Social Security as a Constitutional Feature of the Ukrainian State

Social Security as a Constitutional Feature of the Ukrainian State

29.06.2023

IvanKrykhovetskyia, NataliіaLutskab, OlehAndrukhivc, IrynaRosovskad, RomanP. Lutskyie

 

Social Security as a Constitutional Feature of the Ukrainian State*

 

 

DOI: 10.26350/18277942_000134

 

Summary: 1. Introduction. 2. Literature review. 3. Results and discussion. 4. Conclusions.

 

  1. Introduction

 

Social security is a necessary element of the functioning of any developed state. For many years, Ukraine and other countries of the world have been actively discussing the essence, standards and mechanisms for achieving a high level of social security of the population[1]. The concept of “social security of the population of the population” is not new and has its own history. From the end of the 18th century, a state-administrative system of public guardianship begins to form in Europe and Russia (institutional formation of the aid system, formation of the legal framework, administrative management, including territorial structures, partial state financing of social assistance).

The special feature of this stage is that the state does not seek to directly perform social functions, but only contributes to other institutions: personal and public charity, charitable organisations, corporate social insurance, local authorities, and the church. The two main characteristics of the stage (the emergence of the state's social functions and the focus of social policy on all members of society) are interdependent, they are based on the need to consolidate a society experiencing a progressive antagonistic stratification. However, the principle of solidarity, which directly follows from the theory of a social contract, according to which society has obligations to its members, cannot be implemented only through public charity, which causes the emergence of social state functions proper.

The first elements of social security appeared in Germany at the end of the 19th century, when the state began to allocate funds for various social programmes. The transition of social functions of society to the state has begun. The term “social security” was first used in the US Social Security Act in 1935, which legally defined a new stage for this country, introducing the institution of compulsory insurance in case of old age, death, disability and unemployment. Soon this term became widely used in many countries of the world, it expressed the essence of the problem of organising national systems of assistance to the disabled and elderly citizens. Social security has a number of features. First, it is a system of public relations, which is designed to meet the personal material needs of citizens through an individual form of distribution from special funds. Secondly, social security is provided by the state at the expense of public funds. Third, funds are provided instead of wages or as an appendix to it in cases stipulated by law, in case of loss or decrease in earnings, additional expenses or inability to find employment[2]. In the 1950s, many countries of the world experienced drastic changes in social policy, which made it necessary to systematise and coordinate diverse segments and institutions of the social sphere from the point of view of characterising its protective functions.

Some aspects of this issue cause discussions in scientific circles, as they are extremely relevant for all countries. Issues of social security and ensuring social standards have been studied by such foreign and Ukrainian scientists as O. V. Makarova[3], V. M. Oparin[4], S. M. Synchuk[5], V. A. Skurativsky and O. M. Paliy[6], P. I. Shevchuk[7] and others. However, it is necessary to clarify the essence of the concepts of “social security” and “social state”, as well as to determine the directions of reforming the socio-economic system of Ukraine to increase the level of social security of the population.

The process of forming a social state through the reform of its social security system. The strengths of the Ukrainian approach include the constitutional recognition of the right to social protection and an extensive system of social security. However, there are also weaknesses that need to be addressed, such as implementation challenges, financial sustainability, and the need for legislative reforms. To fully establish a social state, Ukraine should streamline its legislative framework, improve tax policies, and adopt a Social Code to consolidate principles and mechanisms of the social state. These steps would contribute to the effectiveness of social security measures and create a favourable space of social opportunities, guaranteeing decent living conditions and material support for all citizens.

Studying the topic of social security and the formation of a social state in Ukraine is important due to several reasons. Firstly, understanding the concept of a social state and its implementation in different countries provides valuable insights into effective social policies and their impact on society. By analyzing the strengths and weaknesses of the Ukrainian approach to social security, researchers can identify areas that need improvement and suggest policy recommendations to enhance the well-being of citizens. This research is particularly novel because it focuses on Ukraine, a country that is undergoing significant political and economic transformations, and explores its progress and challenges in establishing a social state. By shedding light on the current state of social security in Ukraine and proposing strategies for improvement, this research can contribute to the development of more comprehensive and effective social policies in the country, ultimately benefiting the well-being and livelihoods of its citizens. The purpose of the study is to review and analyse the constitutional practice of normative regulation of the right to social security in Ukraine and continental European countries.

