How the welfare state tries to protect itself against the law: Luhmann and new forms of social immune mechanism

Åkerstrøm Andersen, Niels and Stenner, Paul (2024). How the welfare state tries to protect itself against the law: Luhmann and new forms of social immune mechanism. Law and Critique, 35 pp. 257–279.

DOI: https://doi.org/10.1007/s10978-023-09346-5

Abstract

Niklas Luhmann argued that the law functions as society’s immune system by regulating conflicts that potentially dissolve the certainty of expectation structures. In this article, we argue that law itself has become a target of new social immune mechanisms. Since the 1980s, welfare states have increasingly seen their own structures as a threat. Today, the ideal is a public sector consisting of organizations that constantly emerge anew by selecting the structures that fit each specific moment, case, and citizen. To protect public sector organizations against their own structures, ‘potentialization’ has been introduced as a social immune mechanism that functions by initiating a constant search for new openings and possibilities. This critique of structures includes a critique of legal structures and legal rights. Looking at the Danish law of early retirement as our empirical case, this paper analyses, how the tension between law and ‘potentialization’ is built into the law itself. While the law gives citizens certain rights to early retirement, it simultaneously ‘protects’ against the same rights by potentializing citizens. ‘Potentialization’ here functions as a mechanism that protects the operations of a system against its legal structures by ‘un-relating’ those operations from the structures. This means that when citizens claim their right to pensions, the social workers can reject them on the grounds of a right to a future that is not foreclosed and ‘parked’ on a pension. The paper makes an original contribution, showing how ‘potentialization’ works by dissolving even fundamental legal expectations, profoundly transforming the relationship between the citizen and the public sector.