Welfare state dystopia as a challenge to the fundamental right of social security

Abstract

Social rights have developed in response to 19^th-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.

Introduction

The focus of this article is on welfare state dystopia. I use this term to describe the alienation and oppression of benefit recipients by the social security system. It refers to a dysfunctional system which turns against the very citizens which it is supposed to help.

Some things in social security work well. Other things go wrong. In the slipstream of the many social security scandals that have occurred in different parts of the world, a collective soul-searching exercise is taking place. How is it possible that the welfare state has lost its human dimension? How can it be restored? Solutions are proposed for a new public law approach, coming under various banners: responsiveness (Scheltema, 2015, 2019), empathy (Ranchordás, 2022) and ‘Filoktetian professional ethics’ (Van Domselaar, 2024). While these concepts are valuable in their own right, this contribution will take a different approach, discussing how the fundamental right to social security may help to combat welfare state dystopia. y.

When a lack of respect for individual social security beneficiaries is seen as a human rights problem, the main focus is usually on civil and political rights – less often on social rights, and least of all on the right to social security itself. It is as if legal doctrine considers that the right is only there to ensure the establishment of a system of social benefits, regardless of the consequences for citizens. This would seem to be an anomaly. Yet, to a certain extent, this is the current legal interpretation of the right to social security.

Meanwhile, this article will suggest that civil and political rights are also unable to fully address the ills of welfare state dystopia. This points to a gap, a human rights void. This gap may be another explanatory factor for the lack of judicial protection experienced by citizens in the wake of the many social security scandals. Such a lack of protection indicates a failure of the system of checks and balances in the administrative state. If it is true that there is a human rights void, then this failure is due not just to bureaucrats, parliamentarians and courts not doing their jobs properly. It is also that these officials simply do not have the normative tools to provide a proper remedy. The article seeks to investigate this proposition further.

The central question of this article is how the right to social security could be a response to the threat of welfare state dystopia. This right will be approached from the general perspective of national constitutions, in interaction with the international legal doctrine developed by human rights institutions. In reality, practice may vary vastly from country to country, also depending on the typology of the national welfare states concerned. ¹ In the limited scope of the present article, it is not possible to analyse the role of the right to social security with reference to such national and typological differences. Nonetheless, a generic approach, in our view, is warranted: ultimately, all jurisdictions are faced with similar challenges, although, admittedly, in some countries my suggestions will probably fall on more fertile soil than in others.

The argument of this article is built up in three layers. The first layer will delve into the concept and characteristics of welfare state dystopia, also considering some of the drivers of this phenomenon. The second layer deals with the response of the human rights framework to the phenomenon of welfare state dystopia. This part analyses how and why the onus of human rights protection does not currently lie with the right to social security, but rather with the corpus of civil and political rights, such as those included in the European Convention on Human Rights and Fundamental Freedoms (ECHR). In the third layer, three specific qualitative standards will be formulated to enrich the normative interpretation of the right to social security, in order to better respond to the threat of welfare state dystopia. In this manner, the article travels from darkness into the light. Finally, we conclude with a brief reflection.

Welfare state dystopia?

If anyone can be seen as the auctor intellectualis of the phenomenon of welfare state dystopia, it is Franz Kafka. His book Der Prozess is the symbol of how a bureaucratic legal system can crush an innocent citizen with its strange, absurd logic. Kafka studied law in Prague. In 1908 he began working for the Kingdom of Bohemia's brand-new Institute for Industrial Accidents and was therefore one of the first social security lawyers. He had clearly found an inspiring working environment. This did not bode well for the future of social security law.

Delving into dystopia subsequently became a passion of sociologists rather than lawyers. It was Habermas who warned us against excessive legal regulation and surveillance in the welfare state. In his view, these lead to a ‘colonisation of the lifeworld’ of citizens: normal human relationships are polluted by impersonal bureaucratic systems (Habermas, 1996). In fact, Habermas did not speak of ‘dystopia’, but of a ‘depletion of utopian energies’ (Habermas, 1986), which of course is not the same thing.