The paper highlights the importance and benefits of a socially-oriented state and to advocate for the development of a social state in Ukraine. It emphasizes that socially-oriented states, particularly in Europe, have created favourable social opportunities, improved the social status of citizens and social groups, and ensured decent living conditions for all. The authors argue that Ukraine is in the early stages of forming a social state and proposes specific steps to be taken. It suggests streamlining the legislative framework, enacting necessary legislative acts, reforming tax policy, and adopting a Social Code that consolidates the principles of the social state and establishes mechanisms for implementing social programs.

 

  1. Literature review

 

The social security system is related to the special features of the organisation of the social economy, the purpose of which is to increase the well-being and standard of living of citizens. That is, social security is a manifestation of a socially-oriented economy. According to S. Kalashnikov[8], a socially oriented economy is a highly developed form of market economy that allows the most complete combination of the principles of a free-market economy and social justice. The author notes that the main parameters of social security depend on the parameters of the development of society. This means that social security is largely determined by the level and quality of development of socio-economic processes in the country.

In the dictionary of legal terms, “social security” is defined as “a form of distribution of material goods in order to meet the vital individual needs of citizens in the event of social risk (disability, unemployment, loss of principal wage-earner, low income) at the expense of special social funds or at the expense of budgets of various levels (state and local) in cases and under the conditions established in the law”. In Ukraine, the social security system includes pensions, benefits for working people (during temporary disability; in connection with pregnancy and childbirth, etc.), mothers with many children and single mothers, low-income families with children; maintenance and provision of the elderly and disabled in nursing homes, prosthetics; professional training and employment of disabled people; benefits for disabled and mothers with many children[9].

In Ukrainian scientific works, there are many interpretations of the concept of “social security”. E. Libanova[10] believes that the social security of the population is the material support of all citizens, without exception, not lower than social standards and ensuring decent living conditions. Social security provides for a certain level of material security, that is, income support, welfare protection. Therefore, in Ukraine it is, on the one hand, a system of relations between the state, economic structures, and with citizens. On the other, in the process of which funds of financial resources are formed and used at the expense of a part of the gross Ukrainian product for material support and service of certain categories and groups of citizens.

Social security V. A. Skurativsky and O. M. Paliy[11] interpret as “a set of organisational, legal and economic measures aimed at protecting the well-being of each member of society in specific economic conditions”. According to V. I. Hlushko[12], social security is a set of measures and mechanisms for their implementation that society uses to ensure socially normal conditions for the material and spiritual life of the population.

In a narrow and broad sense, interprets social security N. B. Bolotina[13]. “In a narrow sense, the understanding of social security is a social and protective activity of the state to protect the population from the negative consequences of social risks. In a broad sense, social security is the content of social functions of the state and is a system of economic, legal, organisational measures to ensure the basic social rights of a person and citizen in the state”. The author defines social security as “a system of legal, economic, financial and organisational means and measures in the state to protect the population from the adverse consequences of social risks”. According to the interpretation of S. M. Synchuk[14], “social security is a form of distribution of material goods in order to meet the vital individual needs of citizens in the event of social risk at the expense of special social funds or at the expense of budgets of various levels in the case and under the conditions established by law”.

Social risks are events in a person's life in which there is a risk of losing material resources to meet their primary needs necessary for the preservation and reproduction of a full-fledged life as a member of society. Social risks are the cornerstone of social security. From how their list changes, which is legally recognised by the state, it is possible to trace the development of social protection and assess its state in a particular state. Therefore, it is advisable to interpret “social security” as a function of society to ensure the social position of a citizen formed as a result of social risks, in accordance with the conditions determined by their inalienable and universally recognisable rights. Social security is, on the one hand, a functional system, that is, a system of directions in which it is carried out, and on the other – a system of institutions that provide it (the state, the court, trade unions and other public organisations). In any state, there is a whole system of social institutions that provide social protection for citizens. The most important and most powerful social and organisational institution is the state itself.

Institutions such as insurance companies, various specialised foundations, charitable organisations, as well as public and political organisations that provide social protection for social groups and segments of the population play an important role in performing social protection functions. In its full form, social security should cover the areas shown in the figure.This article adds to the existing academic literature by offering a detailed analysis of the concept of social security and its various interpretations within the Ukrainian context. It enhances the understanding of social security as a multifaceted system of measures and mechanisms aimed at protecting the well-being and material needs of citizens in the face of social risks.

