Social Justice as a Principle of Social Security

JUSTIÇA SOCIAL COMO PRINCÍPIO DA SEGURANÇA SOCIAL

Abstract

The purpose of this paper is to determine the impact of social justice on the volume, types, and amount of social security in the distribution of benefits in society. This study approaches the direction of social policy in the state and the place of social justice in the priorities of legislative activity. Failure to keep a balance between the interests of different classes of the population leads to confrontation in society and conflicts with the authorities. The state is constantly facing challenges that require a review of traditional social security conditions. Deteriorating demographic situation and other reasons that affect the amount of funding for the social sphere are forcing authorities to make unpopular decisions that worsen the conditions of social security. Therefore, the principle of social justice and the principle of legitimate expectation must be observed when changing the legislation in the field of social security. This article proposes the definition of the compensation coefficient in legislation, and its amount should be set in a bill to amend the legislation in the field of social security. This paper also focuses on the problem of social justice in providing social security to migrants.

Social justice; social policy; migrants; social security; compensation coefficient

Resumo

Este artigo tem por objetivo determinar o impacto da justiça social sobre o volume, os tipos e o tamanho da previdência social na distribuição de benefícios na sociedade. São examinados os rumos da política social no Estado e o lugar da justiça social entre as prioridades da atividade legislativa. A falta de equilíbrio entre os interesses de diferentes segmentos da população leva ao confronto na sociedade e a conflitos com as autoridades. O Estado enfrenta constantemente desafios que exigem uma revisão das condições tradicionais de segurança social. A deterioração da situação demográfica, entre outros motivos que afetam o montante do financiamento na esfera social, obriga a tomar decisões impopulares que agravam as condições da previdência social. Portanto, é importante que o princípio da justiça social e o princípio da legítima expectativa sejam observados ao se alterar a legislação no que diz respeito à segurança social. O artigo propõe a definição legislativa do coeficiente de indenização, cujo valor deverá constar no projeto de lei que altera as leis vigentes da área previdenciária. Também tem como foco o problema da justiça social ao prover seguridade social aos migrantes.

Justiça social; política social; migrantes; segurança social; coeficiente de compensação

INTRODUCTION

The well-being of each person depends both on their personal actions and on the legislative field, which provides a legal assessment of a person’s actions and determines the legal consequences of these actions. Legislation, including the one regarding social security, is based on principles, and one of them is the principle of social justice. Today, our planet is experiencing many upheavals, from environmental to political ones. And despite external and internal factors, such as pandemics, people constantly need to meet basic needs and other ones as well, and the state is obliged to regulate legal relations qualitatively and ensure social security for the population. The study of social justice’s impact on the distribution of benefits in society while implementing social security for various social strata is relevant today. It is unrealistic to consider all the factors and invent a panacea for all problems in a single publication, but it is possible to consider some aspects of social justice’s impact on the volume, types, and amount of social security in the distribution of benefits in society, namely through the differentiation of security according to criteria such as the distribution of benefits among the native population and migrants, and the dependence of a person’s future social security on further changes in legislation regarding the conditions for receiving it.

The phenomenon of “social justice” (sociology, psychology, philosophy, economics, law, etc.) has been studied in diverse scientific literature. John Rawls (2010 , p. 267) formulated two principles of justice and two rules of priority. The first principle defines that every individual should have an equal right to the most general system of equal fundamental freedoms, compatible with similar systems of freedoms for all people. The second principle draws attention to the fact that social and economic inequalities must be organized in such a way that they both lead to the greatest benefit for the least successful, under the principle of fair savings, and make jobs and positions available for all in conditions of fair equality of opportunity. The first rule of priority determines the priority of freedom, noting that the principles of justice must be arranged in lexical order so that fundamental freedoms can be limited only in the name of freedom itself. Rawls also distinguishes two cases: 1. fewer broad freedoms should strengthen the whole system of freedom, which is shared by all; and 2. unequal freedom should be acceptable for citizens who have little freedom. Rawls defines the second priority rule as the priority of justice over efficiency and well-being. In this case, the second principle of justice lexically precedes the principle of efficiency and the principle of maximizing the number of benefits; and fair equality of opportunity precedes the principle of difference. In the second rule of priority, Rawls also distinguishes two cases: 1. inequality of opportunity should increase the opportunities of people with fewer opportunities; 2. an excessive rate of savings should ultimately reduce the burden on those upon whom it rests.

In the article “Social orientation of policy and opportunities for the advanced economic development of Ukraine” it is appropriate to mention Nancy Fraser’s book Redistribution or recognition? A political-philosophical exchange , in which she emphasizes that

justice is to take into account two dimensions: distribution/redistribution (which allows maintaining social status) and the benefits of the policy of recognition of differences. Justice in society is to ensure, first, through the redistribution of material resources, that all adult members of society have economic independence and the right to vote. Second, institutionalized cultural and value models must provide all members of society with equal respect and equal opportunities for public respect. ( MOSKALENKO, 2015 , p. 83, translated)

Undoubtedly, social justice in the distribution of benefits should take into account the differences between the subjects who receive social benefits and equal opportunities for obtaining these benefits. For example, equal access to a profession that makes it possible to obtain an increased level of social security, the absence of discrimination based on gender, race or religion, etc. in employment, while the presence of an increased level of social security does not contradict the principle of social justice, because each individual had equal opportunities to acquire the conditions for an increased level of social security.