Those who wonder if the term ‘welfare state dystopia’ is an exaggeration need only look at the many recent social security scandals to change their mind. While in the Netherlands, people were becoming inured to testimonies from the victims of the child care benefit scandal, known as the Toeslagenaffaire, ² Australians were faced with the Robodebt case, ³ when half a million social security recipients were pursued for social security debts that turned out never to have existed. At around the same time, Norway was struggling with the Nav scandal, ⁴ with miscarriages of justice resulting in prison sentences for European migrants on invalidity benefits who had not declared their absence from Norway. This was followed by the UK television drama Mr Bates versus The Post Office, recounting the crusade of the subpostmaster Mr Bates and others, accused of fraud after the Horizon software wrongly indicated a shortfall in their accounts. Although many were falsely accused, it took this drama series to open the eyes of the British political establishment and cause them to come clean concerning what has become known as the Post Office scandal. ⁵ While this scandal did not concern the welfare state stricto sensu, similar affairs also occurred at the heart of the British social security system. One example is the UK carer's allowance case, discussed in the present Special Issue by Kiely and Swierak (2022), which left many carers in financial distress.

The list of social security scandals continues. Major incidents have been reported in the USA, France, Serbia, Denmark and Sweden, as well as in some emerging economies. ⁶ In the meantime, in many of these countries parliamentary inquiries have started, political heads have rolled and compensation schemes have been established, paying out billions to the victims. It would be naive to treat these scandals as isolated incidents. They point, rather, to structural deficiencies.

While welfare state dystopia is not a clearly defined concept, it is possible to identify certain characteristics at the root of the problem.

The first factor is digitalisation. It was Philip Alston, then UN Special Rapporteur on extreme poverty and human rights, who – in his 2019 report (Alston, 2019) – warned of the rise of a ‘digital welfare dystopia’ in which automated technologies deepen poverty, erode individual freedoms and undermine human rights. While digitalisation is often justified as a means to improve efficiency, reduce costs and streamline services, the report argued that the digital welfare state also has serious downsides, especially for vulnerable populations: exclusion, privacy concerns, algorithmic bias and discrimination, as well as excessive corporate influence.

The second factor to consider is the repressive welfare state. Repressive welfare state policies are rooted in the well-recorded trend of increasing conditionality in social security, leading to a proliferation of duties for claimants, increasingly strict sanctions and recovery practices, and a general disturbance of the balance between rights and obligations in social security (Dwyer, 2004; Kiely and Swierak, 2022; Vonk, 2014; Wacquant, 2009; Watts and Fitzpatrick, 2018).

A third characteristic of the dystopian threat is the striking lack of judicial protection of citizens affected by the many social security scandals. Often, internal review procedures and judicial control do not come to the rescue of citizens, nor are they capable of preventing the scandals. In this manner, these safeguards rather operate as a legitimation of the malpractice, highlighting a failure of the constitutional system of checks and balances (Bouwmeester, 2023, 2025).

There is a growing body of literature seeking to understand how these three characteristics interact and reinforce each other. This literature is analysed in the present Special Issue by Bouwmeester. The author observes:

‘(…) two main trends (…), welfare conditionality and automation, each pose their own set of risk factors from the ex-ante stage of legislation to the ex-post stage of scrutiny and adjudication. And just as the risks of harm for (vulnerable) citizens are compounded when the systematic features of welfare conditionality (intensified criteria and obligations, intrusive surveillance and rigid enforcement) are combined with automation, the convergence of these two trends deteriorates the efficacy of control mechanisms throughout the “lifecycle” of the rule of law system.’

In other words: digitalisation and repressive welfare state policies are separate flows, which may merge to form a torrent that drags everything along with it, including the judicial protection for individual citizens in the administrative state.

The above three characteristics form the constituents of welfare state dystopia, as referred to in this article. What emerges is a welfare state which can wield vast power, both legal and instrumental, to enforce its will on the people. Such a welfare state involves an overload of conditions, excessive surveillance, unforgiving automated recovery practices and harsh sanctions, supported by an omnipotent, yet uncontrolled ‘ICT-industrial complex’. ⁷ Together, these may result in excessive practices, such as those that have come to light in recent social security scandals and which so adversely affect the position of individual claimants.