 

  1. Results and discussion

 

The term “social state” (welfare state) was introduced by Archbishop Temple. However, its active theoretical development began in the first half of the twentieth century mainly in German literature. The concept of “social state”, which was put forward in 1929 by the German statesman H. Heller, later spread in Europe. Finally, in the sense of the political and legal concept, the concept of “social state” entered the scientific literature after it was fixed in the Basic Law for the Federal Republic of Germany[15] in 1949. In the United States, the idea of a social state was adopted later than in European countries, since the type of consciousness of American society was focused on the principle of individualism.

In a general sense, a social state is defined as one that strives to provide every citizen with decent living conditions, social security, participation in production management, and ideally – approximately the same life chances and opportunities for self-realisation of the individual. After the Second World War, the concept of a social state was enshrined in the constitutions of Western European countries (Germany, Spain, etc.). In Article 1 of Constitution of Spain of the year 1978[16] it is stated that Spain is a social, legal and democratic state whose highest values are freedom, justice, equality and political pluralism. In Article 20 of Basic Law for the Federal Republic of Germany (1949) it is said that Germany is a democratic and social federal state. The Constitution of France[17] states that it is a democratic and social republic. According to V. Kornienko[18], the word “social” is abused all over the world, but it reached extreme forms in West Germany, where the Constitution contained the expression “social state governed by the rule of law”.

In the welfare state, for the first time, personal and societal goals are combined. The state has recognised itself as responsible for people's living conditions. Today, the social state means, first of all, the duty of the legislator to be socially active in order to reconcile the contradictory interests of members of society and ensure decent living conditions for all, provided that there is equal ownership of the means of production. The state becomes a body for overcoming social contradictions, taking into account and coordinating the interests of different groups of the population, and implementing decisions that would be positively perceived by different strata of society.

Through social policy, it should ensure equality and conditions of political participation, unite the population, stabilise the social (including legal) and economic systems and ensure their progressive evolution. The state of social orientation implies the existence of a certain set of social rights of citizens, a certain level of social protection and social justice[19].

The state of social democracy is a modern political and legal system, where the concept of “social” is important, it is connected with the social life of people, emphasises that the state takes care of the material well-being of citizens, performs the function of regulating the economy with mandatory consideration of environmental requirements, ensures the protection of economic and social human rights. According to V. Shapoval[20] “the concept of a social state is sometimes formulated as not directly related to the ideas of social justice and social protection, this concept reflects the general changes that have occurred over the past century in the relationship between society and the state. It reflects the activation of regulatory participation of the state in economic processes, the strengthening of its corresponding influence on the spiritual and some other spheres of social existence”.

The main priority of the social state policy is to improve the standard of living of the population based on economic growth. The way to achieve this goal lies primarily through improving the systems of remuneration and income of the population. Initially, the concept of “social policy” was defined as a system of state decisions aimed at achieving the well-being of the population. However, this definition is not unambiguous, because such a system of decisions can include many areas of government activity. The most important task of the state authorities remains to ensure the interests of the population, achieve their well-being; that is, social policy can be considered one of the activities of the state regarding social protection, which covers: social protection of the underprivileged; the fight against poverty; regulation of the labour market; health care; education; culture.

The purpose of social policy is to create conditions for the development and optimal functioning of social relations, to provide special protection to those segments of the population who need it, namely: objects of social policy, to solve or mitigate social problems caused by economic circumstances. The objects of social policy include the social and labour sphere, which characterises the degree of social development and reflects the unity and interdependence of labour relations and social relations. The main subjects are the individual and the social state.

The main task of the state social policy is to ensure the social stability of society and its social security. During the 20th century, Western countries developed a significant experience in maintaining social security by compromising the interests of countries and classes, establishing mechanisms for social orientation of antagonistically contradictory processes. In fact, the social state emerged as a mechanism for achieving these goals. This state is characterised by a wide-ranging system of social services, free education, healthcare, access to various spheres of culture, sports, and state assistance to weak segments of society. The main principles of the social state are presented in the Table 1.

 

Table 1.The main principles of the welfare state

 

Principles of the Social State

Description

Social Justice

Ensuring fairness and equality in the distribution of resources, opportunities, and benefits among all members of society.

Social Security

Providing a safety net and protection against risks such as poverty, unemployment, disability, and old age through social insurance and assistance.

Social Guarantees of Human Rights

Ensuring that all individuals have their fundamental human rights protected and upheld by the state, regardless of their social or economic status.

Humane Living Conditions

Ensuring that all citizens have access to decent living conditions, including adequate housing, healthcare, education, and a clean environment.

