The Public Interest and the Welfare State: A Legal Approach
19 Pages Posted: 18 Sep 2008 Last revised: 23 Jun 2013
Date Written: September 17, 2008
The boundaries between public and private social security change over the years. The Dutch social security system increasingly makes use of private arrangements. This privatization gives rise to questions regarding the protection of public interests. These questions are perceived very differently by the various disciplines. We have opted for a legal point of view. We will address the following question: 'Does the law provide a basis for defining the public interests of social security and if so, is it possible to identify a catalogue of these interests with reference to the law?'.
We answer this question affirmatively. An initial observation is that legal theory of fundamental socio-economic rights does constitute a suitable framework for defining state responsibilities in the welfare state. This proposition is worked out in paragraph 3 with reference to the modern method of differentiating the state obligations in the obligation to respect, the obligation to protect and the obligation to fulfill.
The next step is to clarify what should be respected, promoted or fulfilled. In paragraph 4 we introduce seven leading principles of social security, being one of the pillars of the welfare state. These principles go beyond legal reasoning and will meet some recognition also from an economical, historical or sociological perspective. The seven principles are formulated under the headings of: protection, inclusion, security, equality, solidarity, rule of law and good governance. After the concept of social security is thus unravelled it becomes possible to associate each of the seven principles with legal principles and requirements which are more clearly established in law. In this way the right to social security will be identified with a set of concrete legal standards. Examples of such deductive exercise will be presented in paragraph 5. The article concludes in paragraph 6 with a number of reflective remarks as to the appropriateness and relevance of the method we introduce in this paper.
Keywords: public interest, Social security as a fundamental socio-economic right, equality, rule of law, protection
JEL Classification: H53, H55, I30, K40
Suggested Citation: Suggested Citation