A contribution by Dr. des. Christina Reimann
As is clear from the title, this project deals not with the modern Sozialstaat1 established in post-1945 Europe but rather with its forerunners in the late 19th and early 20th centuries. More particularly, it sets out to examine the encounter between national integration in the form of the creation of insurance systems at the scale of the nation and the “cosmopolitanism” of port cities.2 By focusing on legal practices around social insurance of immigrants this project intends to grasp the extent to which national integration became effective at the very edge of the national territory, that is, in port cities characterized by transnationalism.3
Why then does this paper figure on this blog? What parallels might be drawn between this project and research on developments of the Sozialstaat after 1945? I shall argue that this research on social security schemes in the period between 1880 and 1914 connects to the collaborative programme in numerous respects and that it adds new dimensions to it. I first demonstrate that even though this project deals with a period outside the time-frame of the main project, it matches its subject and research questions. Besides, focusing on the “small states” of Belgium and the Netherlands, the project adds a de-centralizing perspective. Secondly, I present the overarching purpose of my project: analysing the interplay between transnationalism and the process of national integration in the late 19th and early 20th centuries. While linking to the transnational approach of the collaborative programme, my research adds aspects such as the focus on migrant populations and their status within social security systems. Third, I describe the methodology which follows the premises of socio-history and can be linked with capability sociology, methodologies that the collective programme is using. However, by using analytical tools which stem from “Law and Society” research my project is primarily based on a sociolegal approach and therefore adds an alternative perspective.
1. Social security schemes in the formative years of the Sozialstaat
This study deals with the very beginnings of social policy, which was aimed at cushioning the social impacts of industrialisation and urbanisation and mainly intended for factory and mine workers.4 In view of the economic crisis and social unrest in the 1880s, the Dutch and Belgian governments started legal regulation of working hours and security conditions. In Belgium, the workers’ uprising which started in Liege in March 1886 and expanded to other places of industry were violently suppressed. As a consequence, the governing Catholic party felt compelled to take measures – but it was not before 1889 that a law forbade night work together with children’s and young women’s work. In the Netherlands in the same year, the Liberal government also passed a first social law, the Arbeidswet (Work Law), whose content was nearly identical to that of the Belgian law. Together with this regulation of working conditions, social security laws represented the core of early social politics, that is, the rudimentary Sozialstaat. It is therefore the domain of disability, health, and old age insurance (Sozialversicherung) that my research focusses on.
In the 1890s, influenced by the social legislation in the German Empire, a consensus was growing among Belgian and Dutch authorities as to the desirability of statutorily enforced insurance schemes or, at least, of state contributions to private insurance funds.5 In 1894, the Belgian state gave grants for the administration of mutual insurance funds. By 1900 it introduced a voluntary national pension scheme. In 1903, employers were legally obliged to pay premiums for accident insurance. In the Netherlands, the Ongevallenwet (Workmen’s Compensation Act, WCA) of 1901 introduced mandatory insurance against industrial accidents in some sectors. According to this scheme, the Rijksverzekeringsbank (National Insurance Bank) decided on the level of the injured workers’ benefits which employers had to finance. Unlike later social insurance schemes in the Netherlands, the burden of contribution according to this first insurance arrangement rested entirely with the employers. A national pension scheme for civil servants followed in 1913. Beside the still-rudimentary state programmes, mutual aid societies and private relief funds, which later became partly integrated into statutory schemes,6 were offering insurance schemes. Many of these societies had been founded in the 1820s in order to fill the gaps left by the legally abolished guilds; numerous others were built up in the 1870s within the workers’ organisation movement.7 Some trade unions also provided insurance schemes for their members, as did a few employers. Commercial insurance companies too must be mentioned in this group.8 Finally, due to its focus on migrant workers this study pays particular attention to immigrant associations serving as mutual aid societies for their members.9
Especially when referring to the Dutch and Belgian social security systems in their early forms, it is important not to put too much emphasis on statutory schemes, but to consider the entire spectrum of insurance schemes. For in the years before 1918 Dutch governments in particular were relatively (especially when compared to Germany and England, but also to Belgium) hesitant when it came to social politics.10 Looking at the early years of the Sozialstaat in the Netherlands and in Belgium therefore redirects the research perspective in two ways. First, in contrast to studies elucidating the pioneer role of Imperial Germany with regards to statutory social insurance11 this project focuses on “latecomers” to this political field. Second, it leads the attention away from the “big players” and their exemplary function by focusing on those smaller countries whose governments and civil societies took other nations’ legislation as a source of information, knowledge and inspiration.12
