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Innehållsförteckning

Communicating Justice, Providing Legitimacy

Content

Glossary and abbreviations 21

PART I · POINT OF DEPARTURE 25

1 Introduction 27

1.1 The problem – law and governance in an era of change 27

1.2 A conflict perspective on the distribution of social protection 32

1.2.1 Conflict (1): Individual need and collective risks 32

1.2.2 Conflict (2): Conflicts in court 35

1.3 The broader context – crisis and change 37

1.3.1 Change (1): Reforms in the sickness insurance in the 1990s 37

1.3.2 Change (2): Increased poverty and social exclusion? 39

1.3.3 Change (3): The welfare state crisis of the 1990s 43

1.3.4 Change (4): Global structural change – and welfare states gone astray? 47

1.4 The legal system and the implementation of social policy 50

2 Outline of the research mode 52

2.1 The aim of this dissertation and some questions to be answered 54

2.2 In search of a standpoint 55

2.3 Theoretical approach 59

2.3.1 Legitimacy and the notion of de facto legitimacy 65

2.3.2 Law as legal practices 76

2.3.3 Law as societal conceptions of justice 85

3 The legal conception of law 90

3.1 The legal rationale of ‘social law’ 92

3.1.1 Social law and legal systematization 93

3.2 The right to sickness cash benefit 98

3.2.1 Concentrating social insurance – the 1995 and 1997 social policy reforms 100

3.2.2 Legal sources relevant for defining access to sickness cash benefit 105

3.3 The administration of justice in administrative courts 115

3.3.1 Introduction 115

3.3.2 An outline of the decision-making process 117

3.3.3 Characteristics of the procedure in administrative courts 118

3.3.4 Legal aid 126

3.4 Legal self-reflection 128

PART II · LEGAL PRACTICES 129

Methodological considerations 130

4 A quantitative study of legal practices performed by administrative courts 134

4.1 Prologue 135

4.1.1 The pre-study 135

4.1.2 Eight propositions on legal practice linked to the distribution of sickness cash benefit 139

4.2 Findings of the full-scale study 142

4.2.1 Basic facts – presenting the material 142

4.2.2 First proposition – the legal value of subjective experiences 144

4.2.3 Second proposition – capacity for what? 156

4.2.4 Third proposition – in search of the characteristics of the complainant 165

4.2.5 Summing up – first, second and third proposition 173

4.2.6 Fourth proposition – the prominence of ‘insurance medicine’ 174

4.2.7 Fifth proposition – the impact of experts 186

4.2.8 Summing up – fourth and fifth proposition 190

4.2.9 Sixth proposition – the legal weight of the recommendations of the insurance physician 191

4.2.10 Seventh proposition – a weakened position for the complainant? 193

4.2.11 Eighth proposition – multiple legal criteria? 198

4.2.12 Summing up – propositions six, seven and eight 212

4.3 Conclusions to be drawn from the quantitative study 213

5 Probing further into the material of legal cases in a continued study of legal practices 218

5.1 Adding qualitative aspects to the quantitative results 218

5.2 The writing of judgements 220

5.2.1 Main components of a written judgement on access to sickness cash benefit 221

5.3 Sickness or not? 223

5.3.1 The distinction between subjective and objective symptoms 223

5.3.2 The role of the insurance physician 228

5.3.3 The role of extra medical experts 232

5.3.4 Reflections on how the criterion of sickness is operated by the courts 236

5.4 Capacity for work or not? 237

5.4.1 The assessment of capacity for work – ‘remaining capacity for work’ 238

5.4.2 Assessment of capacity for work when the complainant is unemployed 240

5.4.3 Reflections on how the criterion of capacity for work is operated by the courts 245

5.5 Reflections on the courts’ production of judgements 245

PART III · SOCIETAL CONCEPTIONS OF JUSTICE 247

Methodological considerations 250

6 Basic welfare state values and current social insurance discourses 253

6.1 Introduction 253

6.2 Basic welfare state values 254

6.2.1 Characteristics of the Swedish welfare state 254

6.2.2 Social stability, individual freedom and social equality 263

6.3 Discourses on social insurance in the 1990s 270

6.4 The diverse identifications of primary social risks and urgent individual needs 273

6.4.1 Founding principles for the design of social insurance 273

6.4.2 The hegemonic work-line 279

6.4.3 Economizing social insurance 286

6.4.4 Individual needs and social risks 290

6.5 The concentration policy in a discursive context 292

6.5.1 Several concentrated schemes or one ‘working life insurance’? 293

6.5.2 Excess usage and administrative control mechanisms 297

6.5.3 From ‘appointed (confidence) physicians’ to ‘insurance physicians’ 300

