On The Relationship between Civil and Political Rights, and Social and Economic Rights
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In this chapter, I propose to deal, summarily, with the relationships between interests usually classified as civil and political (CP) rights, and those usually classified as social and economic (SE) rights.2
On the face of it, the issue of the relationships between groups of claims does not appear to be one of great importance. The need to address it comes from the fact that a bewildering variety of positions on this issue have been advanced. The controversy centres around two related, but distinct, issues: the relationships between the types of concerns involved, and whether they should be recognized as basic human rights. Some argue that both groups of interests are equally important to human welfare, so they should both be considered human rights, equal in importance and status. This is the vision that ‘‘won’’ in the Universal Declaration of Human Rights in 1948.3 The vision that the groups are and should be kept separate and distinct won when the Declaration was translated into the two 1966 covenants,4 and is a vision argued for within many theories of political philosophy. The question of which cluster of rights deserves primacy has been answered in a variety of ways: Some seek to give priority – logical, normative, and political, to CP rights. They are either indifferent or hostile to SE rights, while voicing different attitudes towards SE concerns. The legal system of the
The twentieth century is often described as ‘‘the age of rights.’’ Against this background, I do not need to go into the debate whether rights talk is desirable. This decision has been made.5 In fact, the great success of rights talk explains current tendencies such as the attempt to identify everything one sees as desirable as a ‘‘right,’’ to warn that policies deemed very undesirable are not only bad but also inconsistent with rights, and to deny the status of rights to concerns which one thinks are not legitimate. My main argument in this chapter will be that these tendencies are often misleading and even dangerous. Rights are very important, but they should not be allowed to pre-empt, confuse, or impoverish practical discourse. On the other hand, the practical difficulties should not impede the recognition as rights of the appropriate concerns.
In a nutshell, my argument will be this: rights are special normative entities. Human rights are a sub-class of rights. Rights have moral, political, and legal functions. Basic interests required for human dignity and flourishing should be the subject of rights, and these interests include both CP and SE concerns. In this sense, CP and SE concerns reinforce each other as ingredients for basic human dignity. The satisfaction of both is required by the unifying concept of human dignity. There is no historical, logical, political, or moral reason for thinking that only CP concerns can and should be the subject of rights.
However, this is just the beginning, not the end, of the road. The mere recognition of a right does not say much about the scope and the nature of the duties that may legitimately and wisely be imposed in order to protect it. Since rights conflict among themselves, and since rights do not necessarily defeat all other interests, the specific scope of rights is often a matter that should be decided by the political processes of each society. There is a wide range of such arrangements, which may be compatible with a general commitment to human rights. The choice between these arrangements should be based on moral, political, and empirical considerations, and is not a matter of conceptual or analytical moves. More specifically, recognition of a right to liberty or to property does not inherently support a sweeping rejection of taxation and redistribution for the purpose of guaranteeing some level of SE welfare to all. Similarly, a right to equality cannot, by itself, require major redistribution. We need first to clarify what we mean by a ‘‘right to equality,’’ and discuss the way such a right may compete with other rights and interests.
Finally, the relationship between the types of rights is complex. CP rights and SE rights can both derive from the unifying notion of human dignity. They complement each other. CP rights may also promote the ability to fight effectively for SE rights, and to minimize SE catastrophes. On the other hand, there may be tensions between rights, both within each of the clusters (e.g. the tension between the right to free speech and the rights to reputation and privacy) and between them.
Before elaborating on some of these themes, two preliminary comments are called for. First, the scope of this chapter is huge, and the literature written on each of the theses mentioned here is immense and constantly growing. My discussion will often have to be extremely skeletal, with major points presented as assertions rather than as conclusions of arguments. All I can say for this choice is that it is inevitable to keep the chapter within reasonable limits, and that I believe all the assertions can indeed be supported more fully, and often have been supported extensively in the relevant literature.
Second, if we accept the claim that human rights are universal, then they are especially befitting to international regimes. Constitutional and legal rights may well be more particularistic, and limited to particular societies.6 Moreover, they all have strong institutional support, which is related to institutions of the states and the societies within which they operate. I was asked to cover the functioning of rights within municipal systems. Naturally, I concentrate on internal mechanisms of enforcement and elaboration of rights. I will therefore move back and forth between analytical and international discussion of human rights, and their recognition within municipal systems.
