Specifying and Securing a Social Minimum in the Battle Against Poverty

Toomas Kotkas, Ingrid Leijten, Frans Pennings, Toomas Kotkas, Ingrid Leijten, Frans Pennings

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509926039
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book addresses a topic that is currently high on the agenda in many fora: how to specify and secure a social minimum. The term 'social minimum' has different meanings, depending on the context. These contexts are examined in this book from different perspectives, including law, sociology, philosophy, politics and economics. In the first part, the social minimum is discussed from a conceptual and theoretical point of view. The second part shows the various ways in which the social minimum can be specified and measured. There is a need for new indicators that take into account, for instance, aspects of adequate social participation. As this part shows, the choice of indicators is closely intertwined with political choices. The third part approaches the social minimum from the perspective of legal obligations, addressing the nature of different obligations imposed on individuals and states. The fourth part deals with the question of social minimum in the context of courts, adjudication and justiciability. The role of international treaties and national constitutions – the interpretation of the rights they enshrine and the way these are dealt with by expert committees and courts – is discussed with a view to understanding how the guarantee of a social minimum can be promoted within individual countries. Besides being of interest for academics in fields ranging from legal theory and human rights to the social sciences, the book also serves as an important source for students as well as practitioners interested in the social minimum, and anyone who wants to gain an insight into the current debates on this extremely important issue.

1

Introduction

INGRID LEIJTEN, TOOMAS KOTKAS AND FRANS PENNINGS

I.POVERTY, INEQUALITY AND THE SOCIAL MINIMUM

According to the 2018 global Multidimensional Poverty Index (MPI), some 1.3 billion people live in multidimensional poverty, and half of them are younger than 18.¹ The MPI is published by the United Nations Development Programme (UNDP) and the Oxford Poverty and Human Development Initiative (OPHI). The ‘multidimensional poverty’ the MPI refers to includes health, education and living standards, measured with the help of 10 indicators such as child mortality, nutrition, school attendance, drinking water, sanitation and housing. Deprived people live in all regions, though their number is most significant in sub-Saharan Africa and South Asia, and mostly they live in rural areas. Moreover, millions of people face the prospect of falling into multidimensional poverty, given, for example, risks of crisis, natural disasters or the effects of climate change.²

Against this background, the UN 2030 Agenda for Sustainable Development aims to end poverty in all its forms.³ And regardless of the large number of poor people, it cannot be said that no progress at all has been made – to the contrary. According to the UNDP report Work for Human Development from 2015, income poverty in developing country regions fell by more than two-thirds between 1990 and 2015. The number of extreme poor people worldwide, ie people living on less than US $1.25 a day, fell from 1.9 billion to 836 million.⁴

In line with the MPI, however, Special Rapporteur on extreme poverty and human rights, Philip Alston, warns that measuring poverty solely on the basis of income, fails to capture the depth and complexity of this issue.⁵ Extreme poverty has a significant impact on the full enjoyment of human rights: it often means a lack of access to education, health services and safe drinking water, but also affects possibilities to participate meaningfully in the political process and causes human rights violations relating to, eg, working in an unsafe environment. The elimination of poverty, in this line of thinking, should not be a matter of charity, but rather a matter of right.⁶

Effectively combatting poverty requires a plethora of actions and measures. One of the key normative concepts in regard to this battle against poverty, is the concept of the social minimum, which can be understood as the floor of socio-economic protection states are required to provide. Rather than dealing with poverty as such, this book brings together insights concerning this social minimum as a matter of justice and rights. That every person should be able to rely on a minimum social protection hardly needs stating. In this regard, we ‘may continue to disagree about what is good, but nevertheless agree about what is insufferably, unarguably wrong’.⁷ No one should find him- or herself without access to basic social means necessary for living a life in dignity.

Yet with every definition of a social minimum, the problems inherent in this concept surface: what exactly should a social minimum include and how can it be secured? How minimal can a social minimum be? Is it universal or rather dependent on context and therefore country- or even region-specific, and who should be entitled to it where? It can be asked what constitutes the ‘social’ in the social minimum: which aspects of individuals’ lives should be perceived as social and therefore included in such a minimum? Is that, in line with the MPI, income, health and education? What about the possibility to partake in social and cultural life?

