Keywords

Introduction

This chapter is part of a wider research project. Parts of this chapter build on and draw from Hertogh (2023).

In 2020, a parliamentary enquiry revealed that the Dutch tax authority had made numerous false allegations of fraud while attempting to regulate the distribution of childcare benefits (Henley, 2021). Between 2013 and 2019, authorities wrongly accused an estimated 26,000 parents of making fraudulent benefit claims, requiring them to pay back the allowances they had received in their entirety. For many of them, this sum amounted to tens of thousands of euros, in some cases leading to unemployment, bankruptcies and divorces. The tax authority admitted that at least 11,000 parents were singled out for special scrutiny because of their ethnic origin or dual nationality. In its final report, entitled ‘Unprecedented injustice’, the parliamentary enquiry described the working procedure of the tax authority as ‘discriminatory’ and filled with ‘institutional bias’ and concluded that ‘fundamental principles of the rule of law’ had been violated (Parlementaire ondervragingscommissie kinderopvangtoeslag, 2020).

The childcare benefits scandal is not an isolated incident, but it illustrates an important shift in the character of the Dutch welfare state. The Netherlands is often considered one of the prime examples of a generous welfare state. In recent years, however, the Dutch government has introduced a series of strict obligations and harsh sanctions for welfare recipients. These changes have turned the Netherlands into a ‘punitive welfare state’ (Larkin, 2007). This chapter looks at what these developments mean for the legal consciousness—the commonsense understandings of the law (Merry, 1990)—of Dutch welfare clients. In previous studies, people’s legal consciousness was often studied from an individualistic perspective. However, Sarat has observed that in welfare offices, the legal rules themselves often remain in the shadows and clients have to rely heavily on the way that officials present and interpret the law. Or, as he puts it, ‘The rules speak, but what [clients hear] is the embodied voice of law’s bureaucratic guardians’ (Sarat, 1990: 345). This suggests that we should not only focus on how welfare clients perceive the law, but also how they perceive the way in which welfare officials understand and apply the law. I will analyse this through the conceptual lens of ‘relational legal consciousness’ (Young, 2014; Chua and Engel, 2019; Abrego, 2019; Wang, 2019; Young and Chimowitz, 2022; de Sa e Silva, 2022). Rather than analysing legal consciousness individualistically, more studies have started to conceptualise legal consciousness as ‘a fully collaborative phenomenon’ (Chua and Engel, 2019: 347). Central to this approach is the idea that ‘[a] person’s beliefs about, and attitude toward, a particular law or set of laws is influenced not only by his own experience, but by his understanding of others’ experiences with, and beliefs about, the law’ (Young, 2014: 500; emph. added). Headworth (2020) has applied this relational approach in a recent study on welfare fraud enforcement in the US. Based on interviews with welfare fraud workers, he provides a compelling account of their vision of clients’ legal consciousness. In this chapter, I will focus on the other side of this relationship: how is Dutch welfare clients’ legal consciousness shaped by their assessment of welfare officials’ legal consciousness, and to what effect?

In the next section, I will briefly discuss the punitive character of the Dutch welfare state. Then, I will introduce the analytical framework of relational legal consciousness. Next, I will explain the methodology of this study. While many legal consciousness studies are based on semi-structured interviews, I’ve used an online survey among more than a thousand Dutch welfare clients. I will use the survey findings to analyse both welfare clients’ own legal consciousness and their perceptions of how welfare officials understand the law. In the discussion, I will argue that welfare clients’ (critical) legal consciousness is not only shaped by their views on Dutch welfare law, but also by their views on the (harsh and cold) way that welfare officials understand and apply the law. I will conclude with a brief summary and I will discuss some of the implications of these findings.

Punitive Welfare State

Similar to developments in, for example, the Scandinavian countries (Van Aerschot, 2011) and the United Kingdom (Larkin, 2007; Adler, 2018), the Netherlands has seen the ‘rise of the repressive welfare state’ (Vonk, 2014: 189). For many decades, the Netherlands has been a modern and generous welfare state. In more recent years, however, there has been a ‘trend of introducing increasingly strict obligations and sanctions for social security claimants’ (Vonk, 2014: 201). According to some scholars, the growing attention given to benefit abuse and fraud is not an isolated phenomenon, but part of a much wider development. Building on Wacquant’s (2009) book Punishing the Poor, Vonk (2014: 189) describes a growing number of policies in which ‘the citizen is made fully responsible for his own life and the degree to which he or she can participate in society’ and ‘[w]here these policies fail, the state reacts with sanctions’. In his view, this has also resulted in a repressive trend in social security and policy.

