ABSTRACT
Does the coterminous rise of neoliberalism and rights in advanced welfare states mean that the two phenomena are natural bedfellows? Critics have alleged that civil rights (and some social rights) have been marshalled by privileged groups in politics, courts and elsewhere to challenge and weaken institutionalized social welfare goods and regulations. Hirschl (2011, p462) highlights the correlation between the contemporary “shrinkage of the Keynesian welfare state” and the “prevalent conceptualization of rights as essential negative liberties that shield the private sphere from the long arm of the encroaching state”. The blame for this development is often sheeted home to topdown premier liberal and neoliberal institutions like the European Court of Human Rights and, particularly, the European Union; although Hirschl also points to the rise of conservative parties that have created political space for judicial review. Even the contemporary mobilization of positive social rights has been subject
to this critique. The current universalist and individualist-inflected social rights discourse is contrasted to the earlier grounded and institutionalized collective social rights which characterized the rise of welfare states (à la Marshall 1964). This new atomistic framing of social rights has been blamed for helping to legitimate a minimalist social state and dismember the solidaristic bonds that hold together the universalistic and collective model of social rights (Fischer 2013). D’Souza (2008) also points out that turning to individual social rights often implies accepting the full classical regime of civil rights, particularly property rights. Does the above twinning of rights with neoliberalism hold in a Nordic welfare
state such as Norway? On the one hand, the claim has some resonance. Trade unions have strongly resisted rights-based demands for minimum wages or freedom of association in order to protect powerful collective bargaining institutions; and some alarm has been expressed over the growing individualization and judicialization of health rights, with the fear that they may privilege the middle classes and thus widen, not reduce, disparities. On the other hand, these critiques require a closer empirical investigation.
Both critique and counter-critique must engage, as the critical modernists would say, in the “relentless reviewing of processes and methods” (Redhead 2005, p39).
One must be particularly wary of simplistic historical sociological accounts in which the past (or the future) is always better. We must make sense of social rights in a particular country and historical and global context. Moreover, accounts of political change that foreground discourse and occlude political contestation and agency should be viewed with some scepticism. In Norway, the potential problem with the critical narrative of rights and
neoliberalism is threefold. First, it seems to gloss over the long history of liberal rights and judicial review as prelude to the social welfare state. Second, it overstates and misstates the degree and nature of “regressive” change in welfare states. Third, it arguably papers over the diverse bottom-up and systemic drivers for individualized social rights in Norway. The structure of this chapter is divided according to these three empirical challenges
to the critical narrative. The second section examines the longue durée of the rule of law and Norwegian social welfare state in order to understand the role of rights and courts. The third section examines the extent to which neoliberalism has inflected (politically and legally) the Norwegian welfare state and associated social rights. The fourth section analyses the origins and trajectories of the turn(s) to rights from the 1970s, and whether they have weakened, defended or helped perfect the social welfare state.
At first glance, the Nordic states seem curiously devoid of rights, courts and lawyers. They seemingly represent the antithesis of turbocharged American legal adversarialism (Kagan 2001). A typical picture is painted by Hirschl (2011, p458) the Nordic constitutional tradition has been based on “local and national democracy, popular sovereignty, parliamentary supremacy, and majority rule” together with “overall good governance, political and judicial restraint, relative social cohesiveness, a traditional commitment to social democracy, a well-developed welfare state combined with a vibrant market economy”. Moreover, the Nordic states have been mostly unenthusiastic “toward the American notion of rights and judicial review”, and the number of lawyers remains “relatively low in relation to the size of the population” (pp454, 468). Is Hirschl correct? Is the trajectory of both political liberalism and the rise of the
social welfare state in the Nordic countries a story to be told without rights, courts and lawyers? It might certainly be in the case of Sweden up and until the 1970s (Schaffer 2015) although its historical commitment to both electoral and social democracy is much shorter than Hirschl implies (Schaffer 2016). A common error in Nordic exceptionalism research, however, is the presumption of regional homogeneity. Thus, it is important to return to the 19th century and chart the somewhat different development of the modern Norwegian state.