However, while scrutinizing the interplay of statutory schemes, mutual aid societies and other (corporate, commercial etc.) providers of social security, I conceive of these different insurance schemes as together constituting the basis of a national security community. This approach stems from two assumptions: (1) that national legislation and civil society alike were increasingly structured according to the principle of nationality and national citizenship;13 (2) that whereas public poor relief had existed throughout previous centuries, albeit only at a local level, the institution of statutory national social security represented an unprecedented way of integrating the national community.14 Whereas immigrant workers were not – as they were in France, for instances – formally excluded from the Dutch Ongevallenwet it is plausible to assume that they were excluded when it came to legal practice. Different indications and reflections support this assumption: according to the Critical Legal Studies, “law” cannot be considered as an objective and neutral instrument meeting everyone’s needs regardless of social status, gender, ethnic origin etc.; voluntary mutual insurance societies were characterized by social exclusiveness so that irregular, temporary, low skilled and domestic workers usually had no access to them – and many of the migrant workers belonged to theses social groups;15 immigrant workers did not enjoy equal membership rights in Dutch trade unions which also offered security schemes.16 As to commercial insurance companies they might have refrained from integrating immigrants into their schemes, considering them as unsettled and unreliable.
My research sets out to identify the impact of national integration through “law” on the domain of social security, and on the prospects immigrants had to insure themselves effectively against social risks. Were immigrants considered and did they consider themselves, as members of the national security community or were they, legally and/or socially, excluded from this community situated between the public and private spheres?
2. Transnationalism and the national integration process in a micro-perspective
Statutory security schemes, when introduced in the 1880s, offered a new instrument to integrate society and were part of the national integration through the “law” in the late 19th and early 20th centuries. This process, epitomized by the increasing importance of national citizenship, contrasted with the significant migration movements of that very epoch and with the large migrant communities, especially to be found in port cities. The “law” was increasingly meant to define the exact boundaries of a given nationality; it was supposed to objectify nationality, to rationalize it and to make it a clear-cut legal category.17 Consequently, the administrative and practical ability to discriminate between nationals and non-nationals became paramount in many fields of social interaction. While national social security systems were slowly beginning to develop and while social life and legal systems were re-structured according to national principles, international migration was at a high level due to liberal migration regimes, improved infrastructure and new means of transportation.18 This project deals with the encounter between national integration represented by the creation of a national security community and transnationalism epitomized by migration and by the “cosmopolitan” port cities Antwerp and Rotterdam.19 To what degree did the legal practice around immigrants’ social insurance represent a gap or a resistance to the national integration process through the “law”?
Being characterized by international openness and exchange, by a high mobility of their population, large migrant (merchant) communities and ethnic diversity,20 port cities can be thought of as situated at the edge of the national integration process, especially when thinking of this process as the emergence of “territoriality”.21 This marginal position raises questions as to the impact of national legislation, for example concerning social security, on local legal practice. How effective were the national security schemes in the port cities and how important were local insurance systems, partly organized by immigrant associations? In what way did the creation of a national security community clash or accommodate with the cultural, social, and legal practice in “cosmopolitan” port cities? I shall investigate whether immigrants experienced any discrimination as to their legal rights and eventual access to national and private insurance schemes. Were there differences between the legal texts – of national laws as well as of mutual societies’ statutes – and the legal practice of integrating immigrants into the schemes? Were immigrant workers affected by the Dutch WCA and which firms could make exceptions to the scheme? Did mutual aid societies set up by immigrants receive grants from the national government? According to which criteria – class, race, age, gender and religion – did prospects of access to social insurance vary?