Welfare state dystopia is no exaggeration and no longer just a matter of alienation, as Habermas saw it. It is a type of oppression. Individuals are typically treated as invisible numbers and deprived of their dignity. The latter aspect is often emphasised in testimonies from the victims of the scandals. Ultimately, what concerns them is not the money they had to pay back, but rather the shame of being branded a fraud, of not being able to look your neighbours in the eye, of being excluded from society, ostracised. ⁸

The harsh treatment meted out by the welfare state is not bestowed equally on everybody. Dystopia particularly affects the poor – many of whom are ethnic minorities or immigrants – not necessarily intentionally, but indirectly as a result of the way automated processes interact. Poor and vulnerable individuals, for example, may be disproportionately subject to invasive monitoring, due to digital fraud detection technology (Eubanks, 2018; Ranchordás, 2022). This is a typically painful lesson learnt from the Dutch Toeslagenaffaire. The victims, who had kept their plight to themselves, began to rally support for their case, only to find out that others lobbying the government were also representatives of minority groups, most of them single mothers. It became clear that this was no coincidence, but a result of sequential biases operating in the system (Ranchordás, 2024). Alston referred to such biases in his 2019 report, when he warned against the exclusionary effects of the digital welfare state for the poor sections of society (Alston, 2019).

A last brief remark concerns ‘welfare state chauvinism’. This term is used in academic literature to capture the attitudes of radical populist parties and their electorate towards the welfare state (e.g. De Koster et al., 2012; Eick and Larsen, 2022). It refers to the belief that social benefits and services provided by the welfare state should be exclusively available to certain groups, often based on nationality, ethnicity, or cultural identity, and reflects exclusionary attitudes toward immigrants or minorities, arguing that they should have limited or no access to welfare provision, which is reserved for the ‘native’ population. Populist government feeds on clientelism (Müller, 2016); it forges a bond between the state and the people, using social benefits as a tool. In doing so, the ‘hard-working patriot’ is readily played off against other beneficiaries, such as minorities, certain marginalised groups and dissidents. The link between welfare state dystopia and welfare state chauvinism, we suggest, is that the latter openly advocates the exclusionary mechanisms which are unintentionally triggered by the former. If that is true, minority groups have something to fear from the current surge of populism in many parts of the world.

The implications for the right to social security and other human rights

In the presence of these shortcomings and threats, the welfare state should be equipped with stronger constitutional guarantees. This brings the fundamental right to social security into focus. This right is recognised in international and European human rights treaties and in the national constitutions of most countries (De Becker, 2022; Egorov and Wujczyk, 2016; Eichenhofer, 2015; Riedel, 2007; Sepulveda and Nyst, 2012).

For many, the rationale behind this right goes back to the notion of ‘no food, no freedom’. In other words, true freedom cannot exist in a society where people are burdened by poverty and deprivation. This is the understanding of Roosevelt's ‘freedom from want’, a liberal value that underlies the post-war recognition of the right to social security.

Whatever principle underpins the notion of social rights (King, 2012), the legal conceptualisation of the right to social security emphasises the obligation on states to develop an infrastructure to provide social benefits, in whatever form (Eichenhofer, 2012: 133–134). This is also the view taken by human rights bodies when they attempt to articulate the content of this right, initially with a certain bias towards the historical development of social security in the Western world, but now also taking into account the needs and realities of countries in the developing world. In the words of the UN Committee on Economic, Social and Cultural Rights:

'The right of social security requires, for its implementation, that a system, whether composed of a single scheme or variety of schemes, is available and in place to ensure that benefits are provided for the relevant social risks and contingencies.’ ⁹

According to this committee’s ‘triple-A approach’, social security must thus be ‘available’, and furthermore ‘accessible’ and ‘adequate’. ¹⁰

This focus on developing a proper system for social security transfers explains the strong reliance on the legislative responsibility of governments to comply with the requirements of the right to social security. Political decisions are required on whether to take on the financial obligations that flow from new systems of social security benefits.

