Keywords

Analysing the Role of Welfare Rights

‘The rights of man. What are they?’ asked the political thinker Hannah Arendt (1951) in her analysis of the United Nations Human Rights Declaration of 1948. Questions related to the character, significance and mobilisation of rights are central in research concerned with law and society analyses,Footnote 1 and in this anthology, too. The purpose of the anthology is to examine social rights regulation and access to these in European welfare state contexts.

In this anthology, the welfare state is coined as the state which is responsible for transforming welfare rights into practice. Thus, there are different welfare state contexts, depending on the state in play. In this anthology, contributions concern the Dutch, British, Swiss, Swedish, Norwegian, Danish and Finnish welfare states. These spatial differences are of analytical relevance as they illustrate variations in welfare states’ organisation of social rights, for example through the formulation of welfare rights eligibility criteria and discourses concerning deservingness which may permeate organisational and welfare professionals’ interpretations of social support needs. A common denominator between the European welfare states analysed in this anthology is their reliance on framework law for the regulation of social rights. Framework law structures aims, purposes and processes yet delegates authority whereby the realisation of these aspects, to a large extent, is not solely of state concern; instead, it is often a municipal or regional responsibility, and in some cases, it also extends to third sector actors, such as NGOs, and private actors. Law’s delegation of responsibility constitutes relations of interdependence and cooperation between the actors whereby state actors, for example, depend on cooperation with third sector actors to provide sufficient social support. Vice versa, NGOs and voluntary organisations may depend on state institutions for funding and information flow which shape their scope for practice, as also illustrated in several of the anthology’s contributions.

Changes characterise the European welfare states of today. Neo-liberal reforms cause state transformation processes, resulting in reconfigurations of welfare state institutions and actors. Third sector initiatives and actors may take over where welfare professionals fall short due to cuts in resources or changing political paradigms. New actors entering the welfare states’ playing field may, for better or for worse, influence access to rights and individuals’ legal mobilisation processes. Welfare institutions may be replaced or complemented by voluntary sector actors operating on other financial and regulatory foundations than that of the state institutions which, in different ways, influence their ability to offer adequate support. Welfare state reconfigurations and transformation may cause changes on a structural level as a result of institutional austerity. They may, too, result in changes in criteria of welfare support eligibility which influence discussions on deservingness as identified in the literature on transformations related to ‘from welfare to workfare’ discussions (see, e.g., Eleveld et al., 2020). Such changes have real effect, not only on a structural level but also on a meso level, that is, in the encounters between citizens and welfare professionals where citizens’ needs are assessed and decisions on social support are made. Though encounters between these actors may be pivotal for the transformation of social rights into practice, it is not a given that these encounters take place. Barriers to encounters between individuals and intermediaries may be lack of awareness of rights and of perceiving oneself as rights holder, lack of trust and structural inaccessibility to expert advice (Genn, 1999; Nielsen & Hammerslev, 2022).

On European level, social rights are, on paper, increasingly gaining territory, manifested with the 2017 proclamation of the European Pillar of Social Rights with its three chapters, outlining 20 principles to support EU citizens’ social inclusion and equality. The principles focus on the right to social support of, inter alia, unemployed persons and persons in homelessness to mitigate social exclusion that may follow from these social situations. The Pillar stresses that:

Delivering on the European Pillar of Social Rights is a shared political commitment and responsibility. The European Pillar of Social Rights should be implemented at both Union level and Member State level within their respective competences, taking due account of different socio-economic environments and the diversity of national systems, including the role of social partners. (European Pillar on Social Rights, 2017, pp. preamble, no. 17)

The Pillar thus emphasises the relevance of both the Union and each Member State for implementing EU citizens’ social rights and transforming them into practice, reflecting that authority and responsibility to perform discretion on citizens’ access to social rights to a large extent are outsourced to Member State level (Westerman, 2018). Moreover, the Pillar’s 20 principles are generally characterised by broad formulations, inviting for interpretation. To offer an example, Principle 4 on active support to employment states that:

Everyone has the right to timely and tailor-made assistance to improve employment or self-employment prospects. This includes the right to receive support for job search, training and re-qualification. Everyone has the right to transfer social protection and training entitlements during professional transitions. (European Pillar on Social Rights, 2017, p. Prinicple 4)

With this formulation, Principle 4 stresses the increased focus on EU citizens’ social rights whereby the EU sets a direction for Member State practices in this field, formulating aims and purposes on EU as well as Member State level (Manners, 2008). Yet the Principle does not formulate details for processes whereby it leaves room for performance of discretion on state as well as local level. With its formulation of aims and purposes, EU social rights policies and regulation take on a framework character within which Member States target their practices whereby the actual implementation and transformation of EU rights into practice is a state concern, stressing the relevance of analysing the state as actor in transforming rights into practice (Westerman, 2018). An increased on paper-focus on EU social rights is significant for EU citizens’ potential access to social support from their respective welfare states. Yet, rights on papers do not by default translate into practice. As Pound (1910) pointed to, gaps between law in books and law in action may persist. From socio-legal perspectives, these gaps are essential objects for study to identify the relevance of rights and their transformation into practice. These gaps may be shaped by structural as well as individual factors, influencing, unequally, different societal groups’ access to welfare rights.