The nature of human rights
Human rights are a sub-class of rights. The debate about the nature of rights is complex and persistent. We will limit ourselves to questions related to rights functioning as human rights.7 Human rights are rights that ‘‘belong’’ to every person, and do not depend on the specifics of the individual or the relationship between the right-holder and the right-grantor. Moreover, human rights exist irrespective of the question whether they are granted or recognized by the legal and social system within which we live. They are devices to evaluate these existing arrangements: ideally, these arrangements should not violate human rights. In other words, human rights are moral, pre-legal rights. They are not granted by people nor can they be taken away by them. They can only be respected or violated by them.
Human rights are often complexes of the types of benefits listed by Hohfeld (claim rights, liberties, immunities, and powers). Whatever their type, their special function is to justify the imposition of duties on others.8 These duties, in turn, make meaningful the sense in which the right-holder has entitlement. Demanding that a right be protected, or that a duty corresponding to it be performed, is thus not a matter of charity or even of justice. The right-holder is entitled to the performance of the corresponding duty.9
Furthermore, rights are strong entitlements. This is an additional, and a distinct, feature of rights. Even if one does not accept Dworkin’s position that rights act as trumps,10 precluding their violation for reasons of prudence or utility, or Nozick’s conception of rights as side-constraints, rights do provide more than regular reasons for action. For instance, they confer the right to do wrong, i.e. they protect the right-holder against interference, even if the particular instance of exercising of the right cannot be justified by an all-things-considered judgment.11
All rights – natural, moral, constitutional, and legal – enjoy this peremptory nature.12 Only human or natural rights have the additional feature that they exist irrespective of any social or institutional endorsement, based only on moral justification and the humanity of the right-holder. This distinct combination is the source of both the great appeal of the notion and of its weakness. It also explains the unease often felt when courts play out the institutional implications of this combination, giving priority to claims of human rights, as such, over practical judgments made by legislatures or communities.
Human rights, in themselves, do not come with either an authoritative tribunal for deciding their scope, or with the mechanism to make sure that they are in fact protected. The de facto success of claims of human rights depends on enforcement, and when the decision-making mechanism is not accepted, there may well be a debate about the legitimacy of this invocation of rights. This debate signifies the tension between the pure justificatory element of human rights, and the ingredient seeking to stress its special strength and its effectiveness, the special claim to be respected.13 The pre-political, pre-legal nature of human rights is what permitted the allies to put Nazi leaders on trial, disregarding their claim that the German law under which they acted either permitted or demanded what they did. NATO invoked the same notion to justify its intervention in Kosovo. In both cases, however, military and political might was needed. In both cases, those who opposed the intervention claimed that it was an unjustified use of force, violating their rights rather than protecting the rights of those under their jurisdiction.14
The picture becomes clearer when we move into municipal legal systems. The pre-political nature of human rights suggests that they do not require social endorsement for their recognition. Ideally, all societies should voluntarily abide by these constraints. However, wise societies know that there are forces which systemically seek to undermine the rights of others. They therefore construct institutional mechanisms to protect the rights of inhabitants even against legislatures and executives. These mechanisms often include granting constitutional status to some rights, enforceable by independent (constitutional) courts. Presumably, their nature as pre-legal rights influenced the decision to accord them constitutional status, but in turn their effectiveness within the system depends on that status.15
We see here an important implication of the institutional nature of law, and the way it affects ‘‘pure’’ practical reasoning. Human rights justify the imposition of duties, and thus have moral import. Legal rights benefit from the general legitimacy enjoyed (in stable societies) by the state and its decision-making processes. But within the state and the legal structure, different branches derive their legitimacy from different sources. These different sources of legitimacy (in the Weberian sense) affect the primary role of the different branches. The ‘‘political’’ branches owe at least some of their legitimacy to their periodic accountability to the public. Legislatures and executives are allowed to pursue policies that do not enjoy universal acceptance, because they have a political mandate to make decisions about policies for their constituencies. Courts usually derive their legitimacy from their independence within the state structure, which is in turn based on their primary role as expounders of the law, and as those who ensure that in its application to individual cases the rule of law will be maintained. They are primarily appliers of pre-existing laws (including laws conferring rights) to individual situations. The elaboration of the duties derivable from rights is a part of the judicial function, so judicial creativity in these matters is legitimate and even desirable and indispensable. Nonetheless, courts must be no less responsive to social mores than legislatures.