The Netherlands has an extensive social security system. This chapter will focus on two of the most common types of social security: unemployment benefits (regulated by the Unemployment Insurance Act) and social welfare (bijstand) for those people who have no means or insufficient income to provide in their livelihood and who do not qualify for other social benefits (regulated by the Participation Act). Recipients of unemployment benefits and social welfare have to comply with a number of strict obligations. Firstly, recipients have to provide all the information that might be relevant for the assessment of the right to the benefit. For example, if there is a change in earnings or in the household situation, this should be immediately reported. Withholding relevant information can be sanctioned with heavy fines. Secondly, recipients also have to fully cooperate with the welfare office. Among other things, this means that recipients have to apply for a job as much as possible and they always have to accept a job offer. If one fails to cooperate, this can be sanctioned by withholding benefit rights. In 2012, these obligations and their sanctions were further tightened when the Dutch government introduced the Welfare Fraud Act. The Act increased the maximum fine for welfare fraud from 2,000 Euro to a fine corresponding to the maximum amount of money that the fraudulent recipient was receiving as benefit.

The rise of the Dutch punitive welfare state is also reflected in the way that welfare officials enforce the Welfare Fraud Act and other relevant welfare regulations. In theory, welfare officials can choose between two different approaches in response to rule violations: a ‘persuasive’ (accommodative, compliance-based) approach and a ‘punitive’ (sanctioning or deterrent) approach (De Winter and Hertogh, 2020). In the past, Dutch welfare offices mostly used a persuasive approach. Nowadays, however, most welfare offices focus on fighting welfare fraud and prefer a punitive enforcement style (Vonk, 2014; Hertogh et al., 2018). To study what these developments mean for the commonsense understandings of the law of Dutch welfare clients, the chapter will use the conceptual framework of ‘relational legal consciousness’.

Conceptual Framework: Relational Legal Consciousness

This chapter will define legal consciousness as ‘the ways in which people experience, understand, and act in relation to law’ (Chua and Engel, 2019: 336). In short, legal consciousness describes people’s ‘orientation to the law’ (Nielsen, 2000: 1087). A growing number of studies emphasise the relational nature of legal consciousness. Abrego (2019: 663) found, for example, that young adults who grow up in Latino mixed-status families ‘come to understand their juridical category relationally through their conversations with and close observations of loved ones’. Consequently, ‘family and loved ones’ experiences were central to study participants’ development of legal consciousness’ (Abrego, 2019: 664). From this perspective, it’s important not only to focus on people’s own (first-order) legal consciousness, but also at a ‘second-order’ layer of legal consciousness: ‘people’s perceptions about how others understand the law’ (Young, 2014: 499; emphasis added).

Methodology

Most legal consciousness studies are based on interviews and observations. However, in previous qualitative studies, several important questions were still left unanswered. For example, ‘[w]hen does a person’s perceptions of others’ beliefs influence that person’s relationship to the law?’ and ‘[a]re certain aspects of legal consciousness more relationally influenced than others?’ (Young, 2014: 526). To address some of these limitations, this chapter is based on an online survey among welfare clients to study their legal consciousness.

A total of N = 1,305 Dutch welfare clients completed the survey. These survey participants consisted of two groups: unemployment benefit recipients (N = 709) and social welfare recipients (N = 596). Participants were recruited from a representative panel (TNS-Nipobase), which was created and managed by an online survey company from the Netherlands. The data was collected in March 2016. For this study, a representative sample of welfare clients was drawn based on age, gender, level of education and residency. In our sample, respondents were between 19 and 83 years old (M = 49.40; SD = 11.26), 61% were female and 32% had a low education (elementary school and vocational training). Since all respondents received similar welfare benefits, there was little variation in income.

