Keywords

Introduction: What Is the Dilemma of Welfare Law?

Welfare law, rights and services have become an essential part of the functioning of modern democratic states by combining benefits and care for individual persons in need and taking collective responsibility for the workforce of society. States which offer comprehensive welfare rights, benefits and services are seen as welfare states (Esping-Andersen, 1985, 1990; Sejersted, 2013; Seip, 1984). There are different versions of the welfare state. The state itself may guarantee and finance all or most of the benefits, or it may be done in collaboration with voluntary or other private organisations. Welfare states are generally defined as states with a considerable level of universal benefits, and which thus offer a minimum or a certain level of economic benefits and welfare services to all irrespective of their own economic situation. Usually, this will include old age pensions, disability pensions, sickness leave benefits, child benefits and health and social services.

Welfare law thus serves a number of different purposes in society which have resulted in complex dilemmas between competing and conflictual qualities of welfare rights and services. First, welfare rights are vital parts of the catalogue of human rights and thus of the basic rights which are considered necessary for securing freedom and quality of life for individuals in their own right and for society. Secondly, welfare rights are not only vital for the actual functioning of freedom rights, they are also expressions of dignity and respect for all, and for taking care of the most vulnerable individuals. Third, social welfare rights are vital for the functioning of democratic government by their contributions to a certain level of welfare and equality for all citizens. Participation in society requires not only freedom rights, but also a certain level of welfare and equality for all to enable participation and to secure a high level of social inclusion in society. Fourth, welfare rights and health services are seen as necessary and vital for the functioning and quality of all individuals as employees in the labour market. Fifth, welfare benefits and services are vital factors in the economy of nation-states and regions both as contributions to the workforce and as public expenditure. Welfare benefits, protection of employees and competences are decisive for the quality of the employees and for the inclusion of individuals in society, but they are at the same time expenses which are constantly considered in relation to effects (St.meld.nr.9, 2006–2007). European democratic states are part of global economic market-based dynamics which contribute to general demands for economic efficiency and pressure on all public budgets (Pedersen, 2011).

Welfare law and politics in democratic societies thus come with several dilemmas. Employees and their human resources and competences are arguably the most important economic resources particularly in advanced and knowledge-based economies. Sufficient and appropriate welfare rights and benefits, such as sickness and disability benefits, work-time and vacation rights, are vital parts of the protection for the whole labour force and for all citizens, both for the highly qualified and for those who are on the margins of or outside of the labour market. With the increasing economic pressure to have a sufficient and highly qualified workforce, there is a risk that also welfare law and politics are directed at the needs of the general workforce rather than at the more vulnerable groups at the margins of the labour market with disability and sickness problems. Those who are in greatest need of welfare rights may currently be at risk of being excluded or increasingly disadvantaged while general welfare state benefits for all are given more attention (NOU, 2004: 13; St.prp.nr.46, 2004–2005).

The exclusion of persons from the labour market is however also expensive both for the labour market and for its effects in terms of marginalisation.

Welfare rights, benefits and services are embedded in a network of several economic, social and political factors which are part of the labour market and the economic systems, and which affect each other.Footnote 1 Welfare law may thus have become more of a hybrid system of combined labour, welfare and economic law than an actual system of welfare law (Sand, 2012). A flexible social welfare system combined with inclusion and exit mechanisms into the labour market may be crucial for both supplementing the labour market and the welfare and inclusion of employees (St.prp.nr.46, 2004–2005). The dilemma may be that the macro-economic and labour market economic aspects of welfare benefits may be seen as more important than the care-taking, ethical and social protection functions of welfare by political authorities and legislators. This risk is documented by the emphasis on the combined labour market and welfare-oriented reforms and not on reforms for the most vulnerable groups in the government documents referred to here. The fight against poverty for those who are not able to be part of the labour market at all may consequently suffer.

The purpose of this chapter is to show how welfare law has evolved in democratic and market-based societies into having several competing and potentially conflicting functions, and to analyse what the consequences are for the core function of welfare law which is taking care of the most vulnerable groups in society.

