Debating Social Rights

Conor Gearty, Virginia Mantouvalou

• Publisher: Hart Publishing
• Year: 2010
• ISBN:
  9781847317438
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

'Debating Law' is a new series that gives scholarly experts the opportunity to offer contrasting perspectives on significant topics of contemporary, general interest. In this second volume of the series, Conor Gearty argues that for rights to work effectively in the wider promotion of social justice, they need to be kept as far away as possible from the courts. He acknowledges the value of rights language in legal and political debate and accepts that human rights are not solely civil and political, with social rights language clearly having a progressive, emancipatory dimension. However he says that lawyers - even well-intentioned lawyers - damage the achievability of the kind of radical transformation in the priorities of states that a genuine commitment to social rights surely necessitates. Virginia Mantouvalou argues that social rights, defined as entitlements to the satisfaction of basic needs, are as essential for the well-being of the individual and the community as long-established civil and political rights. The real challenge, she suggests, is how best to give effect to social rights. Drawing on examples from around the world, she argues for their 'legalisation', and examines the role of courts and the role of legislatures in this process, both at a national and a international level.

Against Judicial Enforcement

Conor Gearty

I. INTRODUCTION

I START with the three propositions that lie at the core of my approach to social rights, a term that I understand to mean the kinds of social and economic entitlements that are to be found in the international human rights documents (on which more presently). The first assertion is that this idea of social rights is in itself valuable, that such entitlements deserve not just our protection but also to be respected and promoted. (The same may be true of cultural rights which are also protected in international law, but which are not my focus here.) My second claim is that the value of this notion of social rights lies principally in the political arena, this being the world in which the good that these words do can be best concretised or (to use a more bucolic image) most fruitfully deployed. Third, and following directly from this second assertion, the least effective way of securing social rights is via an over-concentration on the legal process, with the constitutionalisation of such rights being an especial disaster wherever it occurs. Such a move turns the whole subject over to its falsest of false friends, the lawyers, a community which (in this context and however generally well-meaning) amount to little more than an array of pseudo-politicians on the look-out for short-cuts to difficult questions and for ways of plying their trade that are more agreeable to their ethical selves.

Each of my three propositions stimulates in turn the three questions around which the narrative that follows will revolve: Why do we care enough about people we have never met to say that they have a right to the (wide-ranging) sorts of things that we say are entailed in recognising their social rights? What value is there in using the language of entitlement and obligation (that of ‘social rights’) in a discourse—the political—which is so wedded (practically by definition) to the ephemeral, indeed (not to go too far) to the inherent transience of truth? And finally, if we are required to be mistrustful of lawyers while at the same time acknowledging that law does matter, indeed is vital to the enforcement (and therefore the realisation) of political will (which is not disputed), how can we tame the lawyers, buckle their wildness and harness them to good social effect?

In the contribution to the debate about social rights which follows, I will often seem to have it in for lawyers in general, and for the social rights litigation-enthusiasts among them in particular. This is the opposite of the truth. Such lawyers are often marvellous people, fiercely bright, immensely well-educated, attractively confident about their judgments, and driven by a zeal to do good which they see (and rightly see, from their point of view anyway) as marking them out from the commercially-driven types by whom they are surrounded. They want to make the world a better place and are determined to use their professional skills to do so. It is not their motive that is disturbing but rather the tools that they choose for the job. Law is simply not good at securing the kinds of changes we need to make if we are serious (as we ought to be) about embedding social rights in our culture. It is politically insensitive and sociologically illiterate, and no end of excellence on the part of its well-meaning practitioners can change these brute facts. There will be more on the lawyers later, but first we need to clear some ground by identifying why our subject matters and why politics is central to its success.

II. WHY CARE?

In times past it was easy to grasp why we both care for others and ought to care for them: it was God’s direction. This was so whether or not we rooted our faith in Christianity, in Islam or in one or other of the religions of the world. Each of these ancient structures of belief shares the characteristic of exhorting us to be good, not only to our families and friends (which is easy) but to strangers as well. For those who still take this faith-based approach to the world, social rights may not be necessary—other words and phrases being able to do just as well—but they do come easily as a neat and conveniently contemporary way of capturing one of the terrestrial offshoots of our God-ordained responsibility. The Pope regularly attracts opprobrium in the secularised West for his criticism of ‘gay marriages’ and of laws prohibiting discrimination against homosexuals, but such incendiary remarks are usually accompanied by sentiments about social justice and human rights that make him seem like a traditional social democrat (albeit these are usually drowned out in the furore that his other comments cannot help but generate).¹ The same is often the case with Islam, whose stipulations on charity rarely receive the same attention as the line taken by this or that radical mullah on military jihad.

