Citizen by Proxy - Extending the Limits of Law

Modern Law has been conceived as a medium securing individual freedom and enhancing social justice. With the emergence of the modern welfare law, legal regulations have increasingly focussed on compensating the side- effects of an economy based on wage labour. Recent changes in the social, cultural and economic configuration of contemporary societies, analysed as transformation under headings like emerging post-fordism or neo-liberalism have created a number of problems for the legal system. Law is trapped in a regulatory trilemma being exposed to conflicting demands from the political system on the one hand and societal constraints on the other. The proposed research will take up this problematic and investigate in an exemplary fashion the emergence of new legal formats. The focus will be on a constellation termed "citizen by proxy". The basic assumption is that under the emerging new regime of governance citizens are exposed to complex legally mediated transactions, requiring expert-knowledge and active negotiation of entitlements and contracts. The figure of the legal proxy is introduced primarily in areas where individuals deemed (mentally, cognitive, psychologically) incompetent are exposed to institutions of the welfare sector. The effects of this constellation will be analysed using two statutes from Austrian welfare-law (Heimaufenthaltsgesetz and Sachwaltergesetz) that introduce legal proxies to act on behalf of their clients. The basic assumption of our analytical approach is that the figure of proxy can be understood as a reaction of the legal system to social fragmentation and to the extension of legal regulation beyond the classical domains of welfare law. The political rationale is to support and protect individuals, unable to handle complex problems or to enforce their individual rights. A different reading though is possible: proxies facilitate flexible locally negotiated solutions to problems, which in turn leads to greater frag-mentation of welfare state services.

Modern Law has been conceived as a medium securing individual freedom and enhancing social justice. With the emergence of the modern welfare law, legal regulations have increasingly focussed on compensating the side- effects of an economy based on wage labour. Recent changes in the social, cultural and economic configuration of contemporary societies, analysed as transformation under headings like emerging post-fordism or neo-liberalism have created a number of problems for the legal system. Law is trapped in a regulatory trilemma being exposed to conflicting demands from the political system on the one hand and societal constraints on the other. The proposed research will take up this problematic and investigate in an exemplary fashion the emergence of new legal formats. The focus will be on a constellation termed "citizen by proxy". The basic assumption is that under the emerging new regime of governance citizens are exposed to complex legally mediated transactions, requiring expert- knowledge and active negotiation of entitlements and contracts. The figure of the legal proxy is introduced primarily in areas where individuals deemed (mentally, cognitive, psychologically) incompetent are exposed to institutions of the welfare sector. The effects of this constellation will be analysed using two statutes from Austrian welfare-law (Heimaufenthaltsgesetz and Sachwaltergesetz) that introduce legal proxies to act on behalf of their clients. The basic assumption of our analytical approach is that the figure of proxy can be understood as a reaction of the legal system to social fragmentation and to the extension of legal regulation beyond the classical domains of welfare law. The political rationale is to support and protect individuals, unable to handle complex problems or to enforce their individual rights. A different reading though is possible: proxies facilitate flexible locally negotiated solutions to problems, which in turn leads to greater fragmentation of welfare state services.