When all the courts do is indeed enforce rights accepted by all – the structure does not raise a problem, and the rights protected are both human and legal. However, when courts defeat the preferences of majorities in the name of human rights, the legitimacy of their action is often contested. The threat to judicial legitimacy does not stem from the mere fact that courts ‘‘create’’ laws as they adjudicate. It stems from the fact that some such decisions are deeply controversial. The groups offended by the decision then claim that the courts transcended their role, which requires – according to the challengers – that they should have deferred to the judgment of the political branches. Courts may then be accused of acting as philosopher kings, impoverishing political discourse and destabilizing the political order, which, we are then reminded, is ultimately required for the protection of all human rights themselves.16 In other words, courts are seen as institutions designed to protect those rights that have acquired social and political endorsement. However, they are challenged when they seek to impose duties that they considered mandated by the unmediated recognition of pre-political human rights.17
Tensions between the political process (and democracy) and the judicial protection of human rights are thus relevant to all human rights. They owe as much to the nature of the judicial process as to the pre-legal feature of human rights. This can be seen clearly when we remember that debates about the judicial interpretation of rights exist even when there is no serious debate about the legal or constitutional origin of the rights involved. Nonetheless, the vaguer and more abstract the formulation of the right, the more vulnerable any attempt to derive or to invalidate specific arrangements by invoking it becomes.
So here is the dilemma: the appeal of the notion of human rights is precisely its ability to defeat specific arrangements by particular legal systems, and to provide an external criterion of evaluating them.18 However, the enforcement of human rights requires political force. When the implications of human rights are controversial, the legitimacy of using such force is reduced. And in fact, social institutions may well only enforce those rights that they deem acceptable to their societies. They may invoke the rights, with their evaluative power, only to serve their own conventional morality. If it follows that human rights can be effective only when they are not controversial, their original appeal almost disappears. Human rights are then seen to depend on their enforceability, which seems to contradict the idea that their force is moral and pre-legal. So we want to reject this interpretation and this description of social and practical reality. On the other hand, the effective strength of rights in actual political discourse does depend also on their enforceability. It sounds empty to say that I have a right if there is no effective way in which I can enforce the obligations of others either not to interfere in my exercise of it or to actively assist me to do so.
I cannot treat this issue directly and systematically in this essay. I will simply assert that the tension is real, and that human rights scholars (and activists) should attend to it. The appeal of the ideal of human rights within a generally just society, governed by the rule of law, is important. It can be maintained only if a serious effort is made to minimize the extent to which the protection of rights repeatedly leads to the defeat of the products of its regular political deliberations. This notion has become quite central in discussions of rights and of judicial activism.
One way of going about it is to distinguish between ‘‘thin’’ and ‘‘thick’’ readings (or conceptions) of rights.19 ‘‘Thin’’ readings are the ones truly shared by all, or at least rights that can seriously claim universality. Basic rights to human dignity and freedom are obvious candidates. Torturing, killing, or persecution of political dissidents, or of members of a certain race or religion, are unjustified violations of human rights. The courts of a political system should declare such activities illegal, and make the perpetrators accountable. But care should be taken when we move into arrangements, which may be presented as unjustified violations of human rights only under ‘‘thicker’’ readings of such rights. An example is the refusal to adopt a generous welfare policy. The decision may be presented as a violation of rights to life and dignity. But it may also be presented as required by the ethos of liberty and personal responsibility. These issues should be discussed on their merits and decided by the political process, and not given the protection and the institutional implications of ‘‘human rights.’’ The details of these arrangements are a matter to be elaborated by that society, and should not be seen as being determined only by an analysis of the rights concerned. Arrangements within particular societies may become ‘‘thicker’’ in different ways. Once an arrangement gets the required support, it may well become a right within that system. Nonetheless, this is a right within the system, but it is not a human right. Another system may decide not to adopt it, and still not be violating the rights of those subject to it.
Accepting a ‘‘thin’’ reading of human rights suggests that, within particular societies, human rights discourse should focus on persuading the political branches of the need to promote the relevant concerns by de-fining them as rights within the system. This approach is superior, for both moral and institutional reasons, to trying to ‘‘force’’ them to legislate and implement these policies through international and external pressures, invoking the duty of these countries to protect and promote human rights.20
Lest I be misunderstood, I do not claim that all human rights should be reduced to claims which in fact enjoy the support of social forces within one’s society. This position would indeed negate the pre-legal moral force of human rights. Human rights are unique in that they justify the imposition of duties, even if social and political powers reject such duties. However, the protection of rights will be effective only if this moral force is backed by actual acceptance. Since all political authority is based on a claim to legitimate authority, moral arguments inevitably feature in the deliberations of all power holders. A system of checks and balances is designed to make sure that the perception of moral justification of more than one agency will be taken into account in political decisions.
