Abstract
‘All rights are social’ seem to be the common thread running through the three comments. In a way, this is exactly what one would say if Marshall’s progression from civil to political and then to social rights is correct. For there is a significant difference in the political practices that constitute the background of the main article and those of the comments. The latter look to individual rights from the point of view of practices which have, in one way or another, been transformed by the idea of social rights (i.e. practices in which the notion of social rights has been, as David Garland emphasizes, part of the legal landscape for decades), whilst the former is written in a context in which social rights are novel, for now ‘merely aspirational’, ideas. And I believe this is exactly Marshall’s point. Marshall’s ‘formative elements’ are not simply listed; they are placed in a narrative, and as in any narrative their order is relevant. Each element reveals or develops the content of the previous one so as to show it in a new light. Civil (individual) rights emerged, in the context of liberal critiques of absolutism, as ‘natural rights’. But this idea of natural rights ought to be reinterpreted to accommodate the idea of political rights, which could not be ‘natural’. Political rights could only be understood as the rights of the citizen. And in turn social rights reinterpret the idea of citizenship. Interpreted in the light of political rights only, the idea of citizenship is purely formal, and only implies rights to equal participation. The idea of social rights claims to be the substantive content of citizenship. 1. Garland understands the main article’s ‘central claim’ to be ‘a jurisprudential one’. He takes that central claim to be about the conceptual distinctions between individual and social rights, the former being ‘negative’, ‘invulnerable to economic vagaries’, whilst the latter are ‘positive’ and ‘depend on available resources’. This is, however, exactly what the main article attempts to deny. The detailed discussion of Höffe’s ideas is meant to have shown that these are superficial differences that if there is an interesting distinction it is not to be found in these features. Thus, I agree with him when he claims that ‘all rights are positive (…), all rights have costs’.
Garland however continues: ‘all rights are social (they mobilize social resources and social authority to remedy rights violations or facilitate the exercise of [other rights]). And all rights are fundamentally public, involving social resources, state authority, and the supportive conduct of state officials’. This is in an important sense obviously true because law is a social institution. But does this mean, for example, that since ‘all law is public’ the expression ‘private law’ is an oxymoron? Of course not. When we say, for example, that private law is ‘private’, we are not claiming that it does not mobilize social resources and social authority. We are saying something about the interests these resources are mobilized for. We need not even deny that there is a sense in which those interests are public, for it is difficult to deny that there is a public interest in (say) the social institution of contract. But even then the idea that contracting parties have individual rights against each other makes sense. It conveys, for example, that what is in the public interest is the existence of an institution which empowers individuals to define the forms and limits of the relations they want to create with others to pursue their individual lives. Thus ‘private’ law can be private even if it is ‘public’ in Garland’s very general sense. If the expression individual rights can be explained in a similar manner, then we could say that all rights are social rights, but some are more social than others. 2. I am not sure about whether the central claim of the article is a jurisprudential one, in large measure because I am unsure as to how to distinguish jurisprudential claims from political claims. But if one assumes that jurisprudence is about the correct understanding of law as a social institution, the disagreement between Garland and myself could well be characterized in those terms. For Garland believes that there is a clear distinction between what he calls ‘aspirational rights claims’ and ‘really existing rights’. When we look at the latter, to rights properly so called’ as he calls them, rights are always the same, be they social or individual: ‘legally actionable claims that the rights-holder […] may make against others’. It follows that ‘[t]he supposed opposition between “social” rights on the one hand and “individual,” “negative,” “private,” “civil” or “political” rights on the other is a false opposition’ (Garland, 2015: 622–628).
Of course, he does not claim that the concept of social rights is empty. Garland shows full awareness of the fact that the rights discourse might be a powerful means of political mobilization. But, as he says, his argument ‘goes to jurisprudential and sociological issues rather than to questions of political mobilization’. From a jurisprudential point of view, then, the concept of social rights is entirely uninteresting.
