Social Rights, Social Contract, Socialism
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| Author | Fernando Atria |
| DOI | 10.1177/0964663915617860a |
| Subject Matter | Dialogue and Debate |
Social & Legal Studies 24(4)
Social Rights,
Social Contract, Socialism
Fernando Atria
Universidad Adolfo Iba´nez, Chile
Are there structural differences between the so-called ‘social rights’ (or positive freedom
rights) and individual rights (or negative freedom rights)? The relevance of this question
is explained by the fact that traditional forms of judicial protection of fundamental or
constitutional rights used to be restricted to ‘individual’, but not ‘social’, rights. Accord-
ing to what is the dominant position, at least in Latin America, this restriction was always
arbitrary, a consequence of a political devaluation of social rights. The solution, at least
for leftist legal thought, is to extend the judicial protection of rights to social rights. But is
it correct to say that the non-justiciability of social rights can only be understood as a
devaluation of such rights? Or to put it in other words: 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?
To put the question in a different way: Why is it the case that individual rights are to
be protected judicially, but social rights are to be interpreted as mere ‘programmatic’
declarations, which are to be realized (or defeated) in the political arena? The reason,
progressive constitutional scholars tell us, is not a structural difference between these
two kinds of rights; it is rather a political decision that we can nowadays call ‘neo-
liberal’,1 in which the ideas of equality and liberty are interpreted only in formal terms.
Since social rights are concerned not with the formal status of individuals but with the
substantive content of citizenship, a neo-liberal theory must conclude that declarations
of social rights are to be understood as expressions of good will, not as ‘hard’ rights.
From this perspective, the Left must fight for social rights, and the first battle is to guar-
antee that social rights receive the same institutional importance as individual rights do
meaning in particular the same judicial actionability. And in this, leftist constitutional
scholars have been tremendously successful because the justiciability of social rights
is now, at least in Latin America, taken for granted. And in the (few) cases in which
it is still the case that they are not, this is widely seen by the Left as a notorious ideolo-
gical (neo-liberal) imbalance.
I think this is a serious mistake. Judicial institutions can protect individual rights more
effectively than social rights because the latter imply an understanding of citizenship that
is incompatible with bourgeois law, whilst the former are its most perspicuous manifes-
tation. Thus, traditional forms of bourgeois law cannot contain social rights.
One could say that this ‘theoretical’ idea has been refuted in practice. For today, social
rights are in fact protected by the very actions that were purportedly incompatible with
this kind of rights. If the claim is that something is impossible, what can provide a more
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complete refutation that the fact that it has happened? The issue, however, is not that
simple. The thesis I want to develop in this article is that bourgeois law can protect social
rights through its traditional forms of legal protection, but in doing so, it will inevitably
transform them into bourgeois (individual) rights. That is to say, the cost of subsuming
social rights under bourgeois law is to de-socialize them.
Social and Individual Rights: The Differences
Ho¨ffe’s List of Differences Between Rights
This is why it is important to distinguish a socialist critique of the current understanding
of social rights from other liberal critiques of social rights. To this end, we will begin by
considering one of the latter, as formulated by Ottfried Ho¨ffe.
Ho¨ffe believes that social rights (he calls them ‘positive freedom rights’) and individ-
ual rights (‘negative freedom rights’) are different, not only in their content. Indeed, such
a difference is fundamental and implies a kind of ranking order between individual and
social rights. (Ho¨ffe, 2007: 47) The difference is that negative freedom rights are, as
such, indifferent to cooperation, and positive freedom rights, by contrast, are dependent
on cooperation. (Ho¨ffe, 2007: 47) From this fundamental difference, according to Ho¨ffe,
stem many others.
