International Journal of Law And Criminology
89
https://theusajournals.com/index.php/ijlc
VOLUME
Vol.05 Issue05 2025
PAGE NO.
89-93
10.37547/ijlc/Volume05Issue05-14
Features of The Welfare State in Countries of The
Romano-Germanic Legal System
Mansurov Arslon Askarovich
Captain Independent Researcher, Academy of the Ministry of Internal Affairs, Uzbekistan
Received:
31 March 2025;
Accepted:
29 April 2025;
Published:
31 May 2025
Abstract:
This article investigates the historical, theoretical, and methodological foundations of the welfare state
in key countries of the Romano-Germanic (civil law) legal tradition, with a focus on Germany, France, Italy, and
Spain. The main purpose is to identify common and distinctive features of welfare state formation in these
countries and to understand the role of legal symbolism and doctrinal principles in shaping the social state in
these jurisdictions. The analysis employs a comparative legal-historical methodology, addressing symbolic
representations of law in the construction of the welfare state and highlighting methodological challenges in legal
theory. The study is situated within the field of theory and history of state and law, and it draws on the history of
legal doctrines to clarify the legal and theoretical approaches that underpin welfare state development in civil law
traditions. The article contributes to a deeper understanding of how civil law doctrines and symbolic legal
principles have guided the evolution of modern welfare states.
Keywords:
Welfare state; romano-germanic legal system; civil law tradition; sozialstaat; solidarité; social rights;
legal symbolism; comparative constitutional law; legal history; methodology.
Introduction:
The welfare state is broadly understood
as a model of governance in which the state assumes
responsibility for protecting the social and economic
well-being of its citizens through interventions in the
economy, provision of social services, and guarantees
of social rights. In countries of the Romano-Germanic
legal family
–
i.e. the civil law tradition of continental
Europe
–
the idea of the welfare state has been
formally embedded in constitutional texts and legal
doctrine since the mid-20th century. Indeed, in the
decades following World War II, most continental
European nations refounded their constitutional orders
as social states, pledging state commitment to social
justice, equality, and the material conditions of
freedom. For example, the 1949 German Basic Law
declares Germany to be a “democratic and social
federal state,” th
e French Constitution of 1958
proclaims France a “social Republic,” and Spain’s 1978
Constitution establishes a “social and democratic State,
subject to the rule of law.” These notions signal a
dramatic shift from the 19th-century liberal laissez-
faire state toward a modern paradigm in which state
power is expected to be used to advance general
welfare and reduce social inequalities.
The Romano-Germanic legal system, characterized by
codified laws and rooted in Roman and Germanic
traditions, provides a fertile context for the
development of the welfare state. Civil law jurisdictions
typically allow legislatures to enact comprehensive
social legislation, and many have entrenched social
principles at the constitutional level. This is in contrast
to the common law tradition (exemplified by countries
like the United States or United Kingdom) where,
historically, constitutional recognition of socio-
economic rights has been minimal or absent. Notably,
the vast majority of national constitutions worldwide
now include social rights or references to the social
state, whereas the U.S. Constitution contains no such
guarantees. The civil law world thus offers rich
examples of how the welfare state can be given legal
form and protection. At the same time, the civil law
method
–
with its emphasis on legal codes, general
principles, and scholarly “dogmatics” –
poses unique
questions for interpreting broad social concepts within
a legal framework. As one comparativist observes,
differences between common law and civil law are
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International Journal of Law And Criminology (ISSN: 2771-2214)
largely methodological rather than substantive in
matters of public law; Western democracies, regardless
of legal family, converged in adopting welfare
commitments after the Second World War. Still, the
distinctive legal traditions and histories of countries like
Germany, France, Italy, and Spain have shaped the
particular features and doctrines of their welfare
states.
However, there was a significant gap between
recognition and enforceability. Weimar Germany
vividly demonstrated the difficulty of translating social
constitutional principles into judicially enforceable
norms. German legal scholars and courts of the era
largely treated the Weimar social provisions as
“programmatic norms” –
aspirational directives to the
legislature rather than directly justiciable rights. In fact,
Article 151 of the Weimar Constitution explicitly stated
that its social rights were to be realized “on the
basis of
laws” (i.e. requiring legislative action), which courts
interpreted as a bar to invoking them in litigation
absent implementing statutes. For example, while
Weimar’s text spoke of a right to work, the courts did
not compel the state to provide employment; such
clauses were seen as political commitments dependent
on future policy. This approach
–
viewing social rights
as non-self-executing
–
was common in other countries
as well. In France’s brief 1848 experiment, as
mentioned, social rights had been demoted to moral
statements. In the interwar constitutions of Spain,
Poland, etc., similar “directive principles” language was
used. Thus, prior to World War II, even when social
welfare ideals entered constitutional texts, they often
carried symbolic or guiding force rather than
immediate legal force. This limitation would resurface
in later debates about how courts should handle
welfare-related constitutional provisions.