Can this distinction between the jurisprudential and the political hold? It is interesting that one could very well direct against Garland’s claim the very same objection he makes against (the jurisprudential relevance of the concept of) social rights. For if we are really realist, we would not talk about rights at all. This is a point forcefully made by Hans Kelsen. All that is really needed is the concept of duty. Since in the hard-nosed, realist sense all rights correlate with duties, but not all duties correlate with rights, the fundamental concept is really the former, and the latter is merely ‘ideological’: The concept of a right which is only the reflection of a legal obligation – the concept of a “reflex right” – may facilitate, as an auxiliary concept, the description of the legal situation; but from the point of view of a scientifically precise description of the legal situation, it is superfluous. This is evident from the fact that one does not in all cases of a legal obligation assume a ‘reflex right.’ If the obligated behavior of the one individual does not refer to a specifically designated other individual (that is, if it does not have to take place with respect to a specifically determined individual) but refers only to the legal community as such, then, – although one sometimes speaks of a “right of the community” (especially of the state) to the behavior of the obligated individual, such as the obligation to do military service – one is satisfied in other cases to assume a legal obligation without a corresponding reflex right, as for example in the case of legal norms that prescribe a certain human behavior toward some animals, plants, or inanimate objects by pain of punishment. It is forbidden to kill certain animals at certain times (or altogether), to pick certain flowers, to cut certain trees, or to destroy certain historical monuments. These are obligations which – indirectly – exist toward the legal community interested in these objects. But no reflex rights are assumed on the part of the animals, plants, or monuments. (Kelsen, 1967 [1960]: 127–128)
I fail to understand why. To be sure, ‘rights’ of any kind can be more or less effective, more or less recognised by actual legal norms. This distinction between ‘aspirational rights’ and ‘actually existing rights’ says nothing about the differences between social rights and individual rights (in Chile, the right not to be arrested without trial was ‘aspirational’ until 1989 because the constitution gave Pinochet the power to arrest anyone without trial). The question is how to reconstruct a given area of law. What is the relevance of social rights? Just as the concept of individual (‘subjective’) rights helped articulate important aspects of private law, that of social rights grounds the legal articulation of the social services that emerged in the second half of the 20th century, particularly in Europe. Just as one would expect, the institutions emerged before their legal articulation, some of them as early as the 19th century. But once the idea of social rights becomes available, those institutions can be understood no longer as exceptions or anomalies but as paradigms of a new understanding of the political community, a new understanding of citizenship. They constitute an ‘anomaly’ in the sense that they create the possibility of reinterpreting individual rights very much in the path followed in his comment by Russell Keat. 3. In my view, this is what is relevant about Marshall’s waves of rights. It is not a ‘history-on-our-side teleology’, but the thesis that a later development allows us to look back to the past and reinterpret it in a different way. ‘The limit of my ambition has been to regroup familiar facts in a pattern which may make them appear […] in a new light’, says Marshall right at the end of his treatment of the ‘formative periods’ of the three elements of citizenship (Marshall, 1992 [1950]: 27). And Garland exemplifies this when he claims that: Instead of seeing social rights as some kind of anomalous deviation from the standard conception of legal right, we should use them to rethink what that standard conception ought to be. Our jurisprudence too often embraces a liberal individualist conception of rights when in fact all rights are social. (Graland, 2015: 622–628)
4. For this reason, I am in agreement with Russell Keat, who seems to be developing, in my understanding, Marshall’s idea. He accepts the two alternative accounts of social rights explained in the main article (as the rights of citizenship/as pre-political, natural rights) but then adds that ‘individual rights may likewise be open to two alternative accounts, so that there is (or can be) a “citizenship” understanding of these rights also’.
I fully agree. And if the main article gives the impression that I believe that a ‘contractualist’ understanding of individual rights ‘is the only possible understanding’ of such rights I must correct myself. The whole point of framing the idea of social justice in terms of social rights is to show that the neoliberal (though not the liberal) understanding of rights is, as Keat claims, unwarranted.