In the first place, as indicated by Ho¨ffe’s labels, individual and social rights are distin-
guished insofar as the former are negative, whereas the latter are positive. The content of
social rights is not a set of negative provisions (‘thou-shalt-no’ rights) but positive provisions
to food, clothing, shelter, healthcare and education, to mention a few. (Ho¨ffe, 2007: 47)
Secondly, social rights depend on available resources, and thus their content can be
affected by scarcity. This implies that the demands they ground could be defeated by lack
of resources, whilst negative freedom rights are invulnerable to economic vagaries: ‘With
the exception of self-defence, it is always the case that those who kill violate a human right’.2
This second difference implies a third one: the content of social rights is dependent
upon economic development and culture in a way that negative freedom rights are not:
‘social rights are dependent on culture as well as resources.’ (Ho¨ffe, 2007: 47)
The currently predominant thesis, which understands itself as ‘progressive’ and is, at
least in Latin America, virtually unanimous, rejects Ho¨ffe’s differences, arguing that
they pertain to the superficial grammar of rights. In my view, this is correct. Today’s
‘progressives’ are right in thinking that Ho¨ffe’s differences do not justify the conclusion
that we are dealing with a structurally different kind of rights. Thus, these differences are
either non-existent and appear plausible only when adopting an unnecessarily and unjus-
tifiably narrow perspective or are not structural differences but differences of content.
And what matters is not whether social and individual rights are different regarding their
content because they obviously are. The point is whether there are deeper, structural dif-
ferences that imply institutional consequences.
But though progressives are right in rejecting Ho¨ffe’s grounds for distinguishing
kinds of rights, I believe Ho¨ffe is right in holding that they are indeed different. Precisely
because we encounter here an important difference, we must endeavour to locate it cor-
rectly. We must thus begin by explaining why the traditional differences, accurately
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Social & Legal Studies 24(4)
explained by Ho¨ffe, are to be discarded. The point of this is not to show that there are no
differences between social and negative freedom rights that they must be abandoned.
Indeed, the opposite is true. We must show that Ho¨ffe’s differences are superficial that
they do not account for what social rights represent because the real, political difference
is to be rescued and defended. Ho¨ffe believes that he can explain social rights within a
contractualist theory of justice. In reality, social rights expose the limits of contractual-
ism as such; or, to put it in a more provocative way, they show why a contractualist (or,
what is the same, liberal) theory of justice must be abandoned.
Differences That Belong to the Surface Grammar of Rights
The differences that Ho¨ffe finds between social rights and negative freedom rights are
evident; that is, they are entirely apparent. A reply to Ho¨ffe must be capable of account-
ing for them.
To begin with, the distinction between negative rights and entitlement to benefits,
although evident, depends to a certain extent on the language used to describe the actions
that comply with or infringe them. Every action can be described as an omission. But
additionally, it is simply false to claim that negative freedom rights require only an omis-
sion. It is important here to distinguish good and bad arguments to substantiate this claim.
A traditional argument to show that the action/omission distinction does not correlate
with the social/individual rights distinction is that certain individual rights also require
the state to act in a certain way; for instance, the right to due process implies that the state
must do whatever needs to be done to guarantee due process. (e.g. see Kelley, 1988: 23–
29) In my view, this argument is spurious. The right to due process is a negative freedom
right, that is, a right to non-interference. It enumerates the conditions with which the
actions of the state must comply so that it can interfere with an individual’s action with-
out such interference counting as an infringement of the individual’s negative freedom.
Generalizing, I am sceptical of the idea that one can show Ho¨ffe’s mistake by way of
searching for negative freedom rights that require the state to act in a certain way. I
believe the objection is more radical and can be easily articulated in the language of
criminal law. For, in criminal law, it is fairly clear that one can commit a criminal
offence legally described in active terms by refraining from certain actions. Criminal law
distinguishes between ‘improper omission’ crimes, or crimes of ‘commission by omis-
sion’, and ‘crimes of mere omission’ (breach of a duty to act) (see Fletcher, 2000, section
6.4.1). The latter are crimes that are legally defined as omissions, thus imposing a duty to
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