The legal, social and political problems discussed in this article are dilemmas of many democratic and ambitious European welfare states which also are part of a global and competitive economy (Piketty, 2014; Tuori and Tuori, 2014). Generous welfare states respecting human rights are currently experiencing rising welfare costs and competitive global markets challenging their tax base (Piketty, 2014, 2018; Pedersen, 2011). In the Nordic countries, concepts such as ‘the mixed economy’ and ‘the societal economic narrative’ are applied to describe the Nordic response to this situation (Pedersen, 2011). For practical reasons of space, this chapter will focus on current reforms of the Norwegian welfare state with significant implications for welfare rights and how these rights are practised. In 2005, the Norwegian labour and welfare law authorities were combined into one state organised authority, but with local offices in most municipalities (St.prp.nr 46, 2004–2005; Ot.prp.nr.47, 2005–2006; St.meld.nr.9, 2006–2007). The idea was that one authority should have the responsibility both for the labour market and for all welfare benefits with the dual purpose of including as many as possible in the labour market and make the transition between being on and off the labour market as flexible as possible. The reform was an explicit expression of the ‘work-line’ in welfare politics. The goal is partly to include as many as possible in the labour market and thus fewer on welfare benefits, and partly that working should be financially more advantageous than being on welfare benefits. Welfare benefits should be designed in ways which would accommodate the transfer to the labour market and keep persons on welfare benefits as shortly as possible.

A Methodological Note

The presumption for the analysis of welfare law presented above is that even if there is a very general function of law in democratic societies, the various sub-disciplines of law may have changing functions and purposes depending on the specific legal, ideological and social contexts. Welfare law is a general concept which can have different meanings and functions. It will be argued here that inter-disciplinary analyses including both legal dogmatic interpretation and socio-legal analysis may be better suited to an understanding of the dynamic and changing character of sub-disciplines of law than the purely dogmatic and internal analysis of law (van Gestel et al., 2012). The hypothesis here is that welfare law is not only a given concept or discipline of law but may emerge in different variations depending on the context. Any change or new version needs however to be analysed critically.

Theories of communicative differentiation of modern societies have contributed to a more sociological and dynamic perspective on law which have vitally supplemented more legally internal perspectives which often apply more hierarchical and static models of law. A legal sociological perspective on law includes societal and legal change more explicitly rather than internal perspectives on law. In Niklas Luhmann’s theory of communicative differentiation, modern societies are described as consisting of several different functions such as law, politics, economy, mass-media, science and art, which interact with each other through their different functions and qualities, but not in a hierarchical way (Luhmann, 2004; Sand, 2008). Sub-systems of law, economics, science and others may interact and influence each other in complex and contingent ways. There are no set or stable relations between legal, political and economic systems. They will change in form, substance and procedures over time. Changes may occur due to both external and internal causes. Welfare law may be defined as a sub-system of law. It may have been given certain functions at the early stages of modern society, but over time these functions may change depending inter alia on the interaction between law, politics, economics and other social systems. ‘Welfare’ can be seen as a specific relation between different actors in society, but which can be defined in different ways. It may be defined as a general quality of the relations among all or most citizens, or it may be defined as a social quality of how the most vulnerable citizens are taken care of, depending on time and context. The theories of communicative differentiation of modern societies emphasise the dynamic and complex qualities of the interaction between different social functions and their sub-systems, including law, in opposition to more stable and deterministic qualities. The point to be made in this context is that ‘welfare law’ can be many different things in terms of substantive norms and procedures and thus have different functions and represent different values. Legal concepts and disciplines cannot just be continued from previous norms, but must always be analysed contextually, dynamically and critically. This includes the ideological context of previous versions of legal concepts and disciplines.

General Arguments in Current Welfare Law Reforms

Both democratic and economic institutions and the welfare of citizens depend on the functioning and the qualitative level of welfare rights and services in democratically and economically advanced states. The Nordic ‘welfare states and societies’ have come to be seen as important and necessary societal infrastructures on par with democracy and rule of law. Welfare states are characterised by both securing a certain level of welfare rights and services for all and contributing crucially to a high degree of social and economic equality in society. The universality of the benefits has been seen as a main argument for the legitimacy of an expensive welfare state, but it may also be an argument to the contrary (St.prp.nr.46, 2004–2005).