Galbraith (1997) takes the view that progressive taxation should play a key role in ensuring that equal income distribution becomes a fundamental principle of modern public policy in a fair society. He also draws attention to the fact that it is appropriate to empower and ensure the protection of the state for those who are not in power because, in a market economy, power is naturally concentrated in the hands of the employer. According to Galbraith, the basic principle should be the right of workers to defend their power as opposed to the power of employers. Employees who come together to increase their income and improve their working conditions must have the same broad state support as individuals and organizations that come together in a corporation to invest.

Unfortunately, employees remain weaker in their relationship with employers. They are more dependent on the job they may lose than employers are on the employees they may also lose. The inability to negotiate on equal terms with the employer (the only exceptions are some employees who can offer or dictate their terms to the employer, but this does not significantly affect the situation in general) leads to the fact that employees are forced to agree to conditions that do not contribute to their social security in the future as employers attempt to reduce deductions of taxes and fees to the budget and social funds by underestimating the official salary. (An unofficial supplement from which taxes and contributions are not paid will not be taken into account when providing social security in the future.) There are also cases of shadow employment, which is the subject of a separate study.

A balanced state policy to ensure social justice has positive consequences not only for social security but also for the development of the country.

L.M. Gerasina and V.I. Misyutina (2012 , p. 269) in the article “Implementation of the principle of social justice in Ukraine: socio-legal area” focused on Lothar Witte’s work entitled “European social model and social cohesion: what role does it play in the EU?” which states that “social justice and social equalization can benefit economic development, they are not a purely costly factor. And vice versa, economic development must benefit social equalization.”

Mishchuk and Samolyuk (2018 , p. 61 and 69) note that the socio-economic successes of developed countries proves the effectiveness of such a vector of development as socially oriented concepts of justice with flexible government regulation of tax, monetary and other levers of state influence the labor market, educational services, distribution of income and other benefits. The authors also emphasize that subjective factors affect the understanding of justice, but there is no doubt that the unconditional guarantee and observance of human rights in the civilized world must be present at least at a basic level.

One of the factors that affect social justice is the unexpected migration of a significant number of people who will apply for social security. Due to their high number, they create difficulties for their country of destination while seeking both transit and permanent residence.

In the same article, the authors also quoted Joseph Stiglitz, who said: “In the interests of social justice, basic rights must be complemented by economic rights […] Greater equality of opportunity means that the country will make better use of its basic human resources, providing everyone with the conditions to make full use of their own potential […] to increase the efficiency and equality of distribution” ( MISHCHUK and SAMOLYUK, 2018 , p. 61, 69, and 71).

The state needs to create a balance between the conditions for creating public good and the conditions for spending it. Therefore, the state’s policy on long-term and short-term employment, on which the effective use of human resources to create a public good depends, is important. Today, digital technologies are developing so rapidly that it is difficult to fully determine in the long run the list of professions that will be necessary 40 years from now. How can today’s applicants choose a profession in which they will earn experience over the next 40 years? Flexible mechanisms for adapting the working age population to changes in the labor market, a clear tax system, and a dialogue with business employers regarding proper and safe working conditions for employees will contribute to the accumulation of benefits for fairer distribution in society.

Another challenge that tested social justice in legal relations around the world was the pandemic, which led to a revision of the established conditions of social security and a new redistribution of resources in society (regarding social justice).

Annegret Haase (2020) draws attention to how the Covid-19 pandemic has affected social justice:

Why does Covid-19 represent a social crisis in our cities? It is a social crisis in three senses, since it (a) exposes and highlights existing social inequities and shortcomings; (b) reinforces or enlarges them, because policies designed to counteract the crisis create unequal (polarized) opportunities for people to adapt and protect themselves; (c) has great potential to continue amplifying social differences even after the lockdowns end, i.e., also leads to more inequalities and inequities in the long run. The Covid-19 crisis is also a “stressor for justice issues”, as Kotsila (2020) recently put it. The opportunities and constraints that influence how well people get through the pandemic – economically and regarding health – are distributed in a very unjust manner. It is not only the case that the poorest and most excluded are hardest hit by the pandemic; in some respects, the response to the crisis also comes at the expense of those with the lowest incomes, the worst housing conditions, and the least access to high-quality open/green space, health insurance, healthy food, etc. The latest data shows that social polarization did not just become obvious about exposure to the virus, vulnerability to infection and the capacities of people to adapt to lockdown conditions; in the longer term, forecasts suggest we can expect a further increase in disadvantages for those who are most vulnerable and hardest hit by the crisis in a social respect. This polarization is concentrated in cities.

The COVID-19 pandemic has caused a historic economic downturn, leaving millions unemployed, and “BLM” protests have once again sparked discussions about systemic racism, inequality, and police reform. In addition to the themes that dominate the headlines, long-standing issues such as food security and climate justice remain. The list of social problems in the United States and around the world in 2020 may seem huge. The execution of suffrage is one of the issues of social justice, which is a priority for the National Association of Social Workers. NASW’s goal is twofold: to encourage those who can vote, execute their right, and work to remove barriers to participation. In the list of Great Challenges of Social Work, it may be strange to see “increased social reaction to environmental change.” The effects of climate change can be seen in all the news from forest fires in Australia to record rates of melting in the Arctic. Social work and health care are inseparably linked. There are many problems for obtaining quality medical care, especially in the United States. ( YESHIVA UNIVERSITY, 2020 , translated)

