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Without means, there are no real rights

Socialism—even social democracy—is in retreat as capitalism reigns triumphant. But if we care about political freedom, we have to care about economic freedom too: without means, civil and political rights are empty. A contribution to the openGlobalRights debate on Economic and Social Rights.  Français, Español

Twenty-five years after the fall of the Soviet Union, capitalism appears triumphant. Its effects are everywhere. Although inequality between nation states is in overall decline, inequality within states is increasing. Western economies are returning to levels of inequality not seen since the end of the nineteenth century. Former communist states have paid for increased political freedom with heightened economic insecurity, and the dividends in political freedom have not been as generous as was hoped.

New forms of authoritarianism have grown up within institutional arrangements that were formally democratic. In Russia, compliant oligarchs see their economic interests well-looked after. In the US, some form of business interest has captured most of both of the two major political parties. In South Africa, too, inequality has increased since the end of Apartheid, and, if the killings at Marikana are anything to go by, claims for greater equality in pay and conditions can be met with violent repression.

Meanwhile, the political left—roughly speaking, those who seek the sort of redistribution of wealth and power that is at odds with authoritarian government, unfettered corporate interests and economic inequality—still struggles to articulate a set of ideas capable of describing what is wrong and what we need to do to fix it. Socialism—even social democracy—is in retreat as a set of economic arrangements. Economic planning, once thought of as necessary for the sake of greater equality, enhanced welfare, and even economic efficiency, has been supplanted by economic “freedom”. All too often, this boils down to the “freedom” of business interests to trample on the weak in the name of greater profits, or, conversely, the “freedom” of a worker to sell his or her labour for less than a subsistence wage.


Mamunur Rashid/Demotix (All rights reserved)

Workers carry sand from ships on the outskirts of Dhaka. They earn 250 Taka ($ 3.30) per each day of work.


It is in this context that some on the left have turned to human rights as a way of articulating claims for social justice as equality. The promise of rights is that they reclaim neoliberalism’s central insight—that human freedom is perhaps the most important political value. The best account of rights then takes that to its logical conclusion. Freedom from state interference with thought and political action is of course important. But what about other freedoms—freedoms from disease, ignorance and poverty? Freedoms to realise one’s self, and to pursue a healthy, well-informed, comfortable life?

The political left’s greatest contribution to the theory of rights is this: if political rights are to be worth anything, they entail recognition of the means necessary to exercise them. Civil and political rights are indivisible from economic and social ones. Of course, adequate education, healthcare, housing and employment are good things in themselves, but it cannot be taken for granted that everybody thinks that everyone else is entitled to them. The beauty of indivisibility is its strong central challenge: if you really care about political freedom, then you have to care about economic freedom.

But economic freedom in this sense is not just autonomy. It is self-realisation. Economic freedom, understood as a necessary precondition for the exercise of political rights, does not entail the absolute protection of property rights. It instead requires the redistribution of economic goods to the extent necessary to ensure that everyone has more or less equal access to the means of self-realisation. For without those means, civil and political rights are empty.

An account of human rights which emphasises this indivisibility is perhaps the only way the left currently has of persuading liberals and conservatives—or at least those who genuinely care about freedom—that redistribution matters. Economic goods must be extended as of right to those who do not currently possess them.

Rights, of course, come with a lot of baggage. They are often understood—especially on the left—as a set of purely legal claims. In other words, rights collapse into laws. Laws rely too heavily on a range of institutions for enforcement that many on the left see, with some justification, as too weak or too compromised to deliver any meaningful form of social change. It is no good asking an elite judge, through elite lawyers, to do something truly egalitarian. His (and it is still usually his) class and other social prejudices will interfere. Even if they don’t, strong traditions of judicial restraint will. At best, a transformative political claim will be wrung through the legal system and emerge as a much diminished legal right. That right will then be virtually impossible to enforce, because all the institutions of enforcement are operated by the very interests that the judgment is meant to curb. Rights also require a stable bureaucracy that respects the rule of law, and an independent judiciary. These cannot always be guaranteed. Economic goods must be extended as of right to those who do not currently possess them.

There is obvious force in this argument. But it is too reductive. There are two basic problems. First, even narrow legal victories can help catalyse positive social change under the right conditions. In South Africa, the Grootboom decision did not end homelessness, but it sparked follow-up legal decisions, government policy reform and political action. These reforms and actions have given the poor in South Africa a much larger range of tenure rights and opportunities in urban areas, which may gradually result in the comprehensive provision of public housing.

In India, the PUCL case sought to combat deaths from starvation in circumstances where there was more than enough food for everyone. Hunger and starvation have not evaporated, but much needed improvements in food distribution were achieved, including the protection and expansion of school feeding schemes. Hundreds of right to food groups set up in the aftermath of the case continue to press the cause.

There are many other examples of socio-economic rights litigation, with varying degrees of success. They show that if legal decisions are not the subject of political mobilisation and follow-up action, they can wither and die. But if they are, they can create opportunities for truly transformative political action.

Second, rights claims are not just legal claims. Rights are fundamentally political claims inspired by emancipatory values: human dignity, freedom and equality. The context in which rights emerge provides them with their political content. They need not be legally recognised to have political force. Indeed, leaving rights to lawyers and courts forgoes much of their potential. To make a rights claim is to expand the bounds of the politically possible. It is often also to challenge those in power to make good on their political commitments, or to expose the contradictions in those commitments.

It is precisely these qualities that make rights-talk potentially useful in the struggle for social justice. On the left, we can challenge others to say how, if they care so much about political freedom, they can afford not to care about the kind of economic freedom necessary to achieve it.

Economic and social rights are no panacea, but they are worth fighting for, including by making the legal system more responsive to the values that underpin them. Until something better comes along, they may be all we have.

About the author

Wilson is co-founder and director of the Socio-Economic Rights Institute of South Africa. He is a practicing advocate and a Member of the Johannesburg Bar. He has appeared in many of the leading socio-economic rights cases to come before the South African Constitutional Court in recent years. 

Wilson es cofundador y director del Centro por los Derechos Económicos y Sociales de Sudáfrica. Es abogado en ejercicio y miembro de The Johannesburg Bar; ha aparecido en muchos de los casos más importantes de derechos socio-económicos ante el Tribunal Constitucional de Sud África en los últimos años. 

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