Nordic welfare states have attempted to combine a societal and ethical responsibility to take care of those who cannot work or take care of themselves with a high labour market participation for all groups including partially disabled.

With the increasing costs of a publicly funded welfare state, the combination of welfare measures and active labour market politics has become a focus point in welfare politics and reforms. In the twenty-first century, improved inclusion in the labour market has politically been seen as probably the most important way to reduce the number of persons on publicly funded welfare and thus reduce welfare budgets (ibid.; St.meld.nr.9, 2006–2007). An alternative model for reducing the public welfare budgets could be to reduce the universal character of the general benefits and make it need based or to lower the level of the benefits to a minimum. This could mean leaving the responsibility for the most affluent part of the population to privately funded insurance schemes, or to lower the level of benefits to a minimum. So far, however, there seems to be a strong priority to keep the comprehensive and universal schemes and to keep a sustainable economic level of the benefits in order to ensure a common welfare state narrative, a common social citizenship and thus potentially a common sense of legitimacy.

Ambitious welfare states are expensive and thus require continuous balancing of the various relevant political, societal and economic reforms, rights and benefits involved. All welfare rights are thus scrutinised in relation to a variety of economic efficiency criteria. One line of conflict has been between the need for social protection (with early pensions) and the need for increased labour in society (with later pension age). Another line of conflict has been between public and private responsibility for welfare benefits such as various pensions. The work-line in welfare law has emphasised the need for labour in society in order to secure economic and public sector growth, but also the disciplinary and social value of participating in the labour market for individuals. Participation has been seen by many as having a higher moral value than receiving social benefits passively. This is in line with the Nordic protestant traditions in culture which emphasises social equality and work participation, but which currently may be more contested than previously (Fasting and Sørensen, 2021; Rokkan, 1987).Footnote 2

Welfare law has often been normatively defined in the legislative language by the use of discretionary standards concepts and principles such as welfare, solidarity, social equality, social justice and rule of law, alongside more specifically formulated rights. This has however made welfare law and its rights vulnerable to budget cuts and delimitation based on demands of efficiency and competition from other political fields (Pedersen, 2011). Sickness leave benefits, benefits for asylum seekers and other migrants and family benefits are often discussed in relation to public budgets. When acute crisis situations such as the pandemic occur in 2020–2022, welfare budgets were however expanded significantly in Norway in order to pay for the unexpected rise in unemployment due to the pandemic measures on closing down society.

Historical Background for the Norwegian Welfare State

Historically, it had been the responsibility of the larger families and local communities to take care of individuals who were not able to take care of themselves. Such general duties were included in law books from the Middle Ages in Norway, but without specification. In the nineteenth century with the Norwegian constitution of 1814 and the election of a legislative parliament, Norway started a more systematic process of legislation including legislation on schools, health and social reforms. With industrialisation and increased urbanisation, it became necessary to make collective welfare arrangements by state or local authorities or by private corporations or workers organisations. In 1845, Norway had its first centralised parliamentary legislation for people who were ‘poor’, that is without their own property or other means. Local municipalities were given the main responsibility for the care of ‘the poor’ (Seip, 1984). The argumentation for the legislation was morally grounded and twofold. Partly, the emphasis was that everyone had a duty to work or participate, and partly, it was underlined that it was the responsibility of public authorities as well as of civil society actors to take care of those who could not take care of themselves and were not able to work. There were intensive discussions concerning the consequences of not following the duty to work, and what type of benefits could be given to those who were ‘poor’ (ibid., pp. 18–23, 34–38, 58–63). ‘Poor people’ was used as a particular legal category and designated those who did not own property or did not have any profession, but depended on work or money from others. There was a distinction between those who were not able to work and thus were given the right to ‘beg’, and those who were able to work, and who could be punished if they were unwilling to work. A third group were those who were willing to work, but unable to find work. They were at times included in the group who were punished for not working or put to forced labour. Legislation with rights for the poor was motivated by a combination of reasons, both to take care of those who could not work and to enforce a high morality of a duty to work for those able to do so. A duty to work was seen as important for the morality of the poor, also by Eilert Sundt who was considered the first Norwegian sociologist (ibid.; Sundt, 1867). His work was based on comprehensive field work, empirical observations and statistics. There was an understanding that industrialisation and urbanisation contributed to new workplaces, but also to periods of a lack of employment and thus to a need for more systematic forms of welfare measures. In the nineteenth century, social insurance schemes for those temporarily out of work, disabled or sick were initiated by both public authorities and private employers before a universal and publicly funded welfare state model was developed. The functions and the duties of the state and of public budgets were negotiated and shaped in the last part of the nineteenth century and the first part of the twentieth century. Among the questions dealt with were who should carry the economic burden of social welfare.