The tendency to focus on a floor, rather than a more ambitious level of protection, intrinsically is linked to the fact that resources are limited and political views on the provision of social goods are diverse. The question of what states need to provide and to whom divides those with different political convictions and philosophical ideas on the good life and the role of the state therein. Modern societies care about the well-being of their members, which can however be understood as a matter of political will or of right. Indeed, where it is agreed that a (legal) entitlement to a social minimum exists, this does not yet answer the question of how we can best secure that all members of a particular society or community are provided with this minimum. Just like the eradication of poverty, the provision of a social minimum can be perceived as a right rather than a privilege. More precisely, a social minimum can be codified as a constitutional (or human) right, and as such claimed before the courts. Due to its potential indeterminacy, however, it can just as well be concluded that we need to rely on the other branches for securing a social minimum, and thus on political deliberation on who deserves what. A social minimum could be guaranteed by means of a Basic Income, but it could also take the form of particular benefit for those in need or (a mixture of) payments in cash or in kind. And once it is provided, is the social minimum in fact unconditional for those in need or can it instead be required that conditions must be met and that individuals be subject to sanctions?⁸

In the light of this, the question that is central to this volume is how we can specify and secure a social minimum. We do not intend to present definite answers as these may differ from one context to the other, or depending on who you ask. Our aim is rather to provide an array of academic and other insights concerning the issue of the social minimum. Bringing together various disciplines relevant to this topic, namely social policy, law and legal theory, and economics, this book offers a broad and unique outlook of topical aspects related to the social minimum. This will offer a deeper understanding of a topic that is well worth our attention in times of great inequality and continuing (and new) social threats. Whereas for lawyers it is interesting to engage with the ways in which a social minimum is calculated and features in policy-making, for non-lawyers concerned with this topic it will be illuminating to see what law does, and what it cannot do, in order to make the social minimum real.

Before turning to the structure of this book, a few more things must be noted on minimalism and its relation to equality. Even though the number of people living in extreme poverty has significantly decreased during the past few decades, burning problems such as income inequality still remain. In this regard, the 2015 UNDP report mentioned earlier states that the technological revolution has been accompanied by rising income inequality. Even people with better education and training who can work more productively may not receive commensurate rewards in income, stability or social recognition. Workers overall are getting a smaller share of total corporate income – both in developed countries and in developing countries.⁹ Income inequality is illustrative of the broader gap between the rich and the poor. A UNDP update report in his regard continues that ‘inequality is not only normatively wrong; it is also dangerous’ as it can fuel extremism and have adverse consequences for social cohesion.¹⁰

It is true that the provision of a social minimum does not do away with inequalities. It does not place a ceiling on wealth. At the same time, redistribution will have some effect in terms of controlling the gap between rich and poor. Is it problematic that we focus on a minimum level of social protection, rather than on economic equality? The difference between the two is not merely one of degree; whereas the first entails an individual, independent entitlement, the latter is relative as it concerns deprivation measured in comparison to what others have. How just is a world where everyone has a sufficient level of social protection, though more or less nothing compared to the wealthy few?

This dilemma is vividly presented in Samuel Moyn’s recent book, Not Enough. Human Rights in an Unequal World.¹¹ Telling the story of Croesus, who was wonderfully rich yet insisted on a floor of protection for everyone subject to his totalitarian power, Moyn asks whether this ‘utopia’ – enough basic means for everyone – could ever be enough given the inequality it represents. In his book, Moyn sets out that human rights have failed to provide material equality and that the sufficiency human rights have come to stand for, shows their failure in today’s world of great inequalities. Human rights have proven to be the companion of neoliberalism rather than its antidote.

The pejorative way in which ‘sufficiency’ can be used, however, does not do justice to the importance and promise of minimalism and, indeed, a social minimum. Admittedly, the danger when focusing on a social minimum is that this distracts from more encompassing protection while legitimating minimalist efforts.¹² The floor of protection that is offered, in other words, runs the risk of becoming the ceiling instead. This goes for government action as well as for courts’ determination of minimum levels of social protection. But the choice for a book on the social minimum is evidence of our belief in the value of this notion, rather than of skepticism as to what it has to offer. This book engages with what poverty means, and addresses the gap between the rich and the poor as a necessary aspect of the discussion of the social minimum. What is more, even an isolated discussion of different facets of the social minimum does not signal a lack of ambition but instead underlines the reality that for many individuals even enjoying a basic, minimum level of protection is something very remote. It can moreover be argued that minimum protection can be seen as a prerequisite of achieving a more (materially) just society, as a starting point for addressing the enormous gap between the rights and the poor. Not least because a social minimum – including (access to) health care and education – will also benefit the enjoyment of civil and political rights, lead to better possibilities for political participation and increased (economic) chances. In the light of this, engaging with the question of how best to specify and secure a social minimum is a worthwhile aim.

The remainder of this introduction serves to further introduce the overall topic of the book and the different parts thereof in particular. This book consists of four parts, namely: (1) Conceptual Questions; (2) Specifying a Social Minimum; (3) Securing a Social Minimum: Obligations for States and Individuals, and (4) Securing a Social Minimum: the Role of Courts and Supervisory Bodies. In this way, the book moves from the more abstract issues to concrete (case law) examples; from, first, considering why we need a social minimum and what it entails, to, thereafter, seeing how it is or should be given ‘bite’. Below, under the headers of the different parts, the chapters that constitute these will be introduced. This overview will assist the reader who wants to connect the dots and navigate the book in order to find what he or she is looking for.