In this anthology, the formulation and relevance of social rights are analysed and discussed, drawing on a variety of cases and countries. The words ‘social rights’ and ‘welfare rights’ are used interchangeably throughout the anthology and refer to rights regulated by welfare states with the purpose of supporting citizens’ social inclusion. To offer some examples, social security, employment training and temporary housing are welfare rights that are regulated on state level and accessible for eligible persons with the purpose of mitigating social exclusion that may follow from, for example, long-term unemployment or lack fo housing. The anthology examines transformations of European welfare states and social rights, and the significance of such transformations for encounters between welfare professionals and citizens and for citizens’ access to social rights.

The anthology differs from existing literature in the field of welfare studies which, for example, examines the political organisation of welfare states (Esping-Andersen, 1990) or more recent welfare state studies that analyse the development of welfare markets (Ledoux et al., 2021) or the significance of political discourses for welfare state changes (Kissova, 2021). Also, of more recent character are Cowan and Mumford (2021) and Edmiston et al. (2022) and Eleveld et al. (2020). The former two examine regulation of welfare rights during the COVID-19 pandemic and citizens’ experiences hereof whereby they offer detailed analyses of state regulation and (non-) state actors and citizen encounters in the time of the pandemic. The latter zooms in on transformations in state regulation of welfare rights related to unemployment, offering detailed analyses on welfare state transformations as they are reflected in activation schemes and social security reforms. In this anthology, the contributions’ focus exceeds time, space and social situations whereby they in their own right and for the anthology as a whole offer analytical insights into welfare state transformations and social rights which transcend such spatial and temporal divides.

The Macro Level of State Regulation

From a macro level perspective on state regulation, the anthology offers insights into, inter alia, the relevance of law for the formulation and transformation of social rights, neo-liberal reforms’ significance for changes in state reconfiguration and regulation and into non-state actors’ role and responsibility for putting welfare state services into practice. On the macro level of state regulation, social law is to a large extent characterised by framework law with vague definitions and preambles (Sand, 1996, 2005; Teubner, 1986, 1987; Zacher, 1987). The language of welfare law may lead to challenges in interpreting individuals’ legal status and predicting the outcome of legal processes (Lemann Kristiansen, 2022; Rønning & Hammerslev, 2018), and these challenges may be further enhanced with framework law allowing for welfare professionals’ performance of discretion, influenced by factors as institutional and professional logics and organisational, economic and social contexts (Lipsky, 1980; Mik-Meyer & Silverman, 2019; Sommerlad, 2004).

A general character of framework law is the outsourcing of law through the delegation of authority. This is, too, identified on EU level where some social rights, such as the authority to regulate the right to housing, are delegated to Member State level, following the principle of subsidiarity. As illustrated in the anthology, European institutions may be crucial actors for forcing states to deliver on social rights that citizens are entitled to (see Chapter 2 by Eule). Welfare law’s aim and purpose may shift over time, depending on policy goals and dominating discourses. This is examined in the anthology with contributions that analyse the relevance of deservingness for welfare eligibility, changes in welfare law’s aims and purposes and offer insights into third sector actors’ role in offering social support in welfare state contexts where the public sector due to neo-liberal reforms faces difficulties in supplying adequate services and help. As with some European institutions, third sector actors may, too, be decisive for transforming welfare states’ responsibility into practices. This may be the result of neo-liberal reforms which relocate resources and leave public sector actors in a limited position for offering social support. In such cases, voluntary and third sector actors may take over, as illustrated in the anthology’s Chapter 4, written by Olesen, Helminen and Bäcklin.