The organisation of workers, tariff agreements and labour law with measures for the resolution of conflicts were vital infrastructures for how and on what level welfare problems were dealt with in the Nordic countries. In 1935, in Norway, the work-life organisations, employers and employees, agreed on a new General Framework Contract (Hovedavtalen av 1935) regulating the relations between the two sides of industrial organisation, management and labour, and their legal rights both when negotiating and under contract (Sejersted, 2013, pp. 195–197).Footnote 3 This included the rights of the parties to organise, negotiate and use strike or lock-out when in conflict, but to respect the tariff agreements for the time they were enacted for. After World War II more comprehensive social welfare measures and legislation were initiated. European states were becoming more affluent and took on increasing responsibilities for general pensions concerning sickness, families with small children, disabilities and old age. In Norway, a comprehensive social security legislation was passed by the Parliament in 1964 and a comprehensive pension reform act in 1967 (ibid., pp. 306–312; Ot.prp.nr.17, 1965–1966). It ensured old age pensions for all Norwegian citizens and those registered in Norwegian welfare registers from a certain age but kept a gradual scale depending on previous earnings. A primary purpose was to ensure those who were physically exhausted, or who had reached a certain age, a publicly funded pension. The general pension act was renewed in 1997 (Ot.prp.nr.8, 1995–1996). In 1976, a general work environment act with both substantive rights and procedures was passed (Sejersted, ibid., pp. 443–444). A municipal health service legislation act was passed in 1982, and several legislations concerning specialist health services and hospitals were enacted in the 1990s. When the reform on the combined labour and welfare administration act was passed in 2006, Norway had a wide scope of welfare services and benefits financed by the central state, but also with important insurance-like contributions from the work-life parties. It is probably fair to say that from the agreement among the work-life parties of the General Framework Contract in 1935 and the welfare legislation enacted after 1945 there were close connections between labour law and welfare legislation in the creation of a welfare state.

The Main Case Study: A Combined New Labour and Welfare Authority—The Norwegian Labour and Welfare Administration (NAV) and Its Work-Line Basis

In the twentieth and twenty-first centuries, increasing demands for efficiency and specialisation in the labour market have led to periods of exclusion of employees who could not meet new and higher standards of competences efficiency (St.meld.nr.9, 2006–2007). Many employers left the costs of the less efficient employees to the welfare state and its schemes for disability pensions. Over time, this has contributed to rising costs for publicly funded welfare and to increasing tendencies of social exclusion from the labour market. The negative effects of social exclusion for a relatively large group of persons and the rising costs of welfare budgets led to an increased political priority of including as many as possible in the labour market instead of on welfare, formulated as the strategy of ‘the work-line’. The result was more effective and inclusive labour market policies for persons who are able to work full-time, part-time or with reduced duties, and an increased pressure to work by keeping welfare benefits on relatively low levels. It also led to a more systematic combination of labour and welfare public policies in Norway. In 2002, the first initiative was taken to combine the administration of welfare and labour politics and reforms with a report to the parliament, St.meld.nr.14, (2002–2003) Samordning av Aetat, trygdeetaten og sosialtjenesten (coordination of the labour, public pension and social services authorities). In this document, the first draft for a proposal for a fusion into one organisation of the labour, public pension and social welfare authorities was presented. The goal for such a reform was to make it easier to include more persons in the labour market instead of on social welfare by combining the different administrations and services in one organisation. Additionally, this was presumed to function in a more flexible way for the individuals involved.