This does not mean that the right to social security cannot be invoked before the courts, at least not necessarily. It is true that the justiciability of the right to social security (or sometimes of social rights at large) is often seen as problematic. Nonetheless, in many jurisdictions judges have found ways to defend collective protection against interferences by the legislator, offering procedural guarantees against retrenchment or defining a minimum level of protection (De Becker, 2022).

But even then, is this approach sufficient to keep welfare state dystopia at bay? I think not. That would require a stronger focus on qualitative guarantees of respectful treatment for benefit recipients. In all frankness, legal doctrine pertaining to the right to social security does not pay much attention to such qualitative guarantees. They are not completely absent, but are relegated to a second rank compared with the primary goal of rolling out a system. One example is Art. 13(2) of the European Social Charter, which requires that persons receiving social or medical assistance should not suffer any diminution of their political or social rights. In the past, the European Committee of Social Rights has interpreted this provision as meaning that beneficiaries should not be treated as second-class citizens, simply because they are not able to support themselves. ¹¹ This is one possible value to protect people from the evils of welfare state dystopia: not treating people as second-class citizens because they have to rely on the welfare state. Unfortunately, however, little attention has been paid to this qualitative strand in legal doctrine. The latest digest of the case law of the European Committee no longer even mentions this interpretation. ¹²

The lack of qualitative guarantees against mistreatment by welfare state bureaucracies can be explained in historical terms. Social rights can be seen as an antithesis to the 19^th-century system of laissez-faire capitalism. They have given rise to an interventionist welfare state that purports to liberate people from this system, by creating a regime of income protection and social transfers. Legal doctrine on the right to social security still reflects this ‘decommodification rationale’; the central objective is to promote the development of a social security system which is ‘available, accessible and adequate’. ¹³ But now that the systems are put in place, they run the risk of turning against the very people they were originally intended to protect. Legal doctrine on the right to social security will have to face this challenge. There must be stronger qualitative standards that protect people from this social bureaucracy.

In reality, however, the main responsibility for protecting human rights against welfare state dystopia does not currently lie with the right to social security. Rather, it is placed on the corpus of civil and political rights, such as those included in the European Convention on Human Rights and Fundamental Freedoms (ECHR). In a way this is understandable, since these rights are there to protect citizens from state interference. It is also convenient to let the European Court of Human Rights (ECtHR) take the lead, since its decisions are suitably enforceable and legally binding.

The ECtHR has in fact responded well to the need to provide protection against an omnipotent welfare state. At the beginning of the 1980s, the number of judgments relating to social security was still very limited. Some were even convinced that the protection of the European Convention did not extend to social security, as this was in the domain of social rights. Now, whole monographs are being written on social rights arising from the case law of the ECtHR (Koch, 2009; Leijten, 2018; Slingenberg and Leijten, 2023). The case law has crept into every nook and cranny of the system: recoveries, sanctions and medical assessments; the obligation to provide shelter in case of emergency; extreme poverty and deprivation, etc.

Yet, however positively we may assess the proliferation of social case law of the ECtHR, it is arguable whether civil and political rights can be seen as a full substitute for social rights. This is also the viewpoint of the ECtHR itself. According to the Court, the protection of the ECHR does not extend beyond the civil and political rights included in the treaty, and not to:

'socio-economic rights, including the right to charge-free dwelling, the right to work, the right to free medical assistance, or the right to claim financial assistance from a State to maintain a certain level of living’. ¹⁴

It must be borne in mind that the guarantees offered by the ECHR in the field of social security do not come close to the level sought by fundamental social rights. To put this in context, I will give three examples:

Art. 3 and Art. 8 ECHR can be used to invoke positive obligations on the state to offer protection to destitute citizens, thus raising the theoretical prospect of creating something of a human rights social minimum (O’Cinneide, 2008). In reality, however, the bar for invoking these obligations is set so high by the ECtHR that these articles are only activated in situations of extreme destitution and dependency, instead of offering a decent social minimum such as that required by, for example, Art. 13 of the European Social Charter (the right to social and medical assistance). ¹⁵

Art. 4 ECHR may potentially offer a shield against a strict work test and mandatory work activities for social security recipients, but no normative framework to that effect has been developed. ¹⁶ This is in contrast to international social rights obligations (Dermine, 2020).

