How the Welfare State Tries to Protect Itself Against the law: Luhmann and new Forms of Social Immune Mechanism

Sociologist Niklas Luhmann argued that the law functions as society’s immune system by regulating conflicts that threaten 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’ now functions as a social autoimmune mechanism by initiating a constant search for new openings and possibilities. This critique of structures includes a critique of legal structures like rights. Looking at the Danish law of early retirement as our empirical case, this paper analyzes, 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. It functions 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’s contribution is to show how potentialization works by dissolving even fundamental legal expectations. This profoundly transforms the relationship between the citizen and the public sector.