Understanding the Social State: Principles and Legal Frameworks

The Social State: Principles and Objectives

The social state retains the values of the liberal democratic state but intends to make them more effective in practice. While the liberal state establishes a set of values that are often not fully realized, the social state seeks to go beyond these to give reality to those principles.

Forsthoff and the Concept of Living Space

Forsthoff distinguishes between two types of living space:

• Dominated living space: An environment in which the individual exercises control.
• Actual living space: An environment where the individual realizes their existence but lacks real control over their circumstances.

Forsthoff also emphasizes the concept of seeking existence. Today, the state is increasingly necessary to facilitate the deployment of individual potential, extending this support to the entire society.

The Welfare State and Social Guarantees

The concept of the welfare state provides essential services and social guarantees to all inhabitants of a country. This model is defined by an evolution of rights:

• Stage 1: Fundamental rights granting autonomy, such as the right to honor and formal equality before the law.
• Stage 2: Rights linked to political participation and civil liberties.
• Stage 3: Social rights, including health, education, housing, employment, and retirement maintenance.

Health and education serve as the two basic pillars of the social state.

Public Law vs. Private Law

Positive law is the set of rules governing a country, traditionally divided into public and private law. Various criteria have been used to differentiate them:

• Inequality vs. Equality: Public law often involves an imbalance of power, whereas private law assumes equality between subjects.
• Interest-Based Criterion: This suggests that public law serves the public interest, while private law serves particular interests. However, this is often criticized as the line between these interests is frequently blurred.
• Subject-Based Criterion: This focuses on whether the state acts as a public authority.

It is important to note that these are not watertight compartments. The state may act as a private entity, and there is constant interference between the two. For example, family law is private, yet it is heavily regulated by public interest, and public officials may be held liable under civil law for damages caused during their duties.