ABSTRACT
In providing for basic needs as a matter of right, the welfare state introduces a new category of legal positions and relations compared with the constitutional state (Rechtsstaat) and the democratic state.1 Welfare rights are positive rights that oblige the state to provide individuals with something they cannot obtain through market transactions, owing to a lack of financial means or an insufficient market supply.2 Because these rights mean an expansion of law into new areas, and a more detailed legal regulation of formerly legally regulated areas, they have been associated with a trend toward juridification.3 However, juridification processes in the welfare state vary from stronger to weaker legal regulation, from stronger to weaker rights to benefits and services. In some areas, the rules that specify who is entitled to what are clear; in others, they are more or less discretionary. When juridification takes the latter form, discretionary power is conferred to diverse groups of professionals whose judgments about needs and circumstances mediate claims: one has a right to something under relatively vague rules applied by nonlegal professionals, for example, social workers and doctors.4 The scope for discretion is increased when the task is not to administer rights but to realize certain goals or states through public intervention (i.e., to find the adequate means to reach a prescribed end). Sometimes rights are linked to purposes, as when Norwegian welfare law regards social assistance as both a right (given certain circumstances) and as a means to enable the receiver to become self-sufficient.5 During the last decades socalled activation policies have been a central component in welfare reforms across OECD countries. These policies make rights to benefits conditional on active job search and participation in training programs and other workrelated activities.6 One probable implication of increasing conditionality of welfare benefits is more extensive use of discretion in welfare systems.7