Nor do I argue that courts (or other branches of government) should never make controversial decisions. There are cases in which a basic human right, under its ‘‘thinnest’’ reading, is blatantly violated. And there are situations in which declaring such action illegal may be extremely controversial. In such cases, we hope the courts will have the courage and the integrity to save society from itself. Clear cases of this sort are when the court is asked to stop a serious violation of rights in a semi-lynching situation.21 Many feel that the case of the massive detention of Japanese-Americans during World War II is a case in point. Administrative detention is clearly a violation of people’s rights to freedom, due process, and freedom of movement. The reasons advanced to justify the detention were not persuasive. This is precisely the type of case in which we hope the court will protect rights and give them their moral force.22
A case exemplifying an invocation of rights to invalidate legislation that does raise an issue of legitimacy is that of the alleged ‘‘right to abortion.’’ We all agree that freedom of movement should not be systematically denied without due process of law. The controversy about the legitimacy of the restrictions imposed on Japanese-Americans during World War II is thus not about the principle, but about its application in that particular case. Abortion, on the other hand, raises very different issues. We all agree that murder is a serious crime, and that it violates the right to life. Some people think abortion is murder. For them, laws permitting it are laws legitimating murder, and consequently patently immoral. Others, myself included, disagree with their classification of abortion as murder. We believe that women should have the liberty to decide whether or not to bear a child even after they got pregnant. I want the laws of my country to give them this liberty. I do not think, however, that such liberty is required by women’s human rights. I would, therefore, hesitate to give unelected judges the power to invalidate the considered preferences of their communities on this issue by invoking human rights.23
I hope these two examples may illustrate what I have in mind when I talk about the distinction. Needless to say, the question may arise as to whether a specific alleged implication of a right falls within a ‘‘thin’’ reading, and should thus be considered a human right, or whether it belongs to the ‘‘thick’’ reading, so that the political system has more liberty in regulating it. The mere fact that someone opposes the right does not in fact render it controversial in the sense I refer to. By ‘‘controversy’’ I mean the existence of a serious public debate within society about the principles governing the way the question should be decided. The fact that there would always be borderline cases does not undermine the usefulness of the distinction.
Institutionally, when there is no real controversy about rights, it is not very important who should make the decisions. Presumably, all decision makers will tend to make similar decisions. When a controversy exists, the identity of the decision maker empowered to make the decision may determine the outcome. In some cases of controversy we want the court to hand down the decision. These are mainly the cases in which interested parties or powerful organs violate norms accepted by society. The independence of the courts is then an essential part of their ability to decide well and correctly. However, when the controversy is about the general conception of the good, about what is required by public interest, about what the norm should be, judges seem less attractive candidates. It seems better for these decisions to be made through the political processes. In our discussion we saw a connection between human rights talk and the identification of the optimal decision maker. Human rights talk suggests the suitability of courts. Therefore, expansive human rights talk tends to enlarge the jurisdiction of courts, and legitimate judicial activism. Insistence on ‘‘thin’’ readings of human rights relegates more of the responsibility for articulating the implications of rights and the duties they generate to the political organs.
I can now reformulate the purposes of this chapter. In all societies, debates about the desirable scope of protection of human rights and the interests protected by them will be central features of political deliberation. These will obviously include debates about both CP and SE concerns. My focus is on the suitability of rights talk to the protection of CP and SE concerns respectively. For each of the groups, I will examine claims that issues relating to them should be fully resolved by analysis of human rights and not through regular political deliberations. I will argue that most of these claims, for both types of concerns, are deeply flawed. The two clusters share the fact that some concerns within them can and should be seen as human rights. Neither of these clusters of rights is logically or normatively prior to the other. Recognition of some concerns in each cluster as rights does not require that the other concerns cannot be seen as rights. The recognition of interests belonging to both concerns as rights does not generally dictate any specific arrangement, or permit the invalidation of such arrangements. The questions are normative and political, and should be decided and challenged as such. Answers do not automatically derive from the nature of rights or even from recognizing them as rights, so the responsibility for their decision does not lie exclusively with a ‘‘forum of principle.’’
