„Social justice“ is a frequent topic in political discussions and in the media. We may well assume that each individual holds some notion of social justice – and that these notions are likely to be very dissimilar.
Social justice as the state’s intrinsic purpose
Only if a legal order also guarantees a certain minimum level of social justice can it provide the basis for citizens to live together in peace, and can finally prevent social tension which might, in the worst case, lead to civil war and thus shake the state to its very foundations.
Social justice is an intrinsic purpose of the state’s legal order and is thus antecedent to any explicit constitutional or statutory regulations. In a democracy, it is largely up to the democratically legitimized legislator, i.e. to the Parliament, to determine how to achieve this standard. The Constitutional Court, which has the power to review the constitutionality of statutes, has therefore pointed out on repeated occasions that it has no right to substitute its own value judgments for those made by the legislator.
The creation of social justice, however, does not figure among the objectives enshrined in the constitution of the Republic of Austria. The constitution does not contain any provision which defines the Austrian republic as a welfare state under the rule of law. Constitutions of several other states in the world do include such a provision.
What does the state provide in terms of social protection?
There is nevertheless much that indicates that the Austrian constitution presupposes a state that takes an active role in social matters. Far over 90 per cent of the Austrian population are covered by the statutory social insurance scheme and thus enjoy important protection in case of illness, accident or old age.
This very comprehensive system of social insurance is supplemented by regulations guaranteeing a certain minimum level of social provision, which are to ensure that those persons who neither have an income nor are entitled to any other payments from the state (for instance unemployment benefit) receive adequate support. This may be granted either in the form of money or in kind (e.g. by providing clothing). Entitlement to social justice in the sense of protection in case of illness, accident, old age and poverty is created primarily by statutory legislation on the federal and Länder levels. The majority of regulations are intended to ensure that an individual who is affected by illness or accident or is in a situation of old age – and therefore no longer able to earn his/her own living – or of poverty has a legal claim to financial or other support.
Fundamental rights and the welfare state
The Austrian constitution does not embody any social fundamental rights – such as a right to housing or to a gainful occupation. Calls for establishing such rights have been a subject of discussion time and again in the past, but so far no such rights have been established. Why? – There are, in the first place, concerns that social fundamental rights would exceed the state’s financial capacity.
Another point raised has been the question whether such rights would not be too indefinite for the Constitutional Court to rule on them. A term used in this context is the “non-justiciability” of these rights.
The Austrian legal system does, however, contain other fundamental rights which guarantee certain legal positions: The Constitutional Court has found that the fundamental right to property also guarantees certain claims against the state. This is the case when entitlement to state benefits is based on some counter-performance on the part of the beneficiary – which is the case for most benefits granted under the statutory social insurance scheme. Cutbacks in such benefits are therefore an interference with the fundamental right to property. Another safeguarding mechanism is the constitutional principle of equality, which requires that legislation meet reasonable factual standards, i.e. must not lead to unjustified differentiation in the treatment of individuals. This fundamental right in some respects also safeguards acquired legal positions against immediate and sudden cutbacks and thus guarantees the protection of legitimate expectations. This fundamental right moreover requires that the regulation of state benefits meet objective standards based on factual circumstances. Any unreasonable exclusion of particular groups of persons from state benefits is therefore prohibited. – As has been shown, Austria’s system of fundamental rights also contains important elements of a welfare state.
Binding effect and judicial review
This also means, however, that the state can grant no benefits other than those provided for by legislation. However, this strict requirement of a legal basis applies only for the state’s sovereign administration. The state also has other instruments, which allow it to act – very much like citizens – as a subject and holder of private rights. This is what the German term “Privatwirtschaftsverwaltung” refers to. This makes it possible for the state to, for instance, conclude treaties. In many cases such treaties are also used to grant subsidies whose nature is that of a welfare-state instrument. Thus, for instance, Länder legislation provides that certain benefits within the socially guaranteed minimum benefit system are granted on a private-law basis. In these cases the state uses instruments of private law to create social justice. It must be kept in mind, however, that in the absence of the strict binding effect of the respective legislation – which only establishes general criteria – there are as a rule no enforceable legal claims to receive such benefits. Today, however, it is unquestioned that with the binding effect of fundamental rights on the state, which equally applies when it acts on a private-law basis, the state is barred from acting in an unreasonable, discriminatory manner also when granting benefits of this kind. In this way, the state’s system of fundamental rights ensures comprehensive and effective protection, which is also subject to judicial review.