Liberal and Democratic Egalitarian Rights: A Critical Legal Conception

The Two Fundamental Limitations to Liberal Rights Discourse

The first major limitation with the liberal approach to rights is its longstanding skepticism toward democracy. This truly blossomed with the classical liberal insistence by Locke and many of the American Founders that democratic rule would result in the dissolution of necessary social institutions and meritorious hierarchies. To square these anti-democratic sentiments with their arguments that political legitimacy can only flow through consent from the governed, these classical liberal figures theorized on and implemented a complex array of institutional checks and balances to mitigate the influence of the general polity while allowing some of its members a minor say in governing. While later liberal thinkers were generally less hostile to democracy, the skepticism never entirely abetted even amongst more egalitarian theorists. A paradigmatic example is found in John Rawls, who insists that after a process of hypothetical reasoning behind the veil of ignorance, major political questions about first principles are to be taken off of the democratic agenda. While Rawls later softened his position in seminal papers like “Public Reason Revisited,” his political liberalism remains highly elitist in that citizens are mainly to become involved in deliberative efforts through following the procedural to and fro of institutions such as the Supreme Court. ⁹ Unfortunately many liberals like Ronald Dworkin and Cass Sunstein have followed Rawls in this elitist orientation.

The second major limitation with the liberal approach to rights is highly related to this anti-democratic skepticism; it is the insulation of a specific set of property relations secured through liberal rights. Early proto-liberals like Hobbes already insisted that the duty of the Sovereign was primarily to protect the property of its citizens, and classical liberal thinkers from Locke to Madison readily agreed. One of the reasons these figures were skeptical of democracy was precisely their concern that, to invoke De Tocqueville in Democracy in America, too much democratic participation would lead to levelling demands for greater economic equality. ¹⁰ To guard against this, property rights needed to be strictly enshrined, and the hierarchical relations they upheld be calcified through the establishment and empowering of elitist institutions such as anti-majoritarian second houses in the legislature and generating “natural aristocracies” fit to rule through training at exclusionary post-secondary institutions. Today, libertarian and neoliberal theorists are perhaps the most insistent on the preservation of property rights though they are less conservative in their willingness to adapt hierarchical relations to better defend them. As Quinn Slobodian points out in his seminal book Globalists: The End of Empire and the Birth of Neoliberalism, one of the features of neoliberal governance and theory was its insistence on global “multi-tiered governance . . . insulated from democratic decision making.” ¹¹ It was no longer enough to protect property rights and relations through domestic law. Instead, a “global constitution” was required to insulate against pressure from reformers. Neoliberals like F.A Hayek were very successful in this project, and the pushback against the moderate welfare states of the mid-20th century in the name of property rights and neoliberal “liberty” has been carrying on since the 1970s.

Together these limitations seriously constrain the potential of liberal rights to serve as progressive tools of emancipation. In the two sections below, I will describe the limitations in more detail before presenting my critique of each, respectively.

Liberal Rights and Democracy

In this section, I will briefly discuss how liberals sought to constrain democratic will from the very beginning of the tradition. This had consequences for rights discourse; liberal rights were frequently invoked as a way of justifying restraints on democratic rule. On occasion, these concerns were undoubtedly valid, particularly when it came to constraining majoritarian discrimination and overreach. My critique will be focused on the more elitist iterations of anti-democratic thought amongst liberals. At the end of the section, I will follow the positions of Habermas, Honneth, and Benhabib instead and argue we need to take a serious look at the importance of civic freedom and how to secure it through a reoriented rights discourse. This will in turn necessitate rethinking issues as basic as liberal legalism along more dynamic lines.

