Benefits or Basic Social Rights?

German Court Disputes on the Morality of the Welfare State in the 20th Century

Helge Jonas Pösche (completed PhD Project, 2022)

The history of the German welfare state from the late nineteenth century onwards is usually described as a continuous and straightforward development of a "conservative" model of social protection, in which the provision of social benefits has always been justified mainly by occupational achievements and status. However, such characterizations are based largely on the study of 'major' political decisions and institutional developments, and less on the thoughts and feelings of the many contemporaries whose fate was linked to the welfare state. In particular, there is little research on an area that could possibly provide insights into the overall significance of moral justification for social benefits and their transformation: the role of law, the courts, and legal disputes. Already in the German Empire era the social insurance system offered the insured plenty of opportunities for legal action, which were increasingly institutionalized over time and extended to other areas, such as social welfare. Although research often discusses the juridification of the welfare state, it almost never examines the concrete role of the judiciary.
The project investigates how legal claims regarding the welfare state have been disputed across history, concentrating on legal disputes at a micro-level, that is, everyday legal processes, on which there is plenty of archival evidence, but which have only partially been the object of historical research. The focus is on Germany, and, after 1945, the Federal Republic of Germany, but the analysis will also include international comparative research on the social state and transnational lawsuits, for example at the European Court of Justice (ECJ).
This approach opens up new questions and answers on important aspects of the history of the welfare state: To what extent did the judiciary and the recipients of social benefits work alongside (or against) politics and the administration for the development of the welfare state? Were important legal changes – for example in the Federal Social Assistance Act of 1961 – prepared or anticipated by legal disputes? What does the investigation of common disputes concerning social benefits reveal about the shifts in the moral justifications of the welfare state over a longer period of time? After 1945, was there more emphasis on social rights as a condition of democracy, as suggested by the influential concept of "social citizenship"? This offers the opportunity to assess breaks and continuities in the history of the welfare state from a new perspective. Furthermore, with a view to current debates on social rights and reforms of the welfare state, the project promises new insights into the historical emergence of contemporary social security systems, the ways they function and their prevailing moral concepts.

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