Variables and Measures

The survey was originally designed to study welfare clients’ perceptions of welfare fraud enforcement (Hertogh et al., 2018; Hertogh and Bantema, 2018). However, after analysing the data, it became clear that many of the survey items are also indicative of welfare clients’ general orientations to the law. Therefore, in this study, several elements from the original survey were re-used to analyse welfare clients’ (collective) legal consciousness. A complete list of items for every scale is displayed in the Appendix. The survey focuses on two groups of variables: (i) clients’ own legal consciousness (how do welfare clients experience, understand and act in relation to law?); and (ii) clients’ assessment of officials’ legal consciousness (how do welfare clients perceive welfare officials’ orientation to the law)? In addition, the survey also includes a limited number of open field questions, to allow the respondents to provide answers in their own words.

To translate both dimensions of welfare clients’ legal consciousness into concrete survey items, we’ve used Chua and Engel’s (2019: 337) helpful distinction of three ‘constitutive elements’ of legal consciousness: ‘worldview’, ‘perception’ and ‘decision’. Worldview refers to ‘individuals’ understanding of their society, their place in it, their position relative to others and, accordingly, the manner in which they should perform social interactions’ (Chua and Engel, 2019: 336). Perception refers to individuals’ interpretation of specific events. ‘For individuals who perceive an event as unexceptional, law may seem immaterial; for those who perceive the same event as violative of interests or rights, law may seem significant’ (Chua and Engel, 2019: 337). Decision refers to individuals’ responses to events. ‘Decision may at times involve deliberate choices to use the law but at other times to leave it dormant’ (Chua and Engel, 2019: 337).

How Do Welfare Clients Experience, Understand and Act in Relation to Law?

Chua and Engel’s (2019) distinction was first used to operationalise welfare clients’ own orientation to the law. To assess welfare clients’ ‘worldview’, we used the scale of respondents’ perceived obligation to obey the law. To assess welfare clients’ ‘perception’ of Dutch welfare law, the survey used two scales to measure their level of support for two important legal obligations in the Dutch social security system: their support for the obligation to report extra income and their support for the obligation to apply for a job. To analyse welfare clients’ ‘decision’, the survey measured four types of (self-reported) compliance.

How Do Welfare Clients Perceive Welfare Officials’ Orientation to the Law?

We’ve also used Chua and Engel’s (2019) distinction to operationalise welfare clients’ vision of welfare official’s legal consciousness. Young (2014: 502) describes second-order legal consciousness as ‘a person’s beliefs about the legal consciousness of any individual besides herself, or of any group whether or not she is part of it’ (emphasis added). Likewise, the items in this section do not describe welfare clients’ assessment of individual welfare officials’ beliefs about the law, but rather welfare officials’ collective orientation to the law. However, for many people, welfare officials’ orientation to the law is probably quite vague and abstract. This makes it more difficult to translate into direct survey items than their own legal consciousness. Therefore, this study also uses several ‘proxy measures’ to analyse welfare clients’ assessment of officials’ orientation to the law. Rather than asking welfare clients directly how they perceive welfare officials’ orientation to the law, these items ask clients about their observations of welfare officials and their actions. Indirectly, these items also show how clients assess the ways in which welfare officials experience, understand and act in relation to law. To assess welfare clients’ perceptions of welfare officials’ ‘worldview’, we used one direct scale: ‘the perceived legitimacy of the welfare office’ and one proxy scale: ‘the perceived procedural justice of the welfare office’. To analyse welfare clients’ understanding of welfare officials’ ‘perception’, the survey used two (proxy) scales to assess the enforcement style of welfare offices: the perceived level of punitive enforcement and the perceived level of persuasive enforcement. To assess welfare clients’ perceptions of welfare officials’ ‘decision’, we used the (proxy) scale of the perceived probability of sanction.

Findings

Based on the survey results, we can analyse important elements of welfare clients’ own legal consciousness and their assessment of welfare officials’ legal consciousness.

Welfare Clients’ Legal Consciousness

The first set of survey data looks at welfare clients own legal consciousness. In relation to welfare clients’ ‘worldview’, most of them self-report that they are generally law-abiding. Nearly two-thirds (63.8%) feel that people should obey the law even if it goes against what they think is right. Also, most respondents (66.7%) say that they always try to obey the law, even if they do not agree with it. Half (48.5%) of them think that disobeying the law is almost never justified.

