Deservingness on Trial: Neutralisation Techniques in Public Housing Jurisprudence
| Published date | 01 August 2023 |
| DOI | http://doi.org/10.1177/09646639221137496 |
| Date | 01 August 2023 |
| Subject Matter | Articles |
Deservingness on Trial:
Neutralisation Techniques
in Public Housing
Jurisprudence
Yael Cohen-Rimer
The Edmond J. Safra Center for Ethics, Tel Aviv
University, Buchman Faculty of Law, Israel
Netanel Dagan
The Institute of Criminology, Faculty of Law, Hebrew
University of Jerusalem, Israel
Abstract
How do judges formulate their written decisions when rejecting plaintiffs’requests in a
welfare context? In this paper, based on our thematic analysis, we show how judges con-
struct a nuanced concept of ‘welfare deservingness’to narratively mitigate their own
moral and emotional tensions when making decisions on remedies in public-housing
cases. Deploying a notion borrowed from criminology—‘neutralisation techniques’—
we discuss the material and symbolic implications of this concept, contributing to the
theoretical discussion of both poverty law and legal professionalism. We claim that
judges use ‘neutralisation techniques’to negotiate, justify, and explain their decisions
while attempting to avoid or lessen the dilemmas they typically face, given the scarcity
of housing resources and their inability to grant material assistance. Employing these
techniques, the judges create ‘deservingness spectrum’that enables them to essentially
subvert the binary division of accepted/denied cases. At one end of this spectrum, the
denial of the plaintiff’s‘victim’status is enacted through the negation of symbolic deserv-
ingness and, thus, the denial of housing is framed as a warranted sanction on the plain-
tiff’s reproachable character. At the other end, the techniques allow the judges to
recognise ‘symbolic deservingness’while still not providing material aid. Judges are
Corresponding author:
Yael Cohen-Rimer, The Edmond J. Safra Center for Ethics, Buchman Faculty of Law, Tel Aviv University.
Email: yaelc@mail.tau.ac.il
Article
Social & Legal Studies
2023, Vol. 32(4) 540–561
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09646639221137496
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therefore able to preserve their professional status and sense of moral rectitude when
making such unenviable housing decisions. More broadly, our analysis offers a novel lens
through which to critically understand judicial decision-making in welfare jurisprudence.
Keywords
welfare, poverty, deservingness, neutralisation techniques, judicial justification, public
housing, judicial decision-making, symbolic remedy
Introduction
Welfare law and, by extension, welfare jurisprudence in the liberalwelfare state, are based
on establishing individuals’need for state assistance (Dauber, 2013). While the market is
viewed by the capitalist neoliberal state as the straightforward route to self-sufficiency, the
welfare state is expected to provide a safety net that enables those who have not (yet)
achieved that self-sufficiency to sustain a minimal existence (Alm et al., 2020; Benish
et al., 2017; Brodkin, 2020; Cowan and Hitchings, 2007; Esping-Andersen and Myles,
2014). This dynamic leads the administrative welfare state to have to continually assess
claimants’needs, sorting and prioritising between those who should be found eligible
and those who should be deemed ineligible for state assistance (Levi-Faur and Benish,
2020). Thus, in many cases, people-in-poverty who have had their request for aid denied
find themselves presenting their case before a judge, usually in a last-resort attempt to
secure assistance from the state’s welfare authorities or protection from eviction. Indeed,
wherever there are welfare programmes, there is litigation brought by people pleading
for the law’s remedy (Bezdek, 1991; Mundlak, 2007).
Scholars exploring judge-craft in the context of welfare housing have found that judi-
cial decision-makers often act as a form of ‘street-level bureaucrats’(Cowan and
Hitchings, 2007; Lipksy, 1980), de-facto constructing policy through the accumulated
weight of their individual decisions. This arguably thankless role places judges under sig-
nificant pressure as they confront emotionally complex decisions that will potentially
affect the lives of many. Against this backdrop, then, the present paper joins the scholarly
effort to theorise and analyse the practice of judging in the field of welfare law, by con-
ducting a thematic analysis of judges’published decisions and extracting their written
responses to requests brought by plaintiffs following the authorities’denial of applica-
tions for welfare assistance. In welfare cases, we found, judges often hear heart-breaking
stories of people begging not to be evicted from their homes (because eviction could force
them to live on the streets), being denied even the minimal sum of income support, or
facing other in extremis situations (Ross, 1991). The majority of cases culminate in a
denial of the individual’s request, re-affirming the authority’s decision to not award
state aid (Bilchitz, 2007). Based on a thematic analysis of 145 public housing decisions,
we argue that, when dealing with the ‘messy’moral and emotional conundrum of being
required to deny the majority of requests from people-in-poverty, judges use different
rhetorical techniques to ease this quandary. Such ‘techniques of neutralisation’(Sykes
and Matza, 1957) serve these judges to negotiate, justify, and explain their decisions
while attempting to avoid or lessen their emotional–moral dilemma. These techniques
Cohen-Rimer and Dagan 541
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