefore can incorporate such regulations. But, moving to a yet wider sphere, Kaufmann's contribution indicates some of the difficulties in surmounting national borders, especially when states of very unequal economic levels are involved, as is the case between France and francophone African countries. These characteristics of state and non-state law seem to be more relevant for social security than customariness, modernity, rationality, adaptability, or the explicitness of legal norms. The differences in scale and levels of the political organizations in which peasants, bureaucrats and judges function, and the differences in power, seem to be highly relevant. The daily operation of social security, and also changes in any existing system of social security, formal or informal, involve the redistribution of resources. Institutions based on state law usually take care that such redistribution takes place not only within but also between farm-families, villages, districts, provinces, and different sorts of economic enterprises working at different levels of political integration. This is an important capability of state institutions which we need to recognize, however much we may disagree with the policies behind, and the effects of such redistributions.

Between Kinship and the State

15 IV

Legal regulation and the economic processes in which goods and services are transferred for social security purposes thus are interrelated in complex ways. While we may look at the legal systems and economic processes in isolation in order to analyse their specific characteristics, the answer to the question of their actual significance for the social security of a population can only be given if they are described and analysed in conjunction. This requires a perspective which asks whether, to what degree, and with what consequences people are simultaneously affected by the different mechanisms of social security, how they mobilize them, and how they use the normative structures of these mechanisms. The different systems are primarily linked through people's actions. People interpret, and choose between or combine elements of both systems and their ways of doing so, and the consequences thereof, may be very different from what planners and lawyers intend or expect. Such a perspective therefore requires a focus upon the strategies of individuals, families, or larger groups of people in a multitude of interaction-settings. Several contributions, notably those of Hirtz, Wanitzek, Kim, Bossert, Griffiths, F. von Benda-Beckmann, and Freiberg and Jung, take this perspective. Bossert's study is perhaps the most systematic account of the type in this volume, documenting how the actual social security of rural Tanzanians results from a combination of village-internal and external resources on the basis of traditional normative structures (mainly kinship) as well as of resources provided by state regulated social security institutions. The research of Freiberg and Jung and Griffiths illustrates how differential use-patterns of social security mechanisms largely depend on, and vary with persons' positions in social, economic and political networks, the life cycles of individuals, and the cycles of family farm enterprises. Griffiths, Wanitzek and Hirtz in particular illustrate choice patterns of individual women and men, and show how it is the actor's interpretations and uses of support systems rather than the legal regulations which make up the significance of these systems for the actual economic and social position of the man or woman concerned. As the example oizakat rules and practices in Islamic Ambon shows (F.v. Benda-Beckmann) such innovative combinations of legal systems need not be limited to state and folk laws, but also occur between folk and religious law. Conn and Langdon's contribution illustrates yet another aspect of the relations between social activity and legal regulation. It shows how Eskimo interest groups try to safeguard or regain control over the economic resources vital for social security by using or appealing to state institutions and state law. Their contribution makes us aware that in the strategic pursuit of long-term social security interests rural interests may be better

16 F. von Benda-Beckmann et al. promoted in terms of state law than of customary law. Converely, in western societies we find many examples of the state, by conjuring with the sacredness of the family, using traditional legal ideas for the pursuit of state interests.

v Social security always involves some form of dependence. Relationships establishing social security, whether locally provided or state-wide, imply power differentials. Local level, traditional forms of social security are embedded in complex webs of social relationships. Participation in such forms of social security requires a relatively high degree of conformity to the norms and values of the group that provides social security. Those to whom the sometimes suffocating embrace of such multiplex relationships is unduly onerous, may find it difficult to break away, because that would mean a rejection of all other elements of social life as well. We should be careful, however, not to equate multiplicity of relations with equality in power or access to social security. Casino provides a convincing argument for the inevitability of fundamental unequality in traditional social security relationships in Southeast Asia; simultaneously he offers a perspective on the changes which occur when patron-client relationships become incorporated into a state(bureaucratic) system, developments which have been discussed quite extensively by development anthropologists and sociologists (Wolf 1956, Scott 1972, Scott and Kerkvliet 1973). Freiberg and Jung point to the correlation between economic differentiation and differentiation of social security. Peasants with a low economic position develop quite different risk-avoidance strategies from those who start out at a higher economic level. The economically weakest have less diverse and less accessible social security resources than those who are better off. Since they have less choice, the dependence on certain individuals in the relationships providing social security seems all the more severe for the economically weak, thus reinforcing the economic differentiation. One way to reduce these power differences is to create a new system of social security, based upon simplex, or less multiplex relations, providing participants with less personal or even totally impersonal entitlements. These features can be observed in many recently evolved local forms of social security such as mutual help and rotating savings and credit associations; they also are typical of the western-inspired, and stateregulated social security institutions. But the provision of resources and the establishment of new institutions always seem to bring along new forms of dependences involving the "personalization" of structurally impersonal

Between Kinship and the State

17

relations. Not only does this hold true for third world states but, as de Koning's contribution shows, also western systems, in this case in the Netherlands, are not as impersonal as some may like to think, and personal dependence could play a larger role even here than sometimes is assumed. Since the relations and dependences involved in the redistribution of resources involve shifts in economic and political power, social policy is always and everywhere a highly political matter, as Mesa-Lago (1978) has shown for Latin America. Social security is often used for the pursuit of political control (K.von Benda-Beckmann), as a weapon in election campaigns (Freiberg and Jung) or to gain economic control (Slaats and Portier). It is used by politicians as a way to mobilize political support. More generally it often seems to be more an instrument to stabilize political power at both the national and local levels than an answer to the risk burden and social security needs of the population. This is also recognized by non-governmental organizations. Azer shows how in Egypt fundamentalist sects effectively strengthen their political position by providing social security to their followers, much to the chagrin of the Egyptian government, which considers these sects a threat to the authority and political position of the state apparatus. Social security is thus an important political theme, for governments, for those who are required to contribute, and for the recipients. Fuchs gives an interesting and engaged overview of the discussions on social policy by social policy scholars. They are concerned with possible longer range effects. It seems that relations of dependence and power differentials tend to be more limited when a greater variety of resources is available within the given political environment to persons in need of social security. The relationship involved in social security between economic stratification and political dependence should be further studied. Of similar relevance and in similar need of further study are the various techniques of resource mobilization and redistribution borrowed from 'modern' systems and their effects on settings in the third world. There are enormous differences between French- and English- inspired social security law. It makes quite a difference whether funds are raised through a system of provident funds, a dynamic rent system, or direct or indirect taxes (Midgley 1984). And it seems highly probable that different fundraising systems have different types of impact on local forms of social security. Our conference had no contributions on these subjects, and this was felt to be a weakness. The effects of various types of fundraising and of organisation and disbursement of social security provided by the state, on local forms of social security should be further studied.

18 F. von Benda-Beckmann et al. VI

What can be expected from state-provided social security, and under what conditions is there any chance for success in the immediate and mediumterm future ? Are there 'adapted technologies' of social security that could positively tie in with local forms? Are there any possibilities at all of stabilizing local, traditional forms of social security, as Zacher suggested? Experiences with similar attempts in other fields, such as traditional local administration, dispute management and cooperation, are not promising. Attempts to stabilize so-called traditional forms of social organization through the state administration generally have resulted in an even faster dissolution. However, these attempts were often based on very distorted and inadequate knowledge of the local systems. Moreover, they were based on the assumption that too much variation was undesirable and should be eradicated as soon as possible to make place for a standard local administration. Adapted technologies only can be expected to have a chance of success when they are based on thorough knowledge of the local situations, and if they allow for variation at a low level. This knowledge should include detailed information on social and economic life, which to begin with should be differentiated according to generation (Griffiths), gender (Griffiths, Wanitzek, K. von Benda-Beckmann) and economic level (Freiberg and Jung). Furthermore, it should take account of the cyclical deficit phases and local economic differentiation in peasant economies, as Freiberg and Jung demonstrate. Credit facilities, adapted to various needs, could then deal with some of the risks of the peasant economy. However, the contribution of Slaats and Portier demonstrates the dangers of credit facilities. As a result of a large scale credit programme many Karo Batak youths were able to migrate to the cities where they could obtain a good education. Through the financing of education economic resources (land, capital and labour) are withdrawn from the local system of social security. These papers and that by Griffiths make it clear that the effects of education on local forms of social security is an important field of study. Secondly, an important factor of success seems to lie in the variation of social security programmes and projects at a very low level, as Freiberg and Jung suggest. K. von Benda-Beckmann has shown that the relative success of social security projects on Ambon depends to an important extent on whether the activities required by the projects can be smoothly integrated with the particular skills and other routine activities of its participants. Programmes not designed to allow for such variable implementation are bound to fail. For the time being, state provided social security will probably mainly

Between Kinship and the State

19

affect local forms of social security in a negative way. While large parts of the population will receive hardly anything at all, and never enough to cover all risks, local forms of social security will in all likelihood continue to weaken. Large amounts of resources will be withdrawn from local mechanisms of social security, as a result of which the economically and physically weakest will suffer most. And they will be the least aided by government social security. For most programmes set up by governments of third world countries are directed at promoting income generating activities by the poor; they presuppose some physical and mental skills, as several contributions suggest. Those who lack such capacities will usually not be reached and will have to depend on the ever weakening, local mechanisms. But the problems are not restricted to the neediest. Kim's account of a highly educated Korean man illustrates how even such people may fall between the old and new forms of social security. In this case he has no access to the old age pension provided by the state, but has moral problems in relying on his children, although they are quite willing to take him up. Kim's contribution makes us acutely aware that the weakening of old forms of social security is in part due to contradictory normative considerations and the conscious choices of individuals. It reminds us that we cannot reduce the problem of social security to matters concerning legal, economic and political structures, and that we cannot in a structural-functionalistic or legalistic manner deduce certain behavioural forms from such structures. Research into the complex ways in which individual and collective human agency relates to social security structures and institutions is another important part of the study of the decline of old and the emergence or rejection of new forms of social security. The following contributions may serve as a starting point to meeting this interdisciplinary challenge both to understand this entire area of social action and to provide social welfare to those in need.

NOTES 1. Here we can relate the contributions to a rich literature about social policy in Third World countries, which has been well analyzed and compiled by Midgley 1984, MacPherson 1982. 2. See for a recent overview of the debates around the "creation" of customary law through colonial social scientists and administrators the special number of the Journal of African Law, 1984 vol. 28, on The Construction and Transformation of African Customary Law. 3. The contribution by de Sousa Santos to the Tutzing symposium was published elsewhere (De-Sousa Santos 1986).

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et al.

REFERENCES Bossert, A. 1984 Traditionelle und moderne Formen sozialer Sicherung in Tanzania. Berlin: Duncker & Humblot. Macpherson, S. 1982 Social policy in the Third World: The social dilemmas of underdevelopment. Brighton: Wheatsheaf Books. Mesa-Lago, C. 1978 Social Security in Latin America: Pressure Groups, Stratification and Inequality. Pittsburgh: University of Pittsburgh Press. Midgley, J. 1984 Social security, inequality and the Third World. Chichester: John Wiley & Sons. Scott, J.C. & Kerkvliet, J. 1973 " H o w traditional rural patrons lose legitimacy (in Southeast Asia)" in: Cultures et Développement 5/3: 483-500. Scott, J.C. 1972 "Patron-client politics and political change in Southeast Asia" in: The American Political Science Review 66: 91-113. Sousa Santos, B. de, 1986 "Social Crisis and the State" in K. Maxwell (ed.), Portugal in the 1980's: Dilemmas of Democratic Consolidation. New York: Greenwood Press. Wolf, E.R. 1956 "Aspects of Group Relations in a Complex Society: Mexico"in: American Anthropologist 58: 1065-1077.

Traditional solidarity and modern social security harmony or conflict? Hans F. Zacher

THE BASIC PATTERN OF MODERN SOCIAL SECURITY

In order to explain the relationship between traditional solidarity and modern social security, it is useful to recall the pattern on which modern social security is based. (On the development of modern social security see: Köhler 1979; Köhler and Zacher 1981.) The first element of this pattern is the specific structure of modern society. Basically, people live in small households - as parents with young and adolescent children, as married couples without children, or as single persons. The adults in such households generally earn money by working. If there are children, one of the adults - traditionally the wife and mother - may devote herself to looking after them, and perhaps not work outside the household and not earn an income. The second element is the economy. This is characterised by the "division of labour". Production and distribution are functionally divided amongst various economic units (large and small companies, handicraft businesses, farms, etc.). In these economic units the work is again divided amongst the people who work in them. This division of labour entails incessant processes of exchange so that production and distribution bring about their eventual results. In this context, goods and services are exchanged for money (prices and wages). This forms the basis for the evolution of modern social security (Zacher 1982). The development starts from the general rule that every adult earns a living for himself and his family (at any rate for the children and largely also for the spouse) by working (either as an employee or self-employed). The basic assumptions are: (a) that work provides income; and (b) that the income is adequate to meet the needs of both the income earner and his family. Within this context there are three central, potentially problematic areas. 1)

Work and income: the organisation of work and earning of income by work. In the case where the individual has assets, he can, of course, substitute for income derived from work such income as he may gain by putting his capital to work or by consuming his assets. However, the phenomenon of the "capitalist" living on his capital is to be excluded

Between Kinship and the State (F. von Benda-Beckmann et al.) © 1988 Foris Publications

22

H.F. Zacher from the following discussion. It is not a solution which is available to the broad masses. But the use of assets - particularly savings as a substitute for or a supplement to income when income from work is totally lacking or inadequate, is extremely significant from a social point of view.

2)

The satisfaction of needs: the organisation of the production and distribution of goods which people need to meet their needs, such as food, clothing, housing, education, training and care. This can be performed by private enterprise or by administrative bodies, in the framework of "social market economy" or planned economy.

3)

The support unit: group of persons who are interdependent or all dependent upon one of their number for the satisfaction of their inidividual needs. Normally the income of the wage earner is passed on to his dependants as support, in the form either of money or of goods purchased to satisfy the needs of the unit. Within the support unit, needs are also satisfied directly, the main example being a mother's care for her children.

The rule that each individual has social responsibility for himself and his nuclear family is realised in a dynamic process which comprehends these three areas. The rule is, of course, no more than a rule in the sense of a standard case and exceptions are both a possibility and a reality. The following social deficits are typical. 1)

In the area of work and income a person may be unable to work completely or partly, permanently or temporarily, through sickness, invalidity, old age, etc. Alternatively a person may be unable to utilise his capability of working as in the case of unemployment. During the absence of the capability or while the capability cannot be utilised, there will be no income.

2)

Social deficits occur with regard to the satisfaction of needs if a range of goods, such as housing, food or medical care, is so expensive that it is inaccessible to poorer people, or its purchase entails a disproportionately high burden for them. There are other emergency situations which have similar repercussions. For example, as a result of the level of development, a war or a catastrophe, certain goods may not be available at a given place or time. Or some groups in a society, discriminated against because of their race, religion or otherwise, may be denied access to the goods required to satisfy their needs. It is not imperative to discuss this at length here.

Traditional Solidarity and Modern Social Security

3)

23

With respect to the support unit, deficits occur in particular when one of the "useful adults" (the wage earner or the mother who looks after the children) is missing (e.g. because of death) or repudiates his obligations (e.g. refuses to provide support). The constitution of a support unit can also result in an insufficiency of income in relation to needs, if there is a disproportion between the numbers of actual wage earners and children in the unit, as in the case of families with numerous children.

These deficits constitute the central concern of measures in furtherance of social policy. To a certain extent it is reasonable to respond to the problems by measures in those areas in which they occur. For example, if a worker is prevented from working for a short time by sickness, it is reasonable for labour law to oblige the employer to continue to pay the worker's wage for this period. But there are limits. If, for example, a person is handicapped, and so permanently unable to work, labour law cannot reasonably oblige an employer to pay him a wage in perpetuity. The welfare state which wants to do justice to its concept has, in the final analysis, no alternative but to replace income derived from working by social benefits. Thus, from the start, there are two different types of solutions to the "natural" social problems we have described as social deficits: internalising solutions solve problems by acting in the areas in which they arise; externalising solutions solve problems by acting outside those areas. These solutions assign the function of compensating for social disadvantages to various bodies, some already existing, such as local government and state authorities, some created for this specific purpose, such as social insurance institutions. Here are two examples: 1)

Rules that protect the worker from occupational hazards are within the problem area of work and are a component of labour law. They are a priori internalising solutions. The consequences of work accidents, however, may be met with either an internalising or an externalising solution. Employer's liability is an internalising solution. Insurance of the employee against accidents at work is an externalising solution.

2)

In the field of school education for children there is a danger of parents preventing their children from obtaining education. In this case, the

24 H.F. Zacher solution is sought through rules of family law. A priori, this is an internalising solution in the problem area of the support unit. In contrast, a different form of the problem arises if the education system is organised in such a way as to disadvantage some children (e.g. those living in the country). Improving the school system is then an internalising solution within the problem area of need satisfaction. However, the provision of the parents or children with social benefits (family benefits, training, etc.) through the state or through a special fund in order to relieve them of some or all of the costs of the training would be an externalising solution. Social security in the sense used here refers principally to externalising solutions. Modern social security has sought and found an increasing number of solutions to a core group of major, typical deficits: sickness, maternity, invalidity, old age, death leaving behind dependants, work accidents and occupational diseases, unemployment and family burdens through children. The principal solutions are: social insurance non-contributory schemes financed by taxation (demogrants) social compensation (for war victims, etc.) social promotion programmes (e.g. for families, for training promotion, for rehabilitation, etc.), and poor relief (in its more modern form known as social assistance). As already mentioned above, services to meet certain needs in kind (e.g. for children, elderly persons, drug addicts, etc.) are part of a specific area lying between externalisation and internalisation. On the one hand they have the character of externalising solutions as they are taken over by the state, and on the other they are in the nature of internalising solutions because the specific social problem is inseparably embedded in a larger field of correlations. The terms used in this context in various countries and eras are extremely ambiguous. This cannot be discussed at length here. But it is necessary to mention some modes of categorisation. Apart from the administrative "internalisation" of the satisfaction of needs (e.g. through a general education system, a general national health service), the arrangement of the various institutions involves the following questions in particular: The alternatives of services in kind and benefits in cash. The alternatives of individual allocation according to need (poor relief/ social assistance; depending on the nature of the treatment, generally

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25

also benefits of social work, care, medical attention, etc.); and allocation according to more generally determined standards such as according to contributions (as in the case of old age pensions of the social insurance system) and according to minimum or typical needs (as with flat rates, demogrants). The alternatives of provident provision against specified risks secured by contributions which entitle the person to future payments of benefits (social insurance); and tax-financed programmes rendering services and benefits to all citizens, inhabitants or similarly defined groups in all cases of specified need (demogrants, social services). To achieve its aim of social security, the welfare state must nearly always combine several of these methods. An overall system of social security cannot be achieved by applying only the method of social insurance, only the method of poor relief (social assistance), or only the method of the demogrant. We nearly always find a combination of most varied methods: abstract standardisation of benefits and individual decision as to what is necessary; provident provision under which the size of benefits depends upon the income of the beneficiary as reflected in contributions, and provident provision according to typical conditions (demogrants); benefits which are defined by their social aims and benefits dependent upon a particular cause of loss (like provisions for war victims, crime compensation, or accident insurance). Unfortunately, "social security" is often identified with only one of these methods. This conceals the reality. But we must also think back again to the close relationship between internalising and externalising solutions. This relationship is of major significance in the overall picture of a country's social security. Internalising and externalising solutions may be regarded as alternatives (as in the example of a worker suffering illness, where the "internalising" continued payment of wages by the employer is an alternative to the "externalising" sickness benefits of the health insurance scheme). They can be combined in sequence (taking the same example: the wage may continue to be paid for a time after which sickness benefits become payable). They can also be combined in parallel. Thus, to take another example, in the case of old age, a person may receive both an old age pension through the social insurance scheme (an externalising solution), and a pension from the employer (an internalising solution). The possible combinations can become even more sophisticated when taking into account that both private law and labour law also provide externalising solutions not mentioned so far. These are the private insurance or separate pension schemes (e.g. for old age) which employers may establish for their employees or trade unions for their members. Thus, in the case of old age a multi-layer system is

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possible: the basis a demogrant (e.g. a flat rate pension) funded by taxes; then a social insurance benefit or a benefit from an occupational system related to working income; then an employer's voluntary undertaking or an individual insurance contract supplementing the two other insurances. In sum a "social security pluralism" has developed: a large number of methods and systems are employed to complement one another in the search for optimal results from a social, financial, administrative and legal point of view. Of course, there are differences between countries with a market economy and socialist countries. The latter, apart from the conferment of privileges on party officials, deserving revolutionaries, etc., have uniform systems in which the internalised solutions to social problems in the firms (i.e. also in labour law) play a major role (on wich see e.g.: Jahrbuch fur Ostrecht 1979; Manz and Winkler 1985). In contrast, countries with market economies tend to have a greater variety of (mainly externalising) solutions (Zacher 1981). In every case legislation is needed to organise and regulate all these different mechanisms (cf: Zacher 1984; Cranston 1985). Such legislation necessarily defines and thus standardises such aspects of life as sickness, invalidity, and old age. In real life all these phenomena have nebulous contours. When is a person ill or not ill? When is he or she able or unable to work? When is he or she old or not? However, social security systems tend to set up clearly defined limits in place of these flowing transitions. Thus social life meets with new structures and the behaviour of the individual is given a new orientation. New scope for individual choice of action evolves. Someone who is "slightly ill" must decide whether to continue to work and draw his wage or to claim he is ill and be paid sickness benefits. Someone who does not find quite the job he would like on the labour market must decide whether to accept work that does not appeal to him or to try to draw the benefits of the unemployment scheme. This standardising of life by social legislation is at its most important in respect of marriage and the family. Social security systems cannot cover every possible definition of the support unit, neither can they cover every possible distribution of roles within this unit. Thus, questions such as whether a couple is married or not, to whom children in the household belong, and whether old people belong to the household, gain specific significance. Moreover, social legislation can change the situation within the family unit. In some circumstances the payment of an educational grant to a child tends to separate this child from the family unit. Payment of children's allowances to the head of the family increases the children's dependence. Generally we find that the laws referring to social security establish completely new structures and standards of behaviour for the life of the individual, and the groups and the society to which he or she belongs.

Traditional Solidarity and Modern Social

Security

27

TRADITIONAL SOLIDARITY

The structures and processes of traditional solidarity are essentially different in every respect. 1 Let us take the extreme case. In the archaic family, in the archaic village, in the archaic clan, in the archaic farm community, and indeed, in almost every pre-industrial urban household, the three areas of work and income, coverage of needs, and support largely coincide. The roles of the wage earner, the mother raising the children, and the recipient of support are not separated from one another as they are in the urban industrial society. Similarly the different phases of life are not clearly defined. Children of a young age and old people also join in the work; thus everyone contributes to the support of all. The extent to which a community provides itself with the goods it needs or obtains them through exchange with other communities, depends on various circumstances: the form and size of the communities, the state of the economic system, and the degree of development of trade relations, especially the degree to which the barter economy has given way to a money economy. The development of civilisation also plays a considerable role. The more differentiated the needs are, the larger must be the units that cover these needs. This gives rise to questions about the internal structure of such units. This is not the place to analyse all these possibilities: the large unit in which a uniform authority assigns everyone as directly as possible a place; the stratified society which solves the problems by more or less strong contrasts of rule and subordination; or the complementary system in which the larger unit (the village or clan) does what the smaller unit (the family or domestic community) cannot afford. But in every case units of the size of present-day states mean relatively little for the daily social life of archaic societies. The fact that, in archaic societies, the areas of work and income, of the satisfaction of needs, and of support largely coincide does not automatically imply that all needs are satisfied, that everybody has the same kind of needs, or that by working everybody makes the same contribution to the satisfaction of his and others' needs. The capacity of the unit sets an absolute limit which is generally not supplemented by any instance of what we would nowadays call national or international redistribution. Relative, internal differentiation results from power relations which, as history shows, can lead to extreme disproportions in the division of labour, in the satisfaction of needs and, last but not least, in the extent to which work may result in the satisfaction of needs. Archaic units are thus not necessarily egalitarian units. Moreover, by their very nature, archaic units by no means ensure that everyone finds a possibility of existence in them, and especially the possibility of an existence which we would today describe as being "worthy of a human being".

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Therefore, the archaic society is distinguished not so much by the same coverage of essential needs of the individual as by the fact that the ability to take up a normal, full working role does not entail the ability to earn what is necessary for oneself and one's family. Work is determined by social position and the satisfaction of needs is determined by social position. The strict correlation between work, income, satisfaction of needs and support on the one hand and incapacity for work, absence of income, inability to satisfy needs and inability to provide support on the other, so characteristic of the industrial age until social security eased the situation, is unknown in archaic societies. Today we know that the rule of reciprocity or mutuality prevails in archaic societies. However, it does not generally operate over short periods of time, namely the working hour, working day, working week of working month, but rather is effective over phases of life. Anyone who does not work will in the long run be subjected to sanctions, which may take the form of a reduction in the satisfaction of his needs or in other social disadvantages, or punishments. However, anyone, such as a handicapped person, who always has greater needs than he himself can cover by working, will have his needs satisfied. The child has in his favour the expectation that he will be able to work later on, while the old person has the benefit of having worked all his life. In the terminology used above to analyse modern social security we can say that archaic solidarity knows only "internalising" solutions for social problems. The distinction between the "internalising" and "externalising" solutions does not occur a priori. We can, indeed, go further and say that social problems as such do not become apparent in archaic societies. This is because the standards of work, of coverage of needs and of support are at the same time the social standards by which social deficits would have to be identified. The social entities in which this takes place develop over a considerable time. Their rules are not positively made and laid down as are the rules of modern legislation. They are experienced by the society and its members. They may change with time, but there is no authority competent to change these arrangements. Law and moral principles are still largely one unit, and these rules are frequently also of a religious nature or determined by religious motives. Moral principles and religion, however, can change only by a process of development and not through instructions.

