Welfare state dystopia as a challenge for the right to social security

Social rights have developed in response to 19th century laissez faire capitalism. They have given rise to an interventionist welfare state that purports to liberate people from the whims of the market, making use of a plethora of social transfers. Legal doctrine on the right to social security reflects this “rationale of decommodification” by focusing on the promotion of a benefit system which is “available, accessible and adequate”. However with such a system, the welfare state accumulates more and more powers. These may turn against the very people who it intends to protect, sometimes with devastating effects for individual claimants. Recent scandals have occurred in a number of countries which show how the ideal of the welfare state may turn into a dystopia. Legal doctrine pertaining to the right to social security will have to face this challenge. It must be accompanied by stronger qualitative guarantees that protect individuals from the social bureaucracy. This contribution proposes three qualitative guarantees of individual treatment to augment the interpretation of the right to social security: compensation, elevation and participation. These standards are not alien to the right to social security but in main stream
thinking they are often relegated to the second echelon. Now they need to be taken from the shelf and put in the limelight.