Social Rights and Complex Freedom
| DOI | 10.1177/0964663915617860b |
| Author | John Holmwood |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| Subject Matter | Dialogue and Debate |
Social Rights and
Complex Freedom:
A Comment on
Fernando Atria
John Holmwood
University of Nottingham, UK
At the start of his thought-provoking article, Fernando Atria poses the question:
Is the difference in the available institutional means of protection of rights to be explained
by the different structure of social rights vis-a`-vis individual rights, or is it a mark of the
political devaluation of the former when compared to the latter?
By posing the question in this way, Atria presents it as an issue of the formal (equal)
status of individuals as bearers of rights and substantive limits upon the expression of
those rights. Individual rights are primary, whilst social rights appear as external. They
are not regarded as integral to the realization of the individual and, therefore, are not per-
ceived as a product of the same processes. Further, ‘institutions’, too, 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. Insofar as the indi-
vidual is understood in terms of capabilities (e.g. see Sen 2009), then it is the individual
capable of property that is the focus of attention with contract thereby naturalized (and
its social character veiled). Social struggles may have secured some justiciability of
social rights, but, for Atria, this is always a weak foundation precisely because individual
rights are differently enshrined, following from bourgeois law’s commitment to the
maintenance of private property as their expression.
This ‘problematic’ of individual (negative) freedom and social (positive) freedom,
which Atria is challenging, is, of course, long-standing in political philosophy and jur-
isprudence. A large part of the article is taken up in the demonstration of difficulties
in its instantiation in the work of Ho¨ffe (1995, 2007). Whereas negative freedoms are
held to be universal, positive freedoms, for Ho¨ffe, must always, be context specific in
that they depend upon the availability or resources and differential cultural definitions
(including, perhaps, those associated with the special subcultural values of elites, a topic
to which I will return!). Atria powerfully develops the way in which social rights become
neutralized to a ‘safety net’ formulation, where the cooperative understanding that prop-
erly should be regarded as integral to them is recast in contractarian terms and reduced
instead to a form of self-interest.
The issue is, in part, the extent to which social rights complete, or make real, individ-
ual rights or the extent to which they must be subordinated to them. Atria makes a gesture
614 Social & Legal Studies 24(4)
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