Introduction

During the last ten years, legal research on social rights has proliferated. A considerable number of monographs, edited volumes and articles in academic journals have been published on the topic of social rights. Within this body of academic literature social rights have, inter alia, been “explored”, “debated” and “judged”. (See, e.g., de Búrca and de Witte (eds) 2005; Langford (ed.) 2008; Gearty and Mantouvalou 2010; Barak-Erez and Gross (eds.) 2011; King 2012; Nolan (ed.) 2014; Dean 2015; Kaltenborn 2015.) What accounts for this recent upsurge in interest in social rights? At least two inter-related explanatory factors can be identified. First, the latest global economic crisis (2008-2012) has brought social rights to the centre of political and legal argumentation. Spontaneous or imposed austerity measures in many countries have given rise to active social rights adjudication and social rights movements that have resorted to social rights argumentation in the campaign against cutbacks and retrenchment. Second, social rights have also gained ground at the institutional level. Social rights have been included in constitutions of individual countries and have also found their way into various international and regional legal instruments, such as the European Union Charter of Fundamental Rights. The coming into force of the Optional Protocol of the International Covenant on Economic, Social and Cultural Rights in 2013 made it possible for individuals to submit communications based on alleged violations of the rights contained in the Covenant. Thus, both the financial crisis and the institutionalization of social rights have led to the growth of social rights jurisprudence at the global, regional and national levels. As well as charting and analysing the relevant social rights adjudication and

case law, recent academic literature on social rights has addressed several interesting theoretical questions too. While these questions are not new, they nevertheless still attract academic attention and occupy the minds of legal scholars. Two questions seem to be of enduring interest. First, is there a categorical difference between social rights, on the one hand, and civil/political rights, on the other? Second, are social rights “real rights” in the sense that they are justiciable in courts? Although affirmative answers to the first question are still given (e.g. Atria 2016), the common view today seems to be that there is no theoretical difference between the two (or three) categories of rights (see e.g. Langford 2008, pp30-1; Gearty

and Mantouvalou 2010, p17; Barak-Erez and Gross 2011, p8; King 2012, p1; Garland 2016, p625). Regarding the second question, it has been argued that the proliferation of social rights adjudication in courts alone proves the point that they are, indeed, justiciable (Langford 2008, p4). However, some scholars who agree that no categorical difference between social rights and civil/political rights exists still insist that social rights should not be promoted through courts. Their value, rather, “lies principally in the political arena” (Gearty and Mantouvalou 2010, p1). What has characterized the recent literature on social rights is that it has

mainly focused on constitutional social rights and/or social human rights – especially from the point of view of adjudication. However, the ambition and focus of this edited collection lie elsewhere. Rather than exploring the question of the justiciability of social rights or adopting the type of legal-normative approach to be found in the current legal literature on social rights, the book addresses social rights in the context of the changing nature of the welfare state. This has at least one important implication. We are not interested in social rights as “aspirational rights-claims” (Garland 2016, p624) as they appear in international human rights treaties and national constitutions. Instead, the chapters of this book analyse social rights as “actually-existing rights” (Garland 2016, p624) routinely upheld by welfare state officials. The relationship between social rights and the welfare state has, of course,

been studied before. Even though T. H. Marshall (1964) did not use the term “welfare state” himself, his analysis of the nexus between social rights and social citizenship has marked the study of social rights and the welfare state ever since. It has become a commonplace – almost a necessity – to refer to Marshall when writing on social rights and the welfare state. In a way, this is somewhat paradoxical since Marshall did not engage in any profound theoretical contemplation on the nature of social rights. He primarily used the term “social rights” as a synonym for “social entitlements”. This, however, should not be taken to mean that Marshall’s seminal work on social rights and social citizenship is no longer of contemporary relevance or a source of inspiration for scholars seeking to make sense of the relationship between social rights and the welfare state today – as several of the contributions to this collection confirm. His work has also garnered the critical interest of scholars seeking to make sense of social rights in the context of the post-national and global reality in which we now live. Dean, for example, has recently advocated a “post-Marshallian theory of social rights” that would conceive of social rights in “social” and not “institutional” terms. In other words, social rights are negotiated, rather than given (Dean 2015, pp148-52). Marshall’s notion of social rights – and social rights in general – was, however,

an object of criticism long before the era of globalization and trans-nationalism. Since at least the 1980s, social rights have been discussed in the context of the “crisis of the welfare state”. While perhaps the leading figure in those discussions was Jürgen Habermas, the debate also involved other German social theorists and legal scholars, including Gunther Teubner, Ulrich Preuss and Rudolf Wiethölter. They all shared the view that social rights were one of the innate causes of the

crisis of the welfare state. Social rights as “distributive rights” not only set unnecessary restrictions on governmental economic policies in times of economic downturn but also had a passivizing effect on individual initiative. Social rights in the form of ever-growing social security legislation also led to the “juridification” of the social sphere and to an increase in administrative power. “Proceduralization of law” and “reflexive law” were offered as solutions to these problems (see Teubner 1986; Preuss 1986; Wiethölter 1986; and Habermas 1987 and 1996). Habermas, in particular, claimed that T. H. Marshall’s description of the linear

evolution of the elements of citizenship and concurrent rights was too black and white. According to Habermas, Marshall’s analysis “remains insensitive to increases and losses in autonomy”. Social entitlements are only empirically connected to the idea of political autonomy. In certain circumstances, social rights may advance a “privatistic retreat from the citizen’s role [whereby] citizenship is reduced to a client’s relationship to administration that provide security, services, and benefits paternalistically” (Habermas 1996, pp77-8). Instead, procedural law, that is, the right to political participation, has a conceptual relationship to the individual’s political autonomy. This type of dismal account of the potential of social rights has drawn criticism. It has been argued (Tweedy and Hunt 1994), especially in reference to Habermas’s critique of social rights, that all rights – including those of the civil and political variety – retain the possibility of limiting individual freedom. Furthermore, social rights are not monolithic and therefore not all social rights imply bureaucratization. In the context of the French welfare state, Pierre Rosanvallon has touched

upon the theme of the crisis of the welfare state and rights. With reference to new forms of social entitlements – especially the revenu minimum d’insertion introduced in France in 1988 – Rosanvallon has claimed that these types of procedural rights, “rights to inclusion”, offer a way out of the impasses created by the decline of the “insuring society” (Rosanvallon 2000, pp83-4, 88, 104-6). In contrast to Habermas, Rosanvallon’s account of procedural rights emphasizes more strongly the substantive dimension of these rights. According to Rosanvallon, what is at stake is not political autonomy but rather the right and obligation to “social usefulness”. Social security systems have, indeed, undergone continuous reforms in Western

welfare states during the past 30 years. Austerity measures of different degrees have been imposed, social welfare administration has been streamlined, and the duties of citizens have been strengthened. Some have argued that these reform policies have altered the very nature of social rights. It has been argued, for instance, that social rights have become more “discursive” (Cox 1998). Social rights are no longer perceived as absolute claims. Rather, they are viewed as negotiated claims that need to be balanced against the social rights claims of others. Although there is a certain truth to this argument, historically speaking social rights – like all rights – have always been negotiated. Perhaps the difference between the past and today is that whereas the content and scope of social rights used to be negotiated mainly in the sphere of politics, today, at least in some countries, the negotiations also take place in courts.