Socioeconomic Rights in Theory

Following Joel Feinberg, I construe rights as a certain type of claim. Claims are cases meriting consideration, and rights are claims "whose recognition as valid is called for by some set of governing rules or moral principles."^[5] Legal rights are recognized by rules of positive law, and existing social program benefits may be thought of as rights in this sense. But Feinberg extends the category of rights beyond existing statute: moral rights are claims "the recognition of which is called for—not (necessarily) by legal rules—but by moral principles or the principles of an enlightened conscience" (p. 277). For Feinberg, entitlements represent a different dimension of rights than do claims. If I have a legal right to retirement benefits, Feinberg explains, this right merges an entitlement to benefits with a claim against anyone who might obstruct my receipt of them, a recalcitrant social security administrator perhaps.

Let us set positive law aside for a while and not rest claims for socioeconomic rights on the convenience that throughout advanced societies many such rights are found in law. Instead, we may turn to the logical, empirical, and normative underpinnings that give validity to claims for such rights. I start from the premise that the sophisticated sorts of conscious agency which are the distinguishing features of human life hinge on both freedom and well-being.^[6] Since well-being is just as important a prerequisite for this agency as freedom is, the two deserve coequal status as rights. More broadly, "Any consistent moral code, whatever it might be, is going to have to recognize certain kinds of capacity and needs among persons that will have to be fulfilled if persons are to be able to pursue the ideals enshrined in any moral code."^[7] That freedom is both a prerequisite to a distinctively human life and a right of humans is widely accepted in Western thought. That securing well-being through meeting basic material needs should hold a similar status is a more recent and, particularly in the American context, a more controversial point.^[8]

Support for the inclusion of resources aimed at basic human needs among people's rights is not hard to come by, however. Food, clothing, shelter, medical care, and education may be viewed as prerequisites to the exercise of rights of a more distinguishingly human character—free expression. Precedence and priorities come

into sharper focus when one ponders the order in which people would give up rights under duress.^[9] Voicing one's opinion is surely a more distinguishingly human activity than is eating, but it is not a more basic need and is unlikely to be the preference of many forced to choose between speaking freely and eating.

Arguments supporting coequal status for