to “dilute” traditional CP rights by “mixing in a new category of what people now call social and economic rights.” The article argued that “no useful purpose is served by calling [food, housing, and so on] ‘rights.’ When a government locks someone up without a fair trial, the victim, perpetrator, and remedy are pretty clear. This clarity seldom applies to social and economic ‘rights.’ It is hard enough to determine whether such a right has been infringed, let alone who should provide a remedy, or how.”37 As noted, the editorial’s argument that ESC rights are fuzzy “programmatic” rights that elude judicial remedy ignores the last two decades of jurisprudence and legal and constitutional reforms in many countries, as I discuss further in later chapters.
However, perhaps even more important for our purposes now, the concept of human rights that the Economist editorial advocates—one that is widely understood in public discussions—limits human rights to a very palliative role in the regulation of power. The narrow liberal approach to human rights set out in the Economist—identifying a violation, a perpetrator, and a remedy—assumes an underlying state of equilibrium in a society in which all citizens are free and equal, as discussed in Chapter 1.38 The violation upsets the equilibrium; the remedy restores it. Think of the Quijano torture case, in which bringing the perpetrators to justice theoretically restores the equilibrium. Of course, far more is required in practice, and the Quijano case illustrates how the institution of the PJF had to be reformed, and indeed still needs to be. This paradigm, which has been widely used in the human rights movement—of identifying a violation, perpetrator, and remedy—is thus not really appropriate for creating or describing the sustained systemic change needed with regard to CP rights.
But in the case of health and other ESC rights, we are definitely not seeking to return to a status quo ante in a fixed society, with fixed rules about income and how resources are allocated. Think back to Article 28 of the UDHR, discussed in the Introduction, which sets out a right to “a social and international order in which the rights and freedoms set forth” in the Declaration can be fully realized.39 Such a social (and international) order requires that progressively realizing the right to the highest attainable standard of health for diverse individuals and groups will necessarily involve evolving claims about what we owe each other as different, but fully equal, human beings. The responsibility of the state to meet these demands of distributive justice suggests not only flux but also contestation, which requires legitimate, democratic processes to resolve. In this conception, rights cannot be understood as immutable constraints on government action, as they are in a narrow liberal construction; rather, rights constitute social practices that create spaces for vital social deliberation on how to arrange social institutions to meet population needs, especially of the most disadvantaged.
Examining Assumptions About the State, Society, and Justice
In the aftermath of the global recession that began in 2008, austerity policies and state retraction from social services has become the norm—even in social democracies across Europe, where certain entitlements to social welfare had seemed unquestionable. National courts and international human rights treaty-monitoring committees are increasingly being asked to assess whether policies that appear to imply retrogression, or backsliding, with respect to social entitlements, have been implemented in reasonable and proportionate ways, with adequate protections for the most disadvantaged.40
In some cases, politicians seem to reflexively accept the politics of scarcity and austerity because of a failure of imagination, while in others there is a glorification of the “minimal” or laissez-faire state as being the ideal. The latter generally argue that using the power of the state to redistribute wealth through fiscal powers and regulation is not only inefficient but also unjust because it interferes with peoples’ liberties. Thus, again, neoliberal economic positions are closely aligned with a libertarian, or at least narrow liberal, version of rights and the state.
The problem with this argument is that there is no “natural” or neutral distribution of wealth in a society; what a person ends up with in terms of resources will always depend on a combination of personal talents, parental heritage, luck, and the laws in the country in which he or she lives.41 I believe it is a mistake for human rights advocates to argue for redistribution of wealth through taxation as though it were a form of humanizing the underlying economically rational situation. This always puts ESC advocacy in a remedial or “defensive” posture. On the contrary, the distribution of wealth and privileges within a society and across societies is the result of socially created customs, laws, and regulations that permit and entrench those distributions, including ones that favor market expansion and limit social protections, including for people living in extreme poverty. Friends in Nordic countries have told me that they in no way feel that high rates of taxation are “taking something” from them; they had no “right” to that wealth to begin with.
Compare, for example, how much wealth is inherited in the United States—and elsewhere. The rate at which estate taxes are set and what the loopholes are determine a great deal of inter-generational wealth—and, in turn, of prospects for the future. Yet in the United States and across many societies, legal rules and social norms foster the belief that a child of someone who has become very wealthy during his or her lifetime has some inherent claim to that wealth as a matter of right. Many children of inherited wealth tend to internalize some degree of superiority, as though the world were theirs and they were entitled to more from life than the poor. Children who grow up in severe poverty, in turn, tend all too often to believe the converse. But that need not be the case.
Indeed, in a human rights framework that establishes obligations to respect the equal dignity of all people, it should not be. As the late legal philosopher Ronald Dworkin wrote: “A laissez-faire political economy leaves unchanged the consequences of a free market in which people buy and sell their product and labor as they wish and can. That does not show equal concern for everyone. Anyone impoverished through that system is entitled to ask: ‘There are other more regulatory and redistributive sets of laws that would put me in a better position. How can government claim that this system shows equal concern for me?’”42 Moreover, as Cass Sunstein points out: “Those who denounce state intervention are the ones who most frequently and successfully invoke it. The cry of laissez faire mainly goes up from those who, if really ‘let alone,’ would instantly lose their wealth-absorbing power.”43 All politics are coercive, and it is most often the powerful who benefit from the way in which a given state is choosing to exert its regulatory power.
This need not be our understanding of the conditions necessary to exercise rights and live with dignity. For example, the Colombian Constitutional Court has articulated that the “social state of law” (estado social de derecho) set out in its 1991 constitution was formulated as it became clear “the extent to which human beings are not really free or equal due to natural and social limitations, among which the economic ones stand out. The realization of freedom and equality require measures, actions, entitlements and services that a person by herself cannot achieve. The democratic state thus evolved from a liberal democratic state to a social democratic state, animated by the purpose of ensuring that the material prerequisites of freedom and equality are effectively guaranteed.”44 Similarly, the South African Constitutional Court, writing of the commitments undertaken through its visionary 1994 constitution, stated: “Millions of people are living in deplorable conditions and great poverty…. These conditions already existed when the Constitution was adopted and a commitment to address them and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.”45 And as early as the 1970s, the Indian Supreme Court stated, “The mandate of the Constitution is to build a welfare society in which justice—social, economic and political—shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met.”46