Perhaps the most complex figure in this regard was John Locke. In The Second Treatise on Government, Locke made a pioneering defense of representative government. The radical edge of his theory included a justification for revolution in the event that the state ceased honoring the natural rights of its citizens—respect for which was one of the bases of political legitimation. However, it remains unclear how extensive Locke intended rights to representation to go, particularly if excessive suffrage posed a danger to property rights. ¹² Such concerns were also found in the writings and deliberation of the American Founding fathers. They expressed considerable worries that excessive democracy and factionalism might pit the interests of the rich and poor against one another. This was best expressed by Madison in Federalist 10:

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. ¹³

This hesitancy to permit too much democracy due to the dangers of economic factionalism played a significant role in the framing of American suffrage; at the initial stages of the Republic, many groups were denied rights to full political participation. The most notable of course were African Americans and women, and non-property owning white men. Many sophistical arguments were made to try and justify these exclusions, such as that the rights of the disenfranchised were “virtually” represented by those who spoke for them. Others made more militantly quasi Lockean claims that those without property lacked sufficient stake in government to be given a say. The result was a “representative” government where most people had little say. This continued down through the 19th century, particularly during the reconstruction era, when racist efforts to disenfranchise blacks were often ubiquitous through the south. ¹⁴ As put by Aleksander Keyssar:

Mississippi led the way in 1890. . .In short, other states followed suit, adopting-in various combinations- poll taxes (demanding that past as well as current taxes be paid), literacy tests, secret ballot laws, lengthy residence requirements, elaborate registration systems, confusing multiple voting-box arrangements, and eventually, Democratic primaries restricted to white voters. Criminal exclusion laws were also altered to disenfranchise men convicted of minor offences, such as vagrancy and bigamy. . .Many of the disenfranchising laws were designed expressly to be administered in a discriminatory fashion, permitting whites to vote while banning blacks. ¹⁵

The Americans were not the only liberal society to flirt with such restrictions. In the United Kingdom, major victories for democracy were achieved with the Great Reform Act of 1832 and the subsequent Reform Act of 1867. These enfranchised many propertied men, including eventually the urban working classes, who had previously been denied such rights. Nonetheless, these changes faced stiff opposition not just from conservatives but even from reformist liberals like J.S Mill. In tracts like Considerations on Representative Government, Mill argued that voting rights should be reframed. An early epistocrat, he flirted with the idea of granting more voting power to the better educated to ensure that superior political decisions were made. This was intended as a compromise between claims that everyone had a right to participation under a system of representative government, but checks needed to be in place to ensure those rights were more extensive and meaningful for those between equipped to exercise political power.

These elitist sentiments were partially constrained with the emergence of “great society” welfarist visions of democratic liberalism in the 20th century, though at least part of this reorientation was likely motivated by the material concern of elites to put a lid on working class agitations riled by fascist and communist alternatives. However, the liberal skepticism toward democracy never entirely disappeared. As mentioned, through the middle and late 20th centuries, anti-democratic sentiments were best expressed in the writings of neoliberal thinkers such as F.A Hayek. As Slobodian points out in Globalists, the neoliberals argued that economic issues needed to be carefully insulated from democratic pressures, particularly for economic redistribution. ¹⁶ They were partially successful in their agitation, and neoliberal reforms were frequently instituted even by nominally leftist parties such as the SPD in Germany or Labour in the United Kingdom, who felt they had no choice but to surrender authority to capitalist actors. Wendy Brown captures these developments very nicely in her book analyzing how neoliberalism sought to “undo” the demos. ¹⁷ However, for some, these efforts at pushing against the demos haven’t gone nearly far enough. In the present day, this position is best expressed by Jason Brennan in his book Against Democracy. ¹⁸ Brennan variably identifies as a neoclassical liberal and more simply as a libertarian, and argues that empirical data suggests most voters in the United States are insufficiently informed and interested to make valid political judgments. He therefore argues that, though liberal democracy is instrumentally the most beneficial system of government yet to be developed, we consider moving towards more epistocratic political forms. This would entail restricting democratic rights by appealing to a “right to competent governance” and is comparable to insisting that if individuals wish to drive a car they need to seek a license. ¹⁹ Brennan doesn’t specifically endorse one model of epistocracy but instead presents a variety of alternatives; the conclusion of Against Democracy suggests that one or several of these might be phased in over a sufficiently extensive period to see if they function well.