Studinsky (2009 , p. 14 and 16) notes that the pro-factor principle of justice also leads to inequality. The state must redistribute within certain limits to optimize utility, if such a state pays due attention to the welfare of society. The author warns that utility and equitable distribution or redistribution are incomparable categories and that the market does not automatically provide society with justice. Studinsky notes that the development of a value system in society, according to which the distribution (redistribution) is carried out, may not coincide with usefulness, and that part of society may not agree with such distribution. The author is convinced that the concept of social justice is both objective and subjective, although such a combination is conflictive, because categories as justice or injustice are subjective for each individual. However, a subjective assessment is influenced by objective factors (economy, financial condition, demographic situation, etc.) and estimates may differ significantly, although they coincide in basic features. The author points out that the world is perceived subjectively because the individual tries to find objectivity through a system of evaluative concepts. Social justice is a complex system that creates equal conditions at social and domestic levels for individuals to use their potential and guarantees a proper rating by the society for the results of their use ( STUDINSKY, 2009 , p. 16).

The violation of the principle of social justice can be manifested by the difference in income between different classes of people, which is not accepted by society.

Principles of law are understood as guiding principles, ideas on which law are based. One of the principles of law is social justice. Violating the principle of social justice is considered unjustified and not perceived by society as a necessary change in the proportion of distribution of public goods. In this aspect, social justice echoes the principle of proportionality.

The theory of principles entails the principle of proportionality. In German public law, proportionality comprises three tests of suitability, necessity, and proportionality in the narrow sense. […] State action which limits the enjoyment of a right must be capable of achieving the end desired (suitable), it must be the least restrictive means of doing so (necessary), and it must be justified given the cost to the right in question (proportionate). […] Necessity asks whether any less intrusive means would achieve the same end, which is essentially an empirical question of prognosis and causation, and proportionality asks whether the end is worth pursuing, given what it necessarily costs. […] In short, the entire principle of proportionality can be seen as consisting of two threshold requirements (pursuit of a legitimate end by an effective means) and two optimization requirements (the use of the least intrusive means to achieve something worth achieving given the costs involved). ( ALEXY, 2002 , p. 31 and 32, translated)

The principle of social justice is reflected in Section II of the Constitution of Ukraine, which does not establish the obligation of individuals to create a public good. Shelever (2020 , p. 33) emphasizes that the Constitutions of Japan and Spain enshrine not only social guarantees for citizens but also the obligation to work.

From this comparison of constitutions from different countries, it can be seen how documents of the same legal power regulate issues related not only to the expenditure of social benefits, but also to their accumulation. According to Shelever (2020) , it is advisable at the legislative level to pay more attention to the issues of employment of the working-age population by encouraging them to work and create public goods to avoid the abuse of their right by individuals who do not wish to use the right to work and need social security after reaching retirement age.

An indicator of injustice in Ukraine is the large gap between the minimum and maximum wages and pensions. High wages and pensions are unjustified and unfair in a poor country like Ukraine. This article also draws attention to the unfairly high salaries of judges. Pension payments are made with revenue from taxes and social insurance. Also, payments of salaries to civil servants are made at the expense of the state budget. Therefore, society does not care how effectively funds are used in the social sphere (from pensions and wages to financing medicine, social benefits, measures aimed at preventing accidents at work, etc.) because the more funds are spent for some purposes, the less will remain for others.

Shelever (2020) concludes that, in the poorest country in Europe, it is impractical to pay such a salary to judges because it will not stop them from accepting bribes. The problem in Ukraine is the lack of crucial legal responsibility.

Cherenko (2016 , p. 141) points out that the existing objective factors that developed before 2014 prompted a rethinking of the social support system. The reform initiated in 2014 was fragmentary and did not solve all the problems accumulated in society, but led to positive changes and became the basis for further reforms. Cherenko (2016 , p. 141) considers the introduction of targeted principles of assistance and reduction of categorical programs to be the main results of the social programs’ reform, which led to better assistance to those in need. This was a manifestation of the principle of social justice, and these changes have led to financial savings in the implementation of social programs, as the burden of unjustified payments has decreased.

Despite academic research around the world, when defining the conditions of social security in legislation it is not possible to have an understanding between different layers of society, as well as between society and government, and that leads to conflicts. It is within these limits that I research the application of the principle of social justice in determining the conditions for obtaining social security for different social classes.

The plan for this article has the following structure. In the next section, I provide background information on some types of social security that provoke debate about the principle of social justice regarding the distribution of public goods in social security. Then I summarize the key areas of social policy and combine them with social justice. I single out the role of social justice regarding providing social security to migrants. In the main part of the article, I develop arguments to support a balanced social policy as a foundation for implementing the principle of social justice into the legal framework. The results of the survey with the young generation about social justice in social security show the attitude and willingness of youthful people to implement social justice in various areas, including social security. I conclude with some thoughts on the manifestation of social justice in social security, including the distribution of material goods among the native population and migrants.

1. CONTEXT: SOCIAL POLICY AND MIGRATION IN UKRAINE

In Ukraine, different categories of pensions are paid, in different amounts, which sometimes creates discussions in society about the “merit” of receiving such public goods in increased amounts. Thus, according to the Pension Fund of Ukraine as of April 1, 2021 (1 USD = 27,8226 UAH), the sums paid according to the type of pension are as follows: average old-age pension: 135.51 USD (8,316,443 people receive this type of pension); sum for disability pension: 101.55 USD (1,367,192 people); survivor’s pension: 116.02 USD (530,902 people); pension for years of work: 122.33 USD (212,345 people); security pension: 64.17 USD (71,924 people); pensions for servicemen: 203.08 USD (550,487 people); and the sum paid for the lifelong financial support to judges is 2,781.45 USD (3,556 people). For the largest percentage of pensioners (38.8%), the sum ranges from 71.99 to 107.83 USD, while the smallest percentage of pensioners (3.8%) receive a sum over 359.42 USD ( PENSION FUND OF UKRAINE, 2021 ).