In the second section I examine, and reject, some standard arguments against seeing SE concerns as rights. Here I want to emphasize that seeing CP and SE concerns as equal candidates for the status of rights can be derived directly from my analysis of the nature of human rights and the reasons for recognizing certain claims as human rights. The exposition above about the nature of human rights, the tension between their pre-legal nature and the need to enforce them, and the role of the judiciary and the political branches, applies to all human rights, whether they seek to protect CP concerns or SE ones. A closer look reveals that this unity is not accidental. None of the reasons for recognizing human rights leads to a distinction between these concerns which would justify giving one cluster of rights primacy over the other. We ‘‘recognize’’ rights following from one’s humanity precisely in order to indicate the moral urgency of not letting political powers exhaust the realm of moral claims. The universality of these concerns seeks to highlight the fact that freedom and dignity are basic human needs in all cultures and in all times.24 A life of struggling to subsist offends the notion of human dignity much more than a life in which one’s freedom to speak is curtailed. We usually care about speech only after our subsistence needs are met. The structural reasons which induce the political powers to ignore rights exist for both CP and SE concerns: rulers may seek to silence their critics in order to perpetuate their power, so they are likely to try and restrict CP rights. Allocation of public resources is often dictated by political powers, and the underclass often has fewer political powers than other groups, so SE rights are also at risk.25 Some forms of adequate standards of living may be necessary background conditions for exercising civil and political rights. The conclusion is that there are situations in which legal and constitutional entrenchment of rights is needed for both CP and SE concerns.
The legitimacy of imposing particular arrangements on a society in the name of human rights, despite the fact that the society in question did not authorize, or explicitly rejected, that arrangement, is indeed problematic in many ways. But this, too, is as true for CP concerns as it is for SE ones. Suffice it to remind ourselves of the debate about abortion or about religion in the schools. In fact, in many countries, debates over alleged transgressions of the courts on controversial CP rights are more intense than the discussion of their role on SE rights. This may stem from the fact that courts are often more active in their expansive readings of CP rights than they are in their readings of SE ones.26
The distinction between ‘‘thin’’ and ‘‘thick’’ readings of rights is also equally applicable to all human (and constitutional) rights, and the distinction between CP rights and SE rights does not affect its applicability. A good example within CP rights is freedom of religion. A law forcing a person to convert is accepted by most to be a blatant violation of this right. A reading of the right that precludes such a law is a ‘‘thin’’ one. But the limits of religious teaching may be drawn in different ways in different societies, or in the same society at different times. Balancing the rights of religious freedom and freedom from religion is usually relegated to the political decision of the societies in question. An example from within SE rights is the human right to free public education. This is a right recognized by the International Convention on Economic and Social and Cultural Rights (ICESCR). Some countries grant a right to free education up to the level of college, while others grant only elementary education. All these countries meet their obligations under the convention, but the former states recognize a broader right to education than the latter ones.
The analysis of the nature of human rights does not support a principled distinction between CP and SE concerns. To the contrary, it supports their unity, as deriving both from the same ideal of human dignity. I shall return to this unity below. Let us now turn to some arguments seeking to suggest that only CP concerns can and should be seen as human rights.
SE interests can be protected as human rights
Let me start by clearing the table of a claim that was made in the 1950s, seeking to reject the possibility of recognizing SE interests as rights, on the basis of the logical features of rights.27 This argument has run out of favour in recent decades,28 but I want to reject it explicitly since its residues linger.
The argument is based on distinctions between positive and negative rights and duties, and between liberty rights and claim rights. The two distinctions are often treated as interchangeable, but they should not be confused.
Legal rights can be of all these sorts. The scope of my liberty of speech is determined by the details of the duties imposed on me not to defame or incite. If the constitution is interpreted as limiting the power of legislatures to impose such duties, I also have a constitutional negative claim right, and an immunity right, to speak. My right to vote is a positive personal power, which I have the positive liberty to exercise. The government is under a (negative) duty not to deny me the right, but also under a (positive) duty to allocate the money and to arrange the details required to permit me to exercise it.
It is easier to impose duties of abstention (do not kill, rape, or maim) than it is to impose positive duties of care (pay to support others, save the person drowning in the lake, donate blood to the needy). This is especially true if we speak of duties imposed on everyone, irrespective of special relationships. Some argue that even if we impose a duty to save, this would be an imperfect, unenforceable duty, and that therefore no one can have a right to be saved. The argument then continues upon the assumption that SE rights are positive claim rights that are impossible to enforce. Who has the co-relative duty? What does this duty consist of? Is it possible that these duties should apply universally, without responsiveness to the wealth and abilities of the state and individuals concerned? Children may have a right to support against their parents and guardians (although enforcement is very difficult even in these contexts). But what does it mean to have a human right to adequate conditions of living? Or to an education? They conclude that SE interests may be important ideals, but that they are incoherent as claims of rights, and therefore cannot be identified as human rights.