The end of World War II and the fall of fascist regimes
in Europe ushered in a second, more enduring
constitutional revolution
–
one that firmly installed the
welfare state as a core principle of government. The
devastation of the war, the threat of communist
expansion, and a broad popular consensus on the need
for social justice led to the adoption of new
constitutions explicitly defining states as social states.
In Western Europe’s post
-1945 constitutions, one finds
unequivocal acknowledgments of state responsibility
for welfare. For instance, the French Constitution of
1946 (Fourth Republic) in its Preamble guaranteed a
number of social rights: the right to work, to health
protection, to social security, to education, and even
stated that “the Nation assures to the individual and
the family the conditions necessary to their
development
.” When the Fifth Republic was
established in 1958, it retained these commitments by
incorporating the 1946 Preamble, and Article 1 of the
1958 Constitution pointedly declares: “France shall be
an indivisible, secular, democratic, and social
Republic.” The
inclusion of the word “social” in the very
definition of the Republic signals that France embraces
not only the values of liberty and equality from its
revolutionary heritage but also the value of fraternity
or solidarity as a fundamental constitutional principle.
In Spain, after the end of Franco’s dictatorship, the
1978 Constitution similarly established the nation as a
“social and democratic state governed by the rule of
law” (Estado social y democrático de Derecho in
Spanish). Article 1.1 of the Spanish Constitution
proclaims this formula and underscores that social
values like justice and equality are supreme values of
the legal order. Furthermore, Spain’s Constitution
includes an extensive section (Chapter III of Title I) on
the “Guiding Principles of Social and Economic Policy”
(Art. 39
–
52), covering state duties in areas such as
family protection, social security, public health,
housing, culture, and environmental protection. While
these provisions were intentionally placed in a category
that the judiciary cannot enforce directly against the
legislature (they are principles for lawmakers to
follow), they unmistakably articulate the expectation
that Spain is to be a welfare state in substance, not just
in name.
Across these examples (Germany, France, Italy, Spain,
and likewise Portugal, Belgium, the Netherlands,
Greece, and others with civil law traditions), one finds
by the late 20th century a broad consensus that the
constitution should emdiv social statehood. The
inclusion of social principles and rights in these
fundamental laws represented the culmination of a
historical trajectory: what began as tentative social
legislation and moral rhetoric in the 19th century had
evolved into formal constitutional commitments after
1945. The motivations were both principled and
pragmatic. Principled, because the horrors of the
Depression, totalitarianism, and war had reinforced the
belief that only a state which actively furthers social
welfare can safeguard human dignity and prevent the
social despair that extremists exploit. Pragmatic,
because the post-war elite understood that embedding
social justice into the constitutional order would help
integrate the working classes and undercut the appeal
of Soviet-aligned communism in Western Europe.
Indeed, many scholars note that Western European
welfare states expanded in part as a strategy of
“containment by co
-
optation,” offering social rights as
an antidote to revolutionary impulses during the Cold
War.
By the 1960s and 1970s, the welfare state in Romano-
Germanic countries had reached its high-water mark in
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International Journal of Law And Criminology (ISSN: 2771-2214)
terms of scope and public support. Generous social
insurance
systems,
expansive
public
services
(education, healthcare, housing), and redistributive
fiscal policies became fixtures of these societies. In
legal terms, this period saw constitutional courts and
legislatures working out the implications of the
constitutional welfare principles. In countries like Italy
and Germany, courts began to derive concrete
obligations from the abstract mandates of social
statehood. For example, the Italian Constitutional
Court in the 1960s
–
1980s struck down legislation that
grossly violated the constitutional principles of equality
or solidarity
–
such as pensions laws that inadequately
protected certain workers
–
thereby gradually
“judicializing” some social rights that were once seen as
purely programmatic. In Germany, the Federal
Constitutional Court, while initially cautious, eventually
recognized that human dignity (Article 1 GG) in
conjunction with the Sozialstaat principle imposes an
obligation on the state to guarantee everyone a
“subsistence minimum” –
the minimum material
conditions for a life consistent with dignity.
A landmark decision came in 2010 (the Hartz IV case),
when the Court invalidated government benefit levels
as insufficient, emphasizing that the constitution
requires the legislature to ensure a dignified minimum
existence for those in need. The Court held that the
general principle of the social state, together with the
fundamental value of human dignity, gives rise to a
basic right to such existential support, even if the Basic
Law does not enumerate typical social rights like food,
housing, or healthcare as individual rights. This
jurisprudence illustrates how welfare state features,
initially
couched
as
broad
principles,
were
progressively concretized through interpretation and
implementation.