These numbers indicate a significant gap (more than 20 times) between the average old age or disability pension and the lifetime maintenance of a judge, which is not easy to understand. The number of judges receiving lifetime maintenance is small, but justice consists not in the percentage of recipients of a certain type of pension, but the contribution of recipients to the public good. It is debatable that the work of a judge is over 20 times more important than the work of a lifeguard, a teacher or a plumber.

According to the Communication from the European Commission “On Migration and Development” (COM2005/390) on September 1st, 2005, it is necessary to constantly monitor changes in the migration situation in the country through the “Migration Profile”. In Ukraine, information is being collected in areas related to migration control. Given that the migration situation affects different areas of state and society, it is necessary to monitor it in various aspects of social life: labor market, welfare, education, safety, public order and more. Since 2005, EU experts have prepared more than 70 migration profiles for the world. With their publication, the European Commission and EU Member States have the opportunity to objectively assess the migration situation in these countries while developing a visa dialogue with them ( STATE MIGRATION SERVICE OF UKRAINE, 2021 ).

However, the measures taken did not take into account the possibility of a migration crisis in 2015, and the lack of coherent action across countries has led to misunderstandings among them over migration policy in case of force majeure. The migration crisis of 2015 pointed to problematic aspects of internal policy and cooperation between states.

2. METHODS

This article is based on research conducted in different countries on social justice and the rights of migrants, on social payments (pensions) statistics in Ukraine, data from the International Monetary Fund (IMF), the World Bank, and the International Labour Organization (ILO). The results of a survey with 2nd-year students of the Institute of Law at Taras Shevchenko National University of Kyiv, who studied Social Security Law of Ukraine (28 respondents aged 19-20 years, of different social origins and with different family incomes, from several regions of Ukraine), were also used. This survey, although small, reflects the moods and views of the younger generation on the issues identified in the survey.

Also, the case law of the Constitutional Court of Ukraine was studied regarding compliance with the principle of social justice in the attribution (or refusal) of social security. The study used a dialectical method of cognition of legal phenomena. With the help of the rational criticism method, normative acts and judicial practice were analyzed and problems were revealed. The forecasting method was used for the development and formulation of proposals aimed at improving legislation and strengthening social justice in the regulation of relations in social security.

According to ILO statistics, the share of the population of Ukraine covered by at least one social protection payment is 73% (as of 2018), which is quite a good result compared to African countries. However, compared to the countries of Europe, Australia, and Canada, Ukraine has much to improve. From this point of view, Ukraine is an interesting model for this study. The country was also chosen as the model because the author permanently resides in Ukraine, worked for five years in the social sphere (Department of Social Protection, Pension Fund) and today teaches social protection law of Ukraine, and is familiar with social security in the state not only from publications and official statistics but also as part of society, conducting daily personal observation of the implementation of social security in the state.

All studies were performed by the author alone.

3. SOCIAL JUSTICE AS A COMPONENT OF SOCIAL POLICY

February 20th was established as the World Day for Social Justice by the United Nations (UN) General Assembly in resolution A/RES/62/10 of December 18th, 2007. Countries have recognized social justice as an important component of legal society, which encourages each country to build social policy based on social justice.

By formulating a policy in the field of compulsory state social insurance, a socially-oriented state can achieve social justice, taking into account the interests of all segments of the population ( KUCHMA, 2016a , p. 43).

Social justice exists as a phenomenon of social consciousness (legal, religious, moral, economic). It is enshrined in public opinion, which fixes social justice as a reward and recognition for work, ensuring a minimum socially guaranteed standard and quality of life, equal access to social benefits (education, health), information, cultural values and more. The implementation of the principle of social justice in society means that there is a fair distribution of activities; income distribution; division of labor; distribution of social benefits (rights, opportunities, power); distribution of rewards, recognitions; distribution of the level and quality of life; distribution of information and cultural values. ( GRINENKO, 2009 , p. 107, translated)

Social transfers are one of the levers of the state’s social policy and the efficient and equitable distribution of social transfers will lead to both social and political stability. Thus, in the process of distributing them to the population, a democratic state acts as a guarantor of the support for each of its citizens ( KOMAROVA, 2008 , p. 111).

According to the International Monetary Fund, over the past three decades more than half of the countries and close to 90% of advanced economies have seen an increase in income inequality, with some countries recording an increase in their Gini coefficients exceeding two points. Some of the key factors behind the increase of within-country income inequality include technological progress, globalization, commodity price cycles, and domestic economic policies such as redistributive fiscal policies, labor and product market policies. Inequality is at the center stage of the economic policy debate across the globe. A fair and equitable distribution of income is a fundamental element of the social contract. Macroeconomic policies (including government tax and spending policies) have significant effects on income distribution and inequality that can have adverse political and social consequences, with the potential to undermine macroeconomic stability and sustainable growth.