However, this argument is based on a misconception of the role of human rights in practical reasoning, and on a serious mistake concerning the meaning of the protection given to ‘‘classical’’ CP interests.
First, the logical force of the argument that SE concerns cannot be regarded as rights because of their incoherence rests on a conception of rights very different from the one we have been using. It is a much stronger conception, closer to the one used by adherents of the control theory of rights, whose attractiveness is strongest for legal contexts. Under this conception, a right is not merely the source of justifying the imposition of co-relative duties. It requires, in addition, that the claim is directed at identified individuals or organs, and that the beneficiary can control its enforcement. Clearly, this conception is not applicable to human rights or, more generally, to moral rights. No human right, as such, comes complete with extensive enforcement mechanisms. As we saw, one of its main functions is moral and evaluative. It may well be that some aspects of a human right are not likely to be effectively enforced, or even that it may not be desirable to enforce them against the preferences of other individuals lest their liberty is curtailed without justification. This does not indicate that we should refrain from endorsing and recognizing the interest as a basic human aspiration and ideal, one that in principle may justify the imposition of duties on others. The political debate will then centre on the question of which such duties should indeed be imposed. The right to freedom from hunger, recognized by most, is a good example of just one such right.
Second, the argument is based on the assumption that, by definition, the protection of CP concerns only requires the recognition of liberties or negative claim rights, whereas the protection of SE concerns requires recognition of unenforceable general positive duties, involving great public expenditure and taxation. This, however, is not the case. Not all CP concerns involve only negative claim rights and not all SE concerns require positive duties of action and financial contribution. The right to vote, for example, is a CP concern requiring action and positive expense, while protecting the privacy of people on welfare requires ‘‘only’’ abstention from monitoring and dissemination of information.29 A clear case that defeats the claim is the right to non-discrimination, seen as a basic CP right. This right is invoked to justify admitting women and minorities into schools and military units that used to be closed to them. Such integration often requires great expenditure, and clearly goes beyond negative claim rights.
In other words, the protection of CP rights may require the imposition of positive duties and public expenditure no less than that these are required for the protection of SE rights. Another typical example is that of the right to property, seen by some as the paradigmatic CP right. The right to private property is often presented as a liberty right, which requires only the costless abstention of government from acting. However, as a long line of scholars, from M. R. Cohen30 in the 1930s to Sunstein and Holmes31 at present show, this is a serious mistake. The protection of private property requires not only abstention but also public decision making about the scope of private property. Property is made ‘‘private’’ by exclusionary rules, which are made and enforced by the public. Like all public enforcement, the protection of property requires public expenditure. We may protect property by using tax money to enforce the right by detecting, indicting, and imprisoning thieves who violate it. We may also think that we can protect private property more effectively by giving youngsters an education, which may give them a way out of thieving to begin with. Private property and a decent education for all are both goods that societies may choose to protect, facilitate, and provide. The decision whether they should be seen as rights, or as interests seeking recognition in the public sphere, is a matter of practical reasoning, not of conceptual analysis. That the problem is not logical is further proven by the willingness of most Western countries to recognize a general right to free public education.32
The nature and the extensiveness of the duties that need to be imposed in order to support certain arrangements is an important feature of the discussion of the desirability and feasibility of an arrangement. Admittedly, many SE concerns do require major redistribution, which may be both unfeasible and unjust. This is why the enforcement mechanisms of the ICCPR and the ICESCR are different. However, recognition of this feature of rights talk is very different from the alleged preliminary conclusion that, as a matter of the nature of rights, no SE concerns can or should be recognized as human rights. I return to these differences in enforceability below.
Arguments against seeing SE concerns as rights are sometimes based on different types of claims. One such argument goes thus: CP rights are neutral rules of the game, framework rules within which we can pursue our goals. SE claims are limiting this freedom to pursue our goals through forced collectivization and redistribution. Anyway, SE concerns, like all other debates about the good life, should be discussed within ‘‘the game’’ constructed by CP rights. Consequently, CP rights should be accorded primacy over SE concerns. At times, this feature of the distinction is presented as one of the logical priority of the right to liberty and CP rights in general over SE.33
The distinction between the rules of the game and ordinary politics is indeed important. For most practical purposes, debates should be within the rules of the game, and challenges of the rules of the game themselves should be relatively rare. It is also true that drawing this distinction is one of the reasons for constitutional politics. We entrench the rules of the game in the constitution, so that we can have a robust debate within it about desirable arrangements. But basing the priority of CP rights over SE concerns on this reasoning may be circular. It is true that human rights are a strong candidate for inclusion in a constitution, to be seen as a part of the rules of the game. But why should these include just CP rights? Why should some basic SE rights not be included in our ‘‘rules of the game’’?