TRANSITIONS AND ENCOUNTERS

1. The Transformation of Social Conditions As development occurs, however, the three areas of work and income,

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the satisfaction of needs, and support become ever more clearly separate. People work and earn in the town, in industry or in the service sector. Needs are determined and covered partly in the town, partly still in the village, partly by the public administration (e.g. as to schooling and medical care). The unit of support, the family, may remain intact, but it may also be temporarily split if, for example, most of the family remains in the village while one or more members move to the town to work. As the areas of work and income, of the coverage of needs and of support separate, social deficits occur, such as were discussed at the outset in the context of modern social security. Thus, the units in which traditional solidarity was effective - the family, the village, etc. - are faced with a new and difficult challenge. While their control over the work and needs of their members decreases, they remain inescapably responsible for the satisfaction of the needs. They need to balance the work that individual members do outside, and the income thereby obtained by those individual members, together with the work that other members contribute within the system of the unit, against the needs, as they determine them, which require satisfaction inside and outside the unit. They also have to coordinate the demands for the new goods which development seems to make attainable with the access to the means to satisfy these new needs. The quicker the process of change and the incorporation of a society into this development, the greater is the social friction. During this process there are shifts in the structure of the society. Thus the importance of the village may decline and that of the family increase. This may solve problems, but it usually causes new ones, too. The problems can also be seen from the aspect of the rules. The old, traditional, known rules answered the question of how work and the satisfaction of needs were to be allocated within the same unit. They do not answer the question of the allocation of earnings from work elsewhere and the satisfaction of the ever-increasing needs within the unit. If conditions change slowly, the old standards can be adjusted unobtrusively. However, conditions usually change so quickly that the answers given by the old rules no longer suffice, and there is little effort or it is just not possible to find answers to the new challenges in the spirit of the old rules. An important feature of the old standards is that they evolved, and were not made and laid down by a positive act. Thus, new answers to the new challenges would also need social consensus, and, indeed, one might even say new moral principles, to establish themselves. Whether and to what extent new, efficient solutions come into being, depends on a number of circumstances, such as the nature of the developmental process, the relationship between town and country, the level of homogeneity or heterogeneity of the society, the power relations in the society, its creative power, and the external influences to which

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it is exposed. In addition, the religious background often plays a considerable role. The old standards usually concurred with the religion. What does the religion demand under the conditions of the new situation? Competition is liable to arise between the secular tendencies of the society and the religious forces, between politics and the representatives of the religion. The problem of religious fundamentalism affects the issue. Competition may also arise between various religions. In real terms, the problems are expressed in the struggle of the old units to incorporate the new possibilities. Examples are the participation of the rural family in the wage of the member who earns in the town; the participation of the rural family in the new possibilities of satisfying needs which open up in the town; the participation of the rural family in the social benefits the town-dwelling member receives, but also the opportunity of the same member who has worked and earned in the town without breaking the link with the rural family to return to it when the town no longer offers him a possibility of subsistence. However, the possibilities of solving the problems by forming new rules in the spirit of the old standards remain limited. Ultimately, the intervention of state-made law becomes inevitable (Zacher 1984; Cranston 1985). However, conversely this intervention is one of the reasons why the adjustment of social standards to the new situation no longer occurs autonomously. This applies particularly if the state pursues modernisation objectives through legislation, or tries to change social values. (See e.g. Schaeffer 1983; Bryde and Kiibler 1986.) Thus, for example, the state intervenes in some African countries to improve the position of women (UNECA 1982). But whatever the reasons may be, once this intervention of state-made legislation occurs, the legislative rules come into competition with the social rules. The result can be harmony or conflict, reciprocal complement or reciprocal paralysis. In any case the development produces an increasing concentration on the responsibility of state-made legislation, of the state courts and authorities. Even when the state endeavours to preserve the old contents of traditional solidarity - or at any rate rather than abolishing them tries to develop them - the technique of regulation is nevertheless increasingly modern. 2. The Difficulties of Modern Social Security Modern social security also is faced with difficulties during the state of development. 2 It is confronted with various forms of social life which it is not adapted to service. Modern social security takes as its preconditions such factors as the compactness of the nuclear family, the clear division of roles in the small family, and the full-time work of the wage earner. However, in social orderings which follow upon the dissolution or change

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of traditional solidarity, the most varied arrangements are found. The transition in a country from archaic social conditions and traditional solidarity to a modern, industrial, urban society with the basic starting points for the methods of modern social security, is always linked with often widely differing technological, economic and social conditions in that country. However, modern social security requires a certain minimum set of living conditions. Let us take a closer look at the character of modern social security. First, social security fundamentally aims to maintain social normality. All social security measures, whether for sickness, maternity, invalidity, old age, accidents at work, occupational diseases, unemployment, death of the wage earner, or large numbers of children, are nothing else than attempts to prevent or at least reduce the drop into subnormality. This drop threatens if, as a result of any such occurrence, a person's income fails to materialise, the need for medical treatment or such like constitutes an unbearably high burden, support to dependants ceases, or there is too large a discrepancy between the income of the wage earner and the needs of dependants in a family with a large number of children. Secondly, poor relief (social assistance) is oriented towards those living in a state of subnormality. It provides a minimum of help in order to prevent subnormality from degenerating into the utter misery of starvation, hypothermia, etc. However, poor relief can operate thus as an element in modern social security only as long as such subnormality is exceptional. Thirdly, in fully developed welfare states some benefits aim to secure equal access to normality or to improve the positon of the individual within the range of normality. These are in particular the provision of or assistance with training, and the opportunity to acquire educational and professional qualifications. However, these also require that the enjoyment of these facilities should be available to the majority of people, that is, should be a characteristic of the social normality towards which the benefit programmes are oriented. Thus, there needs to be a broad range of normality on the basis of which the social deficits can be identified and to which definitions of need, capacity to make provision, the appropriate level of benefits, etc. can be related. This premise causes difficulties for systems of social security even in developed countries if living conditions - such as in the USA - are extremely divergent. These problems are, however, even more serious in countries

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where the scale of socio-economic conditions ranges from the rural subsistence economy of modest, archaic communities to the living conditions of an urban society which are affluent by any international standards. The range of variation is wide not only in terms of the division of labour and the differentiation of work and income. It also concerns the levels of needs and the possibilities of satisfying them. Indeed, it concerns the entire mode of life and standard of living. Thus, there is not a single "normality" but many "normalities" of working relationships, support units, needs, and possibilities of satisfying needs, and in particular of incomes. This variety can be so extensive and significant that no system of modern social security can satisfactorily accommodate it. It is also impossible to meet this variety by providing a corresponding variety of systems of modern social security. There are two main reasons. First, the various social relationships are not differentiated enough. Family ties as well as spatial and social mobility incessantly intermingle the most different "normalities". The "normalities" are not compartmentalised in such a way as to permit the setting up of separate systems of social security for each one of them. Secondly, these social conditions which are similar to the archaic community where work and the satisfaction of needs are concerned are opposed to the specific techniques of modern social security in direct proportion to their similarity to that archaic community. There is a further difficulty. Modern social security requires a minimum level of economic development, if not of prosperity. Therefore, economic conditions often make the use of techniques of modern social security difficult even when, according to the social circumstances, they might be possible, such as in the urban, industrial sector.

SOLUTIONS

Experience shows that methods of modern social security in developing countries can, generally, reach and protect only a relatively small proportion of the population, and this hardly the poorest. Indeed, modern social security in, for example, Latin America, is often a privilege of the middle classes, whose political position enables them to push through systems of social security for themselves and whose economic situation enables them to contribute to the financing of the provisions set up for them. (See the classic Mesa-Lago 1978.) Modern techniques of social security should therefore be seen as only one element in a comprehensive strategy of social security adapted to the particular conditions of developing countries. This strategy must be "social security pluralism". We already know this phenomenon from the industrialised countries. In the encounter and transition between archaic solidarity and modern social security it

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gains a quite new dimension (see e.g. Bossert 1985). While the social security pluralism of the industrial nations exists within a single normality, it is important here to take account of the different types of normality. The construction of social security pluralism needs to refer to an Archimedian point to avoid confusion among the variety of "normalities". This may be found by considering the different bases of the various relationships. These are the individual, the family, the clan, etc. This means that internalising solutions should be used as far as possible, before externalising solutions. Internalising solutions specifically relate to the normality in which the individual and his closest relatives live. Externalising solutions, in contrast, tend as a result of their generality to miss the normality which determines the life of the individual. What does this strategy of social security pluralism through internalisation mean in concrete terms? First of all, it means that the elementary units of social solidarity in which people work and meet their needs, such as families, village and clan communities, have to be strengthened and stabilised. Their ability to subsist must be promoted. Depending on the circumstances, expedient measures can be, for example, land reform, agricultural instruction, provision of seed after poor harvests, or replacement of livestock in cases of epizootic disease. In parallel, the open and differentiated interplay of roles according to which work is divided, and according to which needs are satisfied, should not rashly be destroyed through standardising regulation, such as is associated with modern social security. The preservation and promotion of the ability to subsist do not suffice. It is also necessary to help these communities to find and realise their rules in the changing conditions. They have to master the changes in economic and social conditions, in particular by enabling their members to take initiatives in seeking work and income outside their own economic unit, but also in gaining access to new material and cultural possibilities of consumption, education, medical care, etc. At the same time, however, they also have to master changes in social values, such as the development of claims to equality of women, or to the emancipation of the individual. Social entities are by now not really able to decide on new rules. But this should necessarily materialise. Cooperative structures especially could often be a solution. But state laws and courts also are still faced with the task of finding or helping to find new rules which will tend to preserve the substance of the old units. They have the task of making effective these new rules against those who try to withdraw from the old units by exploiting the mobility now given to the individual. Customary courts often witness these problems and are at the same time an important instrument for solving them. In African countries in particular they are often used to clarify the position of women, children, the disabled and

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the aged in a changing community (e.g. Doumbe-Moulongo 1972; Mignot 1982; Meyer 1986). On the other hand, wherever modern working life - and so also the separation of work from the coverage of needs - has developed, it is necessary to establish the protection of modern social security. Social deficits as a result of sickness, invalidity or old age have their special form and scope in the modern working world. Even if the background of a family or village subsistence community still exists, the risks of these social deficits can and should no longer be borne by it (Fuchs 1983, 1985; Zöllner 1983). In these circumstances externalising solutions are both possible and necessary. However, experience shows that internalising solutions of an appropriate type are of special significance. The normality for a wageor salary-earning employee is determined primarily by his employment. The special security systems established for the civil service, the armed forces and similar institutions, have always shown this. However, even private firms' security systems for pensions in old age, continued payment of remuneration during sickness, and medical care by the firm or at the firm's expense are far more widespread in developing countries than in industrial nations (Nkanagu 1985). And even if externalising solutions are employed, the advantage of income-related social insurance, financed by contributions, and related to the specific normality of each person insured, is obvious. Certain needs cannot be satisfied for large sections of the population unless particular, planned provision is made. School education and medical care are notable examples. In order to bring these services by appropriate degrees within the "normality" of the individual, and to coordinate them with the "normality" of his family, administrative organisation and presentation are generally required. This applies in particular to the need to differentiate services in terms of their adaptability to the various living conditions to which they are to be applied - a process which can best be carried out through a centrally planned but structured organisation. The "concentric" arrangement of health services with hospitals in the centres and health stations with simply trained staff on the periphery is an example. Here again the solution is "internalising", not now in the working world, nor in the subsistence unit, but in the administrative organisation. Social inequality in access to school education and medical care can be overcome, if at all, only if the state makes these services available. These considerations suggest a picture of polarity between the rural subsistence economy and the urban economy with its division of labour in which administrative services (such as the education and medical systems) link the two poles. This picture is both right and wrong. It is right for elementary orientation. And it is wrong in that it conceals the locations of various living conditions between the two poles and the extent of

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population drift between them. This is exactly where the challenge of social security pluralism lies. Overcoming this difficulty is largely the function of informal social processes (Bossert 1985, and references therein). For example, the social security which an invalid or old person obtains at the end of his working life in the town frequently does not suffice to live there. Consequently he returns to the rural subsistence economy from which he originally came when he was seeking work in the town, and where the monetary benefit of his social security may be worth more. A whole range of informal processes keeps this possibility open for the future. Transfers and communications pass in both directions throughout the working life. The results seem to be accidental in the individual case. The entire process, however, can turn out to be an expedient balance between the performance capacity and the insufficiency of the modern social security on the one side and of the rural subsistence community on the other. Whether state regulation could achieve more in this case than social rules and the parties' responses to their own interests, can be doubted. There have, however, been noteworthy attempts to facilitate the link between the formal and informal systems of traditional solidarity. Mention should be made here of the provident funds which play an important role in providing security for old age in numerous developing countries (Fuchs 1985: 27 et seq.). These are compulsory savings institutions. The social security they offer consists of the repayment to the individual of the amount saved at retirement age, or sometimes in the event of invalidity. They combine a minimum of externalising with a maximum of internalising. They provide the person leaving working life with a chance of buying his way back into his subsistence community with this capital or of otherwise securing a minimum standard of provision (as, for example, through the purchase of housing, or animals, or through the acquisition of a modest income from a craft or trade). This should not obscure the facts that provident funds are a cheap solution for policy purposes and are easily misused. Nevertheless, they allow a certain flexibility in the boundary between working life and subsistence, and thereby point out the natural aspect of the phenomenon. In quite another way administrative systems of medical care frequently make use of special features of traditional solidarity. For example, Tanzania has an administratively organised health service. However, it does not assume the costs of transportation of patients from the village to the health station (Bossert 1985: 174). That is the responsibility of the village community. The latter seems to be the right body to judge the necessity of reimbursing the transportation costs. A fascinating example of a linking of administrative health care to traditional solidarity can be found in Mexico. Here social security is assured for the case of sickness as a matter of principle through a scheme of sickness insurance, the service being thus

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financed by contributions. But monetary contributions are not possible in the subsistence economy sector. Here for the payment of contributions is substituted the performance of services with which the local health station is provided. The local community allocates the duties of performing these services (Prieto 1969). While it is impossible to evaluate here the effects of this system, it may be seen that it is a remarkable attempt to link traditional solidarity with modern social security However, this strategy does not meet the problem of people for whom social security can be provided neither by a subsistence community nor by their working life. Examples are the urban unemployed, destitute invalids, homeless children, and slumdwellers. It is obvious that their problems can be solved by society only if they are incorporated into a work process, a subsistence economy, or a combination of both (e.g. National Center Cairo 1982). It is for this reason that the notion of social security for the case of unemployment causes misgivings which go far beyond the problems of financing. Indeed, social security against unemployment has remained especially unacceptable to the developing countries. However, something has to be done about the want in which people in the present category live. Provided the economic and administrative strength of the community suffices, the appropriate technique of social security is that which in industrial nations is designed to help people in subnormal conditions, namely, poor relief (social assistance). However, it is a fact that in many countries this is not "subnormal", but is the "normal" condition of want. This demands independent solutions. Organised (administrative or voluntary) services are somewhat more likely than monetary benefits to help the "subnormal normality" of these people without threatening the other "normalities" of the working life, the subsistence economy, etc.

FINAL REMARKS

As is so often the case in other respects, developing countries have a special burden to bear in the field of social security. Merely taking over the techniques of modern social security has proven a failure. Although they are useful, indeed indispensable, for a part of the society, this is largely the better off part. Moreover, these techniques are such that the advantages of this form of social security are generally greater, the better the recipients' social position already is. A more comprehensive social policy, however, is faced with the difficulty of the variety of conditions. This hardly permits completely satisfactory harmony. Nevertheless, there is no alternative to perseverance in the search for means to achieve in each society as much correspondence as possible of the methods of social security with the various normalities of the society.

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The industrial nations cannot offer a model that can simply be adopted by the developing countries. But I suggest that in the notion of the complementary nature of externalising and internalising solutions we may find a basis for discussion in which industrial and developing countries may combine their experiences most beneficially.

NOTES 1. On the concept of solidarity see Kaufmann 1984. On the subject-matter of this section generally see e.g. Partsch 1983. 2. On the following see e.g. Fuchs 1983, 1985; Zöllner 1983.

REFERENCES Bossert, Albrecht 1985 Traditionelle und moderne Formen sozialer Sicherung in Tansania. Eine Untersuchung über Entwicklungsbedingungen. Berlin: Duncker & Humblot. Bryde, Brun-Otto, and Friedrich Kübler (eds.) 1986 Die Rolle des Rechts im Entwicklungsprozess, Schriftenreihe der Gesellschaft für Rechtsvergleichung, No. 134, Frankfurt/Main: Alfred Metzner. Cranston, Ross 1985 Legal Foundations of the Welfare State. London: Weidenfeld and Nicolson. Doumbé-Moulongo, Maurice 1972 Les coutumes et le droit au Cameroun. Yaounde: CLE. Fuchs, Maximilian 1983 "Der Stand der Forschung auf dem Gebiet des Sozialrechts in den Entwicklungsländern", Vierteljahresschrift für Sozialrecht 11: 5-19. Fuchs, Maximilian 1985 Soziale Sicherheit in der Dritten Welt. Zugleich eine Fallstudie Kenia. Baden-Baden: Nomos. Jahrbuch für Ostrecht 1979 Vol. 20: Faude, Strukturelemente sozialistischen Sozialrechts am Beispiel des Altersrentenrechts in der DDR and der UdSSR, 105-144; Florek, Das polnische Sozialversicherungssystem, 145-166. Kaufmann, Franz-Xaver 1984 Solidarität als Steuerungsform - Erklärungsansätze bei Adam Smith, in: Franz-Xaver "Kaufmann and Hans-Günter Krüsselberg (eds.), Markt, Staat und Solidarität bei Adam Smith". Frankfurt/Main and New York: Campus, 158. Köhler, Peter A. 1979 "Entstehung von Sozialversicherung. Ein Zwischenbericht", in: Hans F. Zacher (ed.), Bedingungen für die Entstehung und Entwicklung von Sozialversicherung. Berlin: Duncker & Humblot. Köhler, Peter A., and Hans F. Zacher 1981 "Sozialversicherung: Pfade der Entwicklung", in: Peter A. Köhler and Hans F. Zacher (eds.), Ein Jahrhundert Sozialversicherung. Berlin: Duncker & Humblot. Manz, Günter, and Gunnar Winkler 1985 Sozialpolitik. Berlin DDR: Verlag die Wirtschaft. Mesa-Lago, Carlo 1978 Social Security in Latin America. Pressure Groups, Stratification and Inequality. Pittsburgh: University of Pittsburgh Press. Meyer, M.P. 1986 "La structure dualiste du droit au Burkina: problèmes et perspectives", Recueil Penanf. 77-89. Mignot, Alain 1982 "La justice traditionnelle, une justice parallèle, l'exemple du Sud-Togo", Recueil Penanf. 5-30. National Center for Social and Criminological Research, Cairo 1982 Development Potential and Low Levels of Living. A Pilot Study. (Manuscript - typescript circulated, 1985).

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Nkanagu, Tharcisse 1985 "Die afrikanische Erfahrung in Krankenversicherung und Gesundheitschutz im Rahmen der sozialen Sicherheit", Internationale Revue für Soziale Sicherheit XXXVIII: 131-154. Partsch, Manfred 1983 Prinzipien und Formen sozialer Sicherung in nicht-industriellen Gesellschaften. Berlin: Duncker & Humblot. Prieto, Ignacio Morones 1969 "Betrachtungen über den Umfang der sozialen Sicherheit in Mexiko", Internationale Revue für Soziale Sicherheit XXII: 220-233. Schaeffer, Eugène 1983 "Die Entwicklung des afrikanischen Rechts zwischen Tradition und Entfremdung", Jahrbuch für Afrikanisches Recht 2: 107. UNECA (United Nations Economic Commission for Africa) 1982 Répertoire des mécanismes nationaux, sous-régionaux et régionaux pour l'intégration de la femme au développement en Afrique. Zacher, Hans F. 1981 "Sozialrecht und soziale Marktwirtschaft", in: Im Dienst des Sozialrechts. Festschrift für Georg Wannagat zum 65. Geburtstag. Köln: Heymanns, 715. Zacher, Hans F. 1982 "Zur Anatomie des Sozialrechts", Die Sozialgerichtsbarkeit 29: 329337. Zacher, Hans F. 1984 "Verrechtlichung im Bereich des Socialrechts", in: Friedrich Kübler (ed.), Verrechtlichung von Wirtschaft, Arbeit und sozialer Solidarität. Baden-Baden: Nomos, 11.

Zöllner, Detlev 1983 "Sozialversicherung in den Ländern der Dritten Welt", für Sozialrecht 11: 21-31.

Vierteljahresschrift

Social Security in Third World Countries Maximilian Fuchs

ORIGINS

To determine why, since when and to what extent there is social security in the Third World countries, it may be useful to start from the origins of social security in the industrialised countries of today, seeking parallels, similarities and differences. The completed research on the subject (See Rimlinger 1971; Zacher 1979; Köhler and Zacher 1981; Alber 1982; Köhler and Zacher 1982; Köhler and Zacher 1983) contains gaps. But the available findings show that the genesis of social security is related to the process of industrialisation of the late 19th century (Zöllner 1963). Urbanization, wage labour, cash economy, and the destruction of traditional life and family patterns are the catchwords identifying the decisive factors in the emergence of a new form of provision against social risks (Fuchs 1981). The changes in economy and society demand a concept of social security which is no longer based on kinship relations. Against this background there seems to be no basic, structural difference in the rise and development of formal social security in developing countries. (See further Fuchs 1983a). It was and is concomitant to the change from a precapitalist mode of production (subsistence economy) to what is in our terms a modern economy, in which goods are exchanged on markets (a notion which includes the exchange of labour on the labour market). (See further Mouton 1975). When an African, Asian or Latin American country implements a strategy of industrialization, it always adopts a social security policy of one kind or another. To this rule there is, as far as I can see, no exception. Of course, the content, legal framework and range of social security measures vary widely (Fuchs 1985). But generally speaking in nearly, all countries a broad consensus on the necessity of social security emerges with the process of industrialization. To assert this is not to deny that there is also in practice and theory a strong reluctance to assist and readiness to resist the introduction of social security. One may recall the debate, on both national and international levels some years ago over the pros and cons of social security with regard to the then central aim of development, growth (e.g. Kassalow 1968). Nevertheless, regardless of the Between Kinship and the State (F. von Benda-Beckmann © 1988 Foris Publications

et al.)

40 M. Fuchs theoretical arguments against social security, and the often vigorous objections from employers, social security schemes were launched as a means of creating a stable labour force. Their impetus was already present during Colonial times. When I studied the history of social policy in the colonial era of Kenya, I was impressed by the firmness with which the Colonial Labour Department advocated and promoted a social security policy on these grounds. For example, in its Annual Report of 1952 it says: "(The country) requires a stabilized labour force in each major sphere of industry. This would consist of men and women who are not recurrently going back to their reserves for long spells; who regard industrial employment as their sole means of livelihood; and who are prepared to buy or build their own houses in the towns and raise families there or live on or near the estates where they work. Their children would, in turn, be absorbed into industry as soon as they leave school and do provide more stable material for training in the skilled trades and crafts. Such a situation must evoke a considerable expansion of the social services - such as clinics, hospitals, schools, community centres and some scheme for provision for sickness and old age. The cost of all these will have to be borne largely by the trading and industrial communities" (quoted in Fuchs 1985: 99).

This succinctly defines the role and function of social security arrangements in the context of a developing economy. Beyond the specific case of Kenya, labour-centered social security concepts have become common-place in Third World countries. International organizations like ISSA and ILO follow this approach in their consultancy activities (Mouton 1975: 130138). As a result social security coverage in the Third World is given mainly to a single group: the members of the labour force. This fact needs to be emphasised. Knowledge of the historical roots and the rationale of social security schemes enables us to answer questions about their success or failure, about their potential for providing entire populations with insurance against social risks, and about the relationship between formal and informal social security.

CURRENT STATE

It is difficult to present a global view of social security schemes in the Third World. Each country has its own system of laws and rules which are often determined by such factors as history, constitution, political and economic system, and social structure (Fuchs 1985: 46-83). Nevertheless, it is striking from a comparative point of view that many countries have enacted a similar legal framework. The main reason for this lies in the

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fact that numerous countries have been under the rule of a few colonial powers. The colonial influence is still dominant in social legislation (Midgley 1984: 172), above all in Africa and Asia, and to a lesser degree in Latin America. In addition, international conventions and the activities of international organisations have contributed to a certain harmonization (ILO 1977) or at least a growing similarity of social security schemes (In this context the ILO-convention n. 102 of 28 June 1952 on the minimum standards of social security has to be mentioned). Accordingly, it is possible to give a brief, general outline of the various contemporary systems. State-run health services form the backbone of health care in developing countries (Zschok 1982; ISSA 1982). Administered in most cases by the Ministry of Health, public health institutions provide preventive and curative measures at the local, regional and state level. For most patients treatment is free of charge, but wealthier people have to pay (modest) fees. Health insurance systems are very common in Latin America, whereas in Africa and Asia they are practically unknown. Under such schemes the delivery of benefits is by either the direct or the indirect method (Fulcher 1982: 147-157). Under the direct method medical care is provided by the administering health insurance institution. It sets up a health infrastructure of its own consisting of a wide range of medical equipment and, of primary importance, of medical staff (physicians, nurses etc.). Alternatively, instead of creating its own medical services the administering insurance institution may prefer to use public health services for the treatment of insured persons. In this case a regular subsidy is paid to the Ministry of Health as reimbursement for the provision to insured persons of medical care (Fuchs 1983b: 345-346). The indirect pattern is characterized by the purchase of services from health personnel and facilities. Within this model there are two variants. First, the system of reimbursement requires that an insured person himself pay for any medical care which he receives, and confers on him a right to the subsequent total or partial reimbursement of the expenses incurred. Secondly, under the so-called third-party-method, patients do not have to advance the cost of medical care themselves. It is the administering health institution which pays the suppliers directly according to conventions and agreements established between the health insurance administration and the suppliers (Mouton 1975: 130-138 critically discusses the various methods). It is a moot point whether the organization of medical care within the framework of health insurance is suited to the specific health needs of Third World countries (Fuchs 1983b: 252-258). When in the seventies emphasis was laid on the primary health care approach, there was a growth of scepticism about the usefulness of social insurance. An important

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argument against it was that it had led to a cost explosion in developing countries (as elsewhere). A WHO-background document from 1979 argued: "However, for developing countries to rely solely on methods of financing health care that are current in more affluent countries will be as unwise as to rely on the technology practised in those countries . . . the classical social security systems applied in some of the industrial countries »»ay, in developing countries, tend to favour very limited population groups and thus lead to discrimination against the majority of the population. Individual payment on a fee-for-service basis is certainly not a solution that can be widely applied. In the past, most financial support has gone to highly sophisticated specialized medical services for small privileged groups." ( W H O 1979: 450).