Social policy should be aimed at maintaining a balance between the interests of individuals, society and the state. If the interests of one of them are not taken into account, the balance is disturbed. This undermines public trust in the government, causes tension in society and demotivates a person to seek official employment and payment of taxes. Therefore, when implementing state social policy, it is necessary to adhere to the principle of social justice, which should be the legislation’s foundation in various spheres.

Within the boundaries of this research on the implementation of the social justice principal in social security, a survey in which 28 respondents took part was conducted. Regarding the question “Social justice should primarily focus on”, of the 2 proposed answers, 32.1% chose the option “Distribution of benefits in society depending on the contribution of person” while 67.9% chose “Support for people in need who do not meet the conditions for receiving benefits on general terms”.

This result shows the social orientation and understanding of the younger generation regarding the need to support people who find themselves in difficult circumstances, have problems with health, housing, etc., and are unable to find a solution on their own. At the same time, almost a third of respondents believe that social justice is primarily the distribution across society of benefits that depend on the contribution of each citizen. This position also considers the manifestation of social justice, because by excluding this option the state will demotivate a person from multiplying wealth in the public treasury.

It is possible to combine both options under a differentiated approach by taking into account several factors, about which we will talk next.

Social insurance involves the active participation of individuals in securing their future. However, the payment of taxes also affects social security, because in addition to insurance social security, there is also non-insurance social security, which is financed by the state budget. Therefore, a person who is officially employed and has a salary, from which their insurance and taxes are paid, secures their future in social insurance and pays taxes to social security for both themselves and other people who may find themselves in a difficult situation and need material help from the state. At the same time, social justice will be manifested when the law correctly defines the conditions under which a person who has not contributed to the public good has the right to social security. It is important that the law provides safeguards against abuse and that social security is provided to those who need it and cannot deal with problems on their own.

Social insurance is a complex legal relationship that covers social security, financial, organizational, and managerial relations, aimed at compensating the insured person (or other person defined by law) for lost income, making other payments, providing social services as a result of the occurrence of an insured event and carrying out measures to prevent insured events. […] Social insurance is a sub-branch of social security law and unites social insurance institutions; social insurance also interacts with other branches of law ( KUCHMA, 2016b , p. 15 and 308, translated).

Social security law is a system of legal norms that regulate social security, procedural and social insurance relations that subjects enter to exercise their rights to social security of various types (pensions, benefits, services, etc.) and perform their corresponding duties.

The establishment of the minimum wage is a manifestation of the state’s concern for the social security of people. Determining the maximum amount of wages in the private sector of the economy is a private matter for businesses. However, the establishment of maximum wages in the public sector of the economy for civil servants affects the interests of the whole society, who recognizes social injustice when confronted with unjustifiably high wages for certain categories when comparing the benefits brought to society and the state by the work of a judge, of a doctor, for example, to that of a low-paid individual. Having a high standard of living is good, and it is important not so much to reduce the high standard of living of certain categories, but to reduce the income gap between different groups of the population by improving the standard of living of less protected social classes. The excessive income of a judge or a doctor (despite the high importance of both professions to society) shows that today the state is unfair to certain categories of employees.

When a person is young, the whole world is open to them and few people in their 20s will seriously think about not always being young, having good health and opportunities to earn a good salary and not always having a family that can support them. And it is necessary to enter the path to receive social security at a young age for when people face old age, illness, unemployment, etc. There may also be circumstances that deprive a person from meeting the conditions under which social security is provided (for example, not enough years of work to obtain a pension based on age).

To the question “Should a valid excuse be enough for a person to be denied social security?”, 25% of respondents answered “Yes”, 10.7% answered “No”, and 64.3% chose the option “Despite the excuse, the minimum social benefit should be guaranteed to everyone” ( SURVEY, n.d. ).

A display of social justice in the distribution of public goods in social security should happen through a fair distribution of benefits, taking into account the contribution of each person and the reasons why such a contribution was not made, and whether the person had the opportunity to do so, but chose not to avoid the onset of negative consequences. At the same time, whatever the excuse for not receiving social security on general terms, the state must take care of every inhabitant of the country and, if necessary, provide social security, guarantee minimum payments or offer social security in another form (shelter, provisions, etc.).

The social policy of the country should cover the whole spectrum of relations (and not only at a person’s application for social security). Therefore, it is necessary to actively promote the benefits of social security available to everyone, so that people are not only interested in investing in their future, but also in the creation of public goods.

To the question “Should the country motivate a person to meet the conditions that will allow them to receive social security on general terms?”, 59.3% of respondents chose the answer “Yes, motivate by stimulus”, 25.9% chose the option “Yes, motivate with encouragement and responsibility”, and 14.8% chose the option “No” ( SURVEY, n.d. ).

Encouragement contributes to the fact that people see the benefits for themselves and seek to participate in social security, provided that they consider the distribution of goods they helped create to be fair. The lack of state influence on the behavior of individuals in the creation of a public good, which they will later claim, can lead to the rise of tension in society, caused by the outrage of those who create such goods if they see that there is little difference in social security between individuals who pay taxes for a long time and people who did not participate without justifiable reason in the creation of a public good.

At the time of distributing public goods, social justice manifests itself by considering the gravity of the reasons for not meeting the conditions to receive social security on general terms. The social policy of the state should also take into account that the minimum social security of people who, without an acceptable excuse, did not qualify for social security on general terms and the social security of people on general terms must differ significantly so as not to cause social injustice in the distribution of public goods. The gravity of the reasons for not meeting the conditions for social security on general terms (health problems, the need to care for a sick family member and other valid excuses) gives grounds for social security in an increased amount compared to the social security of people who, without an acceptable reason, did not, for example, accumulate insurance experience for the required duration, due to unofficial income or unwillingness to work.

