The Duty to Work without a Wage: A Legal Comparison between Social Assistance Legislation in Germany, the Netherlands and the United Kingdom
| Published date | 01 September 2014 |
| DOI | 10.1177/138826271401600302 |
| Author | Anja Eleveld |
| Date | 01 September 2014 |
| Subject Matter | Article |
204 Intersentia
THE DUTY TO WORK WITHOUT A WAGE:
A LEGAL COMPARISON BETWEEN
SOCIAL ASSISTANCE LEGISLATION
IN GERMANY, THE NETHERLANDS
AND THE UNITED KINGDOM
A E*
Abstract
Since the rise of the activation paradigm in the 1990s, the duty to work without a
wage has become widespread in European social assistance legislation. is paper
investigates in a precise way the extent to which the duty to work without a wage
follows the legal logic of a contractual relationship and how this duty is related to
the fundamental right to an adequate standard of living. A comparison between
German, Dutch and Briti sh social assistance legislation shows that the duty to work
without a wage increasingly takes the form of a reciprocity requirement. at is,
instead of re-integrating into regular paid work, recipients of social assistance are
required to show that they are worthy of attaining basic social rights, not only by
improving their capability to work but, above all , by showing a willingness to work. It
concludes that the duty to work without a wage enhance s governmental control over
recipients of social assistance rather than improving their employability and notes
that, in this respect, the Dutch social assistance regime seems to be stricter than the
German and British one s.
Keywords: activation policies; legal comparison; social assistance; social rights;
workfare
* Dr. Anja Eleveld is a Postdoc toral Researcher and L ecturer at the Facult y of Social Law at the Free
University Amsterdam. Address: de Boelelaan 1105, 1081 HV Amsterdam; phone: +31 20 5983415;
e-mail: anja.e leveld@vu.nl. She wishes t o thank those who commented on ea rlier versions of this
article, wh ich were presented at a Conference of the Nationa l Institute of Government, Unive rsity
of Twente on 28–29November 2013, and at a seminar on ‘ e Duty to Work without a Wage’ at the
Free Uni vers ity of A mst erda m on 27Ja nua ry 2014. She w is hes e spe cia ll y to t ha nk G ijsb er t Vonk and
Olaf van Vl iet and the three anonymou s reviewers for their usefu l comments on the nal dra of
the article.
e Dut y to Work Without a Wage: A Legal Comparison b etween Social As sistance
Legislation i n Germany, the Netherla nds and the United Kingdom
European Jour nal of Social Sec urity, Volume 16 (2014), No. 3 205
1. INTRODUCTION
Since the 1990s, an i ncreasing number of European welfa re states can be character ised
in terms of the activation paradigm. Comparative social policy studies have shown
that this new paradigm of social policy has induced a shi away from a solidaristic
(and passive) welfare state towards an active and enabling welfare state, whose
main goal is the re-integration of welfare recipients into paid employment (Betzelt
and Bothfeld 2011; Serrano Pascual and Magnusson 2007; Stendahl et al 2008; Van
Berkel et al.2011). Some have applauded the rise of this new paradigm, as it aims to
improve the employability of welfare claima nts, while still guara nteeing a min imum
level of protection (Hemerijck 2013). On the other hand, others have asserted that
we are seeing a process of convergence to a workfare approach (Handler 2003, 2009;
Jessop 2002), which, amongst other things, changes the role of the state from being
a guarantor of social rights to being the regulator of individual’s rights (Betzelt and
Bothfeld 2011; Serrano Pascual and Magnusson 2007). Legal scholars have pointed,
in particular, to the changed contractual relationship between welfare claimants
and governmental agencies. Whether these contracts are called a ‘re-integration
agreement’ or a ‘claimant commitment’, they make it clear, rst and foremost, that
the right to safet y net bene ts is conditional on the behaviour of the recipient of social
assistance (Eichenhofer 2013). However, according to some legal scholars, the image
of the contract does not match realit y. Whereas, theoretically, contracts are founded
on the idea of the rational self-determ ining agent who voluntarily enters the contract
on equal terms with t he other party, the ‘re-integration agreement’ and the ‘claima nt
commitment’ are based on a symmetric power relations (Freedland and Ki ng 2003).
e central aim of this paper is to determine how the duty to work without a
wage in social assistance legislation formally restructures (basic) social rights in the
contractual relationship between recipients of social assistance and governmental
agencies in three European welfare states: Germany, the Netherlands and the UK.
Usually analys es of activation policies are pursued from a socio -economic perspective,
answering questions about the (side) e ects of a certain rule or policies. In that
approach, questions belonging to a more legal perspective, like legitimisation, legal
logic and fundamenta l rights, tend to be neglected. Depa rting from a legal perspec tive,
this paper investigates i n a precise way the extent to which the duty to work without a
wage follows the legal logic of a contract ual relationship, and how this duty is related
to the fundamental right on an adequate standard of living or social assistance, as it
has been laid down in, inter alia , Article11 ICESR, Article 13 ESC and Article 34 (3)
of the Charter of the Fundamental Rights of the EU. As such, this analysis aims to
shed light on the aforementioned views on the ac tivation paradigm: the approach that
stresses the impact of social investment on the employability of recipients of social
assistance versus the approach that stresses the emergence of the controlling state. It
is to be hoped that the analysis will help the formulation of some issues for a future
rights-based resea rch agenda.
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