Art. 6 ECHR offers procedural protection against punitive sanctions imposed on social security recipients, but benefit suspensions for failure to meet work obligations are outside the scope of this article. ¹⁷ Consequently the article fails to provide a remedy against work-related benefit sanctions (Spijkstra, 2025). This is in contrast to, for example, the protection offered by the German Constitutional Court as part of its Existenzminimum doctrine ¹⁸ (see below).

It must be doubted that the ECHR is in itself capable of thwarting welfare state dystopia. Limitation clauses allow for restrictions necessary in a democratic society, which give the contracting states a wide margin of appreciation in deciding how to balance individual rights and collective interests. Consequently, if welfare state policies are rooted in the public interest and clearly legislated, interferences are not necessarily seen as human rights violations. This is clearly visible in the area of privacy protection. In general, data protection law is laden with exceptions and pitfalls giving wide powers to governments to process data. (Gantchev, 2020; Damen, 2023). Sometimes the ECtHR prescribes stricter scrutiny, for example as part of the objective justification test pertaining to the principle of non-discrimination, where a very weighty reasons test is employed (Gerards, 2017). Nonetheless, group biases in social security do not always constitute clear-cut cases of violation of the principle of non-discrimination; the burden of proof is not easily met when adverse treatment is related to poverty stigma and social origin, instead of having a direct link to suspect criteria, such as gender or race. (Ganty 2021; Jørgensen, 2024). ¹⁹

As a starting point (but no more than that ²⁰ ), civil and political rights are based on the notion of formal equality before the law and are therefore blind to adverse treatment of groups from disadvantaged social, economic or cultural backgrounds. Social rights, on the other hand, start from such inequalities and require these to be compensated. Since the dystopia of the welfare state targets particularly the less advantaged in society, such compensation is ultimately in safer hands with the right to social security than with civil and political rights. Or at least, the two categories cannot do without each other, which is indeed an expression of their interdependence and ‘indivisibility’.

Qualitative standards for the right of social security

So what sorts of qualitative standards could help to keep the dystopian threat at bay? I propose three such standards: compensation, elevation and participation.

Compensation

In this context, the notion of compensation does not refer to the circus of paying damages to victims after scandals have occurred. I use the term to refer to the recognition that people who may be disadvantaged, vulnerable or from minority groups need to be given extra support to enable them to participate normally in society. In other words, it is about inclusion.

Compensating for inequalities is a social rights imperative. In the legal interpretation of the right to social security, this can be seen in the requirement to give extra protection to vulnerable groups. Thus, for example, General Comment No. 19 on the right to social security specifically calls upon States parties to:

‘give special attention to those individuals and groups who traditionally face difficulties in exercising this right, in particular women, the unemployed, workers inadequately protected by social security, persons working in the informal economy, sick or injured workers, people with disabilities, older persons, children and adult dependents, domestic workers, homeworkers, minority groups, refugees, asylum-seekers, internally displaced persons, returnees, non-nationals, prisoners and detainees’. ²¹

It is important to take this instruction seriously, because of the divide that exists in our modern societies between those who have sufficient economic, social and cultural capital and those who are lagging behind. The poor work in precarious jobs, struggle from day to day to make ends meet, face daily discrimination and are more dependent on the welfare state.

Compensation is not just a theoretical notion; it can be applied in practice. The following example may illustrate this. For a long time, the Dutch highest administrative court interpreted social-fiscal legislation as meaning that the tax authorities are under an obligation to always recover the full amount of unduly paid childcare allowances. It was this interpretation which prevented the court from offering any judicial protection to individuals who were required to reimburse undue payments, leading to the Dutch Toeslagenaffaire referred to earlier. When the harsh consequences of the recovery practices became public knowledge, the court was forced to change its mind about this and allowed for a proportionality test. ²² This U-turn was motivated with reference to a number of empirical studies highlighting the dire situation of vulnerable citizens who incur welfare state debts. The court also mentioned a study by the Dutch Scientific Council, entitled Weten is nog geen doen –,‘Knowing is not doing’ (WRR, 2017). This report relied on evidence showing that people's capacity to act rationally may be inhibited, due to life events or stress resulting from structural poverty. The report criticised the doctrine of individual self-reliance which has become prevalent in Dutch social security policies and practices. These insights inspired the court to change its mind by taking due account of an individual’s personal position and circumstances when determining the amount of repayments.