In 2005, the Norwegian parliament made the final decision for a new combined labour and welfare administration (the relevant documents were: St.prp.nr.46, 2004–2005; Ot.prp.nr.47, 2005–2006; St.meld.nr.8, 2004–2005). An interim law and administration bill was passed by the Norwegian parliament (Stortinget).Footnote 4 The main idea was to combine the functioning of the two public administrative branches of labour and welfare in order to include and activate more of the welfare benefit receivers in the labour market including making the transition between social benefits and labour market participation more flexible. The final legislative bill for a new labour and welfare administration followed in Ot.prp.nr.47 (2005–2006).Footnote 5 The new administration was to combine previous state and municipal services and to use both centralised and local facilities in order to make the services more efficient. A main goal was to create a more including work-life and society both for general economic reasons and in order to create more meaningful lives with the possibilities of work-life participation for an increasing number of persons. A more comprehensive report was delivered from the government to the Storting, St.meld.nr.9 (2006–2007) Arbeid, velferd og inkludering (work, welfare and inclusion), with further analysis and discussions on measures for some of the more vulnerable groups of persons on the margins of the labour market.

The background and the purpose of the combined labour and welfare administration reform as argued in the government reports referred to above were and still are to create the basis for a more sustainable welfare state over time and for an improved labour market. The government report St.meld.nr.9 (2006–2007) gives an extended reasoning for the reform. A high level of work-life participation throughout society is underlined as the most important and robust contribution to both the economic and financial side of the welfare state and to its inclusive qualities in terms of ‘human development and good and meaningful lives’.Footnote 6 It is further argued that the goal of the work-line is to be a vital contribution to lower economic differences with fewer persons on minimum pensions, to the fight against poverty and to the improved inclusion of individuals who have experienced exclusion in the labour market (St.meld.nr.9, 2006–2007).

The measures proposed in the report are generally related to improving the functioning of the work market for as many as possible. This includes senior policies, improved integration of minorities and disabled persons and to fight any form of exclusion from the labour market (ibid., ch.1.2). The measures can be seen as ‘normalising’ strategies. That is to include as many as possible in a ‘normal’ labour market and to use measures which can be as easily adapted to the labour market as possible. Participation or non-participation in the labour market is generally the most important economic distinction among different individuals and social groups in the otherwise egalitarian Nordic states. Inclusion can be improved through access to education on all levels and flexible mechanisms for participation of different groups (St.prp.nr.46, 2004–2005, ch.1.4). New economic benefits are proposed combining duties to take further education or work practice for those who have been employed but are laid off (St.meld.nr.9, 2006–2007, ch.1.3). The government and welfare authorities maintain as a political guideline that it must be economically beneficial to go from social benefits or pensions to paid work (St.pr.nr.46, 2004–2005, ch.1.3). The result is that many forms of social benefits are economically low and will lead to poverty particularly when children are part of the family. The authorities are thus aware of this poverty trap, but do not prioritise to change it. Educational possibilities and accessible health care are vital general structural measures for enabling all forms of labour market inclusion.