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5. Being in full agreement with Keat’s central claim, I would like to comment on two points he makes more or less in passing. The first is the relation between markets and social rights understood as welfare institutions. Keat claims that ‘the two are not in conflict with one another, but different institutional means of achieving the same goals of social cooperation between equal citizens’. In my view, the two are not in opposition in the sense that the idea of citizenship requires both, but they are in opposition in the sense that they are not only different but alternative institutions. And for this reason they cannot be understood as ‘institutional means’ only: they are the institutional forms that correspond to different aspects of citizenship. Again, this is something subject to Marshallian reinterpretation. Before the emergence of social rights, markets could be understood as a space of freedom (the movement from status to contract), but in this sense freedom meant Hohfeldian liberty, that is, freedom in the sense of absence of prohibition. Of course, this is not to say that markets can exist without prohibitions. Indeed in this, pre-social rights sense, the point of the movement from the natural to the civil condition is to create a power that can sustain the prohibitions that are necessary for the market (Hobbes, Locke and all that). These prohibitions are individual rights, and they constitute what HLA Hart called a ‘protective perimeter’, which creates the conditions for the institution of the market (a perimeter ‘behind which liberties exist and may be exercised’; Hart, 1982: 171). They define the content of citizenship. But they aim at creating the conditions for the market, and once the market is in place each will receive what he or she can secure to himself or herself through exchange. And the fact that someone cannot get what they need will not raise a public issue. In this sense, the market is the institutional form of distribution of private goods, that is, goods the distribution of which is not a public concern. Here, to be free means not to be subject to prohibitions.
The idea of freedom was first expanded with political rights and the emergence of democratic institutions. Freedom meant having an equal say in public decisions. But it was still a formal status, that is, a status the content of which was given by norms. The next element, social rights, challenged this notion of freedom precisely because of its formalism. What is politically relevant is not only that each is granted a protective perimeter to enable engagement in market exchange, and not only that each is legally entitled equally to participate in public decisions, but also that the material conditions for autonomy are secured. This implies that what is necessary to secure those conditions cannot be organized and distributed according to the market. The obvious examples are those that correspond to the major public services, like healthcare and education. Healthcare and education, as social rights, are not commodities that each will do their best to obtain in the market, but goods each has an equal right to. But if each has an equal right to healthcare and education, a right the justification of which is the bond of citizenship and is thus prior to the contract, it is clear that their institutional mode of organization cannot be the market, for as we have seen the market is the institutional form of distribution of private goods, to which nobody has a right prior to the contract (remember private goods are goods the distribution of which is a private matter so that failure to secure them by an individual does not raise a public issue). Indeed to put it in these terms is too weak: rather than saying that markets are the form of distribution of private goods, we should invert the terms and say that private goods are those the distribution of which is left to the market. (This formulation is to be preferred because it makes transparent that social ontology is constituted by institutions; institutional forms like ‘the market’ and ‘welfare services’ cannot be understood as ‘different institutional means of achieving the same goals’ because the means here redefine the goals, and this shows that means are not only means).
The labelling of this idea as social rights rather than a general appeal to the idea of social justice or fairness has a specific polemic content: it is to say that its aim is the realization of the promise on which civil rights were based. The idea common to civil, political and social rights is that we undertake to secure for everyone through political (collective) action the conditions for autonomy. In its civil rights interpretation, those conditions were limited to the effective enforcement of Hart’s protective perimeter. In its political rights interpretation, they are tied to the formal status of citizens and the right to vote/be elected. In its social rights interpretation they aim at securing the material conditions of autonomy.
Hence Keat is right when he claims that the idea of social rights is not incompatible with the market. Indeed, one could say that the point of social rights is to establish the conditions under which the inequality produced by the market is compatible with the equal citizenship of all. But it is incompatible in the sense that the market is the institutional form of the provision of private goods, whilst welfare programmes are the institutional form of the provision of social rights. 6. I would like to comment on the relation between the reinterpretation of individual rights introduced by the idea of social rights and its political implications. Keat believes that there are not such implications: Although I have suggested that individual rights can be understood in broadly the same way that, in Atria’s view, social rights should be understood, I am not claiming that once individual rights are understood in this way, anyone who supports such rights must also support social rights. I am not, that is, arguing from ‘the social character of (even individual) rights’ to ‘socialism’. More generally, I do not believe that what are essentially theories about social ontology can, by themselves, have substantive political implications; they cannot replace (and should not be allowed to displace) specifically normative argumentation. 7. Holmwood believes that Marshall’s notion of social rights lacks sufficient conceptual elaboration to prevent its neutralization, and suggests ways in which this deficit could be overcome, by ‘locating Marshall’s approach in a broader sociological tradition, one that includes Durkheim, North American pragmatists such as Mead and Karl Polanyi’. By probing into this broader tradition, Holmwood shows how a reading of Marshall’s waves of rights that is sympathetic to the one advanced above and in the main article could be given a deeper foundation. Such a reading would point precisely to a key issue Holmwood identifies with precision: the inversion of the utopian and the realist. Having reached the point at which the notion of social rights can be sociologically (and not merely theoretically) articulated, ‘complex freedom’ becomes the idea that explains ‘simple freedom’ and not the other way around.