A person struggling to subsist does not have any meaningful freedom to pursue any goals. CP rights may well perpetuate a situation in which some people are free to pursue their goals only because others live a life in which this freedom is totally absent. If this is the case, CP rights are far from being neutral. The theory of human rights talks about basic human needs. It does not privilege one social order over another in this way. Social order is indeed necessary to protect all human rights. The content of the social order and the way it defines its basic commitments, however, cannot be privileged through a definitional move under which the present order is protected by ‘‘rights,’’ whereas all other interests are seen as mere interests. This is the basic political issue of any society, and we cannot resolve it by invoking the ideal of human rights, or by defining in a certain way what the ‘‘rules of the game’’ are.
An additional argument for restricting the status of human rights to CP rights comes from a certain reading of history: according to this analysis, rights talk started in Western civilization in the seventeenth century. Its main function was to limit the power of governments and kings. This limitation was achieved by classical CP concerns, and had nothing to do with the welfare of individuals under government. One does not need to go into the validity of this historical account.34 There is no reason why we should be ruled now by the contingencies of the history of ideas. The answer to the question of which concerns should be seen as rights or as human rights should be determined by our analysis of the urgency of the needs, their relation to human dignity, and the need to give them the special protection generated by rights.
We must add that the tendency to claim that SE concerns could not be rights, and that classical CP concerns must be, is itself not neutral, but a result of a specific picture, both descriptive and normative, of the relationships between individuals and the groups to which they belong. It is connected to traditions stressing individualism and the pervasiveness of a distinction between public and private, under which markets are deemed private, and allegedly should be left outside the jurisdiction of states and the law. In that tradition, there is a tendency not to give adequate attention to the relationships between the rights and duties of individuals living in society. The Universal Declaration of Human Rights (UDHR) emphasizes the context of human rights in an attempt to prevent or minimize the threat of great atrocities. But the Declaration is based in a context of a social life in which individuals are members with both entitlements and obligations. Nonetheless, one of the main complaints of critics of rights talk is that in many cultures, especially individualistic ones, the connection between rights and responsibilities is severed. The institutional features of the protection of rights strengthen this tendency: courts typically deal with specific claims of individuals, and cannot deal effectively with the background conditions that often determine one’s welfare.
Some claim that the interdependence of rights and duties is more important in the SE context than it is in the CP one. Since our institutional mechanisms are better geared to protect independent claims of rights, without the need to attend to their context, CP rights belong more easily to our known legal and constitutional structure. This is superficially true. The recognition of SE rights does presuppose links of solidarity that are stronger than those assumed by the recognition of CP rights of individuals.
This is why the institutional mechanisms required to protect CP rights are often different from those required to protect SE rights. The difference stems in part from the fact that effective protection of SE concerns requires a richer range of human and social interaction than does the protection of many CP rights. It is relatively easy to provide protection to those advocating unpopular views, or to avoid exposure to such expressions. It is very difficult to send one’s child to a school where social tensions make learning difficult. Dealing with the social tensions requires a deeper and more extensive involvement than refraining from punishing a person for his expressions. A court can make it very unlikely that a person be convicted for speech. Its ability to make sure that a black child in the US South gets effective and adequate education or medical care is much more limited.
Notwithstanding the validity of this argument, it can also be applied to CP rights. The effective protection of CP rights may also require the imposition of duties on a large, indeterminate group of people. If these duties are not performed, the effectiveness of protecting CP rights may be seriously hindered. Let us take the most paradigmatic of CP rights – freedom from torture. Effective protection against torture requires a combination of circumstances. First is the duty to refrain from torture (a negative claim addressed to all). Then there is the duty of governments to protect individuals from torture, by imposing the first duty and enforcing it. But history shows only too well that freedom from torture also requires a society that is not willing to tolerate the use of torture. There are societies in which people support torturing others, when they are conceived as threats and as enemies. In such societies, effective protection from torture may also require a long-term educational and legal effort to de-legitimate it. One could also add international organizations to the list of duty-bearers, because they can exert influence on governments to refrain from torture or to protect from it.35 Despite this variety of duties and duty-bearers that may be required for an effective protection from torture, no one would doubt that freedom from torture should be recognized as a human right.