The Meso Level of Welfare Professional-Citizen Encounters

When citizens experience social problems, their processes of mobilising law to mitigate their problems are to a large extent influenced by their resources, both their own and others such as social network which they may rely on for advice and expertise support (Nielsen & Hammerslev, 2022). Often, their mobilisation of rights calls for interactions with welfare professionals who as street-level bureaucrats may be in positions to transform welfare rights into practice (de Winter & Hertogh, 2020; Lipsky, 1980). This stresses the relevance of interactional and relational aspects such as encounters between welfare professionals and welfare recipients and both actors’ perceptions of legitimacy and law. Framework law’s character invites for taking extra-legal factors into consideration in welfare professionals-citizen encounters, and existing studies illustrate that framework law may indeed offer flexibility for the performance of discretion, allowing to consider the individual situation of the citizens (Lemann Kristiansen, 2022; Dalberg-Larsen, 2005). Yet, framework law may also challenge citizens’ ability to predict their legal status which potentially has a negative impact on these encounters. In welfare encounters, welfare professionals map out citizens’ situations in order to identify and categorise social problems and depending on their assessment decide whether citizens are eligible for social support (Danneris & Herup Nielsen, 2018; Nielsen, 2020). Categorising citizens’ need for social support is both influenced by the options for welfare support and regulated by welfare law. Here, changing legal categories and knowledge production processes related to the understanding of each individuals’ situation may influence practices and outcomes pertaining to individuals’ access to welfare support and rights (see Chapter 7 by Joormann). These knowledge production processes may be influenced by understandings of deservingness, constructed by professionals as well as the individual citizens, ultimately informing their encounters.

From the perspective of encounters between welfare professionals and citizens, contributions in the anthology analyse interactions between professionals and citizens, related to, for example, dynamics in encounters in the legal context of the welfare state and to professionals’ and citizens’ knowledge exchange, categorisation and negotiation of social problems and possible solutions. The contributions illustrate how national as well as local organisational contexts shape actors’ scope for practice and their subjective perceptions of legitimate practices in the given situations and encounters.

The Micro Level of Mobilising Social Rights

Individuals who experience, for example, unemployment or homelessness may be eligible for welfare support. To initiate a process of welfare support, citizens must be able to categorise their situation as problematic and possible to address under the auspices of the welfare state. This requires an understanding of both one’s problems as potentially justiciable and the welfare bureaucracy as potential entry point for support (Bourdieu, 2016). The processes of categorising problems and facilitating contact to the municipal authorities demand resources as, for example, awareness of social rights and the ability to navigate in the institutional set-up of the welfare state (Felstiner et al., 1981; Genn, 1999; Hertogh, 2018; Olesen & Hammerslev, 2023). In a framework law context, it may, as mentioned, be challenging for citizens to predict their legal status, and such interpretive processes may be negatively influenced by framework law’s vague formulation and broad definitions. Existing empirical studies illustrate how these processes may cause frustration and sense of alienation from the welfare state, jeopardising citizens’ legal mobilisation processes and thus hindering paths to rights (see, e.g., Cowan, 2004; Nielsen & Hammerslev, 2022; Sarat, 1990). In the anthology, contributions examine how welfare state categories of deservingness influence understandings of individuals’ situation, ultimately affecting the interpretation of their situation as justiciable or not. Moreover, contributions analyse individuals’ resources and relevance of social network for mobilising welfare rights to stabilise their social situation and thereby mitigate social exclusion.

Outline

The anthology is based on a tripartite structure. Following the introduction, Chapters 2–4 constitute the first section which concerns State regulation, transformation of state regulation and agents acting on behalf of the state, and the chapters analyse state regulation related to social rights and the relevance of non-state actors, following transformations in state regulation.

Chapter 2, Claim and Blame—How Welfare Law Institutionalises Deservingness by Tobias Eule, offers analytical insights into the relevance of socio-legal history of welfare institutions for the development of regulation of social rights, emphasising the significance of ‘deservingness’ as an increasingly pivotal criterion for eligibility. The chapter examines the development of welfare conditionality and discusses aspects of eligibility concerns in relation to limitations of welfare universalism. The chapter thus contributes to the anthology with insights into European welfare rights’ development and welfare state regulation hereof. It concretises its findings through the introduction of the case of Beeler v Switzerland which concerns Mr. Beeler’s access to social rights and denial of same by the Swiss state. In that case, the grand chamber of the European Court of Human Rights decided that Mr. Beeler’s right to family and to discrimination prohibition had been violated by the Swiss authorities. The case illustrates different constructions of deservingness between state level and European level, which have real effect on citizen level. Thus, the chapter offers analytical insights to the relevance of context for interpretation and application of social rights on macro level.

