Fattigdom - Diskriminering - Relasjoner. Grunnleggende forsørgelsesrettslige problemer.

The thesis engages with the topic of poverty in the welfare society. The welfare society is traditionally built on the idea that major welfare areas, financed by the state (education, health care, a web of social benefits, labour market regulation), will protect individuals from social exclusion and diminish inequality in the society as a whole. However, inequality is on the rise in the Nordic countries. While poverty is not limited to a specific group of people, some groups are considered “particularly at risk”, such as women, children and young people, the elderly, immigrants, and persons with disabilities. More than 120 million people in the EU are at risk of poverty and social exclusion. Meanwhile, combating poverty stands on both national and international policy agendas.

The research questions in the dissertation ask how poverty should be identified and how poverty should be addressed through a right to welfare/support/care and non-discrimination. The objectives of combating poverty and inequality are reflected in legal instruments, nationally and internationally, and are based on the values and principles of the welfare society. There is a tendency for more privileged socio-economic groups to choose alternative and supplementary forms of social and economic support that are available outside the traditional state welfare apparatus, such as the employment contract and private insurance. At the same time, many people living in poverty are dependent on public support and/or the regulation of discriminatory mechanisms. A starting point for the analyses in the dissertation is that the individual’s relational dependence and universal vulnerability substantiate the need for solidarity. The thesis focuses on the responsibility of the public to prevent discriminatory mechanisms and to provide for individuals’ capabilities.

Poverty is a structural problem that must be solved both individually and structurally. General and structural legal measures that address poverty are important to the individual. Paradoxically, structural conditions can also constitute barriers for the individual. The analyses in the thesis engage in a pro persona perspective, with focus on the individuals’ capabilities and social positions. This has included considerations about the roles that an individual has had over time, and classifications such as gender, ethnicity, disability, and age. The historical and social context is relevant to understanding embedded and embodied differences in positions/roles.

The dissertation analyses how legal structures, regulation, and interpretation in the welfare system could contribute to maintaining poverty and poverty producing processes. The thesis investigates the individual’s positions and capabilities in the context of what some researchers refer to as the “social investment paradigm”, where efficiency / growth is sought to be combined with equality and rights. Participation in the labour market is seen as an important part of social inclusion in both the EU and the Nordic countries. Second, analysing the individual’s positions and capabilities in the context of “the national model” in welfare law, which entails various forms of exclusion of persons. Third, the family, marriage, and parenthood are seen as relevant sources of support/care in the Nordic welfare model. The legal perception and qualification of relationships is therefore relevant to considerations of poverty. Poverty and legal structures have an impact on how relationships can be formed and developed.

The thesis provides no definitive solutions to questions about how legal discourses produce and reproduce the risk of poverty. Instead, it outlines approaches for analysing and discussing such questions. I highlight risk factors, where legal structures such as the “national model”, “social investment”, and relational and social security system play a role in poverty. Furthermore, I address how the individual’s particular intersectional situation and context can be analysed, in an interdisciplinary manner, where concepts such as stereotypes, stigmatisation, recognition gaps, social inclusion, social positions, capabilities and dignity are central analytical tools. The same concepts are considered relevant when analysing how the relevant rights should be interpreted and applied in a poverty perspective, with a pro persona approach. The right to welfare/support/care and the prohibition on discrimination are two different concepts in law that complement each other, and both are understood, in the context of the thesis, as necessary (but not sufficient) to combat poverty for the individual.

Jurisprudential perspectives such as critical constructive feminist theories (Bartlett), and «vulnerability» theories (Fineman), the «capability approach» (Nussbaum) and Nordic rights-oriented welfare discourses (such as Stang Dahl, Christensen, Ketscher), have influenced the project. The thesis employs a hermeneutic and interdisciplinary method. The analysis centres on a selection of legal materials, in the fields of social law (in a broad sense) and discrimination law, such as cases/material from the Danish National Board of Appeal and the Danish Equal Treatment Tribunal, EU law, ECHR law and the UN Human Rights.

Assessments of, for example, the individual’s needs, capabilities and social positions/roles, questions of comparisons, and broader social context require complex interdisciplinary and transparent reflections. With the selected cases as fulcrums, I analyse the elements of the legal discourses that are taken for granted and thus suggest underlying assumptions; I consider, what questions are asked, what arguments could be raised in the legal discourse, and what ought to be made visible/explicit (“consciousness-raising”). Anti-essentialism, contextualization, narrative technique and stereotype critiques are employed techniques in the analyses. Three main categories serve as prisms for the analyses: relations, social inclusion, and social position. Key concepts include poverty, the individual, necessity / needs, support/care, stereotyping, stigmatisation, discrimination, equality, and dignity. While I believe that these main analytical categories and concepts are relevant to all Nordic welfare societies, the dissertation primarily engages with examples from Danish law.

The purpose of the thesis, and its contribution to the fields of social and non-discrimination law, is to highlight, analyse, and provide approaches for considering:
- poverty as a relevant legal phenomenon in the welfare society;
- an understanding of poverty that does not focus solely on income and minimum approach, but which, in addition to economic / material deprivation, also takes into consideration the social inclusion and the individual’s capabilities, relations, and social positions;
- the risks of maintaining and producing poverty in legal structures and interpretation of law;
- a pro persona perspective on poverty issues, including how the individual should be identified and positioned in law; and
- Human Rights in a poverty perspective, particularly in the context of a Danish / Nordic poverty, focusing on the right to welfare/support/care and the prohibition on discrimination.

Supervisor: Professor dr. juris Kirsten Ketscher.