Abstract
One major objection to social rights is a failure of determining which precise social and economic claims should be granted rights status. The social rights debate has grappled with this ‘indeterminacy problem’ for quite some time, and a number of proposals have emerged aimed at fixing the content of these rights. In what follows I examine three distinct approaches to fleshing out the idea of a minimum threshold: social rights as the fulfilment of basic needs, social rights as the securing of a minimally decent life and social rights as a requirement of citizenship (a civic minimum). Each of these proposals progressively expands on what the minimum threshold of social rights requires and, conversely, what obligations they generate on part of the state. I will show that none of these approaches is entirely satisfactory and suggest that the social rights debate look elsewhere to determine its content.
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Notes
Throughout this article I use the short form ‘social rights’ to refer to social and economic rights without any further distinction.
The arguments in this paper do not presume, nor depend on, denoting social and economic rights as positive rights and civil and political rights as negative rights, respectively. Here I deliberately bypass the notorious debate on the conceptual and normative distinction between positive and negative rights.
Hohfeldian rights as claims (‘right in the strictest sense’) are defined as follows: A has a claim against B to p which correlates with the duty of B to A to p (Hohfeld 1913, pp. 30–32).
See General Comment 3 of the United Nations Committee on Economic, Social and Cultural Rights, ‘The Nature of States Parties Obligations’, UN Doc. E/1991/23 (1990). Typically, the obligations that states must satisfy in order to respect socio-economic rights are threefold: the duty to respect, which requires states to abstain from interfering with people’s exercise of a right; the duty to protect, which requires states to prevent human rights violations by third parties; and the duty to fulfil economic and social rights, which requires states to provide or facilitate access to certain social goods (see further Shue 1980).
Saladin Meckled-Garcia (2013), for instance, constructs an alternative account of human rights focused on minimum respectful treatment instead of entitlement to a minimum amount of some good or a minimum interest that needs to be satisfied. For Meckled-Garcia (2013, p. 74), ‘minimum content rights are not justifiable in political communities because they prescribe minimal rather than fair shares’, whereas social rights are relational claims to ‘fair distributions of benefits and burdens’ (Meckled-Garcia, 2013, p. 84).
We could designate the first interpretation as ‘sufficientarian’ and the second as ‘egalitarian’, with radically different implications for the practical determination of the scope and content of social rights. I return to this point below.
The determination of the content of social rights is a separate problem from the legal adjudication of these rights (Morales 2015, pp. 104–108). Here I only focus on the indeterminacy problem.
I thank a referee for this journal for pressing me to clarify this point.
A brief account will have to do for reasons of insufficient space. A fuller development is presented in Morales (2015) and is also the topic of a companion article currently in preparation.
It also features prominently in the social justice literature. For the relation between needs and rights, see e.g. Miller (1976, pp. 122–153).
This issue bears some similarity to the problem of determining the threshold of sufficiency for sufficientarianism (Casal 2007, pp. 312–314). However, generally speaking, we should not confuse basic needs approaches with sufficientarianism: while some versions build on the notion of basic needs (Huseby 2010, p. 180), others resist this move (Shields 2012).
Raz uses housing (to be discussed below) as an example of a case where satiability applies, but it is debatable whether housing is really satiable once we consider how our notion of what a decent dwelling requires has changed over time (e.g. indoor plumbing).
UN Committee on Economic, Social and Cultural Rights. General Comment 14: The Right to the Highest Attainable Standard of Health. Geneva, Switzerland: United Nations: 2000. UN Document E/C.12/2000/4.
Sandra Liebenberg holds that ‘to value the inherent dignity of human beings as a society is to ensure that people enjoy civil and political liberties and also have effective access to the social and economic means indispensable to the development of their physical, emotional, creative and associational capabilities’ (Liebenberg 2005, p. 7). In this regard, Liebenberg favors Nussbaum’s project of developing a list of central human capabilities because ‘access to socio-economic rights is not simply a matter of bare survival’ (Liebenberg 2005, p. 8, emphasis added). However, to the extent that capability theorists themselves continue to argue which capabilities ought to be regarded as central, the indeterminacy challenge remains. Amartya Sen (1992, p. 333, note 1) regards ‘how the exact lists and weights would be chosen without appropriate specification of the context of their use (which could vary)’ as a major problem. For further criticism of Nussbaum’s capability approach, see Dorsey (2012, p. 19–22) and Robeyns (2016).
David Miller (2007, pp. 181–184) similarly distinguishes between ‘basic needs’ and ‘societal needs’, where the former is to be understood as ‘the conditions for a decent human life in any society, and the latter as the more expansive set of requirements for a decent life in the particular society to which a person belongs’, Miller 2007, p. 182). Miller’s distinction explains why basic needs and adequate resources for a decent life warrant a separate analysis. I am grateful to a reviewer for pressing me on this point.
This criterion also appears to accommodate the idea of the progressive realization of social rights under the ICESCR.
This is a controversial issue I have discussed at length elsewhere (Morales 2015, pp. 85–92). Briefly, some hold the view that a lack of resources denies the existence of a state’s obligation to meet a social right. In my view this objection does not work because it is plausible to argue that someone has a right and, correspondingly, the state holds an obligation, even when the latter cannot satisfy her obligation. It may be that a government has a legitimate excuse for not fulfilling its obligation, but this does not imply that a person has no right.
This view relies on the conceptual distinction between a right and its protection. For example, Ross (1959, pp. 197–198) denies a ‘necessary or natural connection’ between the content of a right and its protection. The function of the legal order is to establish institutional mechanisms aimed at ensuring what Hart (1982, p. 171) describes as the ‘protective parameter of claim-rights’. Importantly, the absence of these protective mechanisms does not imply the non-existence of the right. I develop this argument more fully in Morales (2015, pp. 104–106).
Rawls (2001, p. 127, note 47) explicitly acknowledges Waldron’s consideration of the problem of social minimum when discussing the ‘principle of restricted utility’.
Waldron’s proposal highlights the importance of the ‘strains of commitment’ that apply to all participants in the social contract (Waldron 1993b, p. 262). According to Rawls, the parties to the social contract ‘cannot enter into agreements that may have consequences they cannot accept’ (Rawls 1971, p. 176).
The discussion of the Rawlsian social minimum was originally published as Waldron (1986), but the additional remarks only feature in the revised version of the 1993 reprint.
I have developed these points in more detail in Morales (2015, pp. 312–328).
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Acknowledgements
I am grateful to Jurgen De Wispelaere, Jorge L. Rodriguez, Hugo Seleme and Daniel Weinstock for helpful discussion and comments. This article was supported by the McGill Institute for Health and Social Policy (IHSP) and a Yale-Hastings Program in Ethics and Health Policy Visiting Fellowship.
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Morales, L. The Discontent of Social and Economic Rights. Res Publica 24, 257–272 (2018). https://doi.org/10.1007/s11158-017-9353-6
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DOI: https://doi.org/10.1007/s11158-017-9353-6