Another mode of health care provision, often originating in colonial times, is employer's liability. When this mode is in force, labour laws impose an obligation on employers to provide their employees (and sometimes also their employees families) with medical care. The extent of the legal liability and the quality of services are usually dependent on the size of companies. Workers employed in a large undertaking often enjoy a suitable standard of medical care (treatment sometimes being furnished by fulltime doctors), whereas in small undertakings no more than first-aid supplies are available regularly. Law enforcement is another problem here. The labour-inspectorate in most countries is under-staffed and often ill-trained. As a result many employers can escape their legal obligations. Besides their entitlement to medical care workers are often entitled to sickness benefits in the event of temporary incapacity for work. The qualifying conditions for and the level of this kind of protection vary widely. Only a small number of developing countries offer protection against unemployment. According to an ILO report in 1976 23 Latin American, 3 African and 4 Asian countries had instituted unemployment benefits (BIT 1976: 7). The reason for their low coverage is normally thought to be the wide extent and nature of underemployment, the lack of means for verifying whether an unemployed person is available for work, and many other socio-economic problems. Unlike unemployment benefit, old age, invalidity and survivors' benefits are regularly forthcoming to compensate for the loss of income. But the form, scope, financing and administration of these systems differ from country to country (Fuchs 1985: 24-29). As far as insurance schemes are concerned the formula for calculating the pensions is always income-related, now that the amount of the pension increases proportionately to the amount of the earnings and the number of years' contributions. But in addition minimum pensions, whether at a flat rate or linked to the current minimum wage, are guaranteed in order to even out the lack of continuity of working

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life arising from the instabilities of the labour market in most developing countries. However, it seems no exaggeration to contend that the content and level of old age (invalidity) protection hardly match the needs of the insured persons and their families. The insurance model is not the only one in the field of old age and invalidity schemes. The former British colonies have instituted in particular so-called provident funds (Gerdes 1971; Jenkins 1981). Under this scheme, when the contingency fixed by the law occurs the member receives a lump sum benefit corresponding to the total amount of contributions credited to the insured and the accrued interest. The disadvantages of provident funds have often been complained of. Experience shows that many beneficiaries are unable to make a sensible use of the cash payment, sometimes spending it within a few days. Moreover, lump sum benefits are vulnerable to inflation, and so cannot fulfill the function of a proper long-term protection to old people or survivors. The ISSA set up a Committee on Provident Funds several years ago, and this has elaborated technical standards for the conversion of provident funds into pension schemes (ISSA 1977, 1980). However, apart from two exceptions governments showed no willingness to respond to the reform proposals. Instead of setting up pension schemes on a pay-as-you-go basis they prefer to use the money raised by provident funds for financing government projects. Furthermore one should not underestimate international trends in social policy. In the discussion about the crisis of the welfare state many renowned scientists as well as politicians have advocated restrictions on public programms of social security. These ideas have had the most far-reaching consequences in Chile, where the state-run pension scheme has been replaced by private insurance (Arnold 1981; Fuchs 1983c). When social security is directly linked to the process of industrialization it is small wonder that employment injury and occupational disease benefits should rank among the first to be granted. As to the legal structure, we find the same variety which has characterized the legal development in Europe (Walker 1981). Nearly all countries have overcome the obstacle originally presented by the first stage in claims arising from employment injuries, namely that the employee had to prove in a court of law that the employer had caused the injury by negligence (fault-principle). The shift from the fault-principle to employer's liability marks the beginning of a more effective protection. Compensation is granted if the accident arises out of and in the course of employment regardless of any responsibility on the employer's side for the accident. In spite of the progress made by the employer's liability concept the remaining disadvantages are considerable. The injured employee has to make his claim against his employers and, in cases where the employer refuses to fulfill his legal duties, to bring a suit against him.

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This may lead to tension and sometimes to the destruction of trust between the two parties. Not rarely employers put pressure on the accident victim to abandon or at least reduce their claim. To avoid this undesired outcome the social insurance approach is seen as the best solution (Mouton and Voirin 1979). Elegibility for benefits is proven by independent authorities so that the legal position of the victim is guaranteed and not compromised by his lack of social or bargaining power. Nevertheless, despite widespread consensus and recommendations numerous Third World countries have not moved towards compensation by social insurance. This holds true above all for many former British colonies which maintain their old Workmen's Compensation Systems as the basis of employer's liability. The main reason for this reluctance to reform has to be sought in the strong resistance of private insurance companies, which seek to maintain this important source of income. Most countries except former British territories in Africa and Asia have legislation on family benefits (AISS 1982; Mouton 1975: 29-33). The legitimacy of family benefits has been argued on the ground that they further population growth. But clear evidence for this contention has not yet been offered. Family allowances are paid only to wage-earners and normally financed by employers. The forms of allowances range from prenatal payments and birth grants to benefits in cash and kind paid to the worker's family (Kaufmann 1983: 240-242, on the special case of a French-speaking African country). In many countries women employees are eligible for maternity benefits. They receive medical treatment on the occasion of pregnancy and confinement. They receive maternity leave, typically 6 weeks before and 8 weeks after birth on full salary or at least a certain proportion of salary. As mentioned earlier, a survey of social security in developing countries would be incomplete if we omitted the sector of occupational welfare (Titmuss 1963: 34). In many cases the level of social protection provided by the state is very low and not sufficient to meet the needs (as shown in my study of Kenya, Fuchs 1985: 179-184). Therefore employers (initially the international firms among them) have begun to offer additional benefits, including private health insurance, sick pay, life insurance, etc. The higher the status of an employee within the enterprise, the higher are his claims to employee benefits. In consequence of the weakness of public schemes occupational welfare is given high priority in labour contracts and collective agreements.

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T H E D I L E M M A O F SOCIAL SECURITY IN T H E CONTEXT O F DEVELOPING COUNTRIES

In the introductory section I made some remarks about the historical roots of social security, emphasizing the similarities in this respect between industrial and developing nations. Social security has been geared to satisfy the need for a stable labour force. From the outset social security planning has been primarily concerned with one section of society. Thus we read from an ILO adviser in Asia (Tsoucatos 1974: 40-41): "With regard to persons, the right approach would be that social security should reach first those groups of persons whose traditional way of life has been most affected by changes brought about by the process of development. Such a group are first and foremost the urban employees. They are in their great majority first-generation city dwellers who have come to the city from the countryside and are likely to feel more intensely the need for security than those who continue to live in their traditional environment. In other words, the need for security cannot be measured by the size of income, in which case some other groups would have claim to priority, but there is also an important subjective or psychological element which should not be overlooked" (Tsoucatos 1974: 40-41).

Actual development has indeed followed these lines. Social security has become the privilege of the wage-earners in the formal sector (Mesa-Lago 1978). The principle of work and welfare (Macarov 1980) excludes nonwage-earners from benefits. Most obviously the rural population, that is, farmers and their families in the so-called subsistence economy, but also craftsmen, merchants and so-called own-account workers in the towns, have not been given access to the blessings of modern social security, despite their dire existence below the poverty-line. In the so-called LDCs and LLDCs, where the percentage of the labour force in the formal sector is very low, social security covers a minority, not infrequently only 10% or less of the total population (Fuchs 1985: 35-37). It would be completely unjustified to seek comfort by referring to the development of social security in Europe, where in the first phase preference was given to workers and employees, and where only in the mid 20th century coverage was extended to farmers and selfemployed people. Such a comparison would omit the fact that the growth of the labour force in most developing countries is totally different from that which occurred in Europe. Aside from the so-called Take-off-Countries, the speed with which and the extent to which wage labour has emerged in Third World countries have been much lower than in Europe. As a result of rapid population growth the number of wage-earners, as a proportion of the total population is even falling and the rural population remains the larger proportion. (Under these circumstances the strategy of gradual extension

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of social security see, for instance, Zöllner 1983: 21-22, must not be the only alternative. For the same conclusions see Midgley 1984: 189). In view of this it seems quite reasonable that efforts in social security policy have centered on finding new models for the rural population (ISSA 1980; AISS 1981). However, the extension of social security to this group is hampered by many difficulties. The essential foundations of modern social security are lacking in rural areas. Where there is no developed cash economy, and work is organized around the family, the clan or another group, there are unlikely to be persons able and willing to pay contributions to a social security fund (Zacher has emphasized the role of the wageearning individual for an effective working of social insurance schemes. See Zacher 1979). Furthermore the lack of an established administration and qualified personnel increase the difficulty of operating a social security system. Judging from the experience of the last twö decades, a considerable increase in wage employment in rural areas cannot be expected, and hence the prospects of improvement in the situation in these regions are slight. In consequence familiar social security methods are seen to be largely inadequate to relieve the poverty of the rural people. In this connection I refer to a very instructive collection of papers published by the ISSA on the subject "social protection for the rural population", written by Latin American social security experts (ISSA 1980). From these we learn that social security financed by contributions meets with a clear rejection, since agricultural production is too low to enable people to pay contributions. The authors of this work claim that it is necessary to abolish the payment of contributions as a legal prerequisite of eligibility for benefits. Benefits, they argue, should be financed from other sources, especially from levies on certain economic activities. Proposals of this kind have been put partially into practice. For example, a Brazilian law of 1963 requires producers of agricultural goods to pay one percent of the production value into a central fund, from which health care expenses for all rural workers are met. In 1967 this legal obligation was extended to trade and processing enterprises.

PERSPECTIVES FOR THE FUTURE

The eradication of absolute poverty in the Third World is a first priority aim in international politics and cooperation. The famous speech delivered by the former World Bank President McNamara in Nairobi in 1973 has had far-reaching impact on enhancing poverty strategies (see Nuscheler 1985: 25-26). The question arises whether social security is able to make a contribution to the realisation of this aim. Past experience may suggest

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a negative answer. In retrospect social security seems to have done little or nothing to overcome absolute poverty (Mesa-Lago 1980: 163-189). On the contrary, it has reinforced existing inequalities, especially income disparities. This conclusion should not be seen as criticism of the principle of social security itself. We should rather conclude that the effectiveness of social security depends largely on the existence of definite prerequisites, the lack of which results inevitably in failure. People's needs in developing countries require solutions different from those offered by social security - this must be the most important lesson learned from the past. What has been said about social security in India, holds true for Third World countries in general: " . . . where the basic needs of a large segment of population are not met during 'normal' periods, social security coverage during 'subnormal' periods of income assumes a second order of importance." (Shome 1982: 131). That is by no means to deny completely the importance of social security for the poor in developing countries. My argument is rather that the role of social security has to be thought out afresh from a new angle (Midgley 1984: 188-210). In this context I make use of the subject of this volume, "Formal and informal social security". The concept of informal social security, although at the present stage still relatively vague, points in the right direction. The concept may broaden and enrich our understanding of what amounts to social protection under the circumstances of a developing nation, and of what has to be done to tackle the existing problems in this field. Whether a clear-cut and generally accepted definition of informal social security can be found, remains to be seen. But it seems clear at least that, both from a theoretical and a practical point of view, mechanisms of social protection besides those governed by state laws have to be taken into account. Only thus can be found a way out of the impasse which social policies have hitherto reached as a result of adopting models from industrialized countries. That developing countries need new approaches in social policy is a commonplace. The transfer of social security and welfare law from industrialized countries seems to be increasingly viewed as undesirable: " . . . the richness and diversity of community traditions give us reason to hope that Third World societies will be able to learn from our mistakes and will embark resolutely on the path of the self production of social services, with the encouragement and active support of the state - in a word, that they will bypass the historical stage of the welfare state" (quoted in Sachs 1982). Less evident and understood are the strategies to be followed. One reason for this lies in the fact that knowledge of the customs and rules of developing societies with regard to social protection is still very limited. In conclusion I shall make reference to some recent contributions which,

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it seems to me, should form the basis of any further research work. Elwert's empirical inquiries give a deep insight into the (mal)functioning of traditional solidarity systems in African villages (Elwert 1980a,b. See also from the Bielefeld research group: Elwert and Wong 1978; Elwert and ors. 1983). His studies show also whether and to what extent mechanisms and institutions of mutual aid are able to form the basis of development processes. The idea of taking traditional institutions as a basis and starting point for modern social security is not new. In the '60s social security experts and planners, especially those from an African background, began to discuss the possibility of social protection built upon traditional solidarity structures (Songuemass 1968; Ijere 1966). It was hoped thus to reconcile the necessities of organized social security with the cultural attitudes of the people concerned. Why these reflections have not been continued, let alone put into practice, may be difficult to explain. The fact is that the widely accepted principle, according to which social policy must correspond to the prevailing cultural norms, has remained mere lip service hitherto. All the more important therefore is it to pay attention to ongoing sociological research like that of Elwert and others. Although their studies do not expressly deal with social security matters, their findings lend implicit support to a social security conception which goes beyond outdated models and tries to integrate itself into a broader social and economic context. If Elwert says quite rightly, that "development planning should take into consideration the connections between on the one hand economic solidarity accompanied by socio-economic differentiation, expansion of a cash economy and erosion of power balance in the community, and on the other hand the possibilities of survival of the total community (translation M.F.)", we should add that social security has to seek and define its role within this social web. The outcome, in particular the legal, administrative and financial framework of a social security which followed those lines, might be totally different from the current schemes. Nevertheless to formulate such an alternative in theory is one matter, to carry it out in practice is another. This difficulty gives me the opportunity to indicate another recent study, which explicitly takes up a very important aspect of the question: I refer to the thesis of Bossert, Traditionelle und moderne Formen sozialer Sicherung in Tansania (Traditional and modern forms of social security in Tanzania). A detailed quotation from the introductory chapter may illustrate the author's intention: " . . . the demand for the creation of modern social security institutions depends essentially on an issue which has been neglected in the discussion hitherto: the questions, to what extent people in developing countries are still effectively integrated into traditional solidarity relations of family, neighbourhood and tribe, and what is the character of these relations. For example, can we expect

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that the lack of modern provision for old age has stronger effects on the fertility rate in those cases where security of the old depends exclusively on support from their own children, than in those cases where security is provided by extended families or village communities? With regard to migration behaviour it is likely that effective social protection received from the group to which one belongs may compensate, even overcompensate, for the incentives provided by modern social security schemes in towns, because a relatively stable rural livelihood possibly outweighs the opportunities of a job in town which qualifies for social security benefits. Although it is rather evident that the existence, functioning and effectiveness of continuing traditional solidarity systems have to be studied before statements are made about the necessity of modern social security measures, appropriate surveys have hardly been carried out so f a r " (Bossert 1985: 8 Translation, M.F.).

Bossert's case study on Tanzania fills part of this gap by empirically demonstrating the interdependencies and correlation of formal and informal mechanisms of social security. REFERENCES AISS 1981 La protección social de la población rural. Documentación de la seguridad social americana, Serie actas, No. 2, Buenos Aires. AISS 1982 Asignaciones familiares. Buenos Aires. Alber, J. 1982 Vom Armenhaus zum Wohlfahrtsstaat, Analysen zur Entwicklung der Sozialversicherung in Westeuropa. Frankfurt/New York. Arnold, R. 1981 "Social Security Reform in Chile." Benefits International, February 1981. BIT 1976 Le chômage et ¡a sécurité sociale. Geneva. Bossert, A. 1985 Traditionelle und moderne Formen sozialer Sicherung in Tansania. Berlin. Elwert, G. 1980a "Die Elemente der traditionellen Solidarität. Eine Fallstudie in Westafrika." Kölner Zeitschrift für Soziologie und Sozialpsychologie, pp. 681. Elwert, G. 1980b "Überleben in Krisen, kapitalistische Entwicklung und traditionelle Solidarität. Zur Ökonomie und Sozialstruktur eines westafrikanischen Bauerndorfes." Zeitschrift für Soziologie, pp. 343. Elwert, G., Wong, D. 1978 Structure agraires et procès de développement dans la province de l'Atlantique. Bielefeld. Elwert, G., H.-D. Evers, W. Wilkens 1983 "Die Suche nach Sicherheit: Kombinierte Produktionsformen im sogenannten Informellen Sektor." Zeitschrift für Soziologie, pp. 281.

Fuchs, M. 1981 "Grundfragen sozialer Sicherheit in Entwicklungsländern." Vierteljahresschrift für Sozialrecht, pp. 259. Fuchs, M. 1983a "Recht und Politik der sozialen Sicherheit in Afrika." Jahrbuch der Gesellschaft für afrikanisches Recht 1981, Heidelberg, pp. 43. Fuchs, M. 1983b Health Insurance Systems in Africa, in: Oberender, P./Diesfeld, H . J . / Gitter, W. (ed.), Health and Development in Africa. Frankfurt/Bern/New York. pp. 345. Fuchs, M. 1983c Die Privatisierung der Rentenversicherung in Chile, Verfassung und Recht in Übersee, pp. 35. Fuchs, M. 1985 Soziale Sicherheit in der Dritten Welt - Zugleich eine Fallstudie Kenia. Studien aus dem Max-Planck-Institut für ausländisches und internationales Sozialrecht, BadenBaden.

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Fulcher, D. 1982 The Organization and Administration of Medical Care Under Social Security. ILO, The ILO/Norway African Regional Training Course, Geneva. Gerdes, V. 1971 "African Provident Funds," Industrial and Labour Relations Review, pp. 572. Ijere, M.O. 1966 "La protection sociale fournie par les institutions traditionelles africaines, base d'une planification future - Le cas du Nigeria." Bulletin de l'association internationale de la sécurité sociale, pp. 495. ILO 1977 Improvement and Harmonization of Social Security Systems in Africa. Report II, Geneva. ISSA 1982 Medical Care under Social Security in Developing Countries. Studies and Research, No. 18, Geneva. ISSA 1977 and 1980 Committee on Provident Funds. Geneva. Jenkins, M. 1981 "Social Security Trends in the English-Speaking Carribean," International Labour Review, pp. 631. Kaufmann, O. 1983 "Grundzüge des Rechts der sozialen Sicherheit im Senegal," Zeitschrift für Vergleichende Rechtswissenschaft. Kassalow, E. (ed.) 1968 The Role of Social Security in Economic Development. US-Department of Health, Education and Weifare, Washington D.C. Köhler, P.A., H.F. Zacher (ed.) 1981 Ein Jahrhundert Sozialversicherung in der Bundesrepublik Deutschland, Frankreich, Groß britannien, Österreich und der Schweiz. Schriftenreihe für Internationales und Vergleichendes Sozialrecht, vol. 6, Berlin. Köhler, P.A., H.F. Zacher (ed.) in collaboration with M. Partington 1982. The evolution of social insurance 1881-1981. Studies of Germany, France, Great Britain, Austria and Switzerland. London. Köhler, P.A., H.F. Zacher (ed.) 1983 Beiträge zur Geschichte und aktuellen Situation der Sozialversicherung. Schriftenreihe für Internationeies und Vergleichendes Sozialrecht, vol. 8, Berlin. Macarov, D. 1980 Work and Welfare. The Unholy Alliance. Beverly Hills/London. Mesa-Lago, C. 1978 Social Security in Latin America. Pressure Groups, Stratification and Inequality. Pittsburgh. Mesa-Lago, C. 1980 "Seguridad social y pobreza," in: C E P A L / P N U D : Se puede superar la pobreza? Santiago. Midgley, J. 1984 Social Security, Inequality and the Third World. London. Mouton, P. 1975 Social Security in Africa. Geneva. Mouton, P. and M. Voirin 1979 "Employment Injury Prevention and Compensation in Africa: Problems and Gaps." International Labour Review. Nuscheier, F. 1985 Lern- und Arbeitsbuch Entwicklungspolitik. Bonn. Rimlinger, G.V. 1971 Welfare Policy and Industrialization in Europe, America and Russia. New York. Sachs, I. 1982 "The Crisis of the Welfare State and the Exercise of Social Rights to Development." International Social Science Journal, pp. 133. Shome, P. 1982 "Social security in India. II. The Economics of the System." in: Labour and Society, pp. 121. Songuemas, N. 1968 "Precursor of the Beveridge Plan? Security Among Traditional Societies in Africa." East African Journal. May. Titmuss, R. 1963 Essays on the Welfare State. Second edition, London. Tsoucatos, E. 1974 "Desirable Goals of Social Security in the Context of Developing Countries," in: African Social Security Series. No. 13-14. Walker, A. 1981 "The Industrial Preference in State Compensation for Industrial Injuries and Diseases," in: Social Policy and Administration, pp. 54. W H O 1979 "Science and Technology for Health Promotion in Developing Countries: II, WHO Chronicle, pp. 399.

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Countries

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Zacher, H.F. (ed.) 1979a Bedingungen für die Entstehung und Entwicklung von Sozialversicherung. Schriftenreihe für Internationales und Vergleichendes Sozialrecht, vol. 3, Berlin. Zacher, H.F. 1979b " D a s Sozialrecht im Wandel von Wirtschaft und Gesellschaft." Vierteljahresschrift für Sozialrecht, pp. 145. Zschok, D. 1982 Allgemeine Analyse des Problems der Gewährung von Heilbehandlung durch die soziale Sicherheit in Entwicklungsländern, Internationale Revue für Soziale Sicherheit. Zöllner, D. 1963 Öffentliche Sozialleistungen und wirtschaftliche Entwicklung. Berlin. Zöllner, D. 1983 "Sozialversicherung in den Ländern der Dritten Welt." Vierteljahresschrift für Sozialrecht, pp. 21.

Person-centered and state-centered social security in Southeast Asia Eric S. Casino

A. I N T R O D U C T I O N

The notion of social security in its contemporary formal meaning is coterminous with the idea of state law in so far as the systematic collection of membership dues and the corresponding distribution of social security benefits to the membership are made possible under state legislation. Even under a state system, social security provisions do not always operate to benefit all citizens because legislation may limit their scope to those citizens earning regular salaries either in the government service or in the private sector. In the Philippines, for instance, social security is provided under the Government Service Insurance System for government employees and the Social Security System for those employed with regular salaries in the private sector. Since those not employed in either sector are ineligible to receive social security benefits, the bulk of the ordinary citizens must fend for themselves and evolve or rely upon other forms of social security arrangements, by falling back on more traditional practices that include those arising from kinship and clientship. That is to say, the informal co-exists with the formal security system. In this paper I wish to discuss the transition from traditional (informal) to state (formal) types of social security systems by surveying the precolonial, the colonial-state and the nation-state formations in Southeast Asia. I should hasten to add that even under a modern state there are pockets of informal social security practices among families, social clubs, and people in the informal sector of the economy. Nevertheless, the predominance of the state and the legal pretensions of state-sponsored social security tend to overshadow other forms of security so much that the informal types are not easy to define except by contrast to the formal system. Thus formal social security symbolizes the type characteristic of a modern state in contrast to the informality found in traditional societies. By equating informal security with traditional pre-capitalist society, and formal security with modern industrial society, I wish to underline this distinction while not denying the similarity arising from the fact that in both forms of societal organization one will find practices whose aim is to insure the protection and survival of the members of the group. However, under a state system there are explicit or formal policies embodied in Between Kinship and the State (F. von Benda-Beckmann © 1988 Foris Publications

et al.)

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laws which a central government provides for the attainment of this goal. In traditional society such explicitness and generality in the scope of central government social security measures are absent or weak. The paper, therefore, is presented in a comparative mode with the use of historical examples in which I will analyze the changing context of security, polity, law, and social status as they apply to individuals and groups coming under successive types of political and legal controls. The main proposition I wish to elucidate with these historical examples is that not only do modes of providing social security vary over time, but that the very notion of social security changes in meaning depending on the changing political and legal definitions and conditions of society. Any efforts to improve both the formal and informal security system in society must therefore take into account these other definitions and conditions. While such a statement is not a very useful guide to policy because of its extreme generality, attention to concrete historical sequences could be useful in laying bare the specific conditions by which policy makers and reformers could be guided and thus influence the making of policies through various forms of intervention. The objects of this paper do not, however, include advocacy nor intervention, but rather the advancement of the understanding of the changing forms of social security which is an immediate necessity. I divide my presentation into three parts: (1) a brief historical survey of ecological and political diversity in Southeast Asia, specifically Indonesia, Malaysia and the Philippines; (2) a selective analysis of vertical bonding and the various forms of traditional slavery that fall under this generic concept, and its connection with traditional social security systems in these societies; and (3) a discussion of the theoretical implications of these two sets of observations on our understanding of the changing basis of social security. Since much of the following discussion will turn around the concept of vertical bonding, it is best to define it here. Vertical bonding is a generic concept of that aspect of social organisation which fosters an alliance between powerful high-status persons and weak low-status persons. The concept embraces both patron-client relations and slavery. But whereas slavery is no longer allowed, patron-client relations continue to flourish in traditional agrarian sectors of Southeast Asian states, and generally in developing countries. The common theme in the two forms of vertical bonding is the person-centered focus on the powerful patron/lord/boss/ owner. The introduction, in state-sponsored, legally-defined social security, of impersonality, is what essentially distinguishes this form from vertical bonding. Thus not only the external form but also the core notion of social security is transformed in the transition from a traditional, verticalbonding society to a legally-defined, modern state and its social security practices.

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B. HISTORICAL DEVELOPMENT

1. Sociopolitical Transition The notion of transition connotes two generic processes which we may simply label 'evolutionary' and 'inclusionary'. Evolutionary transition is one where a lower type of social formation is transformed by evolving to a higher one, as when hunting and gathering bands become swidden horticulturists, or when the latter in turn evolve into chiefdoms and eventually into states. Inclusionary transition conceives of state formation as resulting from the inclusion or incorporation of hitherto unintegrated tribes and ethnic groups into a larger social system which eventually becomes organized as a state. In Southeast Asia, as I hope to demonstrate in this section, socio-policital transition is better understood as a process of inclusionary transition where small chiefdoms expand into states by incorporating non-state societies under their economic and political control. A recent work on early Southeast Asia (Hall 1985) distinguishes two general types of states in this region. One is based on intensive wet-rice farming systems in plains and river valleys, as in Madjapahit of Central Java; the other is founded on resources generated by local and international trade, as exemplified by early rivermouth kingdoms or harbor principalities in South Sumatra, grouped under the historic name of Srivijaya. Because of the archipelagic structure of Island Southeast Asia, broad irrigated plains, like those of Central Java and Central Luzon, are not as common as rivermouth systems that connect with their headwaters in the immediate mountainous hinterlands. For this reason the more common type of state formation in Island South Asia is the model of a harbor principality, a la Srivijaya, rather than of a hinduized kingdom controlling a landbased peasantry, a la Madjapahit. I propose to illustrate the notion of inclusionary transition by discussing the ecological and socio-political structure of rivermouth kingdoms in relation to their landward and seaward hinterlands. 2. Precolonial State Formation Spanish accounts of 16th century Philippines show that three general types of socio-political formation co-existed in the islands, a condition that may have started several hundred years previously and which persisted all the way to the 20th century. There were band societies of nomadic hunters and gatherers in the forests and the sea, i.e. forest nomads called Aetas, and house-boat living sea nomads called Badjaos, both types not dependent on cultivation but on direct foraging and fishing from nature. There were tribal societies, similar to contemporary hilltribes, who subsisted on swidden or slash-and-burn horticulture and who lived in small scattered villages.