II.CONCEPTUAL QUESTIONS

As we mentioned above, the social minimum continues to be highly debated. The questions it brings up can be of a more practical nature, but also entail conceptual and theoretical issues that are fundamental to our understanding – and acceptance – of the social minimum as a matter of social justice. In the first part of the book, several of these fundamental points are taken up in a way that helps clearing the path for the parts to follow.

To start with, in chapter two, David Bilchitz takes up the fundamental yet difficult question of the justification for thinking in terms of minimum thresholds when it comes to the distribution of goods. Minimalism can first be justified by a set of normative arguments that demonstrate that the notion of justice itself can be connected analytically to the notion of its encompassing a minimum set of demands of morality. An instrumental justification instead involves reasons for why developing minimum thresholds is valuable for attaining other, greater aims. The third set of arguments Bilchitz presents are democratic in nature and involve considering the role of disagreement in democratic societies and its relations to notions of distributive justice. By means of these justifications, he defends conceptual and practical approaches involving the setting of minimum thresholds. There can be different thresholds, namely a basic threshold that can be termed the ‘minimum core’ as well as a more demanding ‘sufficiency’ threshold.

Minimum social protection serves the aim of eradicating poverty. Since the United Nations Declaration of Human Rights was adopted in 1948, a life free from poverty has been widely accepted as a fundamental human right – albeit one far from being achieved. What does such a right mean? In chapter three, Malcolm Torry contributes to the discussion on the social minimum by outlining a three-dimensional matrix as a way of a conceptualising the social minimum. The three dimensions are resources, characteristics, and mode of delivery. Each of the resources – healthcare, education, income, and so on – can be delivered by a variety of modes; and, in relation to each mode, such characteristics as quality, ease of access, efficiency, and equity, can be scored. Torry argues that constructing such a three-dimensional matrix and giving scores to the characteristics enables us to choose the modes of delivery for the different resources that would deliver the best available social minimum.

Deciding to whom, in the face of destitution, a social minimum is to be allocated, is a question of scope. The chapter by Sara Stendahl and Otto Swedrup (chapter four) deals with this issue and while it discusses this topic in a national context, at its core the question ‘who counts?’ is philosophical and has divided writings on ethics and justice for centuries. The chapter puts forward two contrasting approaches on how to understand ‘who counts’ in a Swedish setting, one more particularist (based on a historic narrative) and another more universalist (based on a legal narrative). The more universalist version provides an explanation for a Swedish solidarity that evidently encompasses not only citizens and residents but also strangers and outcasts, people with distinctly weak civil and social rights. This is solidarity at a minimal level, sometimes handed out harshly and with no reference to rights – but it does exist, and the authors propose that it plays an important role in the intricate web of values that forms the Swedish welfare state. In an effort to identify the core characteristics of this tradition it is described as based on a normative pattern of ‘pragmatic decency’.

III.SPECIFYING A SOCIAL MINIMUM

To justify a focus on minimum thresholds and a social minimum is one thing. Discussing the possibilities related to scope and modes of delivery makes the social minimum more tangible. It is still something else, however, to engage with what a social minimum exactly entails. In other words, how can this minimum be specified? In Part 2 of the book, the authors provide interdisciplinary insights on this topic.

In chapter five, Michael Adler discusses the thesis that the worldwide concern with human rights and the prevalence of neoliberalism are the main reasons for the disappearance of material inequality from the political agenda. It is argued that champions of human rights were simply ‘out of position’ to challenge abuses of social and economic rights and the explosion of inequality. As a result, the main focus of concern turned to the social minimum, which became the hand-maiden of neoliberalism. Adler now considers alternative ways of defining the social minimum, by focusing on material inequality and makes the case for redistribution from rich to poor and, in particular, from the super-rich to the extremely poor. In doing so, he raises the question of whether there ought to be a social maximum as well as a social minimum.

In chapter six, Tim Goedemé, Tess Penne and Otto Swedrup argue that without comparable benchmarks cross-national monitoring of the adequacy of minimum income schemes is impossible. Yet it is not that straightforward to define what comparability means in this context, and how it should be operationalised. At minimum, comparability would require that people have a broadly similar understanding of what adequate social participation means. Even though resources that households require vary across time and space, such a shared understanding is needed and investigated in this chapter. For this purpose, the essential social positions that one should be able to take are taken into account. In addition, the authors examine the need that should be satisfied in order to be able to fulfil in an adequate way the social roles associated with these positions. A large-scale project that involved country teams in all EU Member States enabled the authors to de...

Table of contents

• Cover
• Title Page
• Contents
• List of Authors
• List of Abbreviations
• 1. Introduction
• PART 1: CONCEPTUAL QUESTIONS
• PART 2: SPECIFYING A SOCIAL MINIMUM
• PART 3: SECURING A SOCIAL MINIMUM: OBLIGATIONS FOR STATES AND INDIVIDUALS
• PART 4: SECURING A SOCIAL MINIMUM: THE ROLE OF COURTS AND SUPERVISORY BODIES
• Biblography
• Index
• Copyright Page