In truth, much of the Global North has secularised to the point where its peoples are either disengaged from traditional religion or (even if they are not) are not inclined any more to allow religious duty and practice to define their conduct in the public space. This is not to say that faith-perspectives have no say in these societies—Britain has an established Anglican church and the European Union provides plenty of evidence of its Christian origins, while great numbers of Americans are rigorously evangelical in their approach to life. Rather it is to acknowledge that right conduct is no longer determined solely or exclusively by religious attitudes, that a gap has opened up between what (if anything) people believe and the content of the law that regulates how they behave. This leaves an ethical space that needs to be filled when it comes to identifying motives for public action in this kind of post-religious environment, particularly when the conduct being sought to be supported and explained involves reaching out to (and assisting) strangers.

Secular society has always had great difficulty with absolutes of any sort, a scepticism that extends to a reluctance to explore any of the supposed ethical foundations that might lie at its core. The inclination to feel for others, to care about their situation and to act to improve their lot has survived the decline of religion in such cultures—it is fair to say that the people of such places display strong humanitarian concerns, many of them engaging in good works around the world, responding with generosity to disaster appeals and supporting large-scale campaigns, such as those recently aimed at debt relief and poverty reduction in the developing world. To such people, the idea of ‘social rights’ as the encapsulation of the entitlement that others have to their acting in this way comes perfectly naturally. It may be that this is just the death rattle of organised religion, likely to wither away completely as the memory of what faith-based moral duties once necessitated is gradually forgotten. Or something else might be going on, something deeper and more fundamentally part of what is entailed in our being human, of which religion is not the source so much as one of its possible reflections, and is now, as religion is gradually superseded, being increasingly expressed in the language of human, and particularly social, rights.

The temptation is to say that the capacity to care and the act of caring reflects an intuition about right behaviour that is at the very core of our humanity, and that this explains their universality across the world and their persistence in the face of large-scale cultural change.

A. Doing What Comes Naturally

After decades in the doldrums, when all was thought to be constructed and the human mind a mere creature of the social forces into which the body containing it was born, the power of this kind of intuitive thinking has been making something of a comeback. Its attraction lies in its link to human nature, that we think certain things because of what we are, not how we have happened to have lived, that, as Chris Brown recently put it, what people want is ‘deeply embedded in their nature as human beings’.² This can be made into an attractive ally of the caring characteristic: many of us want to care for others, feel compelled to do so in a way that seems to flow not from any conscious decision but simply from how we are. However in saying this, how can we know that we are doing more than buttressing what is merely a point of view about the rightness of caring by these appeals to nature: ‘it makes sense because we are hard-wired for it’? And if we dodge that hurdle, are we not at very least making the classic error of deducing an ‘ought’ from an ‘is’, saying this is what we are, so therefore this is also how we ought to be; ‘we are hard-wired for it, so it must be right’?

Whatever its origins, the power of the human mind has turned this intuition about the rightness of caring into a whole philosophical system. There are several large schools of post-Christian European thought devoted to producing the end-result that we should behave well towards our fellow humans, that is do exactly as Jesus said we should but without relying on him (or is that Him?) for authority. Though they differ radically on what this assumption entailed, both Immanuel Kant and Karl Marx shared this starting point about the integrity of the person qua person, and there are many others. A very good recent example is the capabilities approach pioneered by Amartya Sen and Martha Nussbaum, one of the liveliest and most persuasive of the theoretical analyses of morality in a non-religious setting, and incidentally an approach that—as we shall see presently—speaks directly and convincingly on the issue of social rights. According to Nussbaum, the ‘basic intuitive idea’ from which all else flows is ‘a conception of the dignity of the human being, and of a life that is worthy of that dignity—a life that has available in it “truly human functioning”. . .’³ With ‘this basic idea as a starting point’, Nussbaum goes on to identify and justify ‘a list of ten capabilities as central requirements of a life with dignity’.⁴ Precisely how many there are or what exactly they entail is not central to the discussion at this juncture: what is important is to see how these capabilities capture many of the interests that are traditionally reflected in the language of religion, while at the same time transcending the institutional baggage and power structures of such faith-based organisations. So, it is not at all surprising that some of Nussbaum’s fundamental capabilities reflect the drivers behind the urge to care: the capability of ‘emotions’, for example, with its focus on being able to develop attachments, and the capacity (under ‘affiliation’) ‘to recognise and show concern for other human beings’.⁵

The moral force in all this is entirely clear to her and to those who adopt her approach:

The idea of capabilities all on its own does not yet express the idea of an urgent entitlement based on justice. However, the capabilities approach makes this idea of a fundamental entitlement clear by arguing that the central human capabilities are not simply desirable social goals, but urgent entitlements grounded in justice.⁶