From this follows a conception of institutions. Holmwood again identifies the point with precision when he says that from the point of view of ‘simple’ freedom: institutions’ […] are posited as external, as a potential limit upon the individual and justified only to the extent that they allow the flourishing of an individual who is defined outside them. 8. On a more general note, I find myself very much in line with Holmwood’s wider programme. The political meaning of Holmwood’s attempt to locate Marshall in a wider sociological tradition is to move from the idea of social rights and citizenship to the more encompassing idea of ‘the public’. This idea is more encompassing in the sense that it is more fundamental, it can be related to the idea of social rights as the idea of social rights was related to that of civil and political rights. This is to say, it can show it in a new light, providing us with a fuller understanding of its relevance.
As remarked in different ways by Garland, Keat and Holmwood, the idea of social rights emerged as the legal/political/sociological correlate of the emergence of the welfare state. The welfare state, in turn, was defined by the expansion of the public services, so the idea of social rights was originally linked with the expansion of the state. Thus, the opposition was understood as being fundamentally between the market and the state: private provision meant markets, public provision meant provision by state agencies. And markets were the realm of individuals (consumers), whilst public services were the realm of citizens. The sociological literature on ‘the crisis of the welfare state’ showed, to put it mildly, that this opposition was much less obvious that at first appeared.
The idea of ‘the public’ understands the relevant opposition in a modified way, one that need not deny the original opposition (market/state) but makes it of derivative rather than fundamental importance. This is the main claim of my Educación y Derechos Sociales. Un nuevo paradigm de lo público (Atria, 2014). It is, as I understand it, also Holwmood’s view: I hope it is clear that if we place Marshall’s arguments about social citizenship in the context of the social self and the public, we would get a more robust – or perhaps more explicit – critique of public policy based on the utopia of market exchange and the liberal individual. We would also get an argument about reform that displaces the state from its implicit role at the centre of consideration. The state is replaced by the idea of the “public,” though that does not discount the importance of the agency of the state as one possible expression of the public. (Holmwood, 2013: 34) 9. The slogan used by neo-liberal reformers in Chile in the 1980s was ‘private solutions to public problems’. This idea led to the privatisation of the major public services, including education, healthcare and pensions. Here ‘privatization’ meant transforming social rights into commodities, even when the provider was a state agent (thus, for example, in Chile even state universities get most of their funding from fees paid by students, fees that aim at reflecting the market price of tertiary education). But this shows that neo-liberalism failed to live up to its own slogan. Because the neo-liberal movement did not provide private solutions to public problems, but privatized the problems. It was not a movement that led to new (private) solutions to the same (public) problems, but one that transformed public problems into private ones. Once the notion of social rights is grounded in a more fundamental notion of the public, and the relevant opposition is recast as that between market and the public, rather than between market and the state, we can go back to that old neo-liberal slogan and express the new orientation that in my view should guide legal thinking, a new understanding that corresponds to the renewal of sociology Holmwood advocates in his ‘Citizenship and Social Class Revisited’: non-market (be they state or private) solutions to public problems, that is, solutions to public problems that are compatible with their continuing to be and to be seen as public problems.
Footnotes
Author’s Note
When I went to Edinburgh in the 1990s as a PhD student intent on working on legal theory, I was fortunate to be able to attend David Garland’s graduate seminar on sociology of punishment and Russell Keat and John Holmwood’s joint seminar on social and political theory at the Graduate School of Social Sciences. Both seminars helped to broaden the gaze of an analytically minded, legal theory student to issues of politics and sociology that have been very much at the centre of my concerns ever since. So I thank the three of them for much more than but including their participation at the Glasgow workshop and now for their comments, as I thank Emilios Christodoulidis for his invitation.