Abstract
Social Rights in Europe in an Age of Austerity offers more than a mere track of austerity measures and social rights developments in different European states. The questions it poses are bigger and more challenging. They concern the relation between the welfare state, public law and social rights, a connection that is regularly overlooked yet lies at the heart of what our concern with social rights should be about. In this review, I set out some of the main contributions of the volume and point to some potential contradictions surfacing in the book. I will also look at the book’s limitations and at the questions the book leaves unanswered.
The Introduction (Part I) places the book within the broader realm of social rights scholarship. As Civitarese Matteucci and Halliday note, the increased scholarly attention for social rights focuses on the developing world rather than mature welfare states. Attention moreover has centred on the constitutionalization of social rights and on how courts (should) adjudicate them. It is important, the editors explain, to look beyond constitutional guarantees and locate the study of social rights within broader understandings of public law and the operations of the welfare state. Other public law rights and provisions may prove as helpful in hampering austerity welfare reforms, while the changing relation between capitalism and welfare spending provides an indispensable backdrop.
Part II presents five European case studies (of France, Germany, Italy, Spain and the United Kingdom; Chapters 2–6). Each of these ‘sets out the constitutional position of social rights in the country; examines recent changes, under the rubric of austerity, to areas of law and policy that pertain to social rights; and then explores the attempts through litigation to use public law rights to protect the welfare of the poor against austerity reforms’ (p. 14). I cannot summarize the studies separately, but let me mention some common findings. First, unsurprisingly, reforms have characterized social policy in all countries, albeit these have not necessarily come into place only after 2008. Reforms range from housing to health and social security, but an emphasis is visible on ‘working-age benefits’, that is, targeting those out of work. Consider the Hartz IV reforms in Germany discussed by Lembke or the benefit caps and sanctions in the United Kingdom mentioned by Meers. These underline the point made in the introduction of the book about the cultural dimension of social welfare. ‘Moral desert perceptions’ tied to neoliberalism may infuse the exercise of discretion whereas ‘responsibilising’ the jobless (see the chapter of Meers) is also likely to influence the area in which reforms hit the hardest in the first place. In turn, according to Albanese in her chapter on Italy, the fact that cuts in healthcare and education are less severe, may also relate to the fact that rights to health and education find stronger entrenchment in the constitution than other social rights.
Second, these contributions highlight the striking fact that (austerity) reforms often are tied to responsibilities of local governments, whose effectiveness of responding to social needs is reduced or whose responsibilities in this regard have become more extensive. The latter is problematic where local budgets fail to be increased simultaneously (cf. Meers on the United Kingdom) or where a division of legislative competences hampers coherent reforms with sufficient safeguards (cf. Albanese on Italy). A mixture of local and state responsibilities complicates effective rights review by courts that have to take into account different rationales and fragmented responsibilities and resources. This leads to a third common point: A judicial focus on balancing rights versus other considerations (i.e. on proportionality) has proven to be problematic. Such focus confirms a large amount of discretion for the non-judicial branches or results in emphasizing procedural review that does not always do justice to the substantive issues at stake. Examples are mentioned by Utrilla (Spain), who finds that substantive challenges to cutbacks tend to be unsuccessful. Regardless of the cuts and reforms, some authors’ perspectives on the state of social rights in their country are more optimistic than others. Whereas Roman (France) concludes that ‘the French welfare system, which used to be founded on equality, is showing cracks’ (p. 46), Lembke hopes that the German Federal Constitutional Court’s decision on penalty reductions will not depart from its finding of an individual right to a sociocultural minimum in earlier cases.
Part II concludes with an empirical study by Adler and Terum on the link between austerity and conditionality in six countries – the five case studies plus Sweden (Chapter 7). They find that conditionality does not necessarily correlate with the economic experiences of the different countries since 2008. Moreover, counterintuitively, where conditions are less strict (in Italy and Spain), sanctions are more severe and vice versa. In terms of explanations, neither the economic hypothesis (welfare state developments are driven by economic forces) nor the political one (developments depend on power relations and result from political decisions) is satisfactory. Instead, an explanation for conditionality and variations in different countries would be linked to ‘the widespread scepticism towards unconditional rights, the pervasive view that the Welfare State needs to be recalibrated to achieve a better balance between rights and responsibilities, and the extensive adoption of supply-side measures in the delivery of public services’ (p. 168).
The theoretical part (Part III) of the book continues with the topic of conditionality. In Chapter 8, White argues that whereas the justice of conditionality is conditional (justified by reciprocity only when other important conditions of fairness have been satisfied), a universal minimum income (UMI) may allow for avoiding the dangers inherent in it. He admits that his (theoretical) argument seems to rest on both pessimistic and rosily optimistic views about what is politically feasible. If political agreement cannot be reached on just conditions for conditionality, why would a UMI be agreed upon? White considers at least a partial UMI to be politically feasible – indeed the debate and experiments in various countries suggest this might be the case.