Subsequently, the notion of personal capacities (in Dutch: doenvermogens) also served as a touchstone for a government initiative to screen the relevant legislation on possible hardship for vulnerable groups, in an attempt to restore the ‘human dimension’ of the welfare state. This led to a number of legislative initiatives to soften the recovery and sanction rules and to strike ‘a new balance’ in the rigid social assistance scheme (Oldenhuis and Vonk, 2024).

This example shows how the principle of compensation for adversity may work. The only caveat is that the highest administrative court never presented its new approach as a mandatory consequence of applying the constitutional right to social security. The new approach, therefore, is merely based on an acquired insight into human behaviour. In my view, taking someone's personal capacities into account when adjudicating adverse benefit decisions (recoveries, sanctions, etc.) should not merely be a court's prerogative. It must be seen as a hard constitutional requirement following from the right to social security.

Elevation

The standard of elevation as understood here requires that conditions imposed on a beneficiary should always be conducive to his or her development and position. This principle is particularly relevant to remedy the trend towards conditionality in social security, which is one of the determinants of welfare state dystopia. This trend feeds on the neo-liberal fixation with educating people to become self-reliant, responsible consumers – if not voluntarily, then by disciplining them with all sorts of behavioural conditions enforced by sanctions (Kiely and Swirak, 2022).

In reality, however, not all people are able to live up to the lofty liberal ambitions: the long-term unemployed, single mothers in precarious employment, people with mental or physical problems, people in debt, drop-outs, victims of domestic violence, the homeless, people struggling with addiction, etc. For them, it is necessary to check that the conditions imposed are not merely disciplinary, but can genuinely help them to improve their situation.

Elevation is not codified as a social rights principle as such, but it frequently pops up in the legal doctrine regarding the right to social security, for example in the digest of the case law of the European Social Rights Committee. ²³ One example where this principle comes into play is a ruling of the Czech Constitutional Court, of 27 November 2012, ²⁴ in which the court struck down a rather draconian mandatory work scheme that had been introduced by the Czech government for the unemployed. According to the court, the obligation to accept an offer of public service did not serve to limit social exclusion, but to intensify it, and could be an affront to the personal dignity of the individuals concerned. This was deemed to be contrary to, inter alia, the right to social security contained in the Czech constitution.

Elevation can be tested in an abstract way by examining the rationality of policies, on the basis of empirical evidence. An example of this is the 2019 sanctions case, ²⁵ in which the Bundesverfassungsgericht examined the strict sanctions regime in the German social assistance system. It performed a meticulous analysis of the research on the impact of harsher sanctions on people's behaviour. According to this research, there is insufficient evidence indicating that harsher sanctions are effective or beneficial to the development of beneficiaries. In the view of Germany's highest court, this was another reason to declare the sanctions unconstitutional.

Elevation can also be tested in concrete terms. If, for example, it is considered justified to oblige recipients of social assistance to perform unskilled work in order to gain work experience, this does not mean that such an activity can be imposed on an experienced 60-year-old builder who has become unemployed due to unforeseen circumstances. He does not need to gain work experience; he is simply being punished for being unemployed. ²⁶

Participation

I use this term to denote the involvement of benefit recipients and other stakeholders in policy development and implementation. The voice of citizens should be taken into account, if not directly (by means of an individual standard), then indirectly through representation by trade unions, client councils or interest groups (using a collective standard).