Solidary Market Economy

Creating favorable conditions in the market economy that promote the inclusion and participation of all segments of the population, reducing inequality.

Social Democracy

Combining civil self-government and representative democracy to allow citizens to actively participate in decision-making processes and policy formulation.

Social Ethics

Promoting interaction and agreements based on respect for the autonomous rights and dignity of every individual within society.

 

Consequently, a social state governed by the rule of law turns out to be the most just modern form of mutual organisation of civil society and political organisation, which civilized countries strive for. The social state assumes some national functions, for example, in the field of education, culture, health, pension provision and other forms of social security and protection. If these functions are a priority (even if they are not fully implemented), then the state is socially oriented in its purpose and intended path of development. In fact, the state becomes social when these functions are mainly realized and human rights and guarantees are ensured, democratic principles are observed and a socio-economic policy is pursued that ensures a decent standard of living and comprehensive development of the citizens of their country.

At the present stage of development, Ukraine has a fairly extensive system of social security of the population. About 80% of families receive social payments, various types of assistance, compensation, or have separate benefits at the expense of budgets of all levels, social funds, funds of enterprises, organisations, etc. The basic principles of the social protection system are laid down in the Constitution of Ukraine, in Article 46[21] “Citizens shall have the right to social protection including the right to financial security in cases of complete, partial, or temporary disability, loss of the principal wage-earner, unemployment due to circumstances beyond their control, old age, and in other cases determined by law. This right shall be guaranteed by the mandatory state social insurance based on insurance payments made by citizens, enterprises, institutions, and organisations, as well as by budgetary and other sources of social security”.

Pensions and other types of social payments and benefits, which are the main source of livelihood, must ensure a standard of living not lower than the subsistence minimum established by law. Articles 47-53 of the Constitution of Ukraine state that citizens of Ukraine have the right: to housing; to a standard of living sufficient for themselves and their families; to health protection, medical care and medical insurance; the right to an environment that is safe for life and health, and to compensation for damages caused by violation of this right; the subsistence and upbringing of orphans and children deprived of parental care shall be entrusted to the State; the right to education.

Based on this research, it is possible to draw some conclusions about the strengths and weaknesses of the Ukrainian approach.strengths of the Ukrainian approach to social security:

  1. Constitutional Recognition: The Ukrainian Constitution recognizes the right to social protection, financial security, and various social rights for its citizens. This constitutional recognition provides a solid foundation for social security measures.
  2. Extensive Social Security System: The text mentions that Ukraine has a relatively extensive system of social security, with a significant percentage of families receiving social payments and assistance. This indicates that efforts are being made to provide support and benefits to vulnerable groups in society.

Weaknesses of the Ukrainian Approach to social security:

  1. Implementation Challenges: While Ukraine has a system of social security in place, there may be challenges in effectively implementing and delivering social security measures to all eligible individuals. Ensuring that the benefits reach those who need them the most can be a complex task.
  2. Financial Sustainability: The text does not provide detailed information on the financial sustainability of Ukraine's social security system. However, given the economic challenges faced by the country, it is possible that there may be limitations in terms of funding and resources allocated to social security programs. This could impact the effectiveness and coverage of social security measures.
  3. Legislative Framework and Reforms: The text suggests that Ukraine needs to streamline its legislative framework and adopt additional legislative acts to resolve controversial issues related to social security. It also mentions the need for tax policy reforms and the adoption of a Social Code to consolidate principles and mechanisms of the social state. These indicate that there may be gaps and inconsistencies in the existing legal framework, which can hinder the effectiveness of social security measures.

In summary, while the Ukrainian approach to social security shows some strengths, such as constitutional recognition and an extensive system of social security, there are also weaknesses that need to be addressed. These include challenges in implementation, financial sustainability, and the need for legislative reforms. Addressing these weaknesses can contribute to the effectiveness of social security measures in Ukraine.

 

  1. Conclusions

 

Thus, a socially-oriented state creates a favourable space of social opportunities, guarantees the possibility of unhindered interaction of social groups and other elements of the social structure, and contributes to improving the social status of citizens and social groups. Currently, the social orientation of states and practically high level of social security are typical mainly for European countries – Germany, France, the Scandinavian countries, as well as Israel and Canada. The same goal of their development is chosen by other states, they guarantee the material support of all citizens, without exception, not lower than social standards and ensure decent living conditions. These principles of European states are inherently social.

