On the Concept of ‘Social Rights’
| Date | 01 December 2015 |
| DOI | 10.1177/0964663915617860d |
| Published date | 01 December 2015 |
| Author | David Garland |
| Subject Matter | Dialogue and Debate |
On the Concept
of ‘Social Rights’
David Garland
New York University, USA
Contemporary conceptions of social rights tend to be prospective and aspirational rather
than grounded in the law as it actually is. Central to these conceptions – and to Fernando
Atria’s essay here – is TH Marshall’s celebrated vision of a developmental history in
which civil rights,political rights and, ultimately, social rights are successively won
by democratic forces struggling to reduce the power of social class and private property
(Marshall, 1963 [1949]). Because their enactment has proved more elusive in fact than in
theory, talk of ‘social rights’ often refers to future possibilities rather than to existing
legal entitlements: to a coming phase of historical progress in which free access to basic
economic and social goods will be an established human right for everyone rather than to
welfare law as it exists today.
This is not how contemporary history was supposed toturn out. Social rights discourse
wasprominent in the creationof egalitarian welfarestates in post-war Europe;in movements
to empowerwelfare clients in 1960s America;and in late 20th-centurytransitions to democ-
racy in Latin America, South Africa and Eastern Europe. Rights to economic security, to
education,to healthcare, to housing,to adequate standardsof living: all these andmore were
the characteristic demands of 20th-century social movements. Social rights talkwas espe-
cially prominent in the post-war years as Western nations struggled to reconstruct their
economiesand to create a democraticsocial contract that wouldnot again unravel in the face
of economicdepressionand mass unemployment.Social and economicrights featured in the
Beveridge Reportof 1942 and in the British government’swartime social pact with its cit-
izens.They were at the core of President Roosevelt’sSecond Bill of Rightsin 1944 and of the
InternationalLabour Organization’s Declaration of Philadelphiath e same year. They fea-
tured in the Charterof the United Nations that was signed in 1945 and again20 years later
when the International Covenant of 1966committed its signatories towork towards estab-
lishingan extensive list of economic,social and culturalrights. And in the decadesfollowing
World War Two,the new welfare states in theadvanced nations did in factestablish a num-
ber of rights of this kind, providing certain goods and services – such as education and
healthcare – to citizens on a de-commodified, as-of-right basis.
But rather than mark the beginning of a historic wave that established comprehensive
social rights as a concomitant of citizenship, these post-war decades marked the high
point of a movement that has since receded. In the decades of neo-liberalism, privatiza-
tion and austerity that followed the 1970s, many of the benefits and social services of
established welfare states have become conditional, selective and means tested rather
than as of right. Meanwhile, in the developing world, where welfare states remain frag-
mentary and underdeveloped, social rights have mostly remained a matter of
622 Social & Legal Studies 24(4)
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