The chapter written by Ferraro (Chapter 9) delves into the concept of social rights, reminding us of the false dichotomy between civil and social rights. His actual point, however, is that much more than the perceived differences between rights, it is differences in political rhetoric and ideology that impact the use and implementation of social (and civil!) rights in times of crisis: ‘Claiming that some rights are costly, while others are not, only helps to obscure the fact that privileging financial worries and the free market over public concern for social needs is a matter of political choice’ (p. 211).
In Chapter 10, King zooms in on the role of courts. Building on his argument in Judging Social Rights, he argues for incrementalism in social rights review. This leaves significant room for the legislative and executive branches in defining and implementing social rights, while the role of the judiciary is a supervisory one. Especially in the context of austerity, careful, procedural review may be all we can expect from courts. According to King this does not imply the failure of social rights: Adjudication cannot stop austerity, yet it can make a difference. Even if adjudication is reflective of a country’s political and legal history, to argue that social rights merely have become part of an enabling framework for neoliberalism does not do justice to their achievements.
The view King takes issue with, is in fact that underlying the chapter of Christodoulidis and Goldoni (Chapter 11). These authors consider the question how social rights are better protected obsolete. After all, social rights constitutionalism has been all but defeated: Where they have not been hollowed to the point of extinction by austerity programmes, systems of social and labour protection have been thrown into the vicious circle of competitive alignment, with the devastating effects the race to the bottom has had on social rights. (p. 239)
In Chapter 12, on territorial asymmetrical effects within the European Economic and Monetary Union, Bilancia aims to interpret the connections between legal rules and economic power to argue that member states confronted with financial instability and budget deficit ‘have lost any power combat regressive social policy as “suggested” by European institutions’ (p. 258). Increased rule-boundedness leads to asymmetric reductions of public expenditure and hence fragmented territory in the enjoyment of social rights. No wonder, then, that European citizens exercise their rights of free movement in order to seek more generous social provision.
In the final chapter (Chapter 13), Giubboni continues on the topic of ‘territorial shopping’. In his ‘melancholic eulogy’, he discusses the recent case law of the Court of Justice on free movement of persons and workers within the Union (Brey, Dano and Alimanovic), to conclude that economic migrants increasingly must prove a certain degree of integration before they have access to the same social advantages as nationals. For example, the disappearance of the contextual proportionality test, which permits for general exclusions, is but one sign of the grim direction in which things are moving.
Edited volumes hardly ever provide the coherent story they promise. This book is no exception, yet a reader who puts in some effort, will identify red threads and recurring themes, such as conditionality and market ideology versus room for social rights. Some concluding remarks from the editors could however have been helpful. This is probably all that could be expected, but the book poses more fundamental questions than it answers. Whereas the case studies are largely informative, highlighting common challenges, the theoretical chapters differ in outlook: A few authors outline constructive thoughts on the role of social rights, while especially the ‘European chapters’ seem to focus merely on outlining circumstances that limit their space. But are these circumstances really due to a failure of social rights? This question remains largely unanswered.
According to the introduction, a central issue is whether social rights, apart from aiding transformations in the global south, ‘prove “fit for purpose” in offering protection for existing provision in the global north?’ (p. 3). But is their purpose to protect existing provision? Or is it rather to provide a floor of (unconditional) social protection, or, more ambitiously, to reform welfare policies that sustain gross material inequalities? There is a link here with Samuel Moyn’s new book Not Enough. Human Rights in an Unequal World (The Belknap Press of Harvard University Press, 2018). His argument that (social) human rights have focused on sufficiency and failed to bring about material equality brings up the question of whether these rights actually should be expected to form a bulwark against neoliberalism and foster general transformations – even if historical narratives support this aim. The distinction between sufficiency and equality in turn clarifies some of the contradicting outlooks in Social Rights in Europe: It is easy to be pessimistic if material equality (within Europe) is what is hoped for. On the other hand, if (judicial protections of) social rights are counted on to (at least) ensure individual protection of a social minimum, this may well be compatible with a market ideology the omnipresence of which hence does not necessarily imply the defeat of social rights. Arguably, some parts of the book focus too narrowly on this omnipresence, omitting a more thorough discussion on the (realistic) role and possibilities of social rights in times of austerity.
In any case, taking stock of the shrinking space for social rights, this volume forms a valuable starting point for a broader discussion on whether and how these rights should be expected to fight back. Much recommended for those keen on this discussion and convinced that it cannot proceed in isolation from an understanding of public law, the welfare state and developments in regard thereof.