But why are these goals even desirable, much less obligatory? Why care about justice at all? What is persuasive about it to those who do not feel as Nussbaum does, those who resist pushing the dignity of all to the forefront of their minds, who are happier with self, kith and kin? Here the work trails off a bit, back into intuition and into a kind of post-religious hyperbole about ‘its starting point’ being rooted in ‘a basic wonder at living beings, and a wish for their flourishing, and for a world in which creatures of many types flourish’.⁷ The capabilities approach ‘wants to see each thing flourish as the sort of thing it is’⁸ and this is why it pushes for cooperation, the best means available of securing the ‘prevention of the blighting of valuable natural powers’.⁹ But can this mix of a secular Sermon on the Mount, St Francis and a kind of pantheistic Darwinism pull off the trick of turning what we all agree we would like to see into something that ought to happen as a matter of right?

Clearly there is more to the human species—indeed to any species—than an instinct to support others, but it is surely right that such an inclination does exist and unravelling it further can drive us closer to the core of Nussbaum’s sense of wonder, in the process telling us more about why we care, and therefore (as we shall see) about the importance of social rights, the formula through which (not to anticipate too much) care is articulated in much of the secular world today.

If we think of ourselves not as members of a special species but as each composed of a bundle of genes on the look-out for survival, then it by no means follows that in this field we have to commit ourselves to the rather loaded idea of the ‘selfish gene’—there are many routes to survival and not all of them are marked ‘me alone’. The way we are is not all self-oriented: as Adam Smith put it in 1759:

How selfish soever man may be supposed, there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it, except the pleasure of seeing it.¹⁰

What Darwin allows us to do is locate an insight of this sort within science and then see it as part of an animal (rather than uniquely human) approach to living. Far from being something spilt into us at birth from which we then learn how to behave, ‘the building blocks of morality’ are—as the great primatologist Frans de Waal put it in his Tanner lectures—‘evolutionarily ancient’.¹¹ Here are some more provocative words from the printed version of one of de Waal’s lectures:

The evolutionary origin of this inclination is no mystery. All species that rely on cooperation—from elephants to wolves and people—show group loyalty and helping tendencies. These tendencies evolved in the context of a close-knit social life in which they benefited relatives and companions able to repay the favour. The impulse to help was therefore never totally without survival value to the ones showing the impulse. But, as so often, the impulse became divorced from the consequences that shaped its evolution. This permitted its expression even when payoffs were unlikely, such as when strangers were beneficiaries. This brings animal altruism much closer to that of humans than usually thought, and explains the call for the temporary removal of ethics from the hands of philosophers.¹²

Following the logic of this, de Waal asserts that ‘empathy is the original pre-linguistic form of inter-individual linkage that only secondarily has come under the influence of language and culture.’¹³ The way empathetic tendencies like these influence our behaviour is not conscious in the sense in which we ordinarily use that term. Pascal Boyer describes it in his highly innovative work, Religion Explained. The Human Instinct that Fashions Gods, Spirits and Ancestors¹⁴ as being

the same as ‘deciding’ how to stay upright. You do not have to think about it, but a special system in the brain takes into account your current posture, the pressure on each foot and corrects your position to avoid a fall. In the same way, [do] specialised cognitive systems register situations of exchange, store them in memory and produce inferences for subsequent behaviour, none of which requires an explicit consideration of the various options available.¹⁵

The intuition to help others that is the product of this evolutionary dynamic, and its offshoot into a more general empathy and outreach to the other that de Waal describes, is clearly close to the desire to achieve the kind of flourishing towards which Nussbaum’s capabilities approach is aimed. But of course and as previously suggested, it is not the only feeling that bursts through the human subconscious into our active selves. There are and have always been other propensities at work too, powerful ones that assert the primacy of the in-group over the other, that may start with kin-support but then move quite quickly into hostility to the stranger.

This is where the ‘is-to-ought’ trap identified earlier becomes especially dangerous. As we know all too well, even today the sense of the solidarity of the group frequently collides with efforts to engage a wider empathetic response to the plight of others. If it is right to help strangers merely because it is what nature causes some of us to do, surely it is also (more?) right to help only our kith and kin because this is what nature (even more clearly) causes us to do? It is surely right to acknowledge that the universalistic tendency is a weak one in comparison with that ...

Table of contents

• Cover
• Title
• Copyright
• Series Editor’s Preface
• Acknowledgements—Virginia Mantouvalou
• Acknowledgements—Conor Gearty
• Contents
• Chapter: 1 Against Judicial Enforcement by Conor Gearty
• Chapter: 2 In Support of Legalisation by Virginia Mantouvalou
• Bibliography
• Index