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Thirdly, there were state societies (or supra-tribal organisations) of coastal dwellers who lived in larger lowland settlements (barangay) and who subsisted on permanent wet-rice farming, fishing and extensive trade with neighbouring states and with visiting international traders from China, Siam, India, and the Middle East (Casino 1982: 22-25). An eye-witness account of the co-existing ecological and socio-political diversity in the Philippines was given by a Jesuit missionary, Francisco Colin, writing in 1663: '... they found three varieties or kinds of people. Those who held command of it (i.e. the island of Manila), and inhabited the seashore and riverbanks, and all the best parts round about ... All those whom the first Spaniards found in these islands with the command and lordship over the land are reduced to the first class, the civilized peoples. Another kind, totally opposed to the above, are the Negritos, who live in the mountains and thick forests which abound in these islands ... These blacks were apparently the first inhabitants of these islands; and they have been deprived of them by the civilized nations who came later by way of Samatra, the Javas, Borney, Macazar, and other islands lying towards the west ... They the third variety generally live about the sources of rivers, and on the account are called in some districts Ilayas. They are the Tingues, and are called Manguianes, Zambals, and other names, for each island has a different name for them. They generally trade with the Tagalogs, Visayans, and other civilized nations and for that reason they are midway between the other two classes of people in colour, clothing, and customs' (Colin 1973: 37-98).

Another Spanish observer, Miguel de Loarca writing in 1664, adds that the lowlanders and the mountaineers were not cut off from each other, but maintained symbiotic relations. 'The inhabitants of the mountains cannot live without fish, salt, and other articles of food, and the jars and dishes of other districts; nor, on the other hand, can those of the coast live without rice and cotton of the mountaineer.' (Loarca 1973: 34-187). Several important theoretical observations can be made from the preceding accounts of diversity: (1) The co-existence of several types of socioeconomic adaption to varying ecological niches is a refutation of a classical argument of evolutionism that civilization and state-society arise from the abandonment of earlier, more 'primitive' social formations in favour of more advanced adaptions. (2) The co-existing socio-political units, while living at different econiches and levels of technological advancement, were nevertheless linked by mutual dependency mediated by trade and exchange. (3) The essence of native state formation is the tendency towards expansion and incorporation, a bias radiating from the rivermouth settlements outwards to the hilltribes, forest nomads, and sea nomads. Thus, the transformation of native chiefdoms into native states was effected more by the incorporation of neighbouring tribes and slaves than by a slow

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internal development from a single ethnic nucleus. All these three observations can be said to be true not only of the Philippines but of the whole of Island Southeast Asia. Bronson, in an important article, 'Exchange at the Upstream and Downstream Ends: Notes Toward a Functional Model of the Coastal State of Southeast Asia' (1977) has presented a strong argument for the view that control of the peoples and resources of the hinterlands was at the heart of the state formation dynamics in pre-colonial and colonial Southeast Asia. The only addition I would make to Bronson's dendritic model is that the hinterland includes the maritime resources accessible to the sea nomads with their maritime technology and way of life. These sea nomads were coveted as potential vassals of any ambitious harbor prince or coastal trading chief who wanted to build a navy to patrol the sea lanes used by international traders frequenting Southeast Asian ports before and after the European colonizers entered the region. 3. The Colonial Phase The European entry into the Southeast Asian socio-political scene occurred in three phases. First, they came as traders, conforming to the trading pattern already established by the Chinese, Indian, and Arab traders in the preceding centuries. Secondly, they established trading settlements and formed their own harbor principalities, patterned after the model indigenously evolved by coastal chiefs and harbor princes. Thirdly, they created multi-island territorial enclaves that expanded into colonial states, patterned no longer after an indigenous state model but after an imperial concept of political and territorial control. These three phases may also be differentiated by the kind of opposition they encountered. When the Europeans came as foreign-based traders, they competed with local trading centres; in most cases Europeans conquered and took over the pre-existing harbor kingdoms, as the Portuguese did in Malacca, the Spaniards in Manila and the Dutch in the Moluccas and Makassar. As Europeans shifted from being merely traders and occupiers of trading factories to possessors of territorial domains, the opposition included not just the threatened native states but also the rival European powers who had staked imperial claims over archipelago-wide territories (Irwin 1955). This is the background of the Dutch claim over Indonesia, the Spanish claim over the Philippines, and the British claim over Malaya and British Borneo. Just like the native mode of state formation, colonial state formation is characterized by inclusion rather than evolution. An instructive example is that of the British in Malaya and Borneo. In less than a century, between the acquisition of Singapore in 1819 and the protectorate treaty with Brunei in 1906, Imperial Britain created three successive types of territorial

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acquisitions known as (1) the Straits Settlements, (2) the Federated Malay States, and (3) the Unfederated Malay States, or Protectorates. The Straits Settlements, consisting of Penang, Malacca, and Singapore, were established after 1824 to serve as intermediary trading centres between British interests in India, China, and Southeast Asia. After 1874, when tin mining and rubber plantations became important economic resources in the interior of Malaya, Britain co-opted the local rajahs of the native states of Perak, Selangor, Negri Sembilan, and Pahang into the Federated Malay States under British rule. Those native rulers who refused to place their kingdoms under the federation nevertheless agreed to come under British protection. This third category - consisting of Kedah, Kelantan, Trangganu, Johore, and the three territories of Sarawak, Brunei, and North Borneo - formed the Unfederated Malay States within the British Protectorate. The three levels of British 'holdings' varied in their socio-legal status from subjection to direct rule in the Straits Settlements to a system of indirect rule in the Unfederated Malay States (Fisher 1963). In 1965 all these territories were aggregated to form the Federation of Malaysia (minus Singapore which left the union). The main point in this example is that the transition to the modern multi-ethnic state of Malaysia came about through a series of inclusionary expansions from coastal trading centers into the hinterlands. A similar inclusionary process can be argued for in respect of modern Indonesia and the Philippines. Given the inclusionary rather than evolutionary mode of state formation dynamics employed by both native and colonial state elites, it is easy enough to appreciate how legal pluralism could result from such a process. The Europeans had their own laws, distinct from the laws of the native states which remained either independent or became European protectorates. Moreover, the laws practised in the courts or urban centers of native kingdoms also differed from the customary laws of the incorporated tribes and subject peoples of the hinterlands. Finally, the resident Asian traders who lived in their communities and quarters in the commercial cities had legal views and practices distinctive of their culture than those of the European colonial society, the native kingdoms, or that of the incorporated subject peoples. It is this resulting legal plurality, superimposed on the underlying ecological and socio-political diversity, which Geertz refers to in writing about adat law in Indonesia: 'three major legal classes - Europeans, Natives, and Foreign Orientals; two major court hierarchies - one Rechtsstaat administrative, full of jural bureaucrats, one colonial administrative, full of native affairs experts; and a horde of special cases, particular arrangements, and unassimilable practices blurring the classes and scrambling the hierarchies' (Geertz 1983: 227).

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C. T R A D I T I O N A L SLAVERY

1. Slavery and Social Security The term slavery has a pejorative meaning in the American-European sociological tradition. To get outside this limiting context, Reid introduced the more comprehensive term 'vertical bonding' which he sees as a fundamental statement of political philosophy, as fundamental as the western idealization of human equality (Reid 1983: 7-8). Vertical bonding, as a foundational Southeast Asian political dogma, celebrates the mystical unity of servant and master, together with the virtues attendant to such a basic human relationship - loyalty towards the master and protection and care towards the servant. It refers to a culturally accepted alliance of low and high status persons, of clients and their powerful patron, of landless families which obtain their food by tilling the field of benevolent landlords. The term embraces the various forms of slavery. Reid and other historians, who published a substantial review of the sociological importance of slavery in the evolution of Southeast Asian politics (Reid 1983), have reviewed both native and colonial policies on slavery. Malay law texts and court histories (undang-undang, hikayat) tell us that native state policies and laws recognized the status of freemen (merdehika) as well as that of slaves (hamba, ulur, abdi, etc.), but that the slave category admitted many degrees depending on whether the slavery status was incurred through capture, sale, indebtedness, punishment, fine, or inheritance. An important distinction within the slavery category was between those slaves belonging to the rulers (hamba raja) and those belonging to non-royal persons. The status of a slave's patron was very important in terms of social security, because to be a hamba raja was almost equivalent in some native states to holding a lifetime pension resulting from the privileges the status brought with it. To attempt to equate slavery and social security may appear to be a wrong-headed way to reconcile a contradiction in terms. But in the light of the slavery practised in pre-modern Southeast Asia, we may have to suspend our judgement that there is a real contradiction in this statement. Underlying the whole slavery system is a set of propositions relevant to the issue of social status and social security. I quote two relevant propositions (emphasis added): 'The theoretical system was based on oppositions of status, the basic contrasts being between Malay/non-Malay, royal/non-royal, freeman/unfree and voluntary/forced service and bondage. The concept of charity, as an act of unrewarded altruism, was absent from this system. The supplying of protection or care obligated the recipient to equalize the situation by responding with a recognized acceptance of a state dependence.'

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To illustrate the social security aspect of such dependence on the ruler, Matheson and Hooker write about the hamba raja of the ruler of Pahang: 'The ruler gave the wrong-doer (who surrenders) a tanda (badge) and he became a member of the court (orang dalam). That person remained a hamba raja throughout his life, as did his descendants. The were protected to the extent that seven lives had to be given for the loss of one hamba raja. Their position thus guaranteed, they prowled the country behaving as the fancy took them, and exacting payment of debts by force, since no one dared resist them' (Matheson and Hooker 1983: 202).

2. Slavery in the Colonial Period That precolonial slavery flourished in the region is attested to by early Spanish colonial historians. Antonio de Morga, writing about the Philippines in 1609, described the native practice of slavery thus: 'These slaves constitute the main capital and wealth of the natives of these islands, since they are both very useful and necessary for the working of their farms. Thus they are sold, exchanged, and traded, just like any other article of merchandise, from village to village, from province to province, and indeed from island to island' (Morga 1609: 274).

The Portuguese also described Malacca, one of the greatest pre-colonial harbour city-states which they captured in 1511, as largely dependent on slave manpower. One contemporary historian, commenting on Portuguese data, made the following observations: '... there is no further need to stress that manpower was of utmost importance in a harbour town such as Malacca. Craftmanship was needed at every stage of urban life, labour had to be used to collect forest products or to graze the elephants. Yet, as is to be expected in a city that was made for merchandise, the harbour and shipping activities claimed the bulk of the labour force for handling cargoes, and for manning freighters, trading ships and the war fleets that keept the trade routes open. Again, one is well aware of the essential part played by slaves or bondmen within this labour force' (Maguin 1983: 209).

These traditional forms of slavery did not disappear when the Europeans came to Southeast Asia; on the contrary new forms, uses and demands for slave labour resulted from this conjuncture in Southeast Asian history.

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The establishment of European trading centers in Malacca, Batavia, and Manila greatly stimulated urban growth in these centers. Urban growth in turn increased demand for manpower which was supplied by a systematic, region-wide slave trade. The policies and laws which native and colonial states developed to deal with slave status, slave labour, and slave compensation and welfare, are unquestionably important parameters for a historical understanding of the various forms of social security. It has a direct bearing on the issue of gainful employment, wages and taxation, and thus on security. We need some appreciation of colonial policies on slavery in those trading centers, like Batavia, where western socio-legal norms contrasted with those of native rulers. The Dutch, like their Portuguese and Spanish rivals, needed a lot of manpower in their trading centers, which they recruited through the prevailing slavery system. In the early days of Batavia the Dutch maintained two categories of slaves, the chained and the unchained workers. The former, mostly prisoners of wars and those serving punishment, were confined in chains at the kettingkwartier. They were used as galley slaves and put to servile labour 'without respect for quality or condition, either spiritual or worldly' (quoted in Fox 1983: 249). The unchained slaves, who were housed in the craftmen's quarters, ambachtskwartier, were skilled bondmen recruited from various districts of India. They were put to work inside Batavia, which distinguished them from a later type of slaves, the kuli-slaves. Kuli, recruited from within the Indonesian islands were unskilled workers put to work outside the walls of Batavia in building constructions, loading and unloading in warehouses, and agricultural labour in farms and gardens. Reid gives a whole range of tasks slaves did for both native and colonial masters. 'Slaves were reported in every conceivable occupation, as rice farmers, cash croppers, fishermen, seamen, construction workers, miners, urban labourers, craftsmen of all sorts, textile workers, entertainers, concubines, domestic servants, retailers, traders, scribes, interpreters, surgeons, soldiers and even trusted ministers' (Reid 1983: 22).

Both the native rulers and the European merchants/rulers maintained slaves as retainers and workers. In this respect natives and foreigners alike provided minimum food requirements to their slaves so that they could provide service to the owners. Where the two types of owners differed was in the psychological and legal entailment of owning slaves. Slaves could hope to be assimilated into the native owners' circle of dependents under the prevailing native norms of affiliation such as marriage, Active kinship, adoption, or change of ethnic and linguistic identity (Warren 1981). A native slave of a European owner could not hope to achieve such mobility

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or acceptance in his owner's milieu. On the legal side, a European patron operated within two legal spheres, his own and that of the local society. By contrast, a native patron operated mostly under native norms outside the European legal and class exclusivity. In other words, a European had an additional legal sphere of rights and privileges from which native slaves and native rulers were excluded (Jaspan 1964-65: 252-255). A distinctive legal quality in Dutch slave-holding was that for the first time in Southeast Asia slave-ownership by a formal corporation, the Dutch East Indies Company or VOC, was introduced as a policy. Slave owning among the native rulers was generally based on personalized norms and controls, but the Dutch had both private and company ownership. This distinction is important because policy change at the company level had a general effect on the whole slavery system; company policy even dictated the conditions under which private ownership was legally possible as well as slave-freemen interrelations. Thus when an anti-slavery policy had to be introduced, the resulting change could be expected not to be piecemeal but system-wide, approximating the society-wide effects of modern legislative policies on formal social security provisions. The demand for slave labour in the colonial trade centers of the colonies had a region-wide effect in native politics. Because the capture of and commerce in slaves were mostly in the hands of native rulers, the slavetrade ironically strengthened the political and economic fortunes of some native states like Sulu, Maguindanao, Makassar, and Aceh (Warren 1981). Surveying the traffic in slaves, Reid noted a consistent pattern whereby traders tended to transport captured people from east to west, from small divided states to larger, wealthier one, and from non-Muslim to Muslim societies (Reid 1983: 31). 3. From Colonial to Nation States The final political transition was from the colonial to the nation-state. The later phase of European-controlled colonial states in Southeast Asia brought to the fore the question of citizenship. The central argument of the emerging nationalist elements, such as the members of the Filipino Propaganda Movement in Spain, was that if the colonies were truly parts of the colonizer's motherland, then the laws of the metropolitan center should be applied equally to their people. But legal and political egalitarianism would have led to the removal of the legal dichotomy that functionally separated the European upper class from the foreign orientals and the mass of the natives in the colonies - a move the ruling European elites were not prepared to take. It was to take a later revolution to change the colonial social order in Indonesia and the Philippines, and a strategic retreat by the British from East of Suez to transform British Borneo and

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Malaya into Malaysia. Not until this national transformation occurred could a nation-wide citizenry governed by state-wide laws emerge. And it is the political and legal culture of a modern nation-state which allows for the operation of a formal security system. Nevertheless some important socio-legal changes did occur in the status of slaves a century or more before the nationalist transformation took place. The liberal movement in America to abolish slavery paralleled British and Dutch anti-slavery policies. Britain passed anti-slavery laws in 1807, and Holland enacted its own in 1818; Spain, on religious grounds, had earlier developed its own anti-slavery decrees. Compliance with these policies, however, was not motivated by pure respect for the laws and deep moral sensitivity. The more decisive factors were the growth of centralizing colonial and national states, and economic rationality. As mentioned earlier, slave-holding patterns among native rulers took the traditional style of individual ownership of bonded people as if they were properties. As the colonial state grew in power in relation to the slaveowning native rulers, it demanded greater jurisdiction over people as state subjects in the areas of 'law, policing, military service and taxation' (Reid 1983: 33). On the economic side, the increasing supply of landless laborers made wage labor a cheaper and more efficient system of exploitation than traditional slave-holding. It was this shift from slave-labor maintained by personal patronage to free-labor paid by impersonal wages which marked the decisive transition to a formal social security system. Once people are set free and redefined by statute to become citizens governed by constitutional laws, the possibility of collecting dues or withholding taxes from wages enables state elites to devise social security provisions applicable to all wage earners irrespective of their social status.

D. SUMMARY A N D CONCLUSIONS

The preceding discussion of inclusionary political transition and slavebased economies enable us to appreciate better the fact that our understanding of the social security system is contingent on historically-conditioned legal and economic constructions of society. In this final part of my paper, then, I wish to draw some lessons from the preceding sections to sharpen our understanding of formal and informal social security systems. The legal basis of formal social security policies is contingent on the emergence of a modern state system. This is so true in contemporary states, that any attempt to improve the system must go through the various levels of the legislative process. However, there are some segments of the national society which policy would require to be covered by social security laws but to whom benefits do not in practice extend. In contemporary Phi-

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lippines, as in Indonesia and Malaysia, there are still groups who live as hunters and gatherers in the forests, or as slash-and-burn horticulturists in the hills. Questions of wages and salaries are irrelevant to them since they are marginal to the monetized economy. Any provision of social security for them proceeds not through the formal state system, but through the informal mechanism of kinship, clientship to a lowland patron, or communual cooperation. Even those people who are not in ecologically marginal areas, such as peasants and the wage-less workers in the informal sector of the urban economy, are outside the effective reach of the formal social security system of the state. Beggars and squatters in shanty towns are caught up in the monetized economy, and yet look for protection mostly to the informal social security measures of kinship, neighbourliness, and ethnic togetherness. The failure to extend the benefits of formal social security to these citizens is ultimately due to the weakness of the state. It is these exceptions to the formal security system which are valuable contrastive foils that sharpen our awareness of the fact that social security is a much deeper issue than state laws and state politics. We are here facing a universal human issue that antedates all states and all positive laws. The relevance of inclusionary political transitions and the resulting legal pluralism to our analysis of social security lies in their illustration of the limits of state laws. The expansion of coastal trading centers and harbor principalities to gain control of hinterland groups and their resources resulted not in the granting of citizenship to the incorporated groups but to a more systematic exploitation of these human and natural resources. The extension of jurisdiction over them was less for the protection of human rights of subject peoples but for the promotion of the socio-economic advantage of the overlords. Given the nature of this control, the subject peoples could not really hope for the benefits of a formal social security system under this kind of legal dispensation but had to rely on the type of security that their ancestors had known for centuries. This was either the security of flight into less accessible habitats or the security of surrender as bondmen to the expansionist forces: distantiation or submission to slavery. Consequently vertical bonding may have to be considered as a form of social security in situations in which the modern state is nonexistent and state laws are non-operative. Vertical bonding as a type of human relationship tends now to have a negative connotation in western sociology because it is equated with paternalism, feudalism, and authoritarianism. But there was a time in medieval Europe when the highest and most admired of human virtues were associated with the vertical bonding between lord and subject. This perspective, although gone from western political rhetoric, remains an accepted language of western religions, in which to be the servant of God

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is not the denial but the affirmation of freedom and security, even of absolute liberty and eternal salvation. Consequently, it is possible for us not only to withhold judgement on the possible equation of slavery and informal security, but also to entertain the hypothesis that it is indeed possible to achieve social security under the paradigm not of state laws but of vertical bonding and slavery. Servant-master relationships may be regarded as a functional equivalent of state laws that guarantee social security. For the ordinary people, not to say citizens, in pre-modern Southeast Asia, there were only three alternatives for finding social security: 'bondage to the king through the corvee systeem; bondage to a monastery or religious foundation; and 'private' bondage or slavery to a prominent or wealthy man' (Reid 1983: 18). While not denying the harsher aspects of servitude in such a system, it must be remembered that other cultural mechanism intervened to humanize the unequal relationship between bondsmen and master. The primary mechanism was the assimilation of the relationship to the humanizing paradigm of an extended family. 'The imagery of bondage is most commonly that of the extended familiy. The words for bondsmen are often cognates of those for children, fosterchildren or nephews, and a slave is permitted a level of intimacy with his master which no one who was not a member of the household could dare assume... Although, as we shall see, bondage took many forms including some very unpleasant ones, its prototype was junior memberships of the household, doing all its most menial jobs, yet closely bound in intimacy to it and sharing its triumphs as well as its disasters' (Reid 1983: 9).

In this paper I have attempted to relativize the concepts of formal and informal social security by showing political definitions of societal forms varying from tribal to chiefdom, colonial, and finally national state formations. In earlier forms of political society no state-wide laws could be or needed to be promulgated or implemented, as each semi-independent territory or trading enclave followed its own customs and traditions governing property, trade, and status relations. Traditional political culture was such that economic rights and obligations were controlled by an ideology of vertical bonding that justified slavery and legitimized paternalism. The western ideal of individual liberty (and its correlatives risk and anarchy) could not be seriously contemplated in competition with the eastern ideal of social order through vertical bonding, where the dominant value was not individual choice but rather the collectivist ones of loyalty to superiors and paternal concerns for subjects. In such a feudal and patrimonial legal environment, social security is to be sought not in impersonal laws of the state protecting individual rights, but in the

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protection afforded by kings, temples, and powerful patrons. Accordingly, the analogues for withholding taxes, contributions to annuities and membership dues are to be found in acts of steadfast and loyal service. Similarly, social security benefits in terms of medical service, unemployment compensation, and old-age pensions are not to be found in state institutions but in the extended family, the religious brotherhood, the court of native rulers, or the European trading company which employs one. It is a commonplace in anthropology that in traditional and less technologically advanced societies institutions like the extended family carry multiple functions which in modern societies are parcelled out to distinct agencies outside the family such as the school, church, and various ministries of government. In the final analysis, social security functions in Southeast Asia must be understood as inhering not in a non-existent or weak constitutional state with laws for all citizens, but in a few multi-function institutions like the family, the village community, the trading companies, and that fundamental and virtually universal practice, the vertical bonding of poor individuals and subject peoples to powerful patrons. There is tremendous power and potential in the institution of vertical bonding. While it is true that the slavery form has been legally proscribed and discontinued, the related form of the patron-client alliance remains a viable type of social insurance, a person-centered alternative to the impersonal, bureaucratic form of state-sponsored social security. Given this central insight, any attempt to improve social security measures in such a system would have to ensure not just the promulgation of just laws but the moral rectitude of rulers and social superiors. Social security must be secured not only by the state but by other moral agencies such as the temple or church and the family. Security after all is not only a legal and financial but also a moral, i.e. a transcendent human issue.

REFERENCES Bronson, Bennet 1977 'Exchange at the Upstream and Downstream Ends: Notes Towards a Functional Model of the Coastal State in Southeast Asia', in Karl L. Hutterer (ed.), Economic Exchange and Social Interaction in Southeast Asia: Perspectives from Prehistory, History and Ethnography. Ann Arbor: University of Michigan. Casino, Eric S. 1982 The Philippines: Lands and Peoples, A Cultural Geography. New York: Grolier International. Colin, Francisco 1982 'Natives Races and their Customs', in The Philippine Islands, 14431893. 50 vols. Mandaluyong, Metro Manila: Cacho Hermanos, 1973. Vol. 40, pp. 3798. Fisher, Charles A. 1963 'The Geographical Setting of the Proposed Malaysia Federation', The Journal of Tropical Geography. Fox, J. 1983 'For G o o d and Sufficient Reasons': An Examination of Early Dutch East India Company Ordinances on Slaves and Slavery', in Anthony Reid (ed.), Slavery Bondage

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and Dependency in Southeast Asia. New York: University of Queensland Press, pp. 246262. Geertz, Clifford 1983 'Local Knowledge: Fact and Law in Comparative Perspective', in Local Knowledge. New York: Basic Books, pp. 167-234. Hall, Kenneth R. 1985 Maritime Trade and States Development in Early Southeast Asia. Honolulu: University of Hawaii Press. Irwin, Graham 1955 Nineteenth Century Borneo, A Study in Diplomatic Rivalry. Singapore: Donald Moore Books. Jaspan, M.A. 1964 'In Quest of New Law: The Perplexity of Legal Syncretism in Indonesia', Comparative Studies in Society and History (1964-65), pp. 252-266. Loarca, Miguel de 1973 'Relation of the Philippine Islands', in The Philippine Islands, 14831898. 50 vols., Mandaluyong, Metro Manila: Cacho Hermanos, 1973, vol. 5, pp. 34-187. Manguin, P. -Y. 1983 'Manpower and Labour Categories in Early Sixteenth Century Malacca', in Anthony Reid (ed.), Slavery, Bondage and Dependency in Southeast Asia. New York: University of Queensland Press, pp. 209-215. Matheson, V. and Hooker, M.B. 1983 'Slavery in the Malay Texts: Categories of Dependency and Compensation', in Anthony Reid (ed.), Slavery, Bondage and Dependency in Southeast Asia. New York: University of Queensland Press, pp. 182-208. Reid, Anthony, ed. 1983 Slavery, Bondage and Dependency in Southeast Asia. New York: University of Queensland Press. Warren, James F. 1981 The Sulu Zone, 1768-1898. Singapore: University of Singapore Press.

The decline of folk-law social security in common-law Africa Gordon R. Woodman

This paper discusses an aspect of law in the African states which were for a period colonies of Britain, and the laws of which incorporate commonlaw doctrines and processes.1 First, it critically examines the prevalent notion of social security, arguing inter alia that it should not be limited to "public measures", but should include elements of folk law, in view of recent developments in our understanding of the latter. A summary account of social security in these jurisdictions is then attempted. It is suggested that in the recent past most people have satisfied their basic needs through agricultural activity, and that, for those who were unable to sustain themselves thus, social security was provided by the kinship practice of the sharing of goods. The paper discusses current historical trends which appear to be affecting in various ways both the demand for and the availability of such support. It suggests that recent developments in folk law result in its continuing to provide more widely effective social security than state law. But it concludes by suggesting that current trends are not favourable to the development of an adequate folk-law social security in modern conditions. A NOTION OF SOCIAL SECURITY FOR A F R I C A N CIRCUMSTANCES

Currently prevalent notions of social security have been formulated with reference to Western societies. Since social security issues in non-Western societies are different, as a number of papers in this collection demonstrate, the prevalent notions may need some amendment and clarification for the present discussion. We may consider as illustrative the definition adopted by the International Labour Office (the "ILO definition"): "The expression [social security] has acquired a wider interpretation in some countries than in others, but basically it can be taken to mean the protection which society provides for its members, through a series of public measures, against the economic and social distress that otherwise would be caused by the stoppage or substantial reduction of earnings resulting from sickness, maternity, employment injury, unemployment, invalidity, old age and death; the provision of medical care; and the provision of subsidies for families with children." (ILO 1984: 2-3.)