A number of different arguments in favour of the work-line in welfare politics are forwarded in the public documents mentioned. The main argumentative framework concerns an analysis on how to support and develop a sustainable welfare state over time economically and in terms of the human resources needed (St.prp.nr.46, 2004–2005, ch.1.2; St.meld.nr.9, 2006–2007, ch.1.1). The demographic changes in the population go in the direction of an increasingly older population with relatively more persons having left the labour market and living on old age pensions (St.prp.nr.46, 2004–2005, ch.1.2). The average living age is increasing and may result in more persons in need of social and health services. The relative number of persons who are active on the labour market, and thus available for work in social and health services, may on the other hand decrease. There are also generally increasing expectations in the whole population for a sustainable welfare state and health services of high quality. There is however a political consensus with a strong will to keep a welfare state with pensions, benefits and services on a high, but sustainable level (St.meld.nr.9, 2006–2007, ch.1.3). The concern is that this will be increasingly expensive. The main solution to this dilemma is to give the ‘work-line’ a high priority. There are macro-economic arguments for keeping as many employees as possible on the labour market and to reduce the number of persons on welfare benefits or pensions. Questions are raised concerning criteria for sickness and disability benefits and the age requirements for old age pensions generally and in different parts of the labour market, and the economic levels of social benefits and pensions. The government warned against proposals for increasing the tax burden in order to finance the continued welfare state in the relevant documents. The argument is that the increasing internationalisation of the economy results in fewer possibilities for a higher taxation than in comparable countries (St.prp.nr.46, 2004–2005, ch.1.2; St.meld.nr.9, 2006–2007, ch.2.5).

Another line of argumentation in the governmental reports is the belief that participation in the labour market is meaningful for all individuals (St.prp.nr.46, 2004–2005, ch.1.3). It is seen as vital both for social participation and learning and for individual development. For persons with disabilities, work-life participation is seen as of a particularly vital individual value.

The fight against poverty is also mentioned as one of the main goals in the report which proposed a new labour and welfare administration, but with few proposals for how to achieve this goal other than through work-life participation and education. In St.meld.nr.9 (2006–2007), there are several proposals for social benefits combined with duties of part-time work or further education and with counselling in order to support those who have experienced difficulties on the labour market and to assess their work abilities over time. Social benefits combined with work or education are recommended, but to be balanced in number between on the one hand avoiding poverty traps and on the other hand securing that work participation is better paid than being on welfare benefits (St.meld.nr.9, 2006–2007, ch.1.2). ‘Welfare contracts’ are referred to as a tool which can be used for such combinations of welfare benefits and duties between citizens and welfare authorities (ibid., ch.10.6).

There are arguments for giving incentives for work participation, full-time or part-time, but it does not solve the poverty problems for those who are not able to work for shorter or longer periods of time and their families. Increased work-life participation is however in most government reports on social welfare and labour market politics repeated as the best and the main strategy against poverty for practically all groups, both those who can work full-time and those with disabilities who need more flexible schedules. The governmental reports have very limited analysis and proposals for welfare benefits or services for those who cannot work due to illness or severe disabilities, and the poverty trap many of these individuals will fall into. The government reports referred to above place the whole burden of how to solve the sustainability of the welfare state on the argument of ‘the duty to work’ and thus implicitly on the moral consciousness of welfare recipients (St.meld.nr.9, 2006–2007, ch.1.2).

There are proposals concerning specific benefits for children in low-income families in order to secure their possibilities for participation in various school and sports activities (ibid., ch.10.7). There is special attention to immigrant families who have not been integrated into the labour market due to lack of relevant education or language problems, and thus have not been able to find work. Action plans are proposed for improving the integration of immigrant populations with language courses, housing benefits, school activities, extra teachers, work introduction and special economic benefits.

It is difficult to assess what a successful implementation of ‘work-line’ policies in Norway would be. St.meld.nr.9, (2006–2007) argues on the one hand that Norway already has a high degree of employment and participation in the labour market, and on the other hand that a too large number of persons in the work-active age groups are receiving welfare benefits or disability pensions (700,000 out of a total population of app. 5,550,000, in 2006). 500,000 are on sickness or disability benefits (ibid.). In 2021, the number of persons on disability pension and work-preparatory benefits was ca 510,000 and on sickness benefits ca 250,000.Footnote 7 In 2022, the number of persons on old age pensions had risen to 1,018,000. It should be noted that these numbers are difficult to compare to countries with other family and welfare state patterns. There is a high work-life participation for women in Norway and the other Nordic countries compared to many other European states, where many women will be working for their families without pay and outside of the labour market. Social and health workers, with a majority of women, may have physically hard work and rely more on sickness and disability benefits than many other employee groups.