This history is of course not comprehensive, and much more detail could be added. My point with the brief overview here is to show that liberalism is at best a frenemy to democracy. As Edmund Fawcett points out in his excellent book Liberalism: The Life of An Idea, there is no conceptual necessity to support both liberalism and democracy simultaneously. ²⁰ The (seemingly) permanent alliance, or at least cease fire, between the two emerged in the early 20th century as a result of contingent political developments. Liberal practitioners were keen to check the authority of aristocratic elites by investing power in the demos, while at the same to halting calls for socialism by giving the working classes as greater stake in existing orders. Progressives should do better in arguing that the need for democracy is not merely, as Brennan claims, instrumental. Instead there are firm moral reasons to invest the people with democratic authority and encourage them to be active participants in governing themselves.

As Honneth argues in his book Freedom’s Right: The Social Foundation of Democratic Life, contemporary liberalism tends to divide along Berlinian lines. In his seminal essay “Two Concepts of Liberty,” Isaiah Berlin distinguished between negative liberty, typically secured by classical liberal rights to life, expression, property and so on, and positive liberty, which is usually connected to more radical claims about what is materially necessary to realize a more substantive vision of freedom. ²¹ The arguments of Rousseau circa his critique of private property in The Discourse on the Origin of Inequality is an example of agitating for positive liberty. ²² One of the big developments in liberalism in the late 20th century was a (theoretical at least) willingness to accept that some efforts to realize positive liberty may be necessary to the liberal project of amplifying freedom. Rawls’ characterization of the second principle of justice is characteristic, and liberals like Nussbaum, Sen, and Dworkin have followed him in arguing for greater wealth redistribution.

Honneth argues that this movement toward emphasizing positive liberty is still incomplete, since it fails to recognize a third kind of liberty: civic freedom. Following Hegel’s arguments about the importance of civil society, Honneth contends that liberals in the vein of Rawls still insist that the “basic structure” of liberal institutions must be insulated from democratic deliberation. There are certain things liberal subjects can argue for in the public sphere, and others that are beyond the pale. But this constitutes a serious limitation on the freedom—and what I later call the capacity for democratic self-authorship—of citizens. Unless citizens are able to participate in framing and reforming these institutions, they will be unable to feel a sense of authorship of the principles and laws that govern them. This will lead to feelings of powerlessness and alienation from society and its culture, which I have argued in The Rise of Post-Modern Conservatism is precisely what happened under neoliberalism. As Honneth nicely puts it:

Justice must entail granting all members of society the opportunity to participate in institutions of recognition. This means that certain normatively substantive and thus ‘ethica’ institutions requiring legal security, state authority and civil support shift to the centre of our idea of social justice. ²³

To secure civic freedom, we must therefore move beyond the standard package of liberal rights upholding negative liberty and in some limited cases a marginal form of positive liberty. Rights need to be reconceptualized not just to demonstrate what protections citizens have from the state and civil society, or even what they are owed by it, but how they can transform the state in line with their democratic ambitions. Benhabib has taken us a big step of the way there with her argument that rights be considered “jurisgenerative”—citizens invoke them as normative ideals to politically agitate for the transformation of social conditions in line with their interests and values through what she calls “democratic iterations.” These can take place at both the domestic, and as I contend must happen, inter/transnational levels. As Benhabib puts it in her lecture “Human Rights, Sovereignty, and Democratic Iterations”:

Democratic sovereigntistes ignore that . . .human rights norms can empower citizens in democracies by creating new vocabularies for claim-making as well as by opening new channels of mobilization for civil society actors who then become part of transnational networks of rights activism and hegemonic resistance. Conflict of norms in the new legal universe that we have entered into are unavoidable and may be even desirable, so global constitutionalists are wrong in minimizing the necessity for mediating international norms through the will-formation of democratic peoples. Even human rights norms require interpretation, saturation and vernacularization; they cannot just be imposed by legal elites and judges upon recalcitrant peoples; rather, they must become elements in the public culture of democratic peoples through their own processes of interpretation, articulation and iteration. ²⁴

The emphasis on politically empowering citizens necessitates we no longer conceive of rights or the law in a static manner, as mere protections and rules guaranteed in a one off social contract and secured through the jurisprudence of Courts. A normative commitment to civic freedom requires that citizens must engage that freedom by invoking rights to demand change. ²⁵ This can include changes to the institutions and relations typically insulated by liberal legalism, particularly those that pose barriers to further democratization, and as I argue below, the redistribution of property.