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This encapsulates the conclusions of years of debate and experience, and covers the heads of social security benefit set out in the Social Security (Minimum Standards) Convention, 1952 (No. 102) of the International Labour Organisation (ILO 1982). The ILO definition states that social security is provided by "society ... through ... public measures". The activity of making such provision must occur in accordance with norms. Hence the social facts centrally in issue are a number of legal norms which are followed in practice. The reference to "public measures" may need qualification. It seems to limit the norms in question to norms of state law, thereby reflecting the tendency for political discussion in Western society to exalt the state. Even if the limitation were supportable in the West (an issue which does not need debate here), it would not be in the states now in question, because of two features. First, state law is not the only law effective within these territories. Before colonisation the societies in question all had, of course, social orderings with normative systems. These systems may appropriately be called law. Those orderings have changed since colonisation, but they did not, of course, cease to exist as social facts on the introduction of state laws and they have survived. They have been variously called non-state law, sociologists' customary law, or folk law. They are sometimes called "traditional law", although that term is unsatisfactory for reasons which will be stated later. As it is hoped to show, non-state laws are of significance in the achievement of the objectives of social security in Africa. 2 Their contemporary forms and operation in relation to social security are the principal subject-matter of this paper. Secondly, the citizenry of each of these territories belongs to more than one ethnic group, each having its distinctive folk law. A "society" is, therefore, not the same as the members of one state. For these reasons we should, in place of "public measures", consider all legal measures, whether of state or non-state law. This paper will take account of both "formal" and "informal" social security, and it is not necessary to decide whether this distinction coincides with that between state law and folk law. The last criticism may be qualified by noting that the definition speaks of protecting members of society against distress which "otherwise would be caused" by any of a series of events. The definition allows for the possibility that there may exist in a society some social practice which in particular instances may protect an individual from distress, in which case that person is not one to whom distress "otherwise would be caused". Such practices are given room to operate, and indeed take priority to the state system of social security. The implied assumption is of an existing social order which enables many, and presumptively the great majority,

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to avoid the threat of distress. Those who have adopted the ILO definition have discussed such practices in existing social orders as relevant factors in a consideration of state social security provisions (e.g. Mouton 1975; Fuchs 1981; also ILO 1984: 1, referring to such provisions in European societies before the inception of state social security. But cf. ILI 1962; Witzsch 1981). They do not necessarily contend that such practices should be replaced by state social security. However, if the practices are not regarded as legal institutions, or even as institutions of social security, they are likely to be given insufficient attention in a discussion of law, and they are likely not to be accurately understood as a result of their legal characteristics being overlooked (cf. Clifford 1964: 370). The ILO definition refers to protection against "economic and social distress". It may be suggested that social security is concerned with those persons who are in the exceptional situation of being in danger of falling below an acceptable and normal minimum level of social and economic well-being. The measure of this level is relative to the standard achievable by many in the society. The enhancement of the general standards of life in a community is not a matter of social security. Similarly, social security does not include the type of assistance, also of high moral value, which may be accorded to an entire society which is threatened with total destruction, for example by famine. However, in considering the appropriate standard for social security in the societies now in question, it must be noted that in some of them the usual standard is very low in comparison with the West. Hence, by "distress" we should understand primarily destitution, that is, a condition below the standard necessary for survival as a member of the society. Nevertheless, even in this case survival may mean more than physical survival, and there is some, limited room for distress to be measured against a changing, relative standard (Cf. Townsend 1962; Seers 1972; Sandbrook 1982: 4-6). The ILO definition refers to distress threatened by loss of "earnings". We need not understand the term as limited to monetary earnings, in considering societies in which the returns from productive or other valued activity are often not monetary. Further, the notion of "earnings" may reasonably be taken to include the gains from activities in which the individual is, in a curious Western expression, "self-employed" (ILO 1984: 16; cf. Fuchs 1981). In all African rural societies, and probably in most urban societies, the majority of "earners" are in this category. All forms of income-producing activity are therefore in issue. It would seem desirable to make this clearer in the definition. As will be mentioned below, most systems of state social security introduced in Africa, following the Western model, have failed to meet the needs of all but monetary wage-earners. While this deficiency may not have resulted solely from a defective concept of social security, the use of definitions such as the ILO definition may

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have been a contributory factor. Even with those qualifications it may be objected that the main part of the definition is limited to protection against distress caused by loss of employment. It does not meet the case of a person who loses an "unearned" income, that is, an income not attributable to a continuing economic activity on their part. In this respect it seems inadequate even for western societies. Moreover, there seems to be some inconsistency between this general assumption of the definition, and the reference, in the penultimate phrase, to the provision of medical care generally, not only to those who are or have been receiving "earnings". The definition ought to meet not only the cases of those who lose an income-producing activity, but also of those who are unable to begin any. The purpose of the restriction to loss of "earnings", is perhaps primarily to distinguish social security from disaster aid, and secondarily to enable a specific indication to be given of the types of protection which might fall within the category. However, the effect is to relate the definition to a particular type of socio-economic order as that order which is assumed to make provision for most members of society. When, as in Africa, the existing social orders vary and are changing rapidly, it is desirable not to incorporate in the definition any assumptions about the type of prior protection which operates before any possible state social security is called into play. It may be preferable to avoid any reference to loss or lack of "earnings". The foregoing argument enables us to dispose simply of the final phrase in the ILO definition. If social security is provision against distress caused by lack of ability to engage in income-producing activity, it must apply to all children. It would therefore have been strictly sufficient to include "youth" in the list of possible causes of distress. It may be supposed that this was not done because children are customarily in all societies maintained by the groups, usually families, to which they belong. The duty of maintenance is enforced by state law, by folk law, or by both. This being assumed to be part of the constant social order, it was considered to be unnecessary to incorporate it in the definition of the variable of social security. However, there would seem to be no ground to exclude the provision of direct maintenance for those children who exceptionally do not enjoy family supprt - states often do consider it their duty to make provision for such children, for example by setting up orphanages. Moreover, it was recognised that the fulfillment of this duty could threaten distress to other members of some families, and consequently subsidies for such families were included in the definition as an element of social security. It is curious that this was not limited to families which were themselves at risk. Whatever the reason, the effect is that at this point the ILO definition gestures towards the goal of equalisation of material conditions, This is a social objective which is generally excluded from

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the definition, presumably because it was calculated that political support for legal developments (as well as research, publication, and conferences) would have been lost had the notion been tainted with such a revolutionary feature. SOCIAL SECURITY IN FOLK LAW

One of the leading books on social security in Africa starts with the remark: "The habitual failure of the many studies dealing with African economic and social problems to mention the extraordinary spread of social security in the continent is quite remarkable." (Mouton 1975: v.)

The reason for this failure is perhaps that state social security, which is what that writer means by social security, is still of little significance in Africa, however extraordinary its spread. What is truly remarkable is the habitual failure of writers on social security in Africa to mention the extraordinary persistence of folk-law social security. This paper, having argued that social security must be understood as including folk-law protection from destitution when normal opportunities for self-support cannot be utilised, will in this section seek to explain in outline the basis of that aspect of the operation of folk law. The remaining two sections will then discuss the main changes which appear to be occurring today in the social circumstances which underpin this folk law, and the related trends in state and non-state laws. Despite the apparent multiplicity of folk-law systems, some generalisation may be defensible. If an investigation focusses on social security law alone, and seeks only the underlying principles, not the minor details of that law, it may be possible to justify generalisation about the course of history. It must, however, be admitted that such generalisation is possible only by a selection of the apparently dominant themes from among the extremely varied circumstances suggested by the mass of evidence, and that, in a paper of the present length, references to other possible themes must be drastically limited. Inevitably the selection will be questionable in many respects. It needs to be emphasised that the generalisation is about the course of history, not about a static condition. Just as each state's law since its establishment in the last century has undergone continuous evolution and constant amendment, so each body of folk law has been in a process of change as far back as we can trace it into history. As anthropologists have long acknowledged, there was no pre-colonial, "traditional", unchanging social order, and so no fixed, "traditional" law (Firth 1961: 80-81; Ranger 1983: 247-54). And change has continued to the present day. This

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paper, while directed to the circumstances and trends of today, will of necessity consider past history in order to explain the present. In the present section, since an attempt is made to state fundamental and constant features of folk-law social security, most of the generalisations will refer to norms and conduct which have prevailed for a long time in the past, and which still are important today. There are competing analyses of the course of African societies' socioeconomic history in recent centuries, which cannot now be examined. But there have been a number of relatively constant, relevant factors. Until very recently, and in most instances still today, the main African economic activities have been agriculture and long-distance trade. The trade frequently had little relation to agricultural activities (Coquery-Vidrovitch 1969; Goody 1971; Iliffe 1983: 5-22). Until around 1850 the scale of agricultural production for export was relatively small and the export of other commodities had little effect on the local economies. The slave trade was socially and politically devastating, but did not greatly change the proportion of economic activity which consisted of agricultural production. Agriculture has thus dominated for centuries, through different forms of economic and political ordering, although in recent decades this dominance has declined. The type of agriculture is generally extensive, the population in most areas being small in relation to the area of cultivable land. Neither the plough nor draught animals have been generally introduced. These economic circumstances have not produced the phenomenon, so common elsewhere, of the acquisition by some members of a society of such political power or exclusive proprietary right as to enable them to make other members dependent upon them for access to land. In constrast, an entire, settled community as an entity normally asserts political sovereignty over the territory in which it is settled and claims to exclude non-members from entering, or from settling and cultivating land. Given that there are many thousands of such communities, it is to be expected that some will at times have insufficient land to meet all their members' needs. Undoubtedly there are some such, and as will be noted the current trend is for them to increase. But they are still exceptional. Moreover, members of such communities can frequently obtain access to land from other communities in return for a rent which is easily paid from its produce. The legal consequence of these circumstances has been and still is that a member of a community has a liberty to cultivate any land in that community's territory which is not in use by another member, and to retain all or most of the crops produced. This rule, with minor variations, is found very widely in African systems of folk law. Certainly agricultural wage labour is not a recent innovation (Iliffe 1983:23-43). But it has existed as an option which some have chosen in preference to the cultivation

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of their own land. Hence its existence does not demonstrate the absence of the basic privilege of access to land. This latter privilege, being the ultimate source of subsistence for the working adult, needs to be focussed upon here, where the issue is social security, rather than the emergence of capitalism. Similarly, the institution of domestic slavery is not examined, because slaves generally provided their own subsistence by cultivation. The facts of the availability of land, and the general right of access thereto in each society, provide the environment for folk-law measures of social security. In this context the exceptional persons who are the subjects of social security provisions are those who are not capable of maintaining themselves by farming, and who have no other sources of sustenance. Other sources may be available in particular circumstances and to particular persons through the exercise of craft skills, through opportunities to provide less skilled services such as household assistance (e.g. Richards 1939: 143-44), and through the capacity to provide ritual, counselling or managerial services. However, since the skills requisite to agricultural production are generally possessed by adults, the causes of need for social security are much the same as those listed in the ILO definition: sickness, child-bearing, injury (from whatever cause), unemployment (which must now be modified to mean inability to farm), invalidity, old age and death; and, in consequence of our earlier argument, we must add, youth. How then has social security provision usually been given? Not by any "public" source, if by this is meant a political authority. Although it is said of chiefly societies that a chief must display generosity and hospitality, this is regarded as a display of open-handedness and wealth towards the whole community, or is an instance of clientelism (Richards 1939: 118), not a provision specifically for the needy. On the contrary, it seems to be the nuclear social group which is required to protect its weaker members from destitution. An attempt to specify the membership of this group would founder on the infinite variety of African systems of kin and affinal relationships. Perhaps the most which can be said is that the group consists primarily of a person's closest surviving kin. There appears to be a general rule that the group has a corporate duty to aid its destitute members. There may be corporately owned property out of which provision can be made. If, for example, they can be accommodated in a corporately owned house, this satisfies at least one basic need. But frequently the only source of assistance will be the resources of an individual member, for even the use of land and its produce is generally held individually (cf. Fuchs 1981: 59). There appears to be a further rule in many systems of folk law, imposing a duty on the individual to protect his or her relatives from need. The incidence of the duty depends upon the closeness of the relationship between

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the parties in the terms which are socially decisive in the particular society. A person will not have an obligation, or not a strong obligation, to provide for a distant relative in need unless all that person's closer relatives are dead or unable to give the assistance needed, or unless some form of service is given in return (Richards 1939: 143-44). There is no evidence that folk law provides any other mode of institutionalised social security, although individual acts of charity no doubt occur. There appears to be no equivalent of the institutionalised charity of medieval Europe. 3 Since it has just been claimed that these rules are law, it may be asked what is the compulsion, or the socially induced motivation, for their observance. It would be possible to answer with speculative statements as to sanctions: the person who refuses assistance to a kinsperson in dire need is perhaps liable to suffer shame, ridicule, ostracism, abuse, supernatural retribution, or physical violence from human agents. But these replies cannot be given with complete confidence because of the lack of well evidenced instances. Whereas the anthropological and legal texts contain instances of breaches of other social norms, we are now in a field where, if compliance is not universal, at least complaints of breaches are virtually unrecorded. A more convincing account of motives would locate these obligations in a network of reciprocity which is a large and necessary part of the scheme of social life. This would not envisage simple, dyadic reciprocities. Clearly the working farmer who maintains a child, whether his or her own or another's, may be but is probably not calculating that this particular beneficiary will subsequently maintain him or her in old age. In many other instances there can be no significant expectation of a direct return. (See: Firth 1961: 142-43; Ekeh 1974) Indeed, the conscious calculation of reciprocability seems inappropriate. (See also Woodman 1986: 185.) In this respect, as others, the phenomenon of folk-law social security is different from clientelism (cf. Lemarchand 1972). The individual's social existence is conditional on membership of a system of kinship, and the membership entails obligations. Non-compliance would be analogous to an opting out of state citizenship by a subject of a western industrialised state: it can be discussed as an amusing theoretical possibility, it can be claimed in brief moments of uncontrollable exasperation, but exit, as distinct from manoevring to avoid part of the burden, is not truly a possibility. Folk-law social security is thus a concomitant of popular acceptance of a principle of social solidarity. It has been said of state social security that solidarity "underlies the whole concept" (ILO 1984: 11). However, in the case of folk law the community whose solidarity is basic is not the state, but the kin group (see also Gibbal 1974: 232-33). Moreover, folk-law differs from state law in that it effectuates the principle of solidarity more fully. All the discussions of the folk law suggest that assistance to

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those in need is an aspect o f a more general duty of sharing, whereas in state law the demands o f solidarity extend only so far as the maintenance of life at the minimum acceptable level. This particular folk-law principle ultimately tends towards egalitarianism (although many systems of folk law contain other principles which promote distinctly non-egalitarian social orders). It is thus in essence opposed to the principles o f western states' laws, and this may perhaps account f o r the habitual failure o f writers on social security to mention it. CURRENT UNDERLYING SOCIAL TRENDS Six socio-economic changes are considered here. It is not claimed that they have emerged very recently, but it does seem that they have gained strength and significance in the present century, and are particularly significant now. A l l are affected or produced by the changes occurring in relations between the economies o f A f r i c a and those o f the industrialised world. T h e earlier provisos as to the dangers o f generalisation and the lack o f a comprehensive body o f evidence, continue to apply. First, rural-urban migration is a marked and continuing feature. Migrants are inspired by hopes o f a better life in the towns. There is a continuous, massive transfer o f economic resources f r o m rural to urban areas ( L i p t o n 1977). Nevertheless, there is a great deal of acute poverty in the towns (Gutkind 1972; Sandbrook 1982:18-25). Thus the demand f o r social security is high, while it is less easily met by the folk-law provisions when most claimants' kin are still resident in rural areas. Secondly, the population is increasing rapidly. T h e most recent available population statistics f o r any state are those o f the Ghana census o f 1984. They show an annual rate o f increase since 1970 of 2.6% (Ghana Census 1985: 49-50). This fuels the rural-urban migration, but the rate o f increase is such that, although the proportion

o f the populations engaged in

agriculture is declining, the absolute numbers so engaged continue to rise. Hence land is in greater demand, and is less plentiful. It is sometimes said that the strong trend towards urbanisation o f the population is a result o f land shortage in rural areas. This may be so in the sense that the prospective farmer may today be able to obtain less land and obtain it on less favourable terms because o f the change in the relation of supply to demand. H o w e v e r , the information suggests that the main cause is the greater attractiveness o f life in urban areas as compared with life as a farmer in a rural area ( L l o y d 1982: 48, 74-75). There is little evidence of absolute absence of access to land, although there have been changes in agricultural practice to meet the decline in available land (Nukunya 1975; Kasanga n.p.) It may come about that individuals w h o could otherwise engage in productive agriculture will be

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prevented from doing so by lack of land. A more imminent possibility is that land shortage may produce changes in relations of agricultural production such that those who produce may retain smaller amounts of their produce or its price, both absolutely and proportionately to their total production. There appears to be an increase in farming by wagelabour, accompanied by new complexes of capital-labour relations (e.g. Van Hear 1984), and developments of new forms of tenancy. This is likely to entail greater inequalities in resources. This in turn seems likely to carry the immediate result that some individuals engaged in productive labour will become relatively less able and willing to support needy kin. More generally it may erode acceptance of the egalitarian principle which, it has been suggested, is part of the basis of folk law social security. The population increase also entails a different age distribution. In recent decades an ever-increasing proportion has consisted of those too young to be productive (a proportion further increased by governmental measures to see that the young receive full-time formal education), and so of an increasing proportion in need of social security. Thirdly, agricultural developments are enabling the individual to cultivate more land, and to produce new crops, particularly cash crops for export. There are incentives for such production. These trends contribute to the tendency for land to become less plentiful. They appear to outweigh by far in this respect technological developments which increase the amount of productive land and the productivity of land already in use. Increased production of cash crops generally enables farmers to meet greater claims to support from kin. However, even if the demands were for subsistence at the same real cost as previously (which we shall see is not the case), the increase in agricultural production would not result in a corresponding increase in capacity to provide assistance. The farmer who produces cash crops for the market must meet the claims for assistance by the expenditure of money, either by purchasing food and other goods to give to kin in need or by direct monetary subventions. The switch to cash-crop production results in scarcity and higher prices of locally produced foodstuffs, while unequal terms of international trade result in producers receiving prices for cash-crops which are relatively low in relation to those of imported goods. Thus, while many individuals' capacity to meet claims for assistance is no doubt increasing, it is not increasing at such a rate as might be expected. Fourthly, more manufacturing and extractive industry is being developed, largely by foreign capital investment. It is not yet easy to assess the effects of this development on African economies. Some new employment has been provided, taken by persons who could otherwise have engaged in agriculture. This could be offsetting the effects of land shortages in areas where they have already appeared. It is not certain that those who have

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taken such work have obtained real disposable incomes greater than they would have obtained in productive agricultural work. It is possible that migrant urban industrial workers remit to their dependants at home less real value than they would provide had they remained in agriculture, and even that a portion of urban-dwellers' subsistence may sometimes be provided by their kin in agriculture. A different question is whether such developments are of overall benefit to the economies of the territories. It seems clear that the new extractive industries, and perhaps only those, produce a net inflow of disposable wealth (while reducing the capital asset consisting of the extracted resource). The effect of the mineral oil industry on the Nigerian economy is an instance. But it would seem that most, if not all of this benefit passes to the state or to a limited category of individuals, so that even here it does not increase the wealth available for non-state social security for all parts of the populations. Fifthly, state activity is increasing. For the present purpose this is significant in several distinct ways. In so far as the state extracts value from those engaged in productive activity (as through taxation and commodity purchasing monopolies), it reduces their capacity to provide assistance to kin, although it is not impossible that such extraction causes some individuals to increase production by amounts equal to those taken. In so far as the state provides employment, which is nearly always taken by those who could otherwise be productive in agriculture, and frequently gives a greater income to the worker than agriculture, the state increases its employees' capacity to assist their kin. These two developments taken together seem to be roughly in balance in their total significance for social security. However, together they constitute a shift towards an unequal distribution of resources. This again may tend to reduce the acceptance of the egalitarian basis of folk-law social security. Morever, since social security is concerned with relatively inelastic demands spread fairly evenly over the population, the result is likely to be that some wants will no longer be satisfied. Finally, in so far as the state has made effective its own body of law and its own system of coercion, this factor will be discussed later, but it may be noted now that it is liable to reduce the effectiveness of folk-law norms, including those of social security. Sixthly, developments both in the international trade of African countries and within their societies have made available for purchase many new goods and services. Imported manufactures, varieties of education, and new forms of entertainment are obvious examples. One effect on folklaw social security is to present the potential supplier of assistance with other options for the expenditure of resources, thus making a refusal to fulfill the duty more attractive. Another effect is to enlarge the category of claims which may legitimately be made, as for example by adding further claims to medical care and education.

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These trends can be summed up as including some tendency towards making it easier to provide social security, in other respects some tendency in the opposite direction, a reduction in the strength of motivation for meeting social security obligations, and an increase in the extent of claims. CURRENT DEVELOPMENT IN SOCIAL SECURITY LAW

We now attempt to discern the possible effects of the trends just described. Folk

Law

There is clear evidence that this law has developed and adapted in a number of ways, some of them radically innovative, although the evidence is insufficient for comprehensive accounts. Since a number of the underlying social changes are manifested most strongly in the urban areas, it is to be expected that the principal developments in folk law have occurred there. How far and with what adaptations are the folk-law norms, developed in agricultural societies, effective in the towns? A good deal of literature provides evidence, either directly or by way of incidental mention. (Two of the fullest investigations are on towns in francophone territories: Meillassoux 1968 and Gibbal 1974. In so far as they probably hold good for anglophone territories, they will be referred to.) There is evidence that in towns claims to assistance addressed by the unemployed and destitute to kin are sometimes evaded or rejected (Southall 1961: 32; Marris 1961: 138-41; Gutkind 1967, 1972, 1973, 1974; Epstein 1969: 98-99; Oppong 1975: 198). Consequently some writers assert that urban dwellers are largely deprived of folk-law social security (ILI 1962: 8; Mouton 1975: 139-42). However, almost all writings except the two just cited, even when they mention cases of refusal of assistance, indicate that considerable claims are made, are regarded as imposing binding obligations, and are met (e.g.: Southall 1961: 31-32; Marris 1961: 36-39; Epstein 1969: 98-99; Hart 1975: 30; Imoagene 1976: 119-40; Hake 1977: 231; Jeffries 1978: 123; Lloyd 1982: 75). This is further acknowledged by discussion of the problems experienced by urban dwellers in employment as a result of their compliance with these demands, which can be overwhelming in relation to their incomes. Folk-law social security in an urban context also implies obligations between rural and urban residents. There is evidence that many urban migrants take care to maintain their membership of their communities of origin by regular communication and sending of gifts, primarily in order to retain access to farm-land in the event of their failure in the town or of retirement from urban employment (Southall 1961: 36-37, 43-44; van Velsen 1961; Meillassoux 1968: 79; Epstein 1969: 90; Gibbal 1974:

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231-32; Hart 1975: 29; Jeffries 1978: 123; Lloyd 1982: 48, 74-77). But town dwellers may ask for and receive assistance from rural kin (Hart 1975: 21; personal observation in Ghana). It seems to be unusual for assistance to move in the other direction. Rural dwellers seem not often to be dependent on urban kin for necessities: but it will be necessary to mention again the issues arising from the lack of clear distinction between necessities and luxuries. There is evidence of adaptation of the folk law of social security. Since the urban-dweller rarely has access to a full range of kin, claims tend to be extended to relatively remote kin who happen to reside in the same place. Eventually the basis of claims can pass beyond provable kinship to common ethnic membership. Such claims are now recognised as imposing obligations, particularly in those towns where many different ethnic groups are present (Southall 1961: 34-35; Marris 1961: 39-42; Meillassoux 1968: 79; Gibbal 1974: 181, 105; Hart 1974: 16; Lloyd 1982: 48, 87). There may be a further development, more than an adaptation of rural folk-law, consisting of mutual assistance within non-kin groups. There have appeared in folk law two largely new phenomena, the "associational" group and the more formal mutual aid association. The functioning of the former is indicated in the work of Gutkind (1967, 1972, 1973, 1974). He found that the long-term unemployed often obtained assistance over time from a succession of available kin, but eventually tended to cut their kin links and join with "friends". (On the growth of friendship in contrast to kinship in an urban setting, see also Kilson 1974: 58-60). However, Gutkind also recorded considerable amounts of material assistance given by kin. His findings thus provide evidence of a developing alternative to assistance from kin, not yet of its supersession. The mutual aid association is a more formalised arrangement. Its purpose is to accumulate funds through regular or casual subscriptions, to be used as insurance against the incidence on the individual member of sudden, heavy expenditure. It appears to be commonest in urban areas and other environments where the individual has lesser opportunities to obtain assistance from kin (Meillassoux 1966: 74, 77-80; Kilson 1974: 33, 65; Mouton 1975: 104; Hake 1977: 226-32). Frequently membership is drawn exclusively from one ethnic group, so that it reflects, within its particular legal form, the tendency for assistance to be given and claimed within such groups in urban areas today (Southall 1961: 38; Hake 1977: 22632). However, some writers find a tendency for ethnically limited associations to be replaced by trans-ethnic groupings (Southall 1961: 38; Meillassoux 1968: 77-80). In legal analysis mutual aid associations appear to constitute folk-law contracts of insurance. Membership is effectively open only to those who normally have regular earned incomes, the

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development thus constituting a folk-law version of the "unholy alliance" between work and welfare (Macarov 1980). It would appear, therefore, that among urban migrants folk-law social security is undergoing some adaptation, and to some extent is being superseded by other folk-law processes, but remains a significant social phenomenon. Of social security in rural areas less can be said because less research is available. It is possible to speculate, taking account of the social trends already mentioned, that there is approaching a greater degree of inequality in access to land, and so in power and wealth generally. The accumulative tendency is contrary to the function of folk-law social security, which tends towards the distribution of material benefits. The latter is consequently likely to be declining in force (and see Mouton 1975: 150; ILO 1984: 1-2). It may, however, be confirmed that there are tendencies towards enlarging the scope of obligations. It is widely reported that claims to assistance now include claims to the purchase of modern types of medical care and to formal education, and one hears much anecdotal evidence of claims by kin to share in the luxuries which economically successful individuals today enjoy. This is more than a revision of what, relatively considered, is to constitute destitution for the purpose of social security, and so might be considered outside scope of the present discussion. However, members of the societies themselves do not seem to draw such a distinction. The new claims seem rather to be a realisation, in circumstances more prosperous for some, of the egalitarian principle which underlies folk-law social security. State Law The rules of this law, in contrast to those of folk law, have generally been only slightly developed in response to the social trends noted earlier. The issue of development of social security here may be considered in relation to three types of state law in turn; a traditional, doctrinal classification will suffice for this purpose. The common law as it has been and is applied in Africa includes virtually no rules of social security. It recognises the social existence of some such social obligations, and so contains rules requiring them to be taken into account in determining certain issues. Examples of such "recognition" are the equitable rules on "marriage consideration" in contract, and "advancement" in resulting trusts, and the exceptions which favour the validity of trusts classified as charitable, including trusts "for the relief of poverty". (These rules were developed with regard to the norms and practices of English society, and it is not easy to find justification for applying them in Africa.) The common law regards such obligations as moral, not legal, and does not enforce them directly. The only exception is that some, quite