Assessing the Combined Labour and Welfare Authority Reform: What Are the Economic, Social and Rhetorical Arguments for the Work-Line

On a societal level, work is seen as the most important resource in society for both general economic and developmental reasons, including for the continued production of welfare and social services. Being able to deliver welfare rights and services in a society depends on that as many persons as possible participate in the labour market and thus in the economic production in society. A high level of work-life participation among citizens will strengthen the possibilities for financing benefits and services for those who are not able to participate in economic activities (St.meld.nr.9, 2006–2007, ch.1.4; 2.3–2.4; 3). This view is shared by many, but exactly how to balance work and welfare is more complex. The practical aspects of a work-line strategy for a welfare state include: creating a flexible labour market for a diverse population, pensions and economic benefits for those who cannot work, and health and rehabilitation services for all (ibid., ch.2, 3; Ot.prp.nt.103, 2008–2009). The definitions of who are not able to work and what the level of disability benefits should be are more controversial. The Norwegian labour and welfare administration (NAV) reform of 2004–2005 includes the two first aspects of a welfare state and partly the third. Practically, all attention of the reform has been to include as many as possible in the labour market and in flexible ways when that is necessary and possible. Those who due to permanent illness or disabilities cannot work are, in this reform, seen as the responsibility of the health authorities. Those who can do part-time work or have subsidised workplaces should be seen as workers with all the legal rights and benefits of full-time workers. This is seen as a form of ‘normalisation’. The most effective general policy is seen as that which includes as many as possible, with few exceptions, within the labour market. The main attention is thus given to a comprehensive inclusion of citizens in the labour market (St.prp.nr.46, 2004–2005, ch.1.3–1.4).

This may however result in a lack of attention to the conditions partly of those who work part-time with various subsidies arrangements and thus on a relatively low income, and partly of those who permanently cannot work due to illness or disabilities, and thus fall into poverty traps. Practically, all societies will have individuals who are not able to work full-time or at full capacity. Previously taking care of these groups has been the main target of welfare law. Currently, however, the main focus is on combined labour market and welfare politics in order to reduce the number of persons on welfare benefits and to create a more effectively functioning labour market. Judging from the preparatory works of the reform more effective inclusion in the labour market seems to be prioritised over welfare reforms for those who are initially excluded from the labour market (St.meld.nr.9, 2006–2007, ch.1.1–1.3; 3.4). The marginalised groups may still receive basic and formal rights, economic benefits and health services. Whether these rights and benefits are sufficient, dignified or proportional to their situation and in the general context of the relevant welfare state is another question which is not really discussed. The focus on labour market inclusion has arguably resulted in a lack of a normative standard for welfare rights for those who cannot work, and which the current rights and benefits can be measured to.

Expert reports can hardly realistically fully express how situations of poverty or lack of resources are experienced by those who are in that situation over time. Statistics can give numbers, but not fully express how such situations are experienced. It is probably safe to say that even in Nordic welfare states, there is a lack of realistic description and understanding of the social and economic situation of those who are the most marginalised from the labour market, and who permanently live on a very low income such as the basic pension for those who are disabled and have never worked. The situation of these groups seems to be under-researched and under-reported in welfare state politics and reports also when general welfare reforms are discussed.

The active participation in the labour market and in specific work places is also considered a social and ethical value for the individuals involved irrespective of the economic consequences (St.prp.nr.46, 2004–2005, ch.1.2–1.4; St.meld.nr.9, 2006–2007, ch.1.2–1.3). Working and being part of a workplace means potential for individual development and for being part of a social group and thus social learning. ‘Society’ is not only public life in official institutions and the private family sphere, but also civil society and economic organisations. Both civil society participation and co-decision and cooperation at work are vital parts of ‘society’ in the Nordic countries. Both parts enable active participation in society and lays the ground for individual development. Active participation in all areas of society is a value it is hard to disagree with, and which is well documented.