Liberal Rights and Equality

From Locke onwards, one of the key ambitions of liberal rights theorists was to insulate property rights from substantial redistributive efforts. In the Second Treatise on Government, the empiricist philosopher infamously argued that one of the virtues of government should be its protection of individual’s natural rights to life and property. Unlike Hobbes, who had a complex relationship with the concept of natural rights, Locke argued that such rights even exist in the state of nature. But they were inadequately defended. The natural state of liberty gave way to representative government where the interests of propertied men were deliberated upon.

Thirdly, the supreme power cannot take from any man any part of his property without his own consent. For the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires that the people should have property, without which they must be supposed to lose that by entering into society which was the end for which they entered into it; too gross an absurdity for any man to own. Men, therefore, in society having property, they have such a right to the goods, which by the law of the community are theirs, that nobody hath a right to take them, or any part of them, from them without their own consent; without this they have no property at all. ²⁶

This representative government by no means needed to reflect the interests of all however.

Starting in the 19th century, an unusual shift began to happen as liberals became increasingly open to the argument that a system oriented by what Rawls would call “natural liberties” ²⁷ was inadequate. J.S Mill famously waffled on endorsing socialism, but was open to its arguments from a consequentialist standpoint. In the 1940s, William Beveridge issued his famous report calling for the establishment of nationalized health services in the United Kingdom, linking his position to the need to reform liberal democracy in a postwar setting. Through the mid-20th century, a raging debate carried on between those like Frank Meyer ²⁸ who thought welfarism constituted a betrayal of liberty and Keynesians like John Kenneth Galbraith ²⁹ who felt it consummated the liberal project. But the seminal theoretical figure who reconceived liberalism’s connection to egalitarianism was of course Rawls and his many theoretical progeny.

Rawls argued that Locke, Kant, and the classical liberals were wrong to place so much weight on property rights in their theoretical analysis. This is in part because they tended to naturalize inequalities as deriving from morally significant efforts on the part of liberal subjects. For Locke, Malthus, and their myriad descendants, inequality and poverty were fundamentally associated with vice; in particular, an unwillingness to work or to engage in debaucherous behavior. The wealthy may have “imperfect duties” ³⁰ to aid the poor, but these could not be made the subject of justice and therefore a duty of the state and civil society. Rawls’ position is that this is a considerable oversight that misses out on the most integral feature of the liberal tradition: that individuals are to be regarded as moral equals. This significantly problematizes the naturalization of gross material inequality. Rawls’ solution to this, derived from his method of political theorizing circa the Original position of reasoners behind a veil of ignorance, is for liberal states to go beyond just respecting the “basic liberties” familiar since at least A Letter Concerning Toleration. Liberal states must also realize a second principle of justice: that social and economic inequalities be arranged so that they are to the benefit of the least well off, and attached to offices and positions open to all under conditions of fair equality of opportunity. This is quite a radical call for economic rights, since it effectively eschews typical economistic claims about Pareto optimality and morally insists that the only subjects of concern for distributive justice are the “least well off.” Everything needs to be arranged to service them. Moreover, as Rawls puts it, failing to do so constitutes a serious lack of moral commitment. It allows arbitrary natural and prejudicial circumstances to perpetuate unfair conditions when it is within our power to change them.

We may reject the contention that the ordering of institutions is always defective because the distribution of natural talents and the contingencies of social circumstance are unjust, and this injustice must inevitably carry over to human arrangements. Occasionally this reflection is offered as an excuse for ignoring injustice, as if the refusal to acquiesce in injustice is on a par with being unable to accept death. The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts. Aristocratic and caste societies are unjust because they make these contingencies the ascriptive basis for belonging to more or less enclosed and privileged social classes. The basic structure of these societies incorporates the arbitrariness found in nature. But there is no necessity for men to resign themselves to these contingencies. The social system is not an unchangeable order beyond human control but a pattern of human action. ³¹

This was a startling claim from a liberal theorist, and a large number of figures have since emerged to carry on the project of linking liberalism with a commitment to greater equality. The fundamental problem with the Rawlsian outlook is that it does not go far enough in various respects. While a complete breakdown of where this is so would go beyond the purview of this book, not to mention become a primarily exegetical exercise, I highlight two reasons specifically.

Firstly, the Rawlsian project has generated a considerable amount of criticism for trying to divorce a commitment to egalitarian principles from a more comprehensive moral project. Part of this understandably comes from Rawls’ interest in ensuring “justice as fairness” remains a “political” rather than comprehensive liberalism, that can be endorsed from many different viewpoints in pluralistic societies as part of an “overlapping consensus.” ³² But it has also left Rawls open to criticism from figures like Michael Sandel, ³³ Alasdair MacIntyre, ³⁴ and others that the deracinated subject and theory of the good life at the heart of political liberalism is not morally inspiring. I believe this critique is sound, and a persuasive egalitarian approach to rights must be linked both to a stronger account of the subject and the “good” she is aspiring to. This means going beyond political liberalism and instead investing ourselves in a super liberal position that places great weight on the priority of dignity and self-authorship. It also means linking a conception of jurisgenerative rights to this more robust position.

Secondly, Rawls’ arguments for the second principle of justice are generated from a highly abstracted theoretical method. His impartial reasoners behind the veil of ignorance deliberate on only one occasion before establishing the principles that are to guide the state as a “social union of social unions.” This “transcendental institutionalism,” ³⁵ as Amartya Sen calls it in The Idea of Justice, offers little guidance on how the second principle should be realized within very different socio-historical contexts as experienced by actual and highly partial subjects. This is where I think the argument for greater equality needs to be reframed along more empirical lines, something that Sen and Nussbaum’s project has taken great strides toward. It also needs to be more democratic, enabling individuals to use their jurisgenerative rights to agitate for egalitarian reforms in line with their specific needs and interests. Specific efforts to achieve greater equality should be organized so that they emerge from the bottom up, rather than instituted from on high by hypothetical Rawlsian reasoners.

The Failure of Rawlsianism and the Rise of Neoliberalism

While I have considerable respect ³⁶ for Rawlsianism as the most concerted effort to develop a liberal approach to equality, it is important to note his project was never implemented in any systematic way. Indeed shortly after Rawls published A Theory of Justice, the efforts of socially minded liberals at generating a system to assist the least well off began to fall apart. Neoliberalism instead ascended to dominance and was far friendlier to earlier inegalitarian conceptions of property rights than Rawlsian-style justice as fairness. The focus of the neoliberals, both in theory and practice, was certainly not to redistribute wealth even in the limited respects called for by socially minded liberals like Rawls. Neoliberalism was focused instead on creating the conditions for capitalist markets to flourish, even in instances where certain subjects did not want them. Their conception of property rights was consequently extremely ambitious. It went beyond even granting them to individuals; now the property rights of corporate bodies could even be granted greater priority than the democratic rights of individuals. In practice, this entailed a program of deregulation to expedite the movement of capital and shrinking the limited achievements of the welfare state where possible. As put by David Harvey in his classic book on neoliberalization ³⁷ :

Deregulation, privatization, and withdrawal of the state from many areas of social provision have been all too common. Almost all states, from those newly minted after the collapse of the Soviet Union to old-style social democracies and welfare states such as New Zealand and Sweden, have embraced, sometime voluntarily and in other instances in response to coercive pressures, some version of neoliberal theory and adjusted at least some policies and practices accordingly. . . .Neoliberalism has, in short, become hegemonic as a mode of discourse. ³⁸

Perhaps the most important intellectual figure in this development was F.A Hayek, who took special care to emphasize the role of law in protecting property rights and capitalist relationships more generally from political-including democratic-interference. In his work, the two problematic dimensions of liberal thought come together in their most sophisticated form. Hayek conceives of constitutionalism as a necessary prerequisite for the establishment of liberty through order. ³⁹ The paradoxical nature of this is that submission to law and order become a perquisite for freedom. As Wendy Brown put it in her fascinating new book In the Ruins of Neoliberalism:

Freedom for Hayek is not emancipation, it is not power to enact one’s will. Indeed, it is not even choice. Importantly it is also not independence of the traditions generating rules of conduct and the habits of following them. Hayek writes in one of his notebooks ‘restraint is a condition, not the opposite of freedom.’. . .Hayekian freedom, then, has nothing to do with emancipation from accepted social norms or powers. Rather it is the uncoerced capacity for endeavor and experimentation within codes of conduct generated by tradition and enshrined in just law, markets, and morality. Schooled by Edmund Burke, whom he modernizes via Darwin, Hayek marvels that the capacity of tradition to produce social harmony and integration along with a means of change, all without recourse to the coercive agency of institutions or groups. ⁴⁰

Constitutionalism limits the capacity of government to do as it wishes, and thereby establishes the political space necessary to do as one wishes with one’s life and property within a liberal-capitalist society within the parameters established by the rule of law. But it is worth noting that the constitutional order established by Hayek needn’t even be consummated by consent, as was necessary even for someone like Locke through representative government. Instead it was sufficient that constitutionalism functionally operated to preserve what he interpreted as liberty—primarily freedom to participate in the capitalist economy as a laborer or entrepreneur. Nowhere does contemporary liberal concern about the need to protect property rights connect better to a concerns about democracy. Hayek insisted that liberal government didn’t need to rely on tremendous participation on the part of the population. It didn’t even need to involve significant commitments to democratization. ⁴¹ As Edmund Fawcett observed in his excellent book Liberalism: The Life of An Idea, Hayek believed mass democracy would be “deleterious” to economic efficiency since it encourages overregulation and through encouraging governments to interfere with liberty and property through promising “high employment and high wages.” ⁴²

With the election of figures like Thatcher and Reagan in the 1980s, neoliberal thinking and practices largely triumphed over the more egalitarian ambitions of liberals like Rawls. Consequently they reinvigorated classical liberal commitments to inegalitarian property rights and associated efforts to limit democratic rights. This unfortunate development showcases why it is still necessary, despite the efforts of Rawlsians, to go beyond liberalism in developing a conception of rights which can be married to a more progressive project. In the last section of this paper, I will sketch out a preliminary model of rights, which I think could be appealing even to political radicals. My hope is that this preserves many of the best features of liberal approaches, particularly those of socially minded liberals like Rawls, while placing even greater weight on the need for robust democracy and equality. It would also constitute a significant improvement on the intense interest in limiting democracy for property rights shown by neoliberals like Hayek et al.

A Critical Legal Model of Human Dignity Summarized

In a world of democracies, in a world where the great projects that have set humanity on fire are the projects of the emancipation of individuals from entrenched social division and hierarchy; in such a world individuals must never be puppets or prisoners of the societies or cultures into which they have been born.