Based on the above, it can be concluded that Ukraine is taking the first steps towards the formation of a social state through the reform of the social security system. With this in mind, it is necessary to streamline the legislative framework, develop and adopt a number of legislative acts, according to which the main controversial issues will be resolved. One of the first steps to solve the problem of financing social protection of the population in Ukraine should be a radical reform in tax policy, namely, improving the provisions of the tax code. In addition, it is necessary to finalise and adopt the Social Code, which should consolidate not only the terminology, but also the principles of the social state, the mechanism for implementing social programmes, and monitoring compliance with socially-oriented legislation. The adoption of the social code will be a step forward towards the creation of a social state.

 

Abstract: The relevance of this study lies in the fact that positive law is designed to maintain a reasonable balance, that is, a reasonable balance between the will of the state and the will of the citizens who constitute the population of the respective state, and such a balance can be achieved only in the context of the sociocultural dimension of positive law. Such a balance can be achieved only in the context of the sociocultural dimension of positive law. Social security plays an important role in this process. The purpose of the article is to investigate the constitutional practice of normative regulation of the right to social security in Ukraine and the states of continental Europe. The authors have considered the legal content of the right enshrined in Article 46 of the Constitution of Ukraine, and analyze similar norms of the constitutions of European countries. It was concluded that the right to social security is closely related to the standard of living of Ukrainian citizens. Therefore, under conditions of significant social stratification of Ukrainian society, a sharp decline in the level of security of the economically inactive part of the population, the problems of insufficient protection of the right to social security cause an urgent need for theoretical rethinking and comprehension of the legal content, making proposals that would contribute to a more effective provision of this right.

 

 

Keywords: welfare state – constitution - socio-economic rights - social legislation - security


a King Danylo University (krykhovetskyi_iv@ukr.net)

b King Danylo University (lutska.na@meta.ua)

c King Danylo University (andrukhiv_o@ukr.net)

d King Danylo University (rosovska.i@meta.ua)

e King Danylo University (ro_lutskyi@ukr.net)

* Il contributo è stato sottoposto a double blind peer review.

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[2] I. S. Yaroshenko, The right to social security, Kyiv, 2005, pp. 381 ss.

[3] O. V. Makarova, State social programs: theoretical aspects, methods of development and evaluation, Kyiv, 2004, pp. 328 ss.

[4] V. M. Oparin, Finance, Kyiv, 2001, pp. 242 ss.

[5] S. M. Synchuk, Law of social security of Ukraine, Kyiv, 2003, pp. 306.

[6] V. A. Skurativsky – O. M. Paliy, Fundamentals of social policy, Kyiv, 2002, pp. 200 ss.

[7] P. I. Shevchuk, Social policy, Lviv, 2003, pp. 400 ss.

[8] S. Kalashnikov, Social market economy and welfare state, in Man and Labor, 9 (2003),pp. 45-46.

[9] V. G. Honcharenko, Jurisprudence. Glossary of terms, Kyiv, 2007, pp. 636 ss.

[10] E. Libanova, Poverty in Ukraine: definitions, criteria and indicators, in Ukraine: Aspects of Work, 6 (2001) pp. 12-13.

[11] V. A. Skurativsky – O. M. Paliy, Fundamentals of social policy, cit., pp. 200.

[12] V. I. Hlushko, Pension system of Ukraine, Kyiv, 2006, pp. 336 ss.

[13] N. B. Bolotina, Law of social protection of Ukraine, Kyiv, 2005, pp. 381 ss.

[14] S. M. Synchuk, Law of social security of Ukraine, cit., pp. 306.

[15] https://www.gesetze-im-internet.de/englisch_gg/index.html (Accessed 01. 06. 2023).

[16] https://www.lamoncloa.gob.es/lang/en/espana/leyfundamental/Paginas/index.aspx (Accessed 30. 05. 2023).

[17] http://surl.li/jfynp (Accessed 08. 06. 2023).

[18] V. Kornienko, Realization of the ideal of the social and legal state in the Ukrainian society, in Law of Ukraine, 2 (2001), pp. 46–48.

[19] I. Magnovsky, Democratic, social, rule of law and civil society: unity and conditionality, in Law of Ukraine, 7 (2005), pp. 26–27.

[20] V. Shapoval, Constitutional category of the welfare state, in Law of Ukraine, 5 (2004), pp. 15-16.

[21] https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text (Accessed 05. 06. 2023).

KRYKHOVETSKYI IVAN



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