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limited legal claims to maintenance are given to wives. In Africa these apply only to wives of legally monogamous marriages, and have been largely superseded by statute law. The statute laws of these states include their constitutions. These, in the common-law, commonwealth tradition, provide little basis for the construction of constitutional rights to social security, and the courts have made no attempt to conduct such an exercise. Other legislation has provided the legal basis for the creation of health care and formal education, available in varying degrees at subsidised prices in all states. Apart from this, there is very little direct provision of social security by the state. (Thus the statistics in Kay 1972, show no expenditure for this purpose.) There are some state-enforced schemes of compulsory insurance or savings, often modelled on British legislation, but these are limited to the small minorities of wage-earners. Because of this they contribute to the general, growing inequality (Mouton 1975: 12-13; Fuchs 1981; Witzsch 1981). Some states have enacted inheritance laws which enable certain dependants of a deceased, usually widows and children, to claim maintenance out of the estate if they can show need. Since much of the statute laws of these states are adaptations of British statutes, it may be asked why it has not been possible, if not to design entirely new systems, to enact British statutes adapted to the local conditions of predominantly agricultural, partially monetarised economies in which most income-producers are not employees. This question will be considered shortly. All these states' laws have long contained provisions which require the state courts to apply "customary law" in some categories of cases. Judicial declarations of customary law in these cases are authoritative statements of this law. Consequently there has developed a body of rules which has been (Woodman 1985) called lawyers' customary law. The development has been discussed elsewhere, and here it suffices to say that the legal professions have exercised creative roles in fashioning the rules of lawyers' customary law, that only some parts of folk law have become the bases for its rules, and that the grounds for the manner of exercise of this power in particular instances are presumably to be found in the policies which the professions have followed. 4 Lawyers' customary law has undergone considerable development in the West African jurisdictions and in Tanzania. In the field of land and family law in particular substantial bodies of rules have been established through precedent (Nwabueze 1972; Nwogugu 1973; James and Fimbo 1973; Sawyerr 1973, 1977; Joko Smart 1983; Woodman n.p.a.). It is not yet clear whether the other jurisdictions will follow this pattern (cf. Morris and Read 1966; Cotran 1968; Ibik 1970. Mvunga 1982 cites numerous cases, but few are from the superior courts). If the same practice had been consistently followed in the field of social security, a body of lawyers'

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customary law would have been created, based upon the folk-law rules considered above. This has occurred in no jurisdiction, although the rules have occasionally been mentioned in judgments or taken into account as relevant facts. Rules obliging men to support their wives and infant children, on the other hand, have been judically used to create rules of state law. Why have rules of state social security law not been developed? It might be argued that it would be administratively beyond the capacity of thirdworld states to provide procedures by which those qualified for assistance could be correctly identified and assisted. It might be further said that even if it were administratively feasible, these countries do not have sufficient resources to provide social security. However, neither factor has prevented the establishment of quite extensive medical or educational services: these two arguments are not convincing. Another argument would assert that such development of the law will occur only when those who stand to gain from it communicate their needs persuasively to the lawmakers. This requires effective political pressure on legislators, or well-developed arguments in litigation. Since the claimants here are by definition destitute, they are unable to present their claims effectively in such public fora. This argument may have some truth, but it cannot be a complete explanation because it would apply to all claims to needed personal maintenance. Means of successfully advancing such claims have been found in a few cases, such as where widows and children seek support from a deceased husband's or father's estate. The same answer may be made to the argument that kin assistance, being an internal family matter, is not suitable for the adjudicatory processes of courts (cf. Fuller 1971: 330-32; Unger 1976:54-55). Another argument could be that state action is unnecessary when folklaw social security is comprehensive and effective, that this fact has been appreciated, and that it has been resolved that no development is needed. However, no such contention has prevailed in respect of other field of folk-law rights and duties. The present area of folk law is one of the few where state law has not intervened. Moreover, it is evident that, however well an area of folk law may have operated in the past, the emergence of the modern state, with its considerable physical and ideological power directed to the enforcement of its own law, must reduce the effectiveness of folk law. It has not been supposed in other fields of activity that folk law if ignored by the state would continue to operate effectively. FOLK- A N D STATE-LAW SOCIAL SECURITY IN THE WIDER PROCESSES OF CHANGE

The most marked feature of contemporary social change is the increase in significance, to the point of dominance, of capitalist modes of production. The precise analysis of this development is not vital to the present inquiry.

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In contrast, the proncipal current forms of folk-law social security emerged within different economic orders. A capitalist order probably requires some form of social security, to ensure a continuing supply of wage-labour, and to reduce the risk of violent disruption by the destitute. These functions are at present performed for capitalisn in Africa by folk-law social security. Hence there might seem to be ground for expecting state law to foster and reinforce this folk law. However, notwithstanding that folk-law social security of the type which has been examined here may fulfill certain necessary functions, it is not on the whole congenial to capitalist production. Excluding informal and formal consensual mutual assistance groups as new and exceptional (although significant) developments, folk-law social security rests upon obligations imposed by membership of the kin group. It includes, it has been suggested, a principle of egalitarian distribution of goods. Capitalist production requires, and exalts in its ideologies, individual effort by wageearners, usually of necessity in contexts distant from those of the folklaw kin group. It stimulates these activities through individual rewards with material goods (having frequently created by coercive measures a need for these goods). In its functioning and its ideologies it is opposed to the bases of folk-law social security. It presents them as reactionary (see e.g. Mouton 1975: 150; ILO 1984: 1-2) and an encouragement to parasitism (e.g. Mouton 1975: 151-52; cf. Marris 1968-69: 317). It sets up in opposition an ideology favouring smaller nuclear groups, most obviously the monogamous, conjugal family (Adinkrah 1980: 7-11). In the western capitalist states forms of social security have been developed, inspired by the ideal of the stereotypical conjugal family (Allatt 1981), which are incompatible with social orders in which the kin group flourishes (Zacher 1979, quoted Fuchs 1981: 64 n. 115). It seems likely that the growth of capitalism explains the decline in the effectiveness of folk-law social security, and will in the future accompany a further decline.

NOTES 1. The states under discussion are: The Gambia, Sierra Leone, Ghana, Nigeria, Uganda, Kenya, Tanzania, Zambia and Malawi. Anglophone or partly anglophone territories which are excluded either because their state law is predominantly Roman-Dutch law, or for other reasons are: Zimbabwe, Botswana, Lesotho, Swaziland, Namibia, South Africa, Sudan, Liberia and western Cameroun. 2. The state laws in question include a statutory provision which require the state courts to apply customary law (originally "native law or custom") in certain categories of cases, in addition to the received common law and statute. This has given rise to a body of norms which may be called lawyers' customary law, and a pluralism within state law. This pluralism is additional to and distinct from legal pluralism in the "deep" sense, in which non-state

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law co-exists with state law. (Cf. Unger 1976: 48-58; G r i f f i t h s 1986) This has been discussed elsewhere (especially W o o d m a n , n.p.b, building u p o n W o o d m a n 1988). This p a p e r is concerned primarily with a feature of " d e e p " legal pluralism, namely, with the differences between the social security n o r m s of folk law and of state law, and the relations linking them. 3. I here acknowledge, as the source of some of the ideas advanced in this p a p e r , a talk given by D r J . Iliffe, St. J o h n ' s College, C a m b r i d g e , at a seminar at the Centre of West African Studies, University of Birmingham, in F e b r u a r y 1985, u n d e r the title, " S t u d y i n g the history of the p o o r in A f r i c a " . I derived much benefit f r o m it, but at this distance in time an a t t e m p t to list what I learned might omit ideas which I have become so accustomed to that I now imagine I t h o u g h t of them myself, a n d include others which are but my own conclusions erroneously d r a w n f r o m D r Iliffe's correct premises. A n attractive suggestion of his which I c a n n o t pursue was that poverty in pre-colonial Africa might be usefully c o m p a r e d not with poverty in land-scarce E u r o p e f r o m the 12th century, but with the less structured poverty of land-rich Europe in earlier centuries. Since the present p a p e r was p r e p a r e d D r Iliffe's work has been published: Iliffe 1988. 4. See note 2 above.

REFERENCES A d i n k r a h , K.O. 1980 " G h a n a ' s marriage ordinance: an inquiry into a legal transplant for social c h a n g e , " 18 African Law Studies I. Allatt, P. 1981 "Stereotyping: familism in the l a w , " in B. Fryer, A. H u n t , D. McBarnet and B. M o o r h o u s e (eds), Law, Siate and Society. L o n d o n : C r o o m Helm, 177. Clifford, W. 1964 "Social Security in Africa (with Special References to N o r t h e r n R h o d e s i a ) , " 11 ILI Bulletin 370. Coquery-Vidrovitch, C. 1969 "Recherches sur un m o d e de p r o d u c t i o n africain," 144 La Pensee. C o t r a n , E. 1968 The Law of Marriage and Divorce, Restatement of African Law, Vol. 1, Kenya, I. L o n d o n : Sweet & Maxwell. Ekeh, P.P. 1974 Social Exchange Theory: the two Traditions. C a m b r i d g e , Mass.: H a r v a r d U.P. Epstein, A.L. 1969 " T h e Network a n d U r b a n Social O r g a n i s a t i o n , " in J.C. Mitchell (ed.), Social Networks in Urban Situations: Analyses of Personal Relationships in Central African Towns. Manchester: Manchester U.P. for Institute f o r Social Research, University of Z a m b i a . Firth, R. 1961 Elements of Social Organization (3rd ed., 1971 republication). L o n d o n : Tavistock. Fuchs, M. 1981 " R e c h t und Politik der sozialen Sicherheit in A f r i k a , " 2 Yearbook of African Law 43. Fuller, L.L. 1971 " M e d i a t i o n - its F o r m s and F u n c t i o n s , " 44 Southern California Law Review 305. G h a n a Census 1985 1984 Population Census of Ghana: Preliminary Report (revised printing). Accra: Central Bureau of Statistics. G i b b a l , J.-M. 1974 Citadins et paysans dans la ville africaine: l'exemple d'Abidjan. G r e n o b l e : Presses Universitaires de Grenoble. G o o d y , J . 1971 Technology, Tradition and the State in Africa. L o n d o n : O x f o r d U.P. G o o d y , J. (ed.) 1975 Changing Social Structure in Ghana: Essays in the Comparative Sociology of a New State and an Old Tradition. L o n d o n : International African Institute. Griffiths, J . 1986 " W h a t is Legal Pluralism?" 24 Journal of Legal Pluralism 1. G u t k i n d , P.C.W. 1967 " T h e Energy of Despair: Social Organization of the Unemployed

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in two African Cities: Lagos and Nairobi. A Preliminary Account," XVII Civilisations 186, 380. Gutkind, P.C.W. 1972. "The socio-political and economic foundations of social problems in African urban areas: an explanatory conceptual overview," 22 Civilisations 18. Gutkind, P.C.W. 1973 "From the Energy of Despair to the Anger of Despair: the Transition from Social Circulation to Political Consciousness among the Urban Poor in Africa," 7 Canadian Journal of African Studies 179. Gutkind, P.C.W. 1974 Urban Anthropology: Perspectives on "Third World" Urbanisation and Urbanism. Assen, Netherlands: Van Gorcum. Hake, A. 1977 African Metropolis: Nairobi's Self-Help City. London: Chatto & Windus for Sussex U.P. Hart, K. 1975 "Swindler or Public Benefactor? - the Entrepeneur in his Community," in Goody (ed.), 1975: 1. Ibik, J.O. 1970 The Law of Marriage and Divorce, Restatement of African Law, Vol. 3, Malawi, I. London: Sweet & Maxwell. Iliffe, J. 1983 The Emergence of African Capitalism. London: MacMillan. Iliffe, J. 1988 The African Poor: A History. London: Cambridge U.P. ILI (Inter-African Labour Institute) 1962 "Recent Developments in Social Security Legislation in Tropical African States," 9 ILI Bulletin, No. 2. Imoagene, Oshanka 1976 Social Mobility in Emergent Society, Changing African Family Project Series Monograph No. 2. Canberra: Australian National University and University of Ibadan. ILO (International Labour Office) 1982 International Labour Covenants and Recommendations, 1919-1981. Geneva: ILO. ILO 1984 Introduction to Social Security. Geneva: ILO. James, R.W. and G.M. Fimbo 1973 Customary Land Law of Tanzania, Nairobi, Kampala, Dar es Salaam: East African Literature Bureau. Jeffries, R. 1978 Class, Power and Ideology in Ghana: the Railwaymen of Sekondi, African Studies Series, 22. Cambridge: Cambridge U.P. Kasanga, K. n.p. Land Tenure and the Development Dialogue. London: Cambridge U.P. (forthcoming). Kay, G.B. 1972 The political Economy of Colonialism in Ghana: Documents and Statistics. London: Cambridge U.P. Kilson, M. 1974 African Urban Kinsmen: the Ga of Central Accra. London: C. Hurst. Lemarchand, R. 1972 "Political Clientelism and Ethnicity in Tropical Africa: Competing Solidarities in Nation-Building," 66 American Political Science Review 68. Lipton, M. 1977 Why Poor People Stay Poor: a Study of Urban Bias in World Development. London: Temple Smith. Lloyd, P. 1982 A Third World Proletariat? London: Allen & Unwin. Macarov, D. 1980 Work and Welfare: the Unholy Alliance. Beverly Hills and London: Sage Publications. Marris, P. 1961 Family and Social Change in an African City: a Study of Rehousing in Lagos. London: Routledge Kegan Paul. Marris, P. 1968-69 "The social barriers to African entrepreneurship," 5 Journal of Development Studies 29. Meillassoux, C. 1968 Urbanization of an African Community: Voluntary Associations in Bamako. Seattle and London: University of Washington Press. Morris, H.F. and J.S. Read 1966 Uganda: the Development of its Laws and Constitution. London: Stevens. Mouton, P. 1975 Social Security in Africa: Trends, Problems and Prospects. Geneva: ILO. Mvunga, M.P. 1982 Land Law and Policy in Zambia, Zambian Papers No. 17. Gweru: Mambo

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Press for Institute for African Studies, University of Zambia. Nukunya, G.K. 1975 "The effects of cash crops on an Ewe community," in Goody, 1975: 59. Nwabueze, B.O. 1972 Nigerian Land Law. Enugu and Dobbs Ferry, N.Y.: Nwamife and Oceana. Nwogugu, E.I. 1973 Family Law in Nigeria. London. Oppong, C. 1975. "A Study of Domestic Continuity and Change: Akan Senior Service Families in Accra," in Goody, 1975: 181. Ranger, T. 1983 "The invention of tradition in colonial Africa," in E. Hobsbawm and T. Ranger (eds.), The Invention of Tradition. Cambridge: Cambridge U.P., 211. Richards, A.I. 1939 Land, Labour and Diet in Northern Rhodesia: an Economic Study of the Bemba Tribe. London: Oxford U.P. for International African Institute. Sandbrook, R. 1982. The Politics of Basic Needs: Urban Aspects of Assaulting Poverty in Africa. London, Ibadan, Nairobi: Heinemann. Sawyerr, A. 1973. "Customary law in the High Court of Tanzania," 6 Eastern Africa Law Review 265. Sawyerr, 1977. "Judicial manipulation of customary family law in Tanzania," in S.A. Roberts (ed.), Law and the Family in Africa. The Hague, Paris: Mouton, 115. Seers, D. 1972 "What are we trying to measure?" 8 Journal of Development Studies (Supplement), 21. Smart, H.M. Joko 1983 Sierra Leone Customary Family Law. Freetown. Southall, A.W. 1961 "Introductory Summary," in A.W. Southall (ed.), Social Change in Modern Africa. London: Oxford U.P., 1. Townsend, P. 1962 "The meaning of poverty," 13 British Journal of Sociology210. Unger.R.M. 1976 Law in Modern Society: Toward a Criticism of Social Theory. New York: Free Press. Van Hear, N. 1984 "Day Boys and Dariga Men," 31 Review of African Political Economy 44. Velsen, J. van 1961 "Labour migration as a positive factor in the continuity of Tonga tribal society," in A.W. Southall (ed.), Social Change in Modern Africa. London: Oxford U.P., 230. Witzsh, G. 1981 "Soziale Entwicklung, Sozialpolitik und Sozialrecht in Kenia," 14 Verfassung und Recht in Uebersee 367. Woodman, G.R. 1985 "Customary law, state courts, and the notion of institutionalization of norms in Ghana and Nigeria," in A. Allott and G.R. Woodman (eds.) People's Law and State Law: the Bellagio Papers. Dordrecht: Foris, 143. Woodman, G.R. 1986. Book Review, Christine Okali, Cocoa and Kinship in Ghana: the Matrilineal Akan of Ghana, 24 Journal of Legal Pluralism 181. Woodman, G.R. 1988 " H o w state courts create customary law in Ghana and Nigeria," in B.W. Morse and G.R. Woodman (eds.), Indigenous Law and the State. Dordrecht: Foris. Woodman, G.R. n.p.a. Customary Land Law in the Ghanaian Courts. Birmingham and Legon: CAL Press and University of Ghana, forthcoming. Woodman, G.R. n.p.b. "Unification or continuing pluralism in family law: past experience, present realities, and future possibilities in anglophone Africa," Paper presented at the International Society on Family Law Regional Conference on Social Change and Legal Reform in East, Central and Southern Africa, University of Zimbabwe, January 1987. Zacher, H.F. 1979 " D a s Sozialrecht im Wandel von Wirtschaft und Gesellschaft," Vierteljahresschrift fuer Sozialrecht.

Traditional systems of social security and their present-day crisis in West Africa Rüdiger Schott

1. T H E RELIGIOUS F O U N D A T I O N S O F SOCIAL SECURITY

Let me start with a prayer. I recorded it spoken by an old woman among the Bulsa, an ethnic group of farmers and cattle holders in the North of Ghana, in October 1966. She addressed one of her ancestors with these words: "I am weak and poor. Were I not weak and poor, I would have said something [i.e. I would have promised a gift of sacrifice to the ancestors], but as I am poor, I cannot promise anything now. But let us wait and see what will happen after the harvest ... At present, there is no one [in this house] who can pluck the feathers of this chicken which we are going to offer to you. All the people have moved into the "bush", and there are only a few who have remained here. It is you alone who knows ways and means to make those people return home so that they may serve you!" (Schott 1970: 26).

This prayer expresses a deeply felt concern of many people belonging to the rural population of West Africa: the problem of securing their economic and social welfare. "All the people have moved into the bush...", means: they went South to "Kumasi" or other towns or to the cocoa plantations, looking for paid work. They have deserted the old, the weak and the poor: no one "can pluck the chicken's feathers", i.e. offer sacrifices to the ancestors. The old woman's brother, head of the compound, continued her prayer to the ancestor by saying: "This house has no wife [at child-bearing age]. If it is true that I [the head of the compound] shall be responsible to give you offerings of sacrifice, do what we demand. We need women in this house as well as children to carry water for the cattle. I promise you [the ancestor] a pot full of millet-beer if that which I have asked from you is fulfilled (Schott 1970: 27).

These prayers make it clear that the Bulsa and other peoples of West Africa expect to obtain their economic and social security in the first instance from their kpilima, lit. their "dead people" (from kpi, "to die" in Buli), their ancestors. They are responsible for the welfare of their living Between Kinship and the State (F. von Benda-Beckmann © 1988 Foris Publications

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descendants. The living address them with their prayers and offerings of water, millet flour water, millet beer, chickens, sheep, goats, and, in exceptional circumstances, even cattle. With these offerings or "sacrifices" the living provide their ancestors with gifts of food and drink. In return, they expect from them their blessings: a rich harvest, fecundity of their cattle and their wives, health and long life. Between the living and the dead, there exists a bond of trust expressed in a constant process of giveand-take on the basis of reciprocity. On the occasion of the above-mentioned sacrifice, the eldest member of the patrilineage addressed the ancestor with the following prayer: "We have not had a good harvest this year, but we rely upon you, and if you let us see the next season, we hope that you will provide us with twice the amount of harvested goods which we received this year. We give offerings to the ancestors ... so as to obtain good health, and if you think that this is alright, let happen what we expect from you" (Schott 1970: 27).

If the ancestors refuse to comply with the demands of their living descendants, the latter may insult them. After a bad harvest, for instance, they may tell their ancestors that they should be ashamed to have neglected their "children" (cf. Kroger 1982: 7 ff.). On the other hand, the Bulsa believe that the ancestors may punish the living for their misdeeds by sending them bad luck, diseases, hunger and sterility. The important point is that the people living in traditional rural societies in West Africa attribute their problems of social security to transcendental forces (cf. Zwernemann 1968: 317 ff.). They feel themselves to be dependent on these supernatural forces. This feeling marks the religion of these people; it forms the psychological basis for their feeling safe even in case of the greatest misfortune: nothing can happen to them which has not been ordained by the will of these forces, and there are ways and means to get in touch with them and to appease their anger. The ancestors are amenable to the wishes of the living, they even depend on the latter: if they do not provide well for their descendants, the ancestors will suffer the consequences themselves: they will not receive sacrificial gifts from their "children" or these gifts will be limited in amount or in quality 1 . On the other hand, the living fear their ancestors, who threaten to withhold food and other goods from those who do not respect the customs and traditions of their forefathers. Any deviation from their established ways of life may be punished by them (cf. Heermann 1981: 73 ff.). This threat provides effective sanctions that help to maintain the traditional systems of social security, a system based on the rules of give-and-take, of reciprocal aid between the living and the dead, but also, of course, between the living themselves. No one could survive in a West African

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society based on a subsistence economy without such a system of social security. In describing it, I rely on the ethnographic literature on the subject, but mainly on published and unpublished results of ethnographic fieldwork which my collaborators and I have conducted among the Bulsa in Northern Ghana and among the Lyela of Burkina Faso (formerly Upper Volta) 2 .

2. ECONOMIC ASPECTS OF SOCIAL SECURITY IN WEST AFRICAN SUBSISTENCE AGRICULTURE

Any system of social security presupposes the production of goods exceeding the amount needed for meeting the demands of bare existence. The production of a surplus of goods is needed to balance the fluctuations of yields caused by the exigencies individuals undergo through disease, disablement for work, senile decay, death of the bread-winner and other calamities. In order to meet these risks, any society has to produce "wealth" in the sense of a surplus of goods and services. "Wealth" in this sense is the economic precondition for a system of social security. In West Africa this "wealth" is also understood in terms of religion. Ingrid Heermann, for example, says of the Bulsa that they view "wealth as a gift of the ancestors; without their influence and help, by human efforts alone, nothing can be achieved". "Wealth" is understood by the Bulsa to be the means of securing the support of the family, "... and moreover of keeping in stock those goods which exceed the needs of the foreseeable future ..." (Heermann 1981: 124). A society practising a "subsistence economy", i.e. an economy in which the social units produce goods for their proper consumption only and not for market exchange, is not exempt from the necessity of producing goods in excess of those needed to satisfy the present individual needs. There must also be goods for meeting future needs, especially for satisfying those needs which arise from unforeseeable deviations of production and consumption from the planned course of economic events. No economy is exempt from the fact that no goods can be distributed - over a period of time and/or among the members of a social unit - that have not been produced in advance. This commonplace fact applies to a so-called subsistence economy as much as it does to any other type of economy, such as a market oriented or a centrally planned economy. The accumulation of wealth is the principal means of ensuring oneself against future risks, as Heermann (1981: 122 ff.) states, contrary to the opinion of Polanyi and other "substantivists" of economic anthropology. The Bulsa put their harvests of millet, their staple crop, in store, and from these stocks, preserved in barns of clay, the head of the compound

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shares out rations to the single elementary families of the compound at fixed intervals of time. In the long run, wealth is also preserved in cattle. This is used for sacrificial gifts to the ancestors; the head of the compound, after having slaughtered an animal puts a bit of the meat on the ancestor's altar as a symbolic offering. The rest of the meat he divides among all the inhabitants of the compound and among its neighbours. One may also consider women, married into the compound, as well as the children, having been born by them, as helping hands or as "goods" ensuring the economic and social security of the compound's inhabitants. Also among the Lyela in Burkina Faso the head of the compound shares out rations of millet from a barn common to the compound.This barn is filled from the yields of a common field in front of the compound or in the "bush". This field is cultivated by the head of the compound together with his younger brothers and his and their sons; each of these men has to spend part of his working time cultivating this common field. Besides each man has his own field which he works together with his wife or his wives. The yields from the latter field belong to him alone; they are stored in his private barn. Nowadays, however, many women possess their own fields which they cultivate for themselves. This is a consequence of the fact that many men have migrated to the Ivory Coast in search of paid work. The harvest from "women's fields" belongs to each woman who has produced the yields which are stored in her private barn. If a woman has exhausted the supplies of her private barn, she may turn to the head of the compound. He will help her by giving her a basket full of millet (or less) at fixed intervals of time, every three days for instance, depending on the amount of millet available in the common barn. At the same time, he has to share out the same rations to all the other women with separate households in the compound, even if they still have supplies of millet in their barns. Lyela women consider it unjust if one of them, having worked less or having been lavish with her supplies, is provided for out of the common stocks while they themselves, having provided better for the future, have to live on the produce of their own labour only. Georg Elwert has shown convincingly for the village Ayizo in the state of Bénin that these forms of distribution are essential "for the survival of a rural society relying strongly on subsistence production": "The redistribution (of yields) through different forms of help makes possible the redistribution of produce in years of a meagre harvest in such a way that no one has to starve. Without such a redistribution a great part of the village population would have to die" (Elwert 1980: 682, translation mine). Elwert estimates that more than one quarter of the total produce

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of staple foods is transferred in the village of Ayizo through channels of relations of mutual help (Elwert 1980: 687). These systems of distribution, functioning as systems of social security, are threatened by a crisis in West Africa (and elsewhere) in our days because there is a growing shortage of manpower as well as of soil reserves. Manpower migrates to the plantations and urban centres in the south. At the same time, the soils are being more and more exhausted; there are no soil reserves any more, and desertification contributes to the growing scarcity of soils to be cultivated in future or already under cultivation. Population pressure increases the pressure on arable land; more and more mouths have to be fed from soils decreasing in extent as well as in yields. Intensification of agricultural output, by dry season gardening for instance, frequently hits at the margin of decreasing water supplies which are neceassary for such an intensification. This deteriorating situation with regard to the yields of the rural subsistence economy has its effects also on the system of social security described above. It is a system which functions only as long as "wealth" can be produced in the form of temporal harvest surpluses. George M. Foster has spoken of the "image of the limited good" which holds sway over peasant societies: "By 'Image of Limited Good' I mean that broad areas of peasant behavior are patterned in such fashion as to suggest that peasants view their social, economic, and natural universe - their total environment - as one in which all of the desired things in life such as land, wealth, health, friendship and love, manliness and honor, respect and status, power and influence, security and safety, exist in finite quantity and are always in short supply. Not only do these and all other 'good things' exist in finite and limited quantities, but in addition there is no way directly within peasant power to increase the available quantities ... Consequently there is a primary corollary to the Image of the Limited Good: if 'Good' exists in limited amounts which cannot be expanded, and if the system is closed, it follows that an individual or a family can improve a position only at the expense of others. Hence an apparent relative improvement in someone's position with respect to any 'Good' is viewed as a threat to the entire community" (Foster 1965: 296 ff.; emphases by Foster).