A debatable issue in society is not only the difference between the social security of people who qualify for social security on general terms and those who haven’t qualified without a good excuse, but also the differentiation of social benefits among people who have qualified for social security on general terms, depending on the contribution. For example, what should be the pension for a person who worked 30 years and for a person with 50 years of experience? What should be the difference between the pension of a bus driver and a district court judge, so that we all believe there is social justice in social security?

To the question “What is the largest gap allowed (between the minimum and maximum limits) in the amounts of benefits of one individual category in the sphere of social security?”, the answers of the respondents were as follows: “Up to 10 times” was chosen by 25%, “Up to 100 times” was chosen by 3.6%, “Depending on the good” was chosen by 64.3%, “Boundaries should not be set” was chosen by 7.1%, and “More than 100 times” was not chosen by any respondent ( SURVEY, n.d. ).

These answers confirm the thesis that there should be a differentiated approach to calculating the amounts of social security. This should take into account various factors that affect the right to social security and its amount. Ignoring this approach will violate the principle of social justice in social security and can lead to numerous lawsuits against the government, which then will entail both reputational and financial costs in court.

The issue of limiting maximum social payments was reviewed by the Constitutional Court of Ukraine. In the case of compliance with the Constitution of Ukraine by the Law of Ukraine “On Pensions of Discharged Persons from Military Service and Certain Other Persons” in terms of establishing a limit on the maximum amount of pensions not exceeding 10,740 UAH, the Constitutional Court of Ukraine decided that payment of the pension to individuals whose right to pension is established by the Law of Ukraine “On Pensions of Discharged Persons from Military Service and Certain Other Persons” violates the essence of constitutional guarantees for unconditional social protection of servicemen who are obliged to protect the sovereignty, territorial integrity and inviolability of Ukraine ( CONSTITUTIONAL COURT OF UKRAINE, December 20th, 2016 ). A similar position was taken by the Constitutional Court on the unconstitutionality of the pension limit for judges: the Constitutional Court of Ukraine emphasizes that the constitutional status of judges and retired judges provides for their adequate material support, which should guarantee fair and independent justice. The Constitutional Court of Ukraine proceeds from the fact that it has already considered the issue of inadmissibility of a legal threshold for the monthly lifetime allowance for judges, in particular regarding decisions no. 4-pπ/2007 on June 18th, 2007, and no. 3-rp/2013 on June 3rd, 2013 ( CONSTITUTIONAL COURT OF UKRAINE, June 18th, 2007 , and June 3rd, 2013 ). In these decisions, the Constitutional Court of Ukraine emphasized that establishing by law the maximum amount of monthly lifetime allowances for judges limits the guarantees of their independence ( CONSTITUTIONAL COURT OF UKRAINE, June 8th, 2016 ). Therefore, such a restriction exists for old age pension on general terms (pensions to take into account allowances, increases, supplementary pensions, targeted cash benefits, pensions for special services to Ukraine, indexation and other pension supplements established by law, except for additional payments to certain categories of persons with Motherland merit) that may not exceed ten subsistence minimums established for people who have lost their ability to work ( VERKHOVNA RADA OF UKRAINE, July 9th, 2003 ), as well as pensions for prosecutors of the Verkhovna Rada of Ukraine (October 2014) .

Considering the possibility of limiting the threshold of pensions, the Constitutional Court of Ukraine concluded in favor of the key role played by those who receive pensions (judges, prosecutors, servicemen, salesmen, etc.), since the amount of social security should be affected not only by the quantity of years worked and taxes paid, but also by the nature of the work and its importance for the state.

The principle of social justice is associated with the principles of legal certainty and legitimate expectation, the observance of which is emphasized by international institutions and the Constitutional Court of Ukraine.

the principle of the rule of law provides for legislative changes to define a certain transitional period (a reasonable time between the official publication of the law and its entry into force), which will give individuals time to adapt to new circumstances. The duration of the transition period when changing the legal regulation of public relations should be determined by the legislating organ in each case, taking into account the following criteria: the purpose of the law within the legal system and the nature of public relations regulated by it; the range of persons to whom the law will apply and their ability to prepare for its entry into force (its new statutory provisions); other important circumstances, in particular those that determine the time required for the entry into force. […] individuals rely on the stability of legal regulation, so frequent and unpredictable changes in legislation prevent the effective exercise of their rights and freedoms, as well as undermine trust in public authorities and their officials. The expectations of individuals cannot influence amendments to laws and other normative legal acts. ( CONSTITUTIONAL COURT OF UKRAINE, May 22nd, 2018 , translated)

In the case of declaring changes to the pension law as unconstitutional (norms of the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Pension Provision” as of March 2nd, 2015 n. 213-VIII (hereinafter Law n. 213-VIII) on the abolition of special types of pensions), the Constitutional Court of Ukraine noted the following:

An integral element of the general principle of legality as a requirement of the rule of law is also the principle of legitimate expectation, which, according to the Venice Commission, “expresses the idea that public authorities should not only abide by the law but also by their promises and raised expectations” (Special Study of the Venice Commission “Rule of Law Checklist”, CDL-AD (2016) 007, paragraph II.B.5.61). The construction used by the legislator in paragraph 5 of section III “Final clauses” of Law n. 213-VIII is generally favorable to a certain category of citizens’ (including prosecutors) legitimate expectation that the legislator will adopt by June 1, 2015 a “new law” on the attribution of all pensions and that it will address the issue of “special pensions”, the order of their attribution and their size. If the legislator did just that, the possibility of which was allowed by the provision of paragraph 5 of section III “Final clauses” of Law n. 213-VIII, there would be no situation in which we could talk about “abolition from June 1, 2015 of norms on pensions”, which attributes a pension in accordance with a number of regulations that are specified in this regulation. In addition, the provisions of the second and third paragraphs of paragraph 4 of Section III “Final clauses” of Law n. 213-VIII, which are directly related to paragraph 5 of the same section, created additional grounds for legitimate expectations of citizens that the Cabinet of Ministers of Ukraine will prepare and submit to the Verkhovna Rada of Ukraine by May 1, 2015 a bill on the attribution of all pensions, including special ones. However, neither one (the Cabinet of Ministers of Ukraine did not submit a bill to the Verkhovna Rada of Ukraine) nor the other (the Verkhovna Rada of Ukraine did not adopt a bill by June 1st, 2015) did not happen. This situation can be considered as one in which the provision of paragraph 5 of section III “Final Provisions” of Law n. 213-VIII caused a certain category of citizens (specifically prosecutors) to feel the collapse of legitimate expectations, which is incompatible with the requirement of legal certainty as an element of the principle of rule of law. ( CONSTITUTIONAL COURT OF UKRAINE, June 18th, 2020 , translated)

An individual must be sure that by acting under the current legislation, they can count on the positive consequences established by law. Social security is integral and, for most pension receivers, the only source of income. In addressing issues such as choosing a future profession or changing jobs, one considers various factors, including social security, both in the present and the future. The pension of a person who is now 20 years old 40 years from now will be regulated by a slightly different version of today’s pension legislation. There are many reasons for this, leading to reforms in the social sphere. However, at the age of 20, an individual is already paying taxes (which the employer deducts from their salary). The state cannot become hostage to a law once it has been adopted, and taking into account human needs, the development of society, and the response to new challenges, it approves new laws that regulate relations otherwise. At the same time, the former amount of social security may not be preserved (for example, the calculation of pensions for certain types of workers with privileges has been stopped, etc.). And the individual feels social injustice because they worked for a long time on certain jobs counting on future social security, and it was the best option for them not to change jobs for a long time. The person rightly hoped for such a future because the law guaranteed it, so the expectations were legitimate. Therefore, when changing the conditions of social security, it is necessary to provide compensation mechanisms, for example, a pay coefficient. The compensation coefficient is the calculated value that makes up the difference between the social security that existed in the period while the person created public goods and the social security that exists at the time of its attribution to the person.

4. SOCIAL JUSTICE IN THE DISTRIBUTION OF PUBLIC GOOD AMONG CITIZENS AND MIGRANTS

Tkachenko (2009 , p. 79) identified two main factors that affect the problems of social security of Ukrainian labor migrants. The first is the small number of countries with which Ukraine has established bilateral agreements in the field of social security, based on the proportional principle of accumulation of insurance experience. The second is informal or semi-official employment, which makes the employee and their family members vulnerable (and often completely socially vulnerable) both abroad and after returning to Ukraine (because there will be a problem proving the existence of a legal fact, which will be important for the right to social protection).

Sidorchuk (2019 , p. 10) draws attention to the fact that the root cause of labor migration in Ukraine does not only objective factors (war, economic decline) but also subjective ones, related to people’s wishes for a better life. The relationship between migration processes and the level of social and economic security in this context is direct and obvious, precisely because of those threats and challenges that prevail in society and do not allow the population to have an appropriate level of well-being, which encourages them to migrate and seek a better life in other territories.

The International Labour Organization (ILO) provides global assessments of international migrant workers. According to the their statistics, there are 272 million migrants, of these 245 million migrants are over the age of 15, of which 169 million are migrant workers. Among international labor migrants, 58.5% are men and 41.5% are women. The vast majority of international labor migrants consist of people aged 25-64 years (86.5%). Most international migrant workers are concentrated in the service sector. Three sub-regions host the majority of international migrant workers: Northern, Southern and Western Europe, North America, and the Arab states.

The proper legal regulation of employment for migrant workers and proper control over its implementation depends on their well-being in another country and a more loyal attitude in society, clarifying that migrant workers do not receive social benefits at the expense of residents, but work for the benefit of that state and society, which, in turn, will provide an opportunity for migrant workers to support their family.

Yatskevych (2018) emphasizes the importance of standardizing the employment of migrants. Guaranteeing social rights and equal working conditions to migrant employees in comparison to the citizens’ is a basic principle to legally regulate the social protection of migrant employees, according to European primary and secondary legislation. However, as the author emphasizes, given that each member of the European Union can establish its own conditions established by law regarding the employment of migrants according to the situation of each state (economic, political, social), the responsibility for regulating the social rights of migrant employees from Ukraine on mutually beneficial terms is placed upon bilateral international agreements.

To the question “Should migrants receive social security benefits which are comparable to the citizens’?”, 50% answered “Yes”, 46.4% chose “No”, and 3.6% suggested the option “Yes, but not at the same level”. At the same time, there must be certain grounds, not based only on migration to one or another country, and they depend on the specific type of social security ( SURVEY, n.d. ).