Reflecting their ‘perception’, welfare clients are more critical when it comes to specific provisions of Dutch welfare law. Most of them (68.4%) claim they have no problem with the fact that the welfare office can request their income. However, only one in two (52.1%) agrees with the fact that you have to declare all your income and a similar group says that, in their view, failure to report extra income should always be considered benefit fraud (46.9%). There is even less support for the other obligation. Just one in four (26.8%) agrees that if people do not do their best to find a job, they should be cut back on their benefits and even a smaller group (19.8%) thinks that over time, you should accept all jobs. Moreover, one-third (29.6%) of our respondents thinks it’s ridiculous that they are being told how often they should apply for a job.

Finally, with regard to welfare clients’ ‘decision’, most of our respondents say: ‘I do my best to comply with the welfare benefits rules’ (88.1%). Furthermore, a large group (70%) says that they pass on as much information as possible to the welfare office. However, they seem less willing to comply with some of the other benefit obligations. While most of them (80%) claim that they always report (extra) income to the welfare office, only 57% say that when they occasionally get paid in cash, they will report this to the welfare office. Likewise, although two-thirds (61.9%) of our respondents say that they do their best to find a job as soon as possible, one-third (29%) also says that they do not apply for a job more than necessary. Less than half of our respondents (43.5%) claims that they will do their best to cooperate with the welfare office. Likewise, 45.2% says that, from now on, they will do what the welfare office asks of them.

Combining all three elements of welfare clients’ legal consciousness, the survey data support Sarat’s (1990: 375) earlier finding that ‘legal consciousness is, like law itself, polyvocal, contingent and variable’. On the one hand, and with regard to the law in general, most welfare clients seem to ‘express loyalty and acceptance of legal constructions’ (Ewick and Silbey, 1998: 47). On the other hand, there are also indications that, with regard to several specific provisions of Dutch welfare law, welfare clients are more critical about the law and less willing to comply with the legal rules. Their critical legal consciousness is reflected in the fact that Dutch welfare clients sometimes ‘act strategically in relation to legal structures and authority in pursuit of desired outcomes’ (Headworth, 2020: 329) and frequently question the legitimacy of welfare law (see Edin and Jencks, 1993; Gilliom, 2001).

Welfare Clients’ Assessment of Welfare Officials’ Legal Consciousness

The second set of survey data gives us a good indication of welfare clients’ assessment of welfare officials’ collective legal consciousness. In relation to welfare officials’ ‘worldview’, most welfare clients think that welfare officials are not interested in their personal circumstances when they apply the law. Although half of them (51.8%) say that the welfare office fulfils its commitments to benefit recipients, only a small group (17.8%) thinks that the welfare office always acts in the interest of benefit recipients. Some people (19.3%) even feel that the welfare office abuses the vulnerable position of clients. Clients are also critical about the level of procedural justice. Half of our respondents (49.4%) say the welfare office honours its commitments. Yet, only one in three (31.4%) says that the welfare office treats clients fairly and a similar group (31.4%) says the welfare office treats people with respect. Also, just one-third of our respondents (33.7%) says that the welfare office explains their decisions and that it allows welfare clients to tell their side of the story (32.1%).

With regard to welfare officials’ ‘perception’, most welfare clients believe that officials use a rather strict interpretation of the welfare benefits rules and prefer a punitive enforcement style. More than half of them (53.9%) say that the welfare office is like a policeman, who will punish them if they do not comply with the rules. Many clients also say that the welfare office threatens them with punishment if they do not regularly apply for a job (61.9%) and puts them under pressure to look for work (38.1%). Yet, some clients perceive a more persuasive enforcement style. They see the welfare office as their teacher (39%) or their coach (24.9%). In their view, the welfare office explains what is expected from them (60%), encourages them to find a job (39.2%) and gives useful tips (28.1%).

Finally, in terms of welfare officials’ ‘decision’, welfare clients think that breaking the rules will not go unnoticed. Most of our respondents (70.8%) think that there is a good chance that their welfare office checks if they comply with the rules. Likewise, most clients think that their welfare office will find out if they do not report their income (74.1%) or if they do not look for a job (68.7%). Finally, nearly all our respondents (81.2%) think that when the welfare office finds out that someone does not comply with the rules, the chance of a fine is high.