In Germany, for instance, the inclusion of the
Sozialstaatsprinzip in the 1949 Basic Law
–
and further,
its entrenchment in the eternity clause
–
had profound
symbolic resonance. It was a deliberate break with the
Weimar Constitution’s failure to secure social peace
and with the Nazi regime’s contempt for individual
welfare (despite Nazi rhetoric of community, their state
ultimately pursued war and atrocity over citizen well-
being). By making the social state principle
unamendable, the West German founders sent a
powerful message that social responsibility is a
foundational, permanent aspect of the legitimate state.
Yet, as discussed, the Basic Law provided few details on
what being a “social” state entailed, leading some to
conclude that its primary function was symbolic: it
enshrined an ideal and a direction for policy, rather
than a concrete rule. Legal scholar Hans M. Heinig
argues that the welfare state principle in Germany finds
its true meaning “beyond its doctrinal content, in its
own distinct, symbolic substance”. In other words, the
Sozialstaat clause serves to remind political authorities
and citizens alike that the German state is
fundamentally committed to social justice, even if the
specifics must be worked out over time. This symbolic
role is not trivial; it has real effects in shaping political
culture and discourse. For example, all major German
political parties, even market-liberal ones, must affirm
their dedication to the Sozialstaat to be seen as
constitutionally faithful. The symbol helps maintain a
consensus that certain core elements of the welfare
system (like social insurance and aid for the needy) are
beyond partisan debate
–
they are part of the
constitutional identity of the state.
In this section, we examine and compare the concrete
legal manifestations of the welfare state principle in
four major Romano-Germanic jurisdictions: Germany,
France, Italy, and Spain. Each of these countries
exemplifies the civil law tradition yet has developed its
own approach to constitutionalizing and implementing
welfare commitments. We will explore each country in
turn
–
looking at their constitutional texts, key
legislation, and jurisprudence
–
and highlight points of
convergence and divergence. This comparison will shed
light on how the shared ideal of the welfare state is
tailored by different legal cultures and historical
contexts.
Germany’s Basic Law (Grundgesetz, GG) provides one
of the clearest and strongest constitutional
endorsements of the welfare state. Article 20(1) GG
establishes that “The Federal Republic of Germany is a
democratic
and
social
federal
state.”
This
Sozialstaatsprinzip (social state principle) is then
shielded by Article 79(3) GG from any constitutional
amendment. As discussed above, this places the social
state on an equal plane with Germany’s identity as a
democracy and Rechtsstaat. The historical impetus for
this was the Weimar experience and the post-war
consensus that social stability must be constitutionally
guaranteed to prevent a relapse into extremism. At the
same time, the drafters provided few explicit social
rights in the Basic Law (unlike, say, the Weimar
Constitution which had many). The Basic Law’s
approach was to state the principle and rely on
legislation to fulfill it. Some specific fundamental rights
have social dimensions
–
for instance, Article 6 protects
marriage and family (leading to extensive welfare
benefits for families), and Article 14 allows
expropriation for public good with compensation
(enabling land reform or socialization of resources). But
there is no list of enforceable social entitlements like
housing or healthcare in the text.
In recent times, solidarity has also become a
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constitutional buzzword in environmental and
European contexts, via the Charter for the Environment
2004 (which mentions solidarity with future
generations) and EU solidarity clauses. However, those
are tangential to the welfare state as such. Within the
welfare domain, solidarity in France particularly
manifests in intergenerational contracts (e.g., the pay-
as-you-go pension system relies on active workers
financing retirees’ pensions as an expression of
solidarity between generations) and national pooling of
risks (e.g., the health insurance system where the
healthy subsidize the sick).
In summary, France’s welfare state in legal terms is
anchored by a constitutional commitment to solidarity
and social justice, but the realization of these
commitments is largely left to the political process and
policy-making. The Constitutional Council plays a
supporting role by maintaining a framework of equality
and solidarity (preventing egregious failures or
unfairness), rather than directly ordering positive
measures. The French model underscores the idea that
the welfare state is part of the social contract: it
emerges from collective decision-making and
expresses fraternity in concrete form. The French
citizen’s relationship to the state includes expectations
of social support, and those expectations are rooted in
constitutional soil, even if they bloom through ordinary
statute.
Spain’s 1978 Constitution, enacted during the
transition from dictatorship to democracy, explicitly
combines the notions of social welfare with those of
democracy and rule of law. Article 1, as noted, declares
Spain a “social and democratic State, subject to the rule
of law” and elevates values like equality and justice as
supreme guiding values. In many respects, Spain drew
inspiration from the German and Italian models
(indeed, several Spanish jurists of that era were
influenced by German constitutional scholarship, and
the phrase “Estado social y democrático de Derecho”
mirrors the German sozialer Rechtsstaat concept and
Italy’s democratic, social state ideals).