Alongside the focus on port cities and their migrant communities, the transnational perspective is also reflected in the comparison of two cities situated in different national contexts. The Netherlands and Belgium were quite similar with regards to their alien and migration policies, their citizenship legislation and naturalisation law as well as to their development of social security systems. Throughout the 19th century foreign nationals could easily come to and were generally welcome in both countries – as long as they had sufficient income or a realistic prospect of earning it.22 In both states, immigrants from neighbouring countries were most numerous. In the Netherlands, the German community was traditionally large and in Belgium, French immigrants were in the majority.23 Rotterdam and Antwerp were characterized by significant and growing immigrant communities.24 In the late 19th century, the ports became important transit points for the booming commerce between the industrialising Ruhr region and England, so that rich German merchants as well as unskilled harbour labourers and other workers settled in the cities.25 In Antwerp, French and Dutch immigrants were most numerous; in Rotterdam, German immigrants were in the majority. In both cities, the Germans organised themselves within a number of societies offering insurance schemes to their members.26
The comparison between Rotterdam and Antwerp offers three insights. First, in view of the similarity of the legal frameworks, the micro-study shall investigate how far legal practice was influenced by national migration policy on the one side, and by local conditions and the immigrants’ individual profile on the other. The immigrant communities being very diverse (temporary immigrants, sailors, traders and shopkeepers, domestic servants, dock workers) the comparative analysis of the groups’ eventual access to social security will provide some evidence on their respective status in the host society. Second, in view of the similarity of the immigrants’ (ethnic) origins, the comparison will clarify the degree to which legal practice was respectively determined by the migrants’ origin and their previous experience with “law” and by the particularities of the host cities and their social security systems. Third, taking up the same research questions for Antwerp and Rotterdam will allow for some generalization as to the effectiveness and effects of, as well as to the resistance to the national integration process in “cosmopolitan” port cities.
Due to the importance of migrant networks in port cities, we must assume that connections of various types and on different levels existed between Antwerp and Rotterdam.27 Instead of representing two separated social entities, the port cities have to be considered as being entangled in various ways. My research therefore sets out to identify transfer movements with regards to legal practice around immigrants’ social security. Furthermore, the introduction of statutory security schemes was a transnational process in itself. National governments were closely considering the measures taken by other states and legislation partly stemmed from transnational legal transfers.28
3. A socio-history of law
This project is conceived as an interdisciplinary work combining historical and sociolegal analysis. It is concerned with both the effectiveness of “law” and the effects of “law” on social interactions with regards to social insurance. It follows the premises of transdisciplinary Law and Society Studies which seek to understand “law” in terms of its social, cultural and political interactions and dependencies, as well as in terms of its reconstruction by social actors. It is marked by the maxim of the Critical Legal Studies questioning the principle of objectivity and neutrality of the “law”.29 According to Law and Society research, I conceive of “law” as not an autonomous but rather a social institution embedded in a socio-cultural environment that it constitutes rather than regulates. Therefore, “extralegal processes continuously construct, and reconstitute the meaning and impact of legal norms”.30
It is important to stress that statutory social security schemes such as the Dutch Workmen’s Compensation Act represented a break with previous relief systems insofar as they made social security a legal entitlement. They therefore created new forms of legal agency. However, the statutory schemes entered a social domain which was already highly regulated. In view of this plurality of norms in the legal field of social security, it is appropriate to base this study on a broad conception of “law”: together with statutory law concerning social security and civil law concerning private contracts, e.g. mutual insurance contracts, “law” is addressed in its appropriation by social actors, such as in voluntary societies or insurance companies setting up statutes. I shall analyse the parallelism and entanglement of different insurance systems characteristic of the formative years of the Sozialstaat by studying the (daily) legal practice through which individual actors were dealing with the plurality of norms.
In order to grasp processes such as the appropriation and individual use of “law” as well as the extent to which “law matters” without imposing specific behaviours, this study mainly utilizes the analytical concept of legal consciousness. Legal consciousness “entails both thinking and doing”; it refers to the “forms of participation and interpretation through which actors construct, sustain, reproduce, or amend the circulating (contested or hegemonic) structures of meanings concerning law”; it is part of the collective construction of legality.31 Analysing legal consciousness will include identifying if and how immigrants were formally insured; considering what kind of contracts people made; studying the processes entailed by immigrants waiving their rights to indemnification in case of an accident or illness; considering court trials as one particular form of legal practice; identifying and following the trajectory of individual actors. Through this approach the project attempts to provide some evidence of the legal consciousness of subaltern actors.