Juridification and Social Citizenship – by Henriette Sinding Aasen

MontrealSoupKitchen1931

The law plays an important role in the administration of the modern welfare state. Henriette Sinding Aasen, Professor of Law at the University of Bergen, explains the effects juridification has on modern citizenship.*

The constitution of the modern welfare state entailed a change in the role of law in society: from limited government and rule of law to active government and social law. Law is not only a guarantee for basic justice and security but in addition a significant political instrument for obtaining social objectives. In this context, “juridification” refers to the expanding role of law and legal institutions in the modern welfare state, related to the expansion of state activities and the multitude of public and private interests, conflicts and dilemmas that followed. Today, law is important not only in the “hard cases” of negative criminalization and punishment, but also – and increasingly – in the “softer” areas of positive welfare state activity: healthcare, education, employment, social security, housing, etc.

These areas of public activity and interests raise a number of questions that demand authoritative solutions, which are found in the complex web of social law and regulations. In addition, the term “juridification” refers to conflicts and problems being increasingly framed and discussed in terms of individual rights, which can be partly explained with reference to the influential post-war human rights doctrine. Finally, “juridification” also resembles the frustration of professionals and others who are confronted with an increasing number and intricacy of legal regulations in their work and professional activities.

Following the classical work of T.H. Marshall, modern citizenship is constituted by different catalogues of rights. Marshall described citizenship as a development of civil rights, then political rights, and finally also including social rights. Analyses of social citizenship focus on the third catalogue of rights, the social rights. The main idea behind these rights is that citizens should be assured a basic material subsistence and services to be able to follow their own life projects, participate in community life, the labour market and in other areas of public and private life. Education, healthcare and social services are considered the most important social institutions to secure social citizenship. By guaranteeing the material well-being of citizens through social rights rather than arbitrary benevolence or charity, the welfare state aims to protect citizens against social risks (illness, unemployment, pregnancy, disability, etc.) that reduce their ability to work and/or act as independent persons.

Today, social rights form an essential part of modern welfare states, which are expected to secure a broad range of goods and services. On the one hand, the individual entitlement approach protects access to essential goods and services, such as healthcare, education and social security. On the other hand, the development of individual entitlements as part of social citizenship has in some areas (e.g. with regard to unemployment and social benefits) been met with social policies and regulations in order to counter and limit individual access to benefits, and thereby prevent “passive” recipients of social welfare.

These countering measures, or “activation policies”, include action plans, training programs, control systems, surveillance, community work, sanctions and other measures to activate individuals and prevent them from becoming dependent social clients rather than active and independent community members. Despite positive intentions (active and independent citizens), such legal regulations, requirements and control systems, which vary considerable among different welfare states and within different fields of the welfare state, may have a significant impact on the social citizenship of particular groups and individuals, including their dignity and autonomy.

One important area of the welfare state is the healthcare sector. Access to quality healthcare services when needed is considered to be one of the most important aspects of social citizenship. All citizens are from time to time patients in need of healthcare, and the provision and distribution of healthcare services are essential tasks of all welfare states. Responsibility for and access to different kinds of healthcare services (emergency, primary, specialist) is regulated by a number of national as well as international legal instruments, including human rights instruments.

An overall goal of health regulations is to secure equal and equitable access to quality healthcare services among citizens. Important questions in this regard are whether, under which conditions and to which extent the use of individual entitlement to healthcare services is an effective way of securing this important goal. Not only do patients have different medical needs, their ability to claim their rights also differ significantly. Thus, it is not necessarily the case that the individual entitlement approach will secure equality and equity in access to healthcare services. A complicating factor is that due to limited public resources, healthcare services must be prioritized, either by the government, hospitals, politicians, doctors, or by other responsible actors. The role of and interplay between legal, political, economic and professional instruments in this regard is a highly debated and complicated topic. What is the proper relationship between law, politics and professionalism in the healthcare sector?

The word “juridification” may be used by observers when the legal regulation is considered to be too rigid or detailed, or out of touch with “medical reality”, “social affairs”, professional standards, political deliberation, etc. Distinct for social law in all fields is that it is interpreted and applied by professionals, including health care personnel, social workers and various groups of public servants. In fact, social law cannot be implemented without the active assistance of a broad range of professionals. Therefore, their understanding and application of the laws and regulations have a strong impact on social citizenship.

 

*This article is adapted from the book Juridification and Social Citizenship in the Welfare State, edited by Henriette Sinding Aasen, Siri Gloppen, Anne-Mette Magnussen and Even Nilssen

 

Henriette Sinding Aasen (dr. juris) is professor at Faculty of Law, University of Bergen, Norway. She was a visiting professor at the Centre for Human Rights, University of Pretoria, South Africa, in 2013-2014 and is currently working on a project on women´s right to sexual and reproductive health focusing on the Protocol to the African Charter on the Rights of Women in Africa. Her research specialty is health and human rights, with a particular focus on implementation of rights for vulnerable groups. She has recently published (with Anne Hellum) the volume Women´s Human Rights. CEDAW in International, Regional and National Law (Cambridge 2013). A main theme in her projects is the role of socio-economic human rights in advancing human dignity and democracy.  She is the co-editor of the recent volume Juridification and Social Citizenship in the Welfare State (Aasen, Gloppen, Magnussen and Nilssen, Edward Elgar 2014).

, , , , , , , ,

Subscribe

Subscribe to our RSS feed and social profiles to receive updates.

No comments yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: