Social Rights
| Author | Fernando Atria |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| DOI | http://doi.org/10.1177/0964663915617860e |
| Subject Matter | Dialogue and Debate |
Social & Legal Studies 24(4)
Even in affluent societies, poor people and minorities rarely enjoy to the full the rights to
which they are legally entitled.
22. They are ‘more redistributive’ relative to current allocations of wealth and income. But we
should recall that what we now think of as ‘private property’ is the outcome of redistributive
allocations occurring much earlier in time, transforming common collective goods – such as
land – into private ones.
23. The politics of inequality – not the absence of economic wealth – explains why a rich society like
the United States grants its citizens fewer social rights than other comparably wealthy nations.
References
Atria F (2015) Social rights, social contract, socialism. Social and Legal Studies 24(4): 598–613.
Durkheim E (1997) The Division of Labour in Society. New York: Free Press.
Esping-Andersen G (1990) Three Worlds of Welfare Capitalism. Princeton: Princeton University
Press.
Garland D (2015) On the Concept of ‘Social Rights’. Social and Legal Studies 24(4): 622–628.
Holmes S and Sunstein C (1999) The Costs of Rights: Why Liberty Depends on Taxes. New York:
Norton.
Keat R (2015) Individual rights as social rights. Social and Legal Studies 24(4): 618–621.
Marshall TH (1963 [1949]) Citizenship and Social Class in Sociology at the Crossroads and other
Essays. London: Heineman.
Moyn S (2010) The Last Utopia: Human Rights in History. Cambridge: Harvard University Press.
Social Rights: A Reply
Fernando Atria
Universidad Adolfo Iba´nez, Chile
‘All rights are social’ seem to be the common thread running through the three com-
ments. 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
Atria
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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. Inter-
preted 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 sub-
stantive 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 Ho¨ffe’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 individ-
ual 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 indi-
vidual lives. Thus ‘private’ law can be private even if it is ‘public’ in Garland’s very gen-
eral 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...
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