I want to clarify that I am not suggesting that a commitment to CP concerns protects individuals, while a commitment to SE concerns is more responsive to claims of groups. The indignity of a life of struggling to subsist is an affront to the individuals whose fate it is, and freedom of speech and association are not primarily about the interests of individuals to express themselves, but to the society in which we live. Freedom of association, and even freedom of religion in its group aspects, presupposes social networks and their importance. One of the major justifications of freedom of expression and of democracy is the constraints they put on the nature of social processes, and the stability they enhance. Freedom of expression (or religion) for Jehovah Witnesses is not just an individual right. It is the right of the group to which individuals belong to gain access to the public forum of persuasion. The law against incitement is not a limitation of the right of one person to free speech in order to protect the right of another to life. It is a limitation of the right to speech intended to defend social institutions and structures, which are conditions-precedent of all human welfare and security.
For this reason, I do not need to enter another debate which may be casting doubt on the coherence or intelligibility of SE rights: the idea that the subjects of rights are only individuals, and that all ‘‘group rights’’ are in fact reducible to various kinds of individuals’ rights.36 Human rights are indeed universal and indivisible, and reflect a deep concern with individuals, as they live in societies. Both CP and SE concerns are central to human welfare. Our picture of human rights should not be a tool that disguises the complexity of the constituents of human welfare.
We can conclude that the answer to the question of which concerns should be seen as rights or as human rights should be determined by our analysis of the urgency of the needs, their relations to human dignity, and the need to give them the special protection generated by rights. There is no reason for concluding, at the outset, that SE concerns cannot be the subject of (human) rights.
The hierarchy between CP and SE rights
I mentioned above that most contemporary scholars have dropped the arguments seeking to show that SE concerns should not be seen as human rights. However, the same arguments are used, together with other arguments, to claim that CP rights should be seen as prior and primary. This position is reflected by the fact that liberal theories of democracy often insist on constitutional protection for CP rights only, relegating the protection of SE rights to regular laws and policies. In institutional terms, as we saw, this means that, while SE rights are protected only against arbitrariness or discrimination by the government, CP rights are protected against legislative decisions as well.
In part, this preference for CP rights may be connected to the ideal of democracy. It may be argued that CP rights are critical for the functioning of democracy, and once democracy is in place, coupled with such constitutional protection, the products of the political system are bound to be acceptable in terms of social justice as well. However, this justification is of only limited force: many affluent constitutional democracies continue to live with abject poverty and hopelessness in their midst. CP rights may be necessary, but they are not sufficient as guarantees of human dignity for all.
Against the background noted above of the priority of CP rights in many discussions, the debate about the status of SE concerns as rights, and the relationship between the two, may gain practical and political importance. It is therefore important to emphasize some of the ways in which SE concerns are at least as central to human welfare and to the structure of human societies as are CP concerns. This point is merely an elaboration of my primary thesis above: these issues are not matters of conceptual analysis or of the nature of rights. Their analysis requires a closer look at the background conditions and the presuppositions of life in democracies.
Two different routes lead to the same conclusion. One is the frequently quoted idea that all human rights derive from the concern with human dignity. Among civil rights, the ones most clearly related to dignity are the rights not to be tortured, raped, or defamed. Not allowing a person to express various ideas is a serious limitation of liberty, but its connection to dignity is more remote. Usually, dignity also requires some ability to control one’s life and participate in the decisions made in one’s political community. As we saw, these are positive rights against the state, which is required to confer the powers and provide the resources needed for the implementation of their exercise. But not being able to survive, or not being able to marry or to have children for lack of ability to support them, or not being able to afford a standard life-saving medicine – these are instances where the threat to human dignity is clear and obvious. In terms of relevance to human welfare and dignity, the need to avoid a life reduced to the struggle for subsistence may often be more primary and central than the need to gain political liberty.
We reach the same conclusion when we look more closely at the ideal of democracy and political participation, which all liberal theories emphasize. The justifying power of democracy stems from its being the regime where individuals are allowed an equal right of participation. However, democratic participation is more than the power and freedom to cast a vote. It is the ability to cast this vote from a position of knowledge and freedom. While no one can be forced to become knowledgeable or free and autonomous, background conditions must be such that people can have effective liberty to gain them. This effective liberty includes freedom from the struggle for subsistence.
In other words: not only can both CP and SE concerns be rights. Not only are some SE needs as central to human welfare as the most importa
The relationships between civil and political rights.pdf - On The Relationship between Civil and Political Rights, and Social and Economic Rights