Theorizing the Third Way: Qualified Consequentialism, the Proportionality Principle, and the New Social Democracy
| DOI | http://doi.org/10.1111/1467-6478.00165 |
| Date | 01 December 2000 |
| Published date | 01 December 2000 |
JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 4, DECEMBER 2000
ISSN: 0263-323X, pp. 493–516
Theorizing the Third Way: Qualified Consequentialism, the
Proportionality Principle, and the New Social Democracy
Richard Mullender*
The third way (or new social democracy) occupies a place of
prominence in the contemporary political landscape. But it requires,
according to one of its leading proponents, Anthony Giddens,
theoretical elaboration. In this essay, the third way is identified as
being informed by a form of moral philosophy to which the name
qualified consequentialism is given. Further, the proportionality
principle and associated case law are identified as yielding guidance
on how to operationalize qualified consequentialist moral philosophy.
Qualified consequentialism is also identified as being open to the
criticism that it is insensitive to the interests of individuals. Hence, its
application in contexts like the criminal justice system and the
workplace can be expected to attract criticism. Finally, the third way is
distinguished from earlier (classical) forms of social democratic
thought. This is because the new social democracy is not, unlike earlier
variants, strongly oriented towards the radical alteration of the liberal
societies in which it has gained currency.
INTRODUCTION
‘The third way’ occupies a place of prominence in the contemporary political
landscape. Administrations in Britain, mainland Europe, and the United
States of America are pursuing agendas that are said to give concrete shape to
the third way.
1
The British Prime Minister, Tony Blair, has produced both a
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1 See A. Ryan, ‘New Labour needs a moral compass’ New Statesman, 7 February
2000, at 25, and B. Hombach, The Politics of the New Centre (2000), introduction
(by M. Leonard), xi–xii.
*Newcastle Law School, University of Newcastle upon Tyne, 21–24,
Windsor Terrace, Jesmond, Newcastle upon Tyne NE1 7RU, England
Thanks are due to John Alder for his helpful comments on an earlier draft of this essay.
Thanks are also due to William Lucy and Christopher Riley for their helpful comments on
various of the ideas set out in this piece.
pamphlet on the topic and, in conjunction with the German Chancellor,
Gerhard Schro¨der, a joint statement concerning it.
2
And one of Tony Blair’s
most prominent advisers, Anthony Giddens, has produced two texts on the
subject.
3
Yet, while politically prominent and much written about, the
meaning of ‘the third way’ remains, in a number of significant respects, far
from clear. This should not surprise us. As yet, those writing on the topic
have offered only outlines.
4
Hence, much concerning the third way has been
left unsaid. This is regrettable since those governments seeking to advance
third way agendas need, as Giddens has observed, to put ‘theoretical flesh . ..
on the skeleton of their policy-making’.
5
Without such ‘flesh’, third-way
administrations may appear to lack ‘a sense of direction and purpose’ and the
legitimacy of their programmes may, very rapidly, be called into question.
6
This paper aims both to put some theoretical flesh on the bones of the
third way and to assess the extent of its normative appeal. It addresses a
question that has not, hitherto, been dwelt on by those writing on the third
way, namely, can the third way be said to give expression to a distinctive
moral philosophy? This question is answered in the affirmative. The third
way is identified as being informed by a form of moral philosophy to which
the name qualified consequentialism is given. The argument in support of
this view should be regarded as an exercise in rational reconstruction. This is
because it involves an attempt to explain third-way thinking by reference to a
body of normative materials that must, of necessity, be posited.
7
The
exercise in rational reconstruction here described is followed by an exercise
in institutional imagination. This latter undertaking involves an attempt to
identify means by which adequate effect could be given to a third-way
political agenda.
8
In this latter regard, it is argued that the proportionality
principle (and decisions rendered in accordance with it) could provide
guidance on how to operationalize programmes that are informed by
qualified consequentialist moral philosophy.
Before turning to the topics outlined above, it must be emphasized that
third-way thinking finds expression in a variety of forms. To the views of
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2 See T. Blair, The Third Way: New Politics for the New Century (1998), and T. Blair
and G. Schro¨der, Europe: The Third Way –die Neue Mitte (1999).
3 A. Giddens, The Third Way (1998) (hereinafter TW) and The Third Way and its
Critics (2000) (hereinafter, Critics).
4TW, 69, where Giddens describes himself as offering an ‘outline’ of ‘an integrated
political programme’ and p. 155 (emphasis added), where he identifies his text as
serving to point up elements of ‘a substantive [political] agenda that is emerging’.
See also Blair, op. cit., n. 2, p. 2 and Blair and Schro¨ der, op. cit., n. 2, section V.
5TW,2.
6 id. See, also, p. 3 (emphasis added), where Giddens observes that ‘governments
claiming to represent the left are creating policy on the hoof’.
7 On rational reconstruction, see N. MacCormick, ‘Reconstruction After
Deconstruction: A Reply to CLS’ (1990) 10 Oxford J. of Legal Studies 539, at 556.
8 On institutional imagination, see R.M. Unger, What Should Legal Analysis Become?
(1996).
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