Chapter 3, What Is the Function of Welfare Law today? Consequences of the Work-Line Policy by Inger-Johanne Sand, examines developments in welfare rights with a specific focus on rights to benefits and services for persons in unemployment. Drawing on current neo-liberal reforms in the Norwegian welfare state, Sand contextualises the analysis of social rights’ functions in a contemporary welfare state perspective. She thus addresses welfare transformation of general concern to European welfare states where public service expenditures are sought decreased through such reforms which potentially causes dilemmas related to the welfare state’s obligation of providing social support and protection to eligible citizens. The chapter identifies an increased political and legislative focus of a so-called work-line character, indicating a political prioritisation of workfare over welfare while discursively framing activation schemes and labour market integration as socially integrative mechanisms, supporting a ‘meaningful’ life for the welfare recipients. With this focus, the chapter contributes to the anthology by offering insights into relations between societal changes and welfare state regulation.

Chapter 4, The Penal Voluntary Sector’s Role in the Nordic Welfare States: A Shadow State? by Annette Olesen, Maija Helminen and Emy Bäcklin, analyses the role of third sector actors in welfare state service supply. The chapter focuses on the role of penal voluntary sector organisations for transforming public sector responsibility of prisoner rehabilitation and reintegration into practice. The chapter contributes to the anthology with its specific focus on third sector actors’ relevance for welfare state regulation—an aspect of increased relevance, following welfare cuts and neo-liberal reforms which challenge public sector actors’ performances. The authors suggest that neo-liberal reforms in the Nordic prison and probation services have led to the voluntary sector becoming increasingly important in providing support to prisoners and released prisoners. Drawing on empirical findings from the Danish, Finnish and Swedish welfare states, the chapter illustrates third sector actors’ relevance as well as the difficulties they face in transforming welfare services into practice. In their contribution, the authors illustrate the paradoxes that third sector actors encounter in providing welfare services, their economically vulnerable position, and how they in the ‘shadow of the state’ act to fill out the gaps that follow from neo-liberal reforms.

Chapters 5–7 constitute the section Encounters between welfare professionals and citizens examining, on a meso level, the significance of encounters between citizens and welfare professionals for the former’s access to social rights.

In Chapter 5, A Double Helix: The Intertwined History of the Marginalisation of Welfare Clients and Their Activist Lawyers and Advisers in the Transformation of the Welfare State in England and Wales, Pete Sanderson and Hilary Sommerlad trace transformations in the UK of neo-liberal reforms’ reconfigurations of social citizenship, and the relevance of these transformations for the scope of practice available for welfare professionals in their encounters with citizens. Through interviews with legal aid providers and lawyers, the chapter illustrates how especially marginalised citizens’ access to rights are challenged as working conditions of these welfare professionals are deteriorating. Reasons for this deterioration are many-folded, and the authors point to, for example, temporal aspects, such as limited time to meet with the citizens, listen to their stories and create a space for providing adequate legal aid. Welfare professionals experience that these encounters suffer from inadequate resources which not only cause difficulties for citizens in accessing rights but also clash with the welfare professionals’ subjective understandings of their work’s purpose.

Chapter 6, The Paradoxical Reality of Welfare Professionals: Encounters Between Welfare Professionals and Citizens Within Social Security in the Netherlands by Paulien de Winter, analyses the relevance of welfare professionals-citizens encounters for welfare professionals’ interpretation and application of rules. The chapter contributes to the anthology with its interactional focus that illustrates encounters’ significance for welfare professionals’ performance of discretion. The analysis is situated in the context of the Dutch welfare state, more specifically in a Dutch social security context, and the chapter outlines how national legislation offers a framework for welfare professionals’ practices. Within this framework and with consideration to respective policies and guidelines regulating their agency in bureaucratic contexts, welfare professionals perform discretion. In doing so, they draw on their knowledge of rules and interpretation of citizens’ situations whereby relational, interactional and organisational aspects become central for the practice of performance in welfare state bureaucracy. Through its empirically based analyses, the chapter illustrates how welfare professionals’ understandings of rules and regulations and perceptions of the welfare clients’ situations may influence their interpretation and application of rules in these encounters.

Chapter 7, Asylum Case Adjudication in Sweden, Country of Origin Information and Epistemic Violence by Martin Joormann, offers analytical insights into practices in the Swedish welfare state related to the granting of the right to asylum. The chapter contributes to the anthology with its analysis of how the process of knowledge production is relevant for welfare professionals’ decision-making performance. Drawing on interviews with migration court judges, Joormann unfolds the practice performances of these decision-makers in the Swedish welfare state. The chapter illustrates the significance of country origin information (COI) for judges’ assessment of eligibility and deservingness, and the chapter problematises the construction of knowledge reflected in the COI. Joormann examines the relevance of judges and courts for the reproduction of institutionalised power imbalances, and the chapter contributes to the anthology with its illustrations and discussions of the relevance of interactional aspects between judges’ construction and application of legitimate knowledge and processes of assessing eligibility and deservingness related to access to rights.