Combining all three elements gives us a good idea of how welfare clients perceive welfare officials’ collective legal consciousness. For most clients, a central feature of welfare officials’ legal consciousness is their harsh and cold interpretation of welfare law. In their view, this is reflected in the strict application of the rules, the lack of interest in clients’ personal circumstances and the emphasis on strict obligations and sanctions. Clients feel that the way in which welfare officials understand and apply the law is characterised by a high degree of ‘legalism’ (Kagan, 1978). In their view, welfare officials’ collective attitude towards the law can be best described as: ‘the mechanical application of rules without regard to their purpose, without regard for the fairness or substantive desirability of the results produced by applying the rules’ (Kagan, 1978: 92).

Discussion

While in previous studies, people’s legal consciousness was often studied from an individualistic perspective, this study points to the relational nature of legal consciousness.

The survey findings suggest that welfare clients’ critical legal consciousness is shaped by their views on the harsh and cold way that welfare officials understand and apply the law. To understand how both elements are interconnected, Headworth’s (2020) study can serve as an inspiration. After observing welfare fraud officials and welfare clients in the US, he found that their legal consciousness is shaped in ‘an ongoing back-and-forth between each side’s assessment of the other’ (Headworth, 2020: 347). This resulted in an ‘iterative process of social exchange through which different actors’ attempts to “read one another’s minds” help produce lived legal realities’ (Headworth, 2020: 324). A similar ‘iterative process’ of relational legal consciousness seems to be at play in the current study.

Most Dutch welfare clients feel that people should obey the law even if it goes against what they think is right. They also expect that this position towards the law will be reflected in their interactions with welfare officials. However, rather than the positive attitude they were expecting, clients feel that welfare officials often treat them with a great deal of suspicion. They see all clients as potential fraudsters and therefore mostly emphasise which sanctions will follow if clients break the rules. Many clients feel disappointed, frustrated and offended by this approach. As two of them explain (in the open fields of the survey):

I expected that [the welfare office] would be much more helpful and that they would act less like a grumpy policeman.

They made me feel like a parasite, while I would love to work again.

Despite their general willingness to comply with the law, welfare clients feel that welfare officials do not treat them fairly and they experience little procedural justice. As a result, clients start to question the legitimacy of welfare law and they become less willing to comply with benefit obligations (like reporting extra income of applying for a job). When confronted with less compliance, welfare officials will probably respond with further sanctions. For welfare clients, this could be a reason to question the legitimacy of welfare law even more, and so on. Treating welfare clients, who generally comply with the law, as latent criminals can also have a negative effect on their future compliance behaviour. When this happens, the punitive enforcement style of Dutch welfare offices will ultimately result in less rather than more compliance.

Conclusion

As illustrated by the childcare benefits scandal, the Netherlands has increasingly become a punitive welfare state. The aim of this chapter was to analyse how this development affects Dutch welfare clients’ commonsense understandings of the law. Based on a survey among more than a thousand welfare clients, this study points to the relational character of legal consciousness. Welfare clients’ critical legal consciousness is not only shaped by their views on Dutch welfare law, but also by their views on the harsh and cold way that welfare officials understand and apply the law. Depending on whether you see the glass as half empty or half full, these findings can have both negative and positive implications. First and foremost, the rise of the punitive welfare state has clearly damaged many welfare clients and their families, who were repeatedly confronted with harsh sanctions and a cold welfare bureaucracy. According to some policymakers, treating each client as a potential criminal (and then asking the client to prove them wrong) is the best way to discover welfare fraud. Moreover, if they find no proof of any wrongdoing, their client is free to go without any further consequences. However, because of the relational nature of clients’ legal consciousness, this approach may be more harmful than is often assumed. This study suggests that treating welfare clients, who generally comply with the law, as latent fraudsters may ultimately undermine the perceived legitimacy of welfare law and decrease the level of regulatory compliance. However, there may also be a more optimistic aspect of the relational character of welfare clients’ legal consciousness. After all, if the way that clients understand the law is shaped by the views and actions of welfare officials, then these same officials may also hold the key to change clients’ legal consciousness. In response to the childcare benefits scandal, the Dutch government has initiated a series of reforms aimed at developing a more personal and accommodative enforcement style for welfare officials. If these programmes prove to be successful, this could be the first step to help restore the legitimacy of the Dutch welfare state.