Article 73 of the European Code of Social Security states that the contracting parties shall take measures to conclude a special agreement governing the social security of foreigners and migrants, in particular regarding equality with their own citizens in the preservation of acquired rights ( EUROPEAN CODE OF SOCIAL SECURITY, 1964 ).

Social justice will be achieved if countries agree on a treaty for the social security conditions of migrants. Citizens of one country may think that migrants receiving the amount of social security determined by a contract would give them the right to go to the migrants’ country to receive social security in the amount specified by the contract. The problem is that people are migrating not only to those countries with which their government has an agreement. In addition, some migrants travel to another country to receive social security, using laws and social benefits that meet their basic needs. At the same time, they have no desire to work, which can cause tension in society due to non-compliance with social justice (while some people pay taxes that are used to meet the needs of others who consciously do not want to get a job).

The number of migrants and the conditions under which they stay in the country are also important factors. Not all migrants need social security, and migrants who have been invited to work in another country help increase the public good and build the country’s economy.

Thus, the migration of refugees who need social security (food, housing, clothes, etc.) in significant numbers is a great challenge for the country to provide social security following the principle of social justice. In 2015, the migration crisis in Europe created significant problems for countries and became a test for the European Union. Therefore, a balanced policy in terms of social justice in the social security for migrants is extremely important both for the living conditions of migrants and for the security and stability of countries and communities.

CONCLUSION

The current paper asserts the importance of adhering to the principle of social justice in social security, which will promote understanding in society and encourage individuals to participate more actively in the creation of the public good. To promote social justice, strict adherence to the principle of legal certainty is required and the principle of legitimate expectation is a key element of legal certainty.

To do this, the author proposes to introduce a compensation coefficient that must be used to calculate social payments. The compensation coefficient must ensure compliance with the principle of legitimate expectation when providing social security. The compensation coefficient should be applied if the person has been employed for a certain period in certain conditions which provided better social security than the conditions on the date of application. For example, a person worked as a faculty staff for 40 years, of which seven years were during the effect of pension law that stated they were entitled to a special pension 30% higher than the general pension. Upon reaching retirement age, such a norm no longer existed and the pension of a faculty staff is paid according to general terms. The compensation coefficient should be applied to seven years of work, which should increase by 30% the employment time of 7 years: i.e. the employment time will be 9 years and 1 month (7 × 130% = 9.1) plus 33 years of employment under general terms. Thus, the total length of years worked for calculating the pension will be 42 years and 1 month (9.1 + 33). The application of the compensation coefficient in this example will increase a person’s pension provision by increasing the length of employment, which affects the amount of the pension. Such raise will be the result of compliance with the principle of legitimate expectation due to the once existing norms of pension legislation. The rate of the compensation coefficient for social security of a certain type should be determined while developing proposals for legislation that changes the conditions for providing social security. A procedure for its calculation must also be determined since different types of social security incur for different mechanisms and conditions for implementation.

However, we may also ask what should be done if the legislation becomes more favorable to a faculty employee with 40 years of employment, of which seven years were earned during the period of pension law, when the employee was not entitled to a pension on preferential terms, and 33 years were earned during the period of more favorable legislation, which was in force when they applied for the pension. So should we consider reducing the length of service of seven years, because at that time the employee had no reason to expect a pension under the current conditions?

I think it is not worth doing so. In today’s world, social security is increasingly being limited, given the difficult demographic situation that is prompting governments to make unpopular decisions (such as increasing retirement ages). Therefore, the decision to classify certain facts (such as of work under certain conditions and other circumstances) as decisive to the right to improved social security has a solid basis. This is most often caused by new circumstances, such as increased social protection of health workers due to the heightened risk to health during the Covid-19 pandemic. In this case, social protection cannot affect past periods in which there was no Covid-19 pandemic. For example, it would be fairer to assign the period of childcare to a certain age for the insurance period (taken into consideration when calculating social payments) not only from the moment the law was introduced but also considering the period before the law came into force. In a different example, if the state has decided to classify certain types of work as harmful, not because the work conditions with certain substances have deteriorated, but because the impact of these harmful substances on the human body has been proven to such an extent that it gives grounds to classify such work as harmful, it is important to remember that the possible effects did not arise when the law changed, but existed previously. Therefore, it is fair to extend the social security for a period of work before the changes to the legislation came into force.

Given the above, I consider it appropriate for state authorities to develop guidelines for calculating the compensation coefficient and apply it each time they make changes to legislation in the sphere of social security, if such changes reduce future social security for certain categories of workers.

A fair distribution of public goods among different categories of recipients is achieved through adequate proportions of income and expenses of each category, both in the category itself and among different ones. Among the factors that affect the amount of social security should be the period of creation of public goods (duration of work), the amount of contributions (social insurance), the validity of circumstances that made it impossible to qualify for social insurance, and the acquisition of conditions that are encouraged by the state, for example, the birth or adoption of a child (social non-insurance).

Social justice in social security for migrants is important not only for migrants, but also for the population of the country. It is important for countries to discuss these issues without waiting for another crisis, and to forecast the situations in which, given the constant escalation of conflicts in the world, there is a high probability of sudden migration of a large number of people. It will be effective to adopt an interstate document that provides for sanctions against a state that uses migrants to pressure other states and contributes to the creation of an artificial migration crisis. The document should clearly define which state actions are subject to sanctions. The issue of migration policy needs a separate study.

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Publication Dates

• Publication in this collection
  18 July 2022
• Date of issue
  2022

History

• Received
  21 July 2021
• Accepted
  21 Mar 2022