The Interrelation of Law and Society
Even though the dependence of jurisprudential reasoning on the preconceptions of legal scholars and practitioners has been a well-known theoretical problem since Martin Heidegger's 'Sein und Zeit' (Being and Time) and Hans Georg Gadamer's 'Wahrheit und Methode' (Truth and Method), it is rarely reflected in everyday practice and the science of law. Not only the preconceptions of the specific legal personnel, but also the traditionalised legal sense of justice shape the way in which dogmatics, principles and legal rules are formed. But what concrete role does the constitution of consciousness and society thus addressed play for the law and what happens to it when these elements change? Under the title 'Anerkennung durch Sozialrecht – Interdependenzen in einer Gesellschaft sozialer Freiheit' (Recognition through Social Law – Interdependencies in a Society of Social Freedom) the dissertation project attempts to trace these questions in the light of Dieter Suhr’s engagement with Hegel and Marx in 'Bewußtseinsverfassung und Gesellschaftsverfassung' (Constitution of Consciousness and Society). On this basis the dogmatics, principles and legal rules of the social state and social law will be reconstructed under the aegis of a recognition-theoretical image of society: How do the social state and social law present themselves within the context of a recognition theory and what distinguishes this perspective from a classical liberal viewpoint?
Social Freedom as an Alternative View on Society
The recognition-theoretical view of society is taken from Axel Honneth's Hegel interpretation. At its centre is always the question: How do people achieve the state of social freedom and what tasks do the various social institutions fulfil to serve this purpose? The state of social freedom is the progressive expansion of recognition between people, that is the mutual realisation of personal goals in intersubjective relationships. The latter arise from a psychologically backed theory of the emergence and resolution of ethical claims and conflicts. The concept of social freedom is thus more comprehensive than the well-known ideas of negative and positive freedom. Both only consider the protection or expansion of goods and actions of legal subjects conceived as isolated beings. In contrast to the term 'solidarity' social freedom is conceived as the main goal of a society and not an a posteriori construction of interrelations between separated individuals.
Social Law from the Perspective of Mutual Recognition
After elaborating the recognition theory, the dissertation leads from the law of social assistance to the law of social compensation and social insurance, to show how reciprocity relations based on recognition form the basis and limits of legally induced social benefits. It is in particular the social institutions 'labour market' and 'democratic process' that become the foundations of the modern social state. This is due to the broad ethical claims provided by the mutual spheres of recognition realised in these institutions.
A social state that thus has people's social freedom in mind must, in its application, remain sociologically and philosophically informed about its interdependencies with social relations based on recognition. This brings into view not only the perspective of the arrangement of welfare state services, their organisation and enforcement, but also the institutionally embodied limitations of social laws in solving social questions. Thus, the recognition theory leads to a model of the welfare state that bypasses the providing welfare state (as a state that strives for comprehensive social security through social benefits) and the activating social state (as a state that mainly seeks to cushion or prevent social hardship). This leads to the notion of social activation not of people, but of societal resources.
The project will demonstrate this conceptional shift by examining specific institutions of the social state. For example: How must employment promotion and unemployment benefits be understood, if the normative starting point of the rights and duties of the unemployed is not their personal self-responsibility, but a joint project of creating social freedom by means of using the labour market? It seems clear that sanctions resulting from the violation of obligations related to labour market integration are not based on falling short of one’s duties for self-provision, but on non-participation in mutual recognition relationships. With this in mind, the normative backdrop for the evaluation of violations cannot be an idealised free person, but merely the unemployed person and the recognition of his concrete capabilities and deficiencies.
A Look Back and Ahead
Ultimately, a socio-philosophical concept of social law will have been pinpointed that is the first of its kind. On the one hand, it will furnish a critical perspective on the existing interpretations of social law, while on the other hand, it can have an inspiring effect as well as provide a method for further research. In this way, the project overcomes the fundamental misgivings that arise against concepts of social justice as merely ideologically relatively valid theories and goes beyond the hidden logocentrism implied. On the path between modern and postmodern thinking, it has become clear that the politicisation of law is not an absolute position either, but one among many. Alternatives are not only desired here, but indispensable as a mirror of one's own way of thinking.