The need for participation appears in the case law of judicial and quasi-judicial social rights institutions. ²⁷ It is also defended in the literature. For example, Anja Eleveld et al. have recently written about the importance of 'voice' for social assistance recipients who have to perform compulsory work (Eleveld, 2020). Indeed, in this manner, participation operates as a qualitative standard of individual treatment. Long before, and in a broader context, the legal philosopher Henry Shue considered the same idea in his groundbreaking 1980 book on social rights (Shue, 1980). Shue worked not only from the proposition ‘no food, no freedom’, but also from the reverse proposition: ‘no freedom, no food’. It is precisely this reverse proposition that is explored in the present article. Shue selects participation as one of the freedoms that acts as a basic right, meaning that it cannot be reduced to providing a sufficient livelihood. In this manner, participation operates as a standard of good governance. It is based on the notion of ‘nothing about us without us’.

Indeed, in a welfare state which is capable of unleashing so much power and influence over ordinary lives, citizens’ involvement cannot solely rely on formal parliamentary democracy alone. The right to vote every four years is not enough: not allowing for other forms of individual or collective participation could even be framed as a ‘democratic deficiency’ (Oomens and Vossen, 2021).

Admittedly, in policy and administration it is not always easy to take into account the client's viewpoints. Governments must be open to experiments. There is no fixed path and there are many ways that lead to empowerment of social security recipients, ranging from individual service contracts to town hall meetings, co-designing, deliberative polling and citizens’ assemblies. A social rights collective complaints procedure with an independent authority of experts could also be a useful tool to strengthen the participation rights of citizens. The procedure set up for the European Social Charter serves as perfect precedent for such a novel approach, a hybrid between hardcore classical adjudication and deliberative supervision.

As a final note, it is interesting to speculate whether direct involvement of stakeholders in the administration of social security impacts upon the prevalence of welfare state dystopia. Such direct involvement exists for unions and employer organisations in countries which allow self-government in social insurance, such as Belgium, Germany and Italy (Becker, 2020). In other countries, such as the UK and the Netherlands, these stakeholders do not have a direct, formalised role in governance comparable to Germany's Selbstverwaltung system; they are at best indirectly involved through a system of advice and consultation. Could the apparent relative absence of social security scandals in countries such as Belgium, Germany and Italy also be explained by their stakeholder participation? Without further evidence this cannot be confirmed. Further research would be highly recommended, as it could shed more light on the causes of, and the remedies against, welfare state dystopia.

Conclusion

Combating welfare state dystopia is not solely the responsibility of the right to social security. All human rights have a role to play: the prohibition of discrimination, the right to privacy and many other rights based on the underlying value of human dignity and supported by the principle of proportionality. But the right to social security has to respond to today’s threats linked to the welfare state. For that purpose, I have formulated three qualitative standards on individual treatment to enhance the interpretation of the right to social security. These standards are not totally absent from the right to social security; they need only to be dusted off and placed centre stage.

Taking the three standards seriously will also place a burden on the three branches of state power. Some may see this as a disadvantage, in particular from the viewpoint of protecting the administration against a further increase in workload. But there is a link here with the kind of social security system that we are building. .Universal, unconditional forms of social security, for example, require much less supervision of claims than do conditional means-tested schemes (Bouwmeester et al., 2023). Those who are worried about the capacity of the administration should take this to heart.

Some may also worry that a new focus on qualitative standards for individual treatment may take away from the collective values underpinning social security, such as solidarity. Indeed, individual claims may conflict with the general interest. But does such a conflict arise here? I tend to doubt it. System standards on availability, accessibility and adequacy may well go hand in hand with qualitative standards on individual treatment. It is difficult to see how, for example, the compensatory principle discussed above, taking into account socio-economic and cultural differences, cannot be in line with the principle of solidarity.

The right to social security, as reinterpreted in this article, must be applied by the legislature, the administration and the judiciary, both nationally, and in the EU by the Court of Justice, which has so far been rather reluctant to apply this right (Pennings, 2023). In the light of the potential for judicial review, we may ask whether these standards are freedoms or, rather, promotional social principles? Perhaps they are a bit of both. That would be a perfect way to resolve the conflict between the liberal state and the social state: a synthesis. It is as if the clash between negative and positive freedom, as theorised by Isiah Berlin in his famous essay on two concepts of liberty (Berlin, 1969), were finally overcome by an internal human rights dialogue. It is to be hoped that this small twist in the interpretation of human rights will lead to a strong welfare state, with respect for the individual.