Linking Dignity and Human Rights

Focusing on human dignity as a capacity for self-authorship can provide the unifying moral idea for a more progressive approach to rights that goes beyond the limitations of liberal discourse and that is committed to realizing social justice. It suggests that enjoying a dignified life means more than just the state refraining from certain actions, as argued by proponents of purely negative liberty, or that dignity can be amplified purely through allowing the capitalist markets to distribute resources in an arbitrary and even exploitative manner. ⁴⁸ Instead, just socio-political and economic institutions must aspire to amplify the dignity of citizens and certain classes of non-citizens such as refugees by expanding the overall index of expressive capabilities they enjoy. This can take the form of upholding a progressive set of rights, which flow from the unifying idea of dignity; dignity is close to being, as Aahron Barak would say, the “mother right” of subsequent daughter rights. ⁴⁹ Two rights in particular are especially important for sufficiently amplifying human dignity. The first is a right to democratic authorship of the laws and processes ⁵⁰ that direct our lives. The second is a right to an equal index of expressive capabilities, except where inequalities flow from morally significant choices one makes. The right to democratic authorship is integrally related to dignity as I frame it because, unlike many of the major proponents of the liberal tradition, ⁵¹ it emphasizes the importance of civic freedom and its relationship to self-authorship. For individuals to be subject to laws and processes over which they have no say is undignified since they are reduced to subjects of authorities rather than deliberative citizens. This also seriously constrains their capacity for self-authorship since they have little capacity to define themselves through redefining the most authoritative contexts within which they exist. This includes both the positive laws of the state, but also the economic processes they work under. Truly amplifying human dignity would entail the further democratization of both the political and economic spheres of life. This has already been partially accomplished politically, with universal suffrage having been attained in many developed states. Though it remains a partial accomplishment, and one under serious threat due to the growing influence of plutocratic affluence in politics. In the economic sphere, democracy has been seriously rolled back since the mid-20th century, with levels of unionization declining and the influence of labor movements on government policy also slipping. Realizing a right to democratic authorship would mean bucking both of these trends and moving toward far more inclusive participation.

The second right is to an equal index of expressive capabilities except where inequities flow from morally significant choices or are necessary to secure the well-being of the least well off. ⁵² This right is meant to capture what is important in the discourse around socioeconomic rights, while justifying them at a more general level. There are several arguments for such a position. Firstly, lacking sufficient expressive capabilities to engage in self-authorship is a serious limitation to their dignity. In more extreme cases, individuals’ lives are so beholden to the false necessity of naturalized socio-political and economic laws and processes that they are effectively treated as little more than means to ends, which they have not set in most aspects of their existence. This is a severe wrong that a progressive approach to dignity and rights could not accept. Following Marx, it results in individuals existing in an alienated relationship to their own existence and only being able to partially or negligibly develop their personality. ⁵³ Secondly, ensuring individuals possess an equal index of expressive capabilities respects except where inequities result from moral choices or are necessary to secure the well-being of the least well off treats them as individuals of comparable moral worth. ⁵⁴ It reflects the longstanding commitment of both rights activists and more egalitarian theorists that each person’s life must be treated as equally valuable, which pushes hard against the claim that intense material inequities are tolerable beyond what is necessary to incentivize the creation of wealth. It also refocuses political and legal attention away from the needs and interests of those of the well off and toward those who are left in destitution. Taken as a whole, respecting the second right would imply that we need to seriously reflect on whether the strong emphasis on property rights shown by the liberal tradition is actually consistent with our considered moral convictions. At its best, liberalism has always stressed the moral equality of all, which runs into stark contrast with its willingness to tolerate their material inequality and even deprivation. The tendency of liberalism, and especially neoliberalism, to ignore inequality is linked to its tendentious and even hostile approach to the very idea of socioeconomic rights. A critical legal model of rights wouldn’t fall into this trap since it would prioritize property far less than dignity for all.

One of the respects in which the second right would be jurisgenerative is that it operates a sufficiently high level of principled generality that it could be realized differently in a variety of different socio-historical contexts. This is also where the second right is linked to the first, which emphasizes democratic authorship and civic freedom. Democratic authors would deliberate with one another about which inequalities in expressive capabilities were the most important to address given their histories, ways of living, and material conditions. ⁵⁵ This could extend to concretizing the second right to an equality of expressive capabilities through generating more specific “daughter rights” in positive law. ⁵⁶ These positive daughter rights would be less general than the twinned rights, but helpful in specifying what is necessary for individuals in particular contexts to fully enjoy lives of dignified self-authorship.