Juridification and the Construction of Social Citizenship

Date01 June 2013
Published date01 June 2013
ISSN: 0263-323X, pp. 228±48
Juridification and the Construction of Social Citizenship
Anne-Mette Magnussen* and Even Nilssen**
The article elaborates on the legal construction of citizenship within
the welfare state. The concept of citizenship is constructed from the
perspective of rights and is closely related to the legal development of
various fields of law. Juridification processes in the welfare state
directly concern the construction of social citizenship and indirectly
affect both political and civil citizenship. Concentrating on juridifica-
tion within the framework of the welfare state implies that the develop-
ment of welfare law is the focal point of the article. To understand the
implications of juridification processes in the welfare state, we con-
centrate on the relationship between social citizenship, on one hand,
and political and civil citizenship, on the other, and consider the
implications of the legal and institutional construction of social
citizenship. Social rights may confine the scope of political and civil
citizenship and at the same time enhance individual freedom and the
extent of political action.
In recent years, there has been a wide-ranging debate among social scientists
(legal scholars, sociologists, and political scientists) about various juridifica-
tion processes in Western countries and their possible consequences.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Department of Social Education and Social Work, Faculty of Health and
Social Sciences, Bergen University College, Haugeveien 28, 5005 Bergen,
** Stein Rokkan Centre for Social Studies, Nygaardsgaten 5, 5015 Bergen,
1 L.C. Blichner and A. Molander, `Mapping Juridification' (2008) 14 European Law J.
36±54; A. Hatland and E. Nilssen, `Policy making and application of law: Free
movement of persons and the European Court of Justice' in The Role of International
Organizations in Social Policy, eds. R. Ervik, N. Kildal, and E. Nilssen (2009); M.
debates have concerned a broad spectrum of problems, such as the
relationship between the development of international law (for example, in
the fields of EU law, human rights and international conventions) and
national democracy, and the relationship between law and politics at the
national level. One important debate has focused on juridification within the
framework of the welfare state. Various possible consequences of increased
exercise of individual legal rights in welfare policy have been of particular
interest. For instance, the Norwegian White Paper on Power and Democracy
emphasizes the antagonism between individual welfare rights and demo-
cracy, arguing that such rights confine the scope of democratic politics at
both national and local levels. Other commentators, on the other hand, have
argued that individual welfare rights may enhance individual freedom and
the scope of political action.
This article enlarges upon aspects of the relationship between juridifica-
tion in a broad sense and the construction of citizenship within the welfare
state. In general, juridification processes comprise more detailed legal
regulation of already regulated areas (of the welfare state in our case), legal
regulations of new areas, and conflicts and problems increasingly being
framed in legal terms.
The concept of citizenship used in this paper is based
on T.H. Marshall's definition of political, civil, and social citizenship. It is
constructed from the perspective of rights and thus closely related to the
legal development of various fields of law. Hence, juridification processes
involve the institutionalization of various kinds of values anchored in the
democratic state (political rights), the Rechtsstaat (civil rights), and the
welfare state (social rights). In short, the Rechtsstaat constitutes the
institutional foundation of individual freedom, democracy that of collective
self-determination, and the welfare state that of social redistribution and
care. Therefore, studying processes of juridification in the field of social
Langford, Social Rights Jurisprudence. Emerging Trends in International and
Comparative Law (2009); A.M. Magnussen and A. Banasiak, `Juridification: Dis-
rupting the Balance between Law and Politics?' (2013) 19 European Law J. 325; A.
Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000); F. van
Waarden and Y. Hildebrand, `From Corporatism to Lawyocracy? On Liberalization
and Juridification' (2009) 3 Regulation & Governance 259±86; M. Zamboni, Law
and Politics: A Dilemma for Contemporary Legal Theory (2008); é. ésterud, F.
Engelstad, and P. Selle, Makten og demokratiet [Power and Democracy] (2003); G.
Teubner (ed.), Dilemmas of Law in the Welfare State (1986).
2 NOU 2003:19, Makt og demokrati. Sluttrapport fra Makt- og demokratiutredningen
[Power and Democracy, final report from the Committee on Power and Democracy]
Norwegian Official Report 19 (2003).
3 I.R. Lundeberg, `Rettsliggjùringens makt' [The Power of Juridification] (2005) 1 Nytt
Norsk Tidsskrift 30±44; Magnussen and Banasiak, op. cit., n. 1; E. Nilssen, `Politics,
Profession and Law: The Legal Development of Compulsory Intervention towards
Substance Abusers in Scandinavian Social Law' (2007) 30 Scandinavian Political
Studies 20±37.
4 Blichner and Molander, op. cit., n. 1.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

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