The ‘work-line’ in social welfare thus still requires a closer definition and discussion on several levels. Partly, it requires a definition of what level of illness or disability which allows for benefits instead of sanctioning the duty to work, and what procedures there should be for making such decisions. Partly, it requires decisions on what the economic level of such benefits should be and of how tough the incentives for work participation should be. Some have argued in favour of a basic citizen income which should not be needs-tested and should be on a level which one can live on. This would reduce bureaucracy and avoid moralistic arguments and the use of discretion which may be experienced as contingent or unfair. The counter-arguments are that more generous universal benefits undermine the work-line and may be too expensive. The work-line may however be practised in ways which resemble a form of structural and political violence against those cannot work, and who are left with low economic benefits and situations experienced as poverty over time (Bourdieu, 2000, pp. 172–178, 202–204).

There is a balance to be drawn between how welfare authorities require active participation in the labour market for those who can, and at the same time accepting and practicing dignity and generosity for those who are not able to be part of such participation, but which need services and benefits. This balance is in my view rarely explicitly reflected on in welfare law preparatory works. The emphasis on the economic arguments in favour of including as many as possible in the labour market, reducing welfare budgets and the referring to the individual value of work-life participation may overshadow the policies and the arguments for the ethical side of taking care of those who are not able to work. The importance of being able to finance welfare services and benefits may take attention away from how the welfare state can support those who cannot work, and how to deal with real elements of poverty in otherwise affluent states. The social and ethical arguments in favour of the welfare state are more difficult to quantify precisely than the economic arguments in favour of work-life participation and will thus always potentially be pressured by arguments of economic necessity. Respecting basic human rights and paying respect to the dignity of all persons are however also vital aspects of the welfare state. The asymmetry and different logics between the social, economic, legal and ethical arguments in welfare law may be one of the reasons for why some of the most difficult dilemmas of the welfare state are not dealt with (Luhmann, 1992, ch.8).

The Nordic welfare state tradition is general and universal including all citizens and thus expensive and demanding a competent workforce. This puts a pressure on applying the economic arguments. The Nordic cultural tradition is part of the Northern European protestant tradition emphasising participation by all, equality and a certain puritanism. Work, pensions for those who need it and health services are seen as cornerstones in the welfare reforms proposed at the beginning of the twenty-first century.

Conclusion: The Function of Welfare Law Today

The Nordic welfare state model relies on a universal and general public pension scheme which includes all citizens, but the level of the benefits may depend on previous work-life participation. Those who have not had previous income and paid contributions to the public pension system will be given very basic old age and disability pension benefits. With different classifications, they will often fall into categories of economic poverty.

The overwhelming argumentation for the benefits of the work-line, macro-economically and ethically, dominates the public discourse on welfare. It is hard to disagree with the values of the work-line, but it remains problematic that a vital part of the purposes of the welfare system is systematically under-represented in welfare reforms and politics, namely how to take care of those who cannot participate in the work-life in a dignified way. The poverty and the resulting social exclusion of a relatively large group of persons in society are absent themes in welfare politics. Up to 500,000 persons in Norway, of a total population of ca 5,500,000, are at any time on disability or similar pensions.Footnote 8 There is also around 130,000 on minimum level old age pensions.Footnote 9 There is thus a relatively large group with low income and with disabilities and thus risking social exclusion. Poverty and social exclusion are real problems for relatively large groups, and which cannot be solved by work-life participation for these. The most important welfare reforms and public reports of the twenty-first century focus predominantly on an optimistic view on the economic situation for Norway and the importance of continuing this by emphasising the work-line (St.prp.nr.46, 2004–2005, ch.1.1; St.meld.nr.9, 2006–2007, ch.1). The darker and more problematic aspects of welfare politics and the low-level benefits of less resourceful welfare recipients are not prioritised. Welfare rights and politics is not a distinctly defined social system and may thus easily be challenged by economic arguments (Luhmann, 1992). The ‘work-line’ may be evaluated by references to economic facts. Welfare and social rights are often more defined by more discretionary and subjective concepts such as solidarity, ethics and justice. Poverty may in part be numerically defined, but the experience of the consequences can be more diverse, social and complex to describe. Welfare law should be seen as having several and conflicting purposes. The dilemmas could be more openly reflected on even in preparatory works.