Welfare state dystopia as a challenge to the fundamental right of 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 whom it is designed to protect, sometimes with devastating effects for individual claimants. Recent scandals in a number of countries have shown 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 social bureaucracy. This contribution proposes three qualitative guarantees of individual treatment to enhance interpretation of the right to social security: compensation, elevation and participation. These standards are not alien to the right to social security, but in mainstream thinking are often given only secondary importance. Now they need to be dusted off and placed centre stage.