According to Foster (1965: 301) people living in peasant communities and sharing the Image of the Limited Good may react to threatening circumstances such as a growing shortage of the means of livelihood in one of two ways: "...maximum cooperation and sometimes communism, burying individual differences and placing sanctions against individualism; or extreme individualism. Peasant societies seem always to chose the second alternative". This theory of Foster's is confirmed by processes ongoing in West Africa. Heermann (1981: 125) for instance says that "wealth" has two aspects

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for the Bulsa farmer: on the one hand the Bulsa place a high value upon industry and they aspire to gain wealth for themselves, but on the other hand it "...evokes envy, ill-will, and strife", i.e. forms of behaviour that threaten the traditional solidarity and the system of social security based upon it.

3. LEGAL ASPECTS OF SOCIAL SECURITY

A growing "anomie" of social relations in the Durkheimian sense is a consequence of the fact that traditional subsistence agriculture meets insurmountable frontiers in West Africa. This anomie shows itself, among other things, in the growing number of legal disputes over cultivable land. In former times, the Earth priest watched over the proper use of the land or the earth which is considered as a supernatural force or deity in West African traditional religion (cf. Zwernemann 1968). Quarrels over land were considered to be grave sins and offences aganist the Earth as a supernatural force. The Earth herself punished these and other infractions of her "laws" by killing the evildoer (cf. for the Lyela: Schott 1984: 90 ff.). Nowadays, these restrictions, founded in religious convictions, have lost much of their force. Among the Lyela, I attended numerous sessions of the "Tribunal du 1er degré" at Réo where even old men, brothers or cousins, quarrelled over the right to use land which they had inherited from their common father or grandfather. In former times, one tried to avoid such quarrels which threatened the solidarity of the compound and thereby the social security of its inhabitants, by leaving all essential possessions of the compound, such as land, cattle and barns, undivided in the hands of a single successor to the deceased head of the compound, usually a younger brother of the deceased. This rule was observed, for instance, among the Tallensi. According to Meyer Fortes (1949: 157 ff.) a younger brother "inherits" everything pertaining to the compound: land, cattle, harvest supplies and women - with the exception of his own mother - as well as their children. The dead man's younger brother henceforth is responsible for offering sacrifices to the ancestors, especially to the father of the dead man and of himself. Only the most personal possessions of the dead man which he acquired himself during his lifetime, such as clothes and weapons, go to his eldest son. The same rule applies among the Bulsa: "Only after the death of all the father's brothers will the eldest son be installed as head of the compound" (Heermann 1981: 68; cf. Kroger 1982: 77 ff.) 3 . The head of the compound is considered to be not "proprietor" or "owner" of the goods pertaining to the compound as a whole, but their

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trustee who administers them in the interest of all the inhabitants of the compound. He is responsible also for all those who are unable to feed themselves: the sick and the disabled, the aged and the very young. Ablemagnon (1966: 120) stresses this point for traditional rural societies in Togo by saying that goods were owned as common inheritance and were administered by an elder as a trustee for the use of the other members of his group; in this way there was established "une sorte de sécurité sociale collective". Here again, I want to stress that these legal concepts of West African peoples were derived from religious ideas. Heermann (1981: 67) says on this point with regard to the Bulsa that cows for instance were not considered to be the property of individuals, but to be the common possession of the whole compound: "It is even more correct to label them the possession of the ancestors who demand that they be sacrificed and who can make their blessings subject to their being given such offerings. Traditionally, cows were never sold except in emergencies, or slaughtered, except for sacrifices" (cf. also Kroger 1982: 64 ff., 70, 72 ff.). The head of the compound is responsible to his ancestors for the land and the cattle, but also for all women and children belonging to his compound. The word for "owner" or "possessor" used in the language of the Bulsa and other peoples of this region does not mean, therefore, that the "owner" is free to use the thing lawfully belonging to him according to his own free will. The equivalent to the word "owner" means first of all that he is responsible for a certain thing or person. Nââb-nyono means in the language of the Bulsa: "owner" (nyono) of a cow (nââb), biik-nyono means "owner" of a child (biik). In both cases the word nyono does not mean primarily that the "owner" has full command or control over a thing or a person, but that he is responsible for it towards the community of the living and the dead to which the "owner" belongs. Only in cases of extreme emergency is the "owner" of a herd of cattle, sheep or goats allowed to sell one head of it - for instance, if this is the only means of saving his children from starving. Otherwise the "owner" may be called by his ancestors to their realm of the dead to account for what he has done against the rule of keeping the herd together for the benefit of the whole compound (cf. Schott 1980: 275 ff.; 1981b: 43 ff., 45; Kroger 1982: 70; for the Tallensi: Fortes 1949: 101).

4. SOCIAL SECURITY WITHIN T H E SOLIDARY GROUP (COMPOUND AND CLAN)

The individual's economic interests and legal claims in the traditional societies of West Africa are subordinate to the demands for social security of all members of a group. This maxim does not follow primarily from

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any ethic or moral considerations. Social security against all kinds of calamities is simply a question of to be or not to be for the individual as well as for the social groups forming parts of the larger communities, such as compounds or "villages". However, it is not always easy to answer the question on whom the obligation to render assistance falls and how far this obligation extends. Without any question the "house" or the "compound" forms a cooperative unit in West Africa in the sense that all members belonging to such a community are obliged to help one another. This social unit consists of the male head of the compound, his brothers and sons together with his and their wives and children. This community forms the most important economic, social, legal and cultural unit which cares for the social security of its members. But how far does this solidarity extend beyond this community of life? Among the Lyela for instance the compound (kele) or "domestic group" forms a fundamental social unit composed of several elementary and extended families, usually comprising 30-50 persons, but sometimes up to 100 persons or even more. The heads of several such compounds are related through patrilineal ties; they belong to a patrician or clan-section (kwala). According to P. Bassonon (1982), the whole kwala is responsible for the social security of all its members, and, correlatively, each member is responsible to observe the customs and taboos particular to his kwala, otherwise he will, by infringing the "laws" of his kwala, threaten "the order, the unity, the security, the whole life of his whole community". In contrast to this extended solidarity, among the Bulsa the corresponding social unit, the localized clansection, seems to have had only a subsidiary function in cases of need. Heermann (1981: 39) writes on this point: "The compound formed the primary unit for mutual solidarity and for help in cases of an emergency ... Only when the resources of the whole extended family [i.e., the inhabitants of a compound] have been exhausted, one may approach the other compounds of the subsection or even the section for help." Nowadays, the community of the clan, offering subsidiary solidarity to its members, is disintegrating more and more. The elders are still respected among the Bulsa, but according to Heermann (1981: 51) they hardly dispose of any effective means to enforce their decisions: "Former solidarity has given way to distrust and fear of being taken advantage of or being cheated by other families within the clan." Formerly it was customary for differences in the quantities harvested by each compound to be made even between them in a system of mutual aid; nowadays a compound will sell its surpluses in the market. "If someone asks for help nowadays, he will only be given a very small amount of millet, since it is supposed that he will not be prepared in return to help with the fieldwork."

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In contrast to this, Elwert (1980) states that in the village of Ayizo the obligations of solidarity function beyond the single households. He even says "that the survival of the community as well as the survival of the individual depends on the distributive structure which extends beyond the production of the household" (Elwert 1980: 688, 691). These contradictory statements of ethnographic research workers may reflect variations in customs of distribution and in the extent of social networks. In any case further research in this field is necessary. It certainly seems that obligations that formerly reached beyond the single household or compound have become restricted in modern times. But even in ancient times it is likely that they were resorted to only in a subsidiary manner, i.e. when the smaller social units were not able to cope with an emergency. Fortes has said clearly that the responsibility for the upbringing of children and for the maintenance of the old was restricted to the so-called "innerlineage" within a patrician, i.e. to the members of a group of unilineal descent going back 5-7 generations at most (Fortes 1949: 9, 11). There were thus, at least among the Tallensi, definite limits to the obligation to make provision for needy relatives. One has to beware of romantic ideas of an unlimited fraternity in these societies. It occasionally happens among the Bulsa that a person suffers from need in his father's compound and clan because he has nobody supporting him. Where can that person seek assistance? One informant explained to me that it was very unusual in such a case to seek refuge and support from the relatives of one's wife: "They may help you for a while or he may even stay with them for ever. This, however, is very uncommon and it is considered to be a shame to go to the parents of one's wife and to stay there for good. If you do that, you will be given a room for you and your wife. However, one does not give you good land, but only infertile land which is far away from the wife's parents' compound." On the other hand, among the Bulsa as among many other ethnic groups of the Savannah zone of West Africa, a man maintains a close relationship to the parents of his mother. His mother's brothers, in particular, are obliged to help him if he is in distress, and as a boy he can even take things he likes, such as a chicken or maybe even a sheep or a goat, from his mother's parents' compound without even asking the owners of the goods.

5. SOCIAL SECURITY FOR PARTICULAR PERSONS A N D SOCIAL CATEGORIES

Limitations of space preclude a detailed account of how the traditional system of social security worked for particular persons or categories of persons.

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The obligation to care for needy persons was not dependent on the altruistic feelings and inclinations of individuals; it was, on the contrary, fixed by definite social norms determining who was responsible for the care of whom. Social relations, defined by a kinship system, served, among other things, the purpose of determining in advance the rights and duties of everyone in case of emergencies. Among the Tallensi, for instance, a son is obliged to care not only for his own mother after his father has died, but also for the co-wives of his mother, since otherwise his dead father may curse him from the realm of the dead. A man addresses the co-wives of his mother with the same term for "mother" as for his own mother. It is considered as dulem, morally abject and base, if he lets them starve in the case where they have no sons of their own (Fortes 1949: 219 ff.). Fortes remarks on the Tallensi that a "... chief economic asset in old age (and this applies to sickness too) lies in the possession of sons, best of all, own sons ... Tallensi say that one of the reasons why sons are preferred to daughters is because they will farm for one when one is old. Women are even more apt than men to emphasize the insurance value of sons just because they are more dependent on a son's sense of moral obligation to care for them" (Fortes 1949: 217). Concerning help for needy old people, one may speak of a "contract between generations" (Generationenvertrag): middle-aged men and women who are able to work, care for members of the young generation who are not yet able to work as well as for the old who are no longer able to work. Over a period of time, mutual aid on a basis of reciprocity operates through this "contract between generations". Old people in West African societies are well aware of the fact that formerly they have worked for their children and therefore they are entitled to be supported by them in old age. The social security of wives married into their husband's clan is threatened by the fact that they remain strangers in that clan. As women and strangers their rights are limited. In case of maltreatment, repudiation or divorce a woman may return to her father's compound, but in that event she has to leave her children behind with her husband's family. The social position of a woman in her husband's clan depends very much on whether she has borne children, especially sons. The childless woman suffers a lot for her incapacity to bear children. In some African societies childless women may themselves marry women who will bear children for them. In Gabun for instance this custom is quite common, as Nguema says: "Une femme peut très bien épouser une femme, la première devenant l'époux, la deuxième l'épouse" (Nguema 1981: 66). The man cohabiting with the "wife" of such a marriage is only the "genitor" of the children, who are considered the lawful children of the woman who has contracted the marriage with the mother; in some ethnic groups she

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even pays bridewealth for her (cf. Tietmeyer 1985). This custom of "gynaegamy" has also to be viewed in relation to relief in old age. Social security of widows is assured in many African societies by the custom of widow-marriage, whereby one of the brothers or sons of the dead man takes over responsibility for his wife or wives. Indeed, a marriage, according to the concepts prevalent in Africa, does not come to an end with the husband's death, but is continued by one of his brothers or sons. Bassonon (1982) expresses this for the Lyela thus: "L'époux est mort, mais le mariage n'est pas mort". In practice, this solution is not always effected. On the 3rd and 10th March 1983 I attended the court sessions of the "Tribunal du 1er degré" in Rèo, the administrative capital of the Lyela. At these sessions a woman sued her dead husband's brother for maintenance of herself and her children. The dead husband had left many valuable goods - cattle, a motorbike, a bicycle and other things - which his brother had "eaten", i.e. sold without giving any of the money to the widow for her support and for that of her children. The president of the court told the woman that according to "droit coutumier" (customary law) the dead man's younger brother had a right to all his deceased brother's goods and that the wife left behind had no right whatsoever to them. What the president "forgot" to say was that in olden times the younger brother "inherited" also all the responsibilities and duties towards the wife and the children left by his dead brother. Among the Bulsa, the widows may chose in a special ceremony the "brothers" or "sons" of their deceased husband with whom they want to continue their marriage (cf. Kroger 1978: 291 ff.). An elderly woman past the age of child-bearing may declare on this occasion that she does not want to re-marry, but that she wants "to sit behind the back of her son", usually the youngest son. Henceforth, he will have the duty of maintaining her (cf. Schott 1970: 20). The fate of orphans leaves much to be desired in many West African societies. Even though a dead man's younger brother who has remarried the widow will be addressed as "father" by her children, they do not have the same position as his proper children. The norms and demands of custom and actual practice seem to diverge considerably with respect to the treatment of orphans. A child whose mother has died is in a particularly bad position. Among the Tallensi, for instance, a co-wife of the dead mother is expected to care for the orphan, but: "A woman can not have the same feelings towards her co-wife's child as towards her own child. The lot of an orphan, Tallensi say, even in a household full of women, is always a hard one. An orphan never receives the devoted attention and the selfless love which can be given only by his own mother. It has to depend upon the mercy and

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the sense of duty of women who are his mothers only in name" (Fortes 1949: 130). The Lyela have many sayings and proverbs referring to orphans. An example is: "The forgotten orphan coughs slightly". This saying, according to Nicolas (1950: 101), refers to the way in which the Lyela share out food at meals: "...the children take their meals in their mother's house; adults are served first. Porridge of millet, sauce, and meat, if available, go from the eldest to the youngest. The orphan living in the house of a woman who is not his mother, may easily be excepted; it does not dare to announce its presence, except by coughing slightly." Another saying is that "the orphaned child does not eat at all", i.e. since even a woman's own children are the last to receive their share of the food, the orphan's risk of being left with an empty stomach is even greater. Sick persons are provided for by their relatives in the compound with food, shelter and care. Among the Bulsa, all inhabitants of the compound are responsible for the care of a sick person. According to Dr. Franz Kroger (communication by letter) it is not necessarily the closest relative who will look after the sick person, but the relative who is best suited to do the nursing. Sometimes the tasks of nursing are divided between several persons: one may be responsible for the transport of the sick person, another for his daily bath, another for his medicaments, and so on. The sick person lies in his own compartment of the compound; the same woman who has prepared the meals for him before, will continue to do so after he has fallen ill. If a woman falls ill, a co-wife will cook for her. The Bulsa have a saying: "A leper dances among his relatives", i.e. he feels so well in his own family that he is not too shy to dance although it looks funny if he tries to dance with his mutilated members (F. Kroger, coramun.). Particular care is given to blind people among the Bulsa. An adult blind person will be led by a stick held at one end by the blind person and at the other one by some boy or girl who accompanies the blind person wherever he or she goes. Everyone can be hit by the fate of turning blind; the epidemic disease called "river blindness" (onchocerciasis) is very frequent near flowing waters in this region. Mentally ill persons occupy a special position in West African societies. Among the Bulsa and other peoples of the savannah region many of them wander begging from market to market. They wear special clothes, sewn together from rags; some of them go stark naked, showing their special status in this way. It is dangerous to refuse a gift to a lunatic person: he or she may curse the niggard. The mentally deranged persons are thought by the Bulsa to be possessed by spirits, especially by tree spirits, or to be spirits or monsters (kikita) themselves. The Lyela believe that they are witches. Among the Bulsa those insane persons who are a public danger

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are restrained by having a log clamped onto one leg. In this way they can still move about in their compartment, but they cannot climb the walls separating it from the inner yard of the compound. Thus, the insane are barred from going outside the compound, but they are not locked up completely. They will be provided with food and water by their nearest relatives (Dr. F. Kröger, communication by letter). "The red (= setting) sun discourages the beggar", runs a saying with the Lyela (Nicolas 1950: 106), i.e. he has not found a resting place for the night in time. On the other hand, among the Bulsa, a beggar, going about from compound to compound, must not be refused a gift, however small, for he may be the High God (Nawen), disguised as a beggar or a leper (cf. Schott 1981: 195 ff.). In sum, in traditional West African society the nuclear and the extended family care fo all their weak and needy members. It remains an open question how far the obligations to help persons from outside one's own family and compound extend. According to P. Bayili (1983) it was the duty of the Earth priest in every Lyela "village", "to offer protection for the weak women and children; they always found an inviolable refuge with him whem they came and succeeded in reaching the 'House of the Earth' or the altar of the Earth". The "unproductive members" of a compound were always cared for by the other inhabitants, although this care was sometimes restricted to supplying them with the bare necessities of life. P. Bassonon (1982), another native of Lyela country, expresses it thus: "... the widows, the barren, the impotent [both men and women], the orphans, the fatherless children, the sick, the small children, the aged persons - in short, all weak and diabled persons - were taken care of thanks to this community of life by the whole family and they enjoyed the protection of their ancestors."

6. THE PRESENT-DAY CRISIS OF THE TRADITIONAL SYSTEM OF SOCIAL SECURITY

The traditional system described in the preceding paragraphs is now in crisis. It is attacked from several sides. I have mentioned already that one of the most important economic preconditions for its functioning a relatively secure supply of the economic units with goods (both material goods and services) above the level necessary to sustain the bare existence of their members - is no longer present. In many cases, especially in the droughtstricken areas of West Africa, it is no longer possible to produce a surplus of food to cater for the needs of "unproductive" members of society. The traditional mode of production in a subsistence economy nowadays

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reaches its limits in many respects. The arable soil is becoming scarce and is over-exploited by a population exploding in numbers. On the other hand, working hands are moving away, migrating to (apparently) more favoured regions. If there are any surpluses, and often if there are none, the little "wealth" which the rural population produces by its hard efforts is drained off in state taxation or in buying unproductive luxury goods. Thé money for these expenditures is obtained by selling goods like cattle which were formerly under the custody of the head of the compound, who administered them for the common good. The individualisation and monetarisation of property in cattle, and also in the harvested yields of the staple food crops, such as millet, have led to a splitting up of fields and a reduction in the size of the basic economic unit, the compound. In consequence, the number of working hands ensuring a smooth working of the traditional system of social security by spreading risks - the failure of crops, illnesss, death, etc. - over a great number of heads, has declined. Just as important and responsible for fundamental changes in the traditional economic and social order is the weakening of the traditional belief in the sanctions meted out by supernatural agencies such as the ancestors and the Earth, against those who violated the norms of sharing with others. All this has affected the traditional system of social security, and this again has repercussions on the economic and social behaviour of the individuals living in this system. Throughout Africa south of the Sahara there is observable an upsurge of witchcraft accusations, reflecting the general economic and social insecurity reigning in this continent. Witchcraft accusations affect in particular those social relations which were precarious even in olden times, such as those between half-brothers, between co-wives or between a woman married into her husband's family and her parents-in-law (cf. Cohen 1979: 96 ff.). Another sign of growing insecurity and tension in social relations is shown in the growing number of accusations of theft even between close neighbours. There is, of course, in Africa as elsewhere, a tendency to see the past in a golden light. But it may well be that social anomie in the Durkheimian sense, marked by an increase in antisocial behaviour like theft, has its factual basis and cause in a weakening of the bonds of solidarity. Complaints about the increase in the number of thefts even of basic foodstuffs between neighbouring compounds and even within compounds were aired by many people I met when staying with the Lyela in Burkina Faso in the years 1982-84. Theft, as well as adultery, within the group of classificatory "brothers', is considered to be a very severe offence against group solidarity. In Togo, Elwert had the same experience: "The Ayizo are of the opinion that the phenomenon of theft is the most distinct

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phenomenon marking the general crumbling of the traditional solidarity" (Elwert 1980: 700). The creation of new economic and social roles, that did not exist in the traditional social system, such as those of soldier, policeman, and nightwatchman, but also of teacher, nurse and catechist, has brought forth, as Heermann (1981: 50) remarks for the Bulsa, alternatives, though frequently of an illusory character, to the traditional social security system: "The individual was enabled in this way to gain his livelihood outside his family and the rights to family land." The European school, established in most cases by Christian missionaries, "confronted the younger people with values outside the traditional organisation" of society. Many elderly people complain that the youth are no longer ready to listen to them and to take their advice, "... and they refuse to participate in traditional works." (Heermann, id.). This changed attitude towards people of the old generation leads the children to refuse to participate in a system of social security which was and is essentially based on the give-and-take of reciprocal services and exchanges of goods. Those who have "opted out" of the traditional system of production by becoming migrant workers or salaried employees of the State, the Church or private firms, are especially in many cases no longer prepared to recognize and meet obligations of mutual help towards an extended circle of relatives. However, it must be noted also that many people who have moved off to town still recognize their duties towards their parents and other relatives in their rural home-village or "home-town". This is due to the fact that, except for a few happy ones who receive a regular salary, there is practically as yet no functioning modern system of social security. In case of emergencies such as sickness, invalidity or old age, most people in West African towns still rely on the help of their relatives living as farmers in rural areas. Tardits (1966: 185) found in Porto-Novo, Bénin, that the "educated", literate class of people tended to maintain relations with their illiterate relatives even within town. Tardits ascribes this to the fact that many literate people continue to adhere to the practice of polygamous marriages: "La situation matrimoniale actuelle tend à maintenir, pour près de la moitié de la population masculine lettrée et mariée, les relations traditionnelles d'entraide à l'égard des alliés... [Aussi] d'autres données attestent le souci qu'ont les générations lettrées de maintenir les rapports traditionnels" (Tardits 1966: 191 ff.). Heermann (1981: 127) has remarked upon disparities between the expectations of those who hope to profit one day from the traditional system of social security and their readiness to sacrifice at least a part of their income for it. Disparities in the distribution of wealth even within one compound, due to the greater efforts a n d / o r fortunate circumstances favouring one family as against others, have led to the curious fact that

104 R. Schott the families and individuals seeing themselves at a disadvantage will stress the traditional obligations of the "rich" against the " p o o r " even more than was customary in olden times. This makes the favoured ones hide their "riches". The whole atmosphere is poisoned by this behaviour of "hide-and-seek", creating mistrust and envy among people who should behave in a manner promoting solidarity and mutual help. Among the Lyela I observed some young men who had returned from the South without a penny and who lived as true parasites out of the meagre resources of their hardworking fathers or even mothers. Many bitter conflicts between close relatives result from these disparities. Meyer Fortes observed these effects of the young peoples' migration to towns as long ago as during the thirties among the Tallensi in the North of Ghana. At that time the strict norm that a son had to care for the maintenance of his father when the latter reached old age was still valid. The long absence of sons in towns created economic and social problems for the old people left behind in the country side. The latter did not so much criticize the young, able-bodied men for the fact that they did not send home money gained in the towns - they "tend to regard the occasional remittances that are sent home as windfalls. Absentee sons are censured rather for deserting their parents, for leaving them without the companionship and the social support of a son" (Fortes 1949: 218). More recently, Michael Franke has investigated the "perception of migrant work" among the Tallensi. He comes to the conclusion that "... the old fear not to be able to produce enough foodstuff for those who remain behind. Here we can recognize the main apprehension of the old: the securing of their existence" (Franke 1979: 144). According to a preliminary report of Sabine Steinbrich (1986: 17 ff.) who carried out ethnographic fieldwork in Sanje, a village of the Lyela in Burkina Faso from the middle of 1982 to the beginning of 1984, the massive migration of men formerly to Ghana, nowadays to the Ivory Coast, has burdened the women with types of work in the fields which in precolonial times fell exclusively to the men. In addition to their heavy duties as housewives to prepare the daily meals of millet porridge and to fetch water and firewood for this purpose, they have to take their hoes to work their millet fields. I myself have repeatedly seen old and even very old women doing the heavy work of sowing and weeding with the hoe on their fields, - otherwise they would have starved and, maybe, starved to death because they had no one who cared for them. Even those young vigorous men who remain behind in the villages tend to neglect their traditional duties of working the family fields for the benefit of their old parents and relatives; instead they form labour groups which work together on common fields growing cash crops which they can sell in the market. This "development" is even actively supported and en-

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couraged by the regional State organization responsible for rural development projects. The profits made from the sale of cash crops, such as ground nuts or cotton, go into the pockets of the able-bodied members of the work group. Old and weak people who cannot or will not become members of such a work group will have to toil on their fields to gain their own livelihood and that of their families, maybe even for those who earn money for themselves by growing cash crops and who at the same time neglect work on their family fields. Finally, one has to point out that the legislation and jurisdiction of the modern African states does not in any way concern itself with the social security of the rural population. At least in Burkina Faso, formerly Upper Volta, the State social security scheme does not recognise the status of widows and orphans from marriages that have been concluded according to customary law. Unless they have been formally registered by some state authority, the widows and orphans of a deceased bread-winner will not receive anything out of the pension due to them from the State insurance scheme. The only "concession" modern social insurance legislation makes to the traditional concept of extended, polygamous families is the law that the widows whose marriages were registered have to share between them the insurance sum paid to them for their dead husband. Polygamous marriages, though legally recognized in former Upper Volta, were and are definitely placed at a disadvantage in comparison with monogamous marriages, although many polygamous marriages result from "widowmarriages", i.e. those arising from the obligation of a younger brother to care for the widow(s) and orphan(s) left behind by his deceased elder brother (cf. République de Haute-Volta 1972, Art. 54,1 a; 62, 2 a). Modern social legislation thus contributes to the destruction of the traditional system of social security. This system is still, for the vast majority of the population in West Africa, the urban population included, the only system of social security that works at least to a certain extent.