In summar
y, Spain’s constitutional system affirms the
welfare state at a broad level
–
indeed making it part of
the definition of the state
–
and enumerates numerous
social goals, entrusting their implementation to the
political branches under the Constitution’s gu
idance.
While not directly litigable as individual claims, these
principles are far from meaningless: they shape
legislation, inform court interpretations of other rights,
and serve as a benchmark for judging the performance
of public authorities. The public expectation in Spain is
that the government is constitutionally bound to strive
for full employment, comprehensive social security,
public health, etc.
–
even if citizens cannot demand a
specific job or house in court. As Spanish constitutional
scholars often say, the social state principles together
form a kind of “constitutional programme” for social
democracy: a continuous mandate that legitimizes
proactive social policies and limits neoliberal retreats.
Comparative Note: When we look across Germany,
France, Italy, and Spain, we see a common core
–
all
accept the state’s responsibility to ensure certain social
goods and reduce inequality, and all embed this
commitment in constitutional or fundamental law. The
differences lie in mechanisms and emphasis. Germany
uses a broad principle backed by strong judicial review
in specific extreme cases; France relies on political
processes with a mild constitutional oversight on
solidarity and equality grounds; Italy gives a plethora of
concrete rights that are fairly judicially guarded; Spain
spells out social aims clearly but channels enforcement
through political accountability and indirect legal
effects. Each model has its strengths and weaknesses.
Germany’s and Italy’s allow more legal recourse for
individuals
(though Germany’s is limited to the extreme
of human dignity cases), which can ensure a minimum
standard but also raise debates about judicial
overreach or affordability. France’s and Spain’s
deference to politics permit flexibility and democratic
deliberation,
but
risk
slower
realization
or
retrenchment if political will wanes.
Interestingly, all four countries have had to navigate
within broader frameworks like the European Union,
which imposes some budgetary discipline, and the
European Convention on Human Rights, which, while
not containing classical social rights, has been
interpreted to cover certain social-type rights (e.g. a
right to housing under the rubric of right to
privacy/home in some circumstances, or rights of
persons with disabilities). These external regimes
increasingly interact with national welfare states (for
example, EU law affects how healthcare is managed, or
how welfare benefits are given to EU migrants, etc.).
But the detailed exploration of that is beyond our
scope; suffice to say the national constitutions remain
the primary reference for welfare state obligations, and
they
largely
complement
the
European-level
commitments (the EU Charter of Fundamental Rights
now even includes some social rights, like access to
social security and healthcare, though mostly as
principles akin to Spain’s Chapter III).
To conclude the comparative section, despite
differences in form, countries of the Romano-Germanic
legal system share an embedded notion of the welfare
state as a fundamental aspect of their constitutional
order. In each, the state is not a neutral night-
watchman but a promoter of social well-being. This is
realized through a combination of constitutional
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norms,
legislative
programs,
and
judicial
interpretations. The diversity in approach offers fertile
ground for comparative legal study, illustrating how
legal culture and historical context shape the
implementation of a common ideal.
Dealing with Complexity and Volume of Material:
Welfare state law covers a vast terrain: labor law, social
security law, health law, education law, tax law, etc.,
each of which in civil law countries is detailed and
technical. A holistic study can be overwhelming.
Methodologically, researchers might focus on
paradigmatic sub-areas or emblematic cases to draw
broader lessons. For instance, analyzing constitutional
court decisions on pensions or social benefits might
reveal the judicial approach to the social state principle.
Or comparing one sector (like healthcare rights) across
countries might be manageable and illustrative. The
challenge is to ensure that such case studies genuinely
reflect broader features and are not isolated. That’s
why combining methods
–
doctrinal, case study,
comparative, statistical
–
is often needed to cross-
verify conclusions.
these trends complicates research but is essential for
up-to-date analysis.
CONCLUSION
In conclusion, the welfare state in civil law systems
stands as a testament to an evolved understanding of
the role of law and the state: it is an embodiment of the
notion that true freedom and equality require more
than formal rights
–
they require material conditions
and collective effort. The legal features we have
examined
–
from social rights clauses to solidarity
principles and beyond
–
are instruments through which
civil law jurisdictions seek to marry the power of the
state with the needs of the people, under the rule of
law. This grand experiment, born of the trials of history,
remains an ongoing project, continually interpreted
and reinterpreted in courts, parliaments, and public
discourse. As social challenges continue to arise (be it
economic crises, pandemics, or demographic shifts),
the idea of the welfare state and its legal framework
will undoubtedly be tested anew. The foundations laid
in the constitutions and legal doctrines of Romano-
Germanic countries, however, suggest that the
commitment to a social rule of law state
–
one that
strives to secure justice and dignity for all
–
is deeply
entrenched and likely to endure as a defining feature of
their legal and political identity.
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