6.5.4 The values of the concentration policy 305

6.6 Concluding summary 306

7 Technical solutions providing income coverage to those unable to work for a living 308

7.1 Income coverage in situations of inadequate self-support – the mapping exercise 310

7.2 An ‘insurance catalogue’ 313

7.2.1 Income compensation in case of sickness 314

7.2.2 Income compensation in case of sickness resulting in long-term or permanent loss of capacity for work 327

7.2.3 Income compensation in case of occupational injury 335

7.2.4 Income compensation in case of unemployment 348

7.2.5 Income support (when there are no other alternatives) 357

7.3 The full picture 362

7.4 Technical solutions as a source generating societal conceptions of justice 366

PART IV · CONCLUSIONS 371

8 Conclusions 372

8.1 First question – the legal content of the criteria ‘sickness’ and ‘capacity for work’ as determined by the legal practices of Swedish administrative courts 373

8.1.1 Courts opting out? 374

8.1.2 Legal content according to the practice of the courts 376

8.1.3 Medicalization and scientization – two different processes affecting the content of legal criteria 379

8.2 Second question – explanations of change, or lack of change, in the legal content of sickness and capacity for work 382

8.2.1 The courts’ acceptance of the work-line while remaining hesitant towards the introduction of an objectivity criterion 384

8.2.2 The low-key court positioning 388

8.2.3 Demarcation functions 389

8.3 Law as a provider of legitimacy 394

8.3.1 The changing welfare state 394

8.3.2 Increasing the capacity of the courts 396

8.3.3 Discursive governance or scientization and the end of politics? 397

8.4 Final reflections 399

8.4.1 A common interest rather than conflicting interests? 399

8.4.2 What should the administrative courts provide if not de facto legitimacy? 401

Bibliography 403

Index 431

Abstract

Stendahl, Sara (2003) Communicating Justice, Providing Legitimacy (Uppsala: Iustus Förlag) 430 pp, ISBN 91-7678-548-3.

The volume is on an overarching level confronting the function of the legal system in the governance of modern welfare states. The point of departure is an analysis in which the conflict between individual needs and collective social risks is highlighted, and the role of the courts in resolving this conflict, is in focus. The study is situated in a context characterized by change, where the traditional welfare state is challenged by for instance globalization processes and in this process becoming more complex, more differentiated and more pluralistic, but also thinner and more fragile. In such a modern (complex and differentiated) society authors as for instance Rawls and Habermas have singled out the legal system as a key component in providing political legitimacy. It is proposed that the capacity of the legal system to provide de facto legitimacy is at stake, not primarily in the Supreme courts, but in the less glamorous, everyday production of judgments by county courts. It is further proposed that it falls upon the members of the legal community (such as the judges) to provide legal arguments (accepted as legal by the legal community) but also to make sure that these arguments are communicated to members of society in a dialogue reflecting societal conceptions justice. The core empirical chapters of the volume consist of an analysis of legal practises and societal conceptions of justice in the concrete area of deciding on access to sickness cash benefit.

The volume contributes an analysis relevant to three different areas of interest: 1) Law and governance in modern welfare states and the role played by the legal system as a provider of legitimacy. 2) The Swedish response to the crises of the 1990s, the introduction of the ‘concentration policy’, the tightening of the criteria of ‘sickness’ and ‘capacity for work’ and the reflection of these policy changes in legal practises. 3) The role of legal science in the debate on social and economic policies and their implementation (and how it could become less marginalized). Overall, the study concludes that the Swedish administrative court system could be described as an efficient implementation machinery in which social policies are effectuated promptly but, it is also concluded that the administrative courts have a potential capacity to practice law in a way that would increase the sustainability of the welfare state project and that this potential is far from being fully exploited at present.

Keywords: social law, law and governance, legitimacy, law and the welfare state, sickness, insurance, social insurance, social protection, administrative law, administrative courts, administration of justice.

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