NOTES 1. On 8th January 1975 I observed myself in Sandema, capital of the Bulsa district, how an old man, head of a compound, sacrificed only a bit of millet-porridge to his ancestors after all his chickens had died. He told his ancestors that it was their own fault that they did not receive any meat on this occasion; they should see to it that his fowl multiplied again, then they would receive meat once more. 2. I myself conducted ethnographic fieldwork among the Bulsa in the Upper Region of Ghana from September 1966 to March 1967 and agian from October 1974 to March 1975, and among the Lyela in Upper Volta (now Burkina Faso) from August 1982 until September 1983 as well as in February and March 1984 (cf. Schott 1970: 1981a). My former students, Dr. Franz Kroger (cf. Kroger 1978; 1982) and Dr. Ingrid Heermann (cf. Heermann 1981)

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carried out their own fieldwork among the Bulsa in later years; the present article relies very much on their findings, especially on those of Dr. Heermann. 3. This order of succession does not according to Kroger(loc. cit.) apply to the "office" of the eldest of a patrilineage which is connected with the shrine (bogluk) of the original (apical) ancestor of that lineage. This office "circulates" through the whole lineage according to an order of succession favouring the eldest son of the most senior lineage-segment.

REFERENCES Ablemagnon, F.N'sougan 1966 "Masses et élites en Afrique Noire: Le Cas du Togo." In: P.C. Lylod (ed.): The New Elites of Tropical Africa, p. 118-125, London. Bassonon, André-Jules 1982 Approche de l'alliance matrimoniale chez les Lyœlé (unpublished manuscript). Bayili, Emmanuel 1983 Les populations Nord-Nuna [Lyéla] (Haute-Volta) dès origines à 1920. (unpublished manuscript). Cohen, Abner 1979 Political Symbolism. Annual Review of Anthropology 8: 87-113. Elwert, Georg 1980 Die Elemente der traditionellen Solidarität. Eine Fallstudie in Westafrika. Kölner Zeitschrift für Soziologie und Sozialpsychologie, Heft 4/1980: 681-703. Fortes, Meyer 1949 The Web of Kinship among the Tallensi. London. Foster, George M. 1965 Peasant Society and the Image of the Limited Good. American Anthropologist 67: 293-315. Franke, Michael 1979 Perception von Wanderarbeit bei bäuerlichen Tallensi. Sociologus, N.F.,29: 132-148. Heermann, Ingrid 1981 Subsistenz- und Marktwirtschaft im Wandel-Wirtschaftsethnologische Forschungen bei den Bulsa in Nord-Ghana. Kulturanthropologische Studien Bd. 2, Hohenschäftlarn. Kröger, Franz 1978 Übergangsriten im Wandel - Kindheit, Reife und Heirat bei den Bulsa in Nord-Ghana. Kulturanthropologische Studien Bd. 1, Hohenschäftlarn bei München. Kröger, Franz 1982 Ancestor Worship among the Bulsa of Northern Ghana - Religious, Social and Economic Aspects. Kulturanthropologische Studien Bd. 9, Hohenschäftlarn. Nicolas, François J. 1950 Les surnoms-devises des L'eia de la Haute-Volta (A.O.F.). In: Anthropos 45: 81-118. République de Haute Volta 1972 Code de sécurité sociale de Haute-Volta (Loi No. 1372 an du 28-12-72). Caisse Nationale de Sécurité Sociale, Ouagadougou. Schott, Rüdiger 1970 A us Leben und Dichtung eines westafrikanischen Bauernvolkes - Ergebnisse völkerkundlicher Forschungen bei den Bulsa in Nord-Ghana 1966/67. Köln und Opladen. Schott, Rüdiger 1980 "Triviales und Transzendentes: Einige Aspekte afrikanischer Rechtstraditionen unter besonderer Berücksichtigung der Bulsa in Nord-Ghana." Wolfgang Fikentscher et al. (eds.), Historische Anthropologie, 2: 265-301, Freiburg i. Br. and Munich. Schott, Rüdiger 1981a "Vengeance and Violence among the Bulsa of Northern G h a n a . " In: Raymond Verdier (ed.) La vengeance, 1: 167-199, Paris. Schott, Rüdiger 1981b "Märkte und Menschen in der Savanne - Entwicklungsprobleme in Nordghana." In Leben am Rande der Sahara, Bundesministerium für wirtschaftliche Zusammenarbeit in Verbindung mit dem Rautenstrauch - Joest Museum, Cologne, p. 38-51. Schott, Rüdiger 1984 Contrôle social et sanctions chez les Lyéla de Burkina Faso (HauteVolta). Droit et Cultures 8: 87-103. Steinbrich, Sabine 1986 "Arbeit hebt nicht den sozialen Status - Zur Rolle der Frau bei den Lyela." In: Forschung - Mitteilungen der D F G , No. 1/86, p. 19-21, Weinheim.

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Africa

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Tardits, Claude 1966 Parente et classe sociale ä Porto-Novo. In: P.C. Lloyd (ed.) The New Elites in Tropical Africa, p. 184-198, London. Tietmeyer, Elisabeth 1985 Frauen heiraten Frauen - Studien zur Gynaegamie in Afrika. Kulturanthropologische Studien Bd. 11, Hohenschäftlarn. Zwernemann, Jürgen 1968 Die Erde in Vorstellungswelt und Kultpraktiken der sudanischen Völker, Berlin.

Changing Relations Between Traditional and State Social Security in Taiwan Chang Chih-Ming

In the first section of my paper, I will set out the original principles of the traditional Chinese security system and their specific implementation. Using this as a basis, I will then in the second section show the relationship of interdependence existing between the traditional and the state social security systems.

T H E T R A D I T I O N A L SOCIAL SECURITY SYSTEM

Social security systems have existed at all times in history and in all places, and ancient China was no exception. When people through awareness of past conditions initiate reciprocal security measures, they thereby organize a system of social security. To be sure, in older and simpler archaic societies the social security system was for the most part not differentiated from the society itself (Luhmann 1975:9). This should not prevent us from trying to econstruct such a system, and its functions, using modern categories. It is not my intention here to develop a whole "medium range theory" of the typical "formal" structure of social security systems in traditonal China. I rather shall seek to demonstrate selectively a few important principles which I consider to be the basis of the traditional social security system and in this way present its aims and way of functioning. For this purpose, it is of assistance to note the examples used by the Chinese as guidelines. There was indeed no lack of planning concepts in the past, a fact which testifies to the aspirations of the Chinese for an ideal society. One of the most commonly cited writings, which was binding for all rulers regardless of dynasty, has been handed down to us in the LI-CHI (Book of Rites): "When the great principle prevails the world is a commonwealth. Officials are selected according to their virtue and capacity; mutual trust is upheld and good neighbourliness cultivated. Hence, men do not regard as parents only their own parents, nor do they treat as children only their own children. The aged are cared for until the end of their life, the able-bodied employed, the young brought up, and all the widows and widowers, orphans and the childless, as well as the sick and the invalid are looked after. Men have their respective occupations and women their homes. While they are reluctant to Between Kinship and the State (F. von Benda-Beckmann © 1988 Foris Publications

et al.)

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see resources lying idle on earth, they nevertheless have no cause to keep them for their private interests; while indolence is deplored lack of self-effort, effort should not be exerted merely for personal purposes. In this way, selfish schemings are repressed, along with robbers, thieves and other lawless elements, out of existence. There is no need for people to shut their outer doors and this is called the great cosmopolitanism" (Hsiao 1977:67).

Since the Great Cosmopolitanism, a condition which the Chinese are committed to regaining, had been lost for the time being, in the interim the goal called Lesser Cosmopolitanism was to be achieved. Under his/ her prince's rule, everyone was to care for his/her parents and children, and correct relationships between monarch and official, father and son, brothers and sisters, husband and wife were to be defined by LI (mores) and I (justice). It should be noticed how often relationships between various family members are emphasized, be it in the state of Great Cosmopolitanism or in the period of transition. The family has indeed always played the most important role in China's social order. Therefore, it was not surprising that the family (in the sense of CHIA) was the most basic form of social security organization. For most periods of China's history we can roughly divide social security into three levels of organization: family (meaning CHIA), "society" and state (Liu 1977: 745). To make this clear, I will differentiate between the categorical term "family" and the different family units. I will refer to CHIA as family when an economic and household unit based on family ties, and usually patrilocal, is meant. The number of persons or generations living in CHIA is irrelevant. It only matters that someone lives in the same household over a long period of time. The historical ideal is that of "five generations in one household". In reality the family consisted of between two and four generations. When CHUNG-TZU is used for family, the sum of all paternal kinship is meant. Depending on the actual conditions, CHUNG- TZU can show stronger or weaker degrees of cohesion. When CHIA- CHU is used for a family it corresponds best to the term "extended family". CHIA-CHU can be extended on three sides: it is possible to include the father's kin, the mother's kin, and the wife's kin. According to general opinion, the extension is limited to kin up to the third generation (Huang 1969: 295). When I referred to the family as a level of organization, I was speaking of CHIA which is the supporting pillar of China's security system. Since CHIA is at the same time an economic as well as a household unit, every CHIA member is responsible for its cohesion. The rules describing precisely what these duties are and how they are to be performed are called LI (a term which I will discuss later). Obedience to these rules is watched over by the head member of the CHIA. Of prime importance is the maintenance of CHIA, whose value was at the latest established in social

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theory and philosophy at the time of Confucius (551-479 BC). The right and duty of members to receive and to provide security were then determined. A member of such a security organization must either comply with the rules or terminate their responsibility by leaving the CHIA. With regard to the relationship between the state and family organization, it can be said that state interference in the private life of the citizen was not common in ancient China. The citizens for the most part owed taxes and, in times of war, military service to the state. Consequently, the state's activities concerning social security were reduced to emergency measures, whereby the government attempted to alleviate the consequences of natural catstrophes (such as drought, flooding and grasshoppers) or war, Thus, there existed from the time of HAN-Dynasty the "CHANG-PINGC H A N G " (lit. storehouse of eternal peace) by which the state bought and stored grain in times of a rich harvest and when the harvest was poor either lent or gave away the store, depending on the objective degree of the catastrophe and the extent of the subjective need. From the time of the North-CHI-Dynasty, in the case of a good harvest a special social tax in kind was raised, for which an I-CHANG (lit. storehouse of righteousness) was established (Liu 1977: 746). Security measures, responsibility for which was allotted neither to the CHIA as economic and household unit, nor to the state, were to be subsumed under institutions on the level of society. They can be classified in three groups: 1. Security institutions based on family ties: CHUNG-TZU and I- CHUANG. CHUNG-TZU, translated as Temple of the Ancestors (of the CHUNG-TZU), was first conceived of for the purpose of worshipping common ancestors of a CHUNG-TZU in an adequate way according to LI. This was transformed in the course of time into a kind of fund of the CHUNG-TZU and also assumed the responsibility for providing social security for its members. More detailed rules concerning organization, e.g. on the contribution required from every individual JIA, were set forth as private statutes. The I- C H U A N G came into being in the SUNG-Dynasty and differed from the CHUNG-TZU mostly by its mode of financing which was through voluntary donations from wealthy members of the CHUNGTZU. 2. Compatriot security institutions: These were originally founded by merchants who came from the same native place and lived in the same place of business, for the purpose of helping their city of residence by means of contributions. Towards the end of the MING-Dynasty, their functions were extended to making provision for all persons of one particular native area living in the same city. Compatriot organizations

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came into being everywhere. Since the time of the CHING-Dynasty there were in the imperial city of Peking provincial organizations; in almost every provincial capital there were local organizations. 3. Charitable institutions: Along with the other two institutions already mentioned, there were other private, less organized institutions for charitable purposes, which, however, I will not describe in detail. What are the essential features of the social security organizations of traditional China other than the central role of the family, and of the CHIA in particular? Perhaps the question itself implies the answer: the prime essential feature of the social security system was its family-centered structure. That the structural organization of the traditional security system centered mainly around the family is not so surprising when one considers that the security organization of the level of the entire society, aside from "informal" private charities and compatriot organizations, was actually an extended family security. The citizens were Tsi-Min (children-citizens) of the emperor (father-monarch) (Xing 1982: 29), as the relationship was considered in early political theory, and thus supportive measures of state security might be regarded also as forms of family security, which the head of the family provided for its members. It is now necessary for our understanding to take a look at the social theory of traditional China. I will try to explain this with only a few references. 1. As opposed to other intellectual currents such as Taoism or the Legalists, Confucianism dominated from the time of the HAN- dynasty, and has been ever since the basis for the ruling ideology. 2. The four Confucian principles which are important for an understanding of the form of the traditional security system are REN, HSIAO, TI and LI. Each of these words has its own connotations, which are difficult to translate with a single English word (Lin 1977: 172). a. REN in Chinese is related to the word for man or human and means something like the love for another arising from the love of oneself. It is the point of departure for political thought and is the basis of the concrete political injunctions of Confucius. It is the only mode of legitimation for political rule. Anyone who intends to rule according to REN is referred to a process of steps he must first prove that he is able to educate himself, then establish harmony and order in CHIA, and finally govern the state. Only in this way does he have the possibility of creating peace and harmony "under the heavens" (Hsiao 1977: 67). One is to educate oneself according

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to the principles of REN within the family, principles which involve HSIAO and TI. Here the importance of the family concept becomes apparent again. The whole world is nothing more than a family, with the emperor at the top as son of Heaven and at the same time father of all citizens. b. HSIAO and TI: According to Confucius the human order is by nature unequal, in the sense that everyone according to sex, position within the family or other community, age or abilities has a specific task to perform (Kao 1978: 14). This inequality was justified by the Master in the following anthropogenetic example. It is said that, in their contemplation of nature, the saints and sages of the precultural era found a cosmic harmony, in spite of the differences between heavenly bodies. Following from this, human society was to be designed according to the living example of "eternity in changing", "order in motion". The prerequisite for this was that every individual be brought into a relationship to others according to nature - a so-called "prestabilized harmony" - and that he/she should act accordingly (Chang 1986). Confucius begins with the most elementary, natural human relations, such as those between husband and wife, father and son, and siblings. It is in this context that HSIAO (attitudes of children towards parents) and TI (characterizing the relationship between siblings) have their elementary meanings. HSIAO is similar to filial piety and has TZU (parental benevolent affection) as its correlate. TI prescribes that elder siblings are to care for their younger siblings in a benevolent way (YO) and that the latter should in turn show honest veneration (Kin 1979:64). These basic attitudes do not only apply to the relations between father and son and siblings, but are to be applied to all human relationships, which are all defined as analogous to the one or the other type of basic relations (Chang 1986: 43). c. Li's function is to determine concrete norms for behaviour according to the basic attitudes prescribed for every situation in human relations (Liu 1977: 74b). Originating in the rites for religious ceremonies, LI has assumed a more important function in terms of what is referred to as the idea of LI. And it is this idea of LI (which is sometimes interpreted as the Chinese counterpart to the lex naturalis) (Kao 1966:202) which has ruled the private sphere of Chinese life for centuries. Of course, the Confucians also had laws, and even after they had begun their campaign against the Legalists they made laws concerning administration and penal measures. However, they discarded laws basically because of their "nonpreventive" character. They wanted LI to rule in the private sphere (apart from the registration of certain deeds in a penal law book, cf. e.g. Art. 6 of the Penal Code of Tang), including the field of family security.

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Chih-Ming

It is important to understand that this complex of ideas (which for the purpose of discussion I have to separate from the totality of Confucian ethics - a process which would normally be unjustifiable) backed up and supported the traditional security system to an extent that has enabled it to survive up to the present. Political actors are required to realize the idea of REN step by step within the political order, which means the transfer of Confucian family ethics to public life (Hsiao 1977: 67). These ethical values based on the principle of LI prescribe the reciprocal attitudes which produce correct behaviour among family members, starting with the closest father-son and sibling relationship. For LI provides the main norms for private life in traditional China. In this context the idea of LI has had consequences for the private sphere. It was responsible for the fact that at the beginning of this century the Chinese were not familiair with the concept of (legal) rights. The working of LI as opposed to law can be depicted by an analogical formula in the modern Sociology of Law: LI consists of the counterfactual, external expectations reinforced by public approval (Confucian ethics), which the ego applies to itself in anticipation of the expectation of the alter-ego. LI is more than ethics because it prescribes concrete behaviour in concrete situations which, when ignored, brings on public contempt and often sanctions from corresponding familial, social or state institutions also. In this sense, LI is not a legal norm either, which one could use to prove he/she is "in the right" thus enabling him/her to justify his/her ends, since one's expectations are not the basis for LI. LI almost acts as a demand upon oneself. In the end, it enables one to know that one has acted according to LI. It is this LI which, together with the idea of REN, HSIAO and TI, has handed down the social security system to this day. Of course, sometimes members of CHIA refused to perform their duties. It was in accordance with LI (and based on HSIAO, TI or REN) that the next closest member took on responsibility for the neglected duties. Punishment of the negligent member was generally left to the penal law book, if it happened to include any provision relevant to the case. This traditional security system was not always successful, as can be readily seen from the history of civil wars in China since the 1920s. Yet I would claim that the main ideas are even today, 36 years after the introduction of a modern social security system in Taiwan (R.O.C.) still being handed down in the traditional manner and are highly effective.

RELATIONS BETWEEN TRADITIONAL AND STATE SOCIAL SECURITY

In Taiwan today every citizen is covered by the state social security network in one way or another. Coverage may be provided by the social insurance

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systems, by non-contributory security systems operative for different sectors of the population, or, if none of these applies, by a specially designed promotion system, or, finally, by the general social assistance system (see tables 1 and 2). However, this state social security system did not come into being overnight. It was the product of approximately 40 years of social policy planning (see table 3), the extension of which is at present still causing heated discussion. We cannot say for sure which factors in particular are to be given credit for the origin of this social security system, the first programs of which -Workmen's and Soldiers'Insurance - were introduced at a time in which the situation of the country was characterized by military defeat and political instability, as well as by an influx of more than a million fugitive soldiers and civilians. The necessity for the country to industrialize, which was then becoming evident, was an additional factor for its further development. Since the country has made such great economic progress in the last four decades, with the result that it can hardly still be called a developing country, many consider the organization of a modern, western-style social security system to be an inevitable consequence of its socio-economic and political- cultural development. The dates when specific social security programs were introduced and expanded in Taiwan coincided largely with a period in which the following revolutionary changes among others affecting the whole society could be observed (Chan 1979). 1. Economic growth and increase of the per capita GNP, 2. Increasing intenventionism by state policies, 3. Extension and spread of political elections, 4. Heightened education of citizens and their increasing participation in the political process, 5. Change in the demographic structure, 6. Rise in the number of wage- and salary-earners, particularly in the working-class, 7. Growing urbanization and mobility, 8. Improved medical facilities and increased life expectancy. This lit of developments, selected to fit the patterns of explanation found in western theories of the development of the welfare state, suggests what may have been the reasons behind social political activities. However, it says hardly anything about their implementation or the functioning of the state social security system in its different stages of development. In all probability, more than a few empirical studies will be necessary for a comprehensive understanding of this development in the last 40 years. Here I can only reconstruct an outline of this development with the help of some heuristic theses.

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1. The first thesis, which I take as my starting point, is that, in spite of the radical social change just mentioned, practices founded upon basic ideas of the traditional security system remain, to a remarkable extent, intact in the family of today. This thesis is based on the fact that, although a state social security system operates effectively, the traditional security system still plays a main part. This traditional security system has, over the whole period of economic growth in the last four decades, not only contributed a complementary "informal" function to the total security system, but, even more, has been at times for most people the principal, and for many the only, security system. I infer this from the concurrence of the following indications: a. Even today, when the average household size has been reduced to five members by the above mentioned social changes, it is widely the case that it is supported by the income of several members, who, because of the broad social homogeneity, are frequently engaged in different occupations. Of course, this phenomenon is no longer the rule. But for more than three million employees (out of a total employed population of 7.07 m.) who receive no significant protection from the social insurance programs, the family is still a source of security which not only protects them from becoming victims but also provides better protection than the general assistance system (poor relief) of the state. b. It may be assumed that the state social security benefits have often been insufficient for those who do have access to a social security program. This may be explained by reference to the development of the extent and size of benefits under the Workmen's Insurance (table 4). When founded in March 1950, Workmen's Insurance covered only Maternity, Invalidity, Old Age, Death of Dependant, and Death of the insured with surviving dependants. The payments provided were very limited. Though this program has been continuously expanded up to the present, the payment schemes are still insufficient. It could be said that, until the enactment of the Labour Standard Law, which makes the employer primarily responsible for the typical risks in the life sphere of the workers, the majority did not recieve adequate assistance from the state Workmen's Insurance. c. It may also be assumed that in general the capacity of the different state social security systems is still inadequate. When asked how they evaluated their standard of living, 50% of the interviewed workers from Taipei-District replied that they considered their standard of living to be approximately as high as that in Europe or the USA. At the same time, another inquiry showed that more than 65% of the workers asked were

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dissatisfied with their insurance benefits as a whole (Chang 1986: 43). These results may be more clearly understood in light of the fact that the traditional security system can be relied upon, whenever the state insurance payment is insufficient. 2. My second thesis is that today the traditional and state social security systems complement each other in such a way that there is no certain answer to the question, which system is the "formal" and which the "informal" one. Let me recall the situation at the founding of the state social security system in Taiwan and let me take again the example of Workman's Insurance. When this was introduced in 1950, it would have been pointless to regard it as the "formal" security system, because of its limited volume of benefits. If it is also taken into consideration that the number of insured workers was less than 40, 000 and that there was no insurance program for the other groups of the population (excepting that for Soldiers) until 1958, this term may be seen to be even more obviously misleading. The first social security measures to be introduced did of course meet a need. Nevertheless, they had only the limited function of partially easing the pressure on the family in case of an emergency. They were therefore "informal" measures from the viewpoint of the entire, actually functioning social security system. Since that time state social security provision has been gradually increased, with respect not only to the categories of insured persons, but also the benefits offered. Therefore it now acts as an independent security system for more and more people and gives them protection to a greater extent. 3. With this thought I have arrived at the third thesis: that the existence of the traditional security system is slowly but surely being weakened by the establishment of the state social security system. Although I suggest that the basic ideas of the traditional security system remain remarkably intact in the family of today, this by no means implies that the traditional security system is not losing strength. One can expect that with every step toward the intensification of state social policy the functionality of the traditional security system will be further weakened. For the efficiency of the traditional security system is based to a great extent on its actual use. The existing state social security system makes its functioning problematic. One no longer is forced to exhaust the possibilities of traditional security before laying claim to benefits from the state system. The expectation that the state will provide for social needs develops with every positive experience of the state security system. Accordingly all systematizing of state social security institutions means a further reduction of

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the traditional security system. Has this development been an inevitable consequence of the social changes of the last four decades? In all probability the Republic of China will soon have a social security system consisting predominantly of state organized measures. Perhaps the "normative" expectation structure of the population regarding their own social security will some day consist entirely - or at least mainly - of their expectations of the state legal system. At that time we will be justified in talking of the traditional security system as informal security. And since E. M. Kassalow's well-known threshold of US$ 3,000 income per capita G N P was exceeded in 1985, one is confident that by the year 2000 a complex social security system will be fully established. However, today, 36 years after the introduction of a state social security system, we still have a long way to go.

REFERENCES Chan, H. 1979 "The Relationship of Social Security System to Economic Development" in: Chinese Journal of Sociology, (Taipei), 13: 139-150. Chang, C. 1986 History of the Social Thoughts in China. Tapei. Chang Chih-Ming, Das System der sozialen Sicherung in Taiwan. Forschungsstudie des Max Planck-Instituts für ausländisches und internationales Sozialrecht. München (not yet published). Huang, C. 1969 Comparative Ethics. Taipei. Hiao, K. 1977 The Political Thought of China Taipei. Kao, C. 1978 The Idea of the Great Cosmopolitanism. Taipei. Kao, T. 1978 The Chang of the Familty in the Chinese Society. Taipei. Kin, Y. 1979 Tradition and Modernity. Taipei. Lin, Y. 1977 "The Evolution of the Pre-Confucian Meaning of Jen and the Confucion Concept of Moral Autonomy" in: Monumenta Serica, Journal of Oriental Studies Vol. XXXI: 172204. Liu, H. 1977 Social Policy and Social Legislation. Taipei. Luhmann, N. 1983 Rechtssoziologie. Luhmann, N. 1985 "Interaktion, Organisation, Gesellschaft" in: N. Luhman, Aufklärung. Opladen.

Soziologische

Xing, I. 1982 "On Behalf of Heaven and Called by Fate" in: T. Lin et al. (eds.), The Founding Institutions of the Nation. Taipei.

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Table 1. The State Social Security System in Taiwan, R.O.C. (I) 'Workmen's Insurance Insurance for Soldiers Insurance for Civil Servants Social Insurance : Insurance for Pupils & Students Systems • Insurance for Farmers

System of State — Non-Contributory ; Social Security Systems

Non-Contributory System for Civil Servants Non-Contributory System for Soldiers and Veterans Non-Contributory System for Workman Special Promotion System

' General & Special " Promotion and Assistance Systems . , General Social Assistance System Source: Chang Chih-ming n.p.

Children and Juveniles Old People Handicapped Unemployed Social Assistance (Poor Relief)

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Table 2. Category of Persons Protected in the Social Insurance & Non-Contributory Systems in Taiwan, the Republic of China {Dec. 1983) — ^ S e c t i o n of the Population

Total

Potential Working Population = 7,266000

Gainfully Employed

17.20%

45.73%

47.0%

Currently employed Civil Servants = 452,882

2.42%

6.23%

6.41%

Teachers and Empl. at pr. Sch. = 24,584

0.13%

0.34%

0.35%

Retired Civil S. = 9,637

0.05

-

-

Fam. of Civ. Ser. = 176,937

0.94%

-

-

Population Security Branch A — Social Insurances in Total = ca. 8,927 750

B = Social Insurances of all People employed (incl. Dependents of Civil S. & Retired Civil Serv. = approx. 4,238 442; excl. Farmers

— — ^ ^ ^ W o r k m e n ' s Insurance = 3,322977 Insurance for Civil Servants in total = 664,039

Soldiers's Insurance estim. at = 438.000

C = Non-Contributory Systems in Total = approx. 4,911 598

= 18,733000

= 7,070000

o oj 2.34%

II es

6.03%

II CD

6.20%

Insurance for Pupils and Students = 4,502734

24.04

Farmer Insurance starting Oct. 25, 1985 approx. 1.00,000

(0.53%)

(1.38%)

(1.41%)

Non-Contributory System for W o r k m e n = 4,020717

21.46%

55.34%

55.85%

2.43%

6.03%

Non-Contributory System for Soldiers estim. at 438,000

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