Social Rights and Markets

When we organized a series of colloquia on the theme of social rights and markets in Glasgow in 2012, it was with the explicit intention to explore whether such a relationship might be conceptualized at all other than as competition and how that ‘competition’ might usefully be theorized. Can social rights effectively, if at all, mediate the operation of markets in the direction of effective regulation, or are they only ever modes of redressing the effects of market distributions and the increase in inequality that markets generate? If the latter, do social rights provide effective ways of redressing such effects, or, given a certain modus operandi and a globalized economy, do they make social protection more costly for those who most need it? Are there other ways of tempering market-produced and market-enhanced social inequality, or do social rights give us adequate leverage? And significantly, in what sense might social rights inform critical legal theory and critical intervention?

If this inquiry was intended in the direction of an adequate theorization of the relationship between social rights and markets, Fernando Atria prompted us to look at how that relationship is played out in terms of the competition within the rights category itself. For Atria, individual rights (negative freedom rights) and social rights (positive freedom rights) cannot be conceived or thematized on a continuum, except at the cost of hollowing out social rights or collapsing them in a way that ‘de-socializes’ them. Successes in securing their justiciability, he claims, are nothing but toothless victories at best, at worst a sign of how their political leverage has been wasted. The contradiction that besets the category of rights replicates the contradiction between two competing logics of resource allocation: on the one hand, on the basis of what is revealed as merit in the free play of market forces and on the other, on the basis of social need or entitlement as conferred through democratic choices. This is a real contradiction that intriguingly may invite immanent critical responses. In any case, it cannot be sealed over or harmonized.

Much of the debate between Atria and the respondents Russell Keat, John Holmwood and David Garland turn on the question of continuity between rights, individual and social. I will not visit the nuances or complexities of their fascinating debate, except to identify this central point of disagreement. Where for Atria, the idea of extending the protection that is enjoyed by individual rights to social rights even aspirationally, as programmatic, comes up against the contractualist paradigm that informs the ‘deep grammar’ of bourgeois political thought, for Keat and Garland there is continuity. If, for Garland, social rights remain aspirational it is because their satisfaction is more expensive, but the difference is one of degree rather than kind, historical and thus contingent rather than essential: rights are social and fundamentally public across the board. For Keat, the reconciliation is in overcoming the false contradistinctions between markets and welfare and in rethinking the social market in a way that reconciles the antinomy through the very conception of social rights. Holmwood’s suggestion is for reversing the antinomy of an entrenched system of individual rights against their utopian ‘social’ counterpart. And in order to substantiate this reversal and ground social rights, he suggests ‘extending their sociological depth’ with the help of Durkheim, Mead, Dewey and Polanyi. The critique they offer of ‘liberal public reason as ‘pathological’ and self-defeating’ brings social rights to the fore as the realistic (rather than utopian) alternative.

But Atria will insist that, at least against Garland and Keat, there is a deeper structural premise which underlies the contradiction between individual rights and social rights and sustains their political potential. He says:

Social rights arise as a way of affirming – in terms of justice – the importance of understanding human self-realization as reciprocal rather than individual. But if this is the case, then it is central to the very idea of social rights to preserve the distinction between them and individual rights, because the point of social rights is to subvert the idea of individual rights, to turn it against itself. This is why social rights can only be understood as anomalous grafts in bourgeois law; the foundation for the latter is the idea of individual rights. (Atria, 2015: 598–613)

And then, further on the metaphor of ‘grafting’:

Grafting creates an unstable situation, that is, a situation which has an immanent tendency towards its resolution. This resolution can, in principle, adopt one of two forms: the transformation of the host or the normalization of the graft.

The metaphor of the ‘anomalous grafting’ is wonderfully apt. It might be objected that grafting is already too high a demand and too ‘thick’ an assumption in the following sense, that if we take the argument about deep grammar seriously the operation may be lacking a relevant host altogether, its meaning deprived a register. We must confront this as a real danger that the language of social rights becomes merely an attempt that achieves no traction in a system rationalized in a way that constitutively undercuts any notion of the public or collective as an irreducible category. The assumption that a more fundamental notion of the public is available as grounding for social rights is axiomatic for Atria, and I want to hold on to that fundamental premise too, in the sense that the public is not surrendered to the market’s co-option of democratic thinking. Otherwise the inflationary use of social rights becomes merely ideological. What underlies Atria’s strategic move of an anomalous grafting is that it might reveal and transcend the limitations of the host form, neither assimilating to the host nor atrophying. If certain ‘contractualist’ forms simply cannot support certain ‘solidaristic value commitments’ then the insistent strategic use of social rights will import a real contradiction, the Hegelian/Marxist moment of the Dasein der Widersprach, from which the system cannot retract. Additionally, the move must be understood as a move at the level of institutions, not abstract theory. Here, strategy is played out in terms of institutional solutions that, in law, carry their own momentum as played against institutional inertia and what Luhmann would call systemic (institutional) ‘redundancy’.

But this will perhaps lead us further onto the strategic terrain than is Atria’s concern in this argument. In his article, he runs the argument about institutional innovation (grafting) alongside one about ‘slow pedagogy’, the relation between the two arguments occasionally tenuous but consistently intriguing. The argument turns on the potential release of learning processes that dovetail with the embeddedness of practices (and facilitate their re-embedding). Holmwood’s introduction of Mead, Dewey and Polanyi in this debate is highly suggestive and points to a renewal of a tradition that goes back to Hegel and Aristotle, explicitly in some cases (Taylor and MacIntyre), less explicitly in others. Axel Honneth is perhaps the one important interlocutor missing from this debate. Ultimately what is fashioned in the context of slow pedagogy and against the form of abrupt market adaptation is the unfolding of processes of recognition and solidarity, such as are harboured in the notion of social rights but betrayed in the shrill tones of the assertion of their justiciability in the infinitesimal margins allowed by individual rights, and only as devices to mitigate the harshest effects of the unlimited operationalization of the latter through the market. Atria’s is not an argument against the market as such. The tenor that remains unwavering in Atria’s defence of social rights is the resistance to their (full) internalization by the market and measured on its solutions, and the insistence, instead, that the solutions that we need to find for the demands that social rights articulate remains political, on the register of political justice, engaging collective categories and decided as a matter of, and for, democracy.