Chapters 8–10 constitute the section Citizens’ mobilisation of social rights in which the contributions examine the micro level of individuals’ access to social rights. Applying different perspectives to this focus, the chapters illustrate obstacles and opportunities that may influence individuals’ processes of mobilising law and social rights.

In Chapter 8, Access to Justice and Social Rights for Victims of Trafficking and Labour Exploitation in Sweden, Isabel Schoultz and Polina Smiragina-Ingelström analyse the relevance of European and Swedish law for victims’ access to rights. The chapter focuses on victims of trafficking and labour exploitation, and it takes into consideration the role of international and national legal frameworks and policies for victims’ opportunities for access to support in the context of the Swedish welfare state. The chapter draws on interviews with welfare professionals and victims to illustrate the actors’ legal mobilisation processes, and it illustrates the essential significance of the processes of identifying persons as victims for persons’ access to social rights and support. The chapter, too, examines the role of both non-state and state actors for individuals’ legal mobilisation processes as experienced through these actors and the victims. Through these analyses, the chapter contributes to the anthology as it situates legal mobilisation processes in the context of the Swedish welfare state, taking law’s formulation and the welfare state organisation into account for understanding individual persons’ access to social rights and to justice.

In Chapter 9, Welfare Clients’ Relational Legal Consciousness: An Empirical Perspective from the Netherlands, Marc Hertogh analyses welfare clients’ perceptions of welfare law’s legitimacy with a starting point in the case of the Netherlands as a ‘punitive welfare state’. Hertogh argues that welfare state transformations and legislative changes in the Netherlands, as well as in most other European welfare states, have led to a punitive form of welfare state regulation with an increased focus on sanctions and strict obligations targeted welfare recipients. Drawing on survey results, the chapter illustrates how welfare clients’ perceptions of law and of welfare professionals’ application of rules influence their understandings of legitimate practices. There is thus a strong relational focus in the chapter which centralises the interactional character of welfare bureaucracy, yet with an analytical starting point in the perspectives of the welfare clients. The chapter contributes to the anthology as it illustrates clients’ understandings and perceptions of access to social rights in the context of strict social rights regulation which reflects the regulatory reality of many European welfare states.

In Chapter 10, Youth Homelessness in the Danish Welfare State: How do Young Persons in Homelessness Mobilise Rights?, Stine Piilgaard Porner Nielsen and Ole Hammerslev analyse the paths pursued to mobilise social rights by young persons experiencing homelessness. The chapter contributes to the anthology as it examines processes of accessing social rights as these are experienced by this specific group of socially marginalised citizens. Drawing on interviews with young persons in homelessness, the chapter illustrates how the respondents’ perceptions and experiences of their situation and of the welfare state bureaucracy influence their legal mobilisation processes. The chapter suggests that these processes to a large extent are influenced by the respondents’ awareness of rights, social network and sense of the welfare system. These three factors may, in varying degree, influence the young persons’ agency which stresses the subjective and dynamic character of legal mobilisation processes. Moreover, the chapter stresses the role of intermediaries, especially for persons who display a more passive agency, as intermediaries are in a position to translate the social situation of individuals into the context of the welfare systemic bureaucracy based on which legal mobilisation processes may be initiated and facilitated.

Chapter 11, Conclusion: Transformations of European Welfare States and Social Rights, by Stine Piilgaard Porner Nielsen and Ole Hammerslev, concludes the anthology by drawing on the contributions’ diverse analyses of transformations of welfare states and of social rights from the macro-perspective of state transformations and reconfigurations, the meso-perspective of public encounters between welfare professionals and citizens, and the micro perspective of individuals’ access to social rights. This concluding chapter sums up on the findings and contributions throughout the anthology, and it stresses the link between the three levels. Moreover, it identifies and unfolds common factors across the three levels which weave the chapters together and manifest that analysing welfare state transformations and social rights calls for research that, from different methodological and contextual starting points, manages to grasp the complexity of European welfare state transformation and social rights of today.

With this diverse set of contributions, the anthology offers its readers insights into, firstly, the development and relevance of welfare state regulation, secondly, the significance of encounters of various characters for welfare professionals’ performance of discretion which has real effect for the citizen, and, thirdly, citizen perspectives on the relevance of law and welfare bureaucracy which ultimately influence their legal mobilisation processes and thus the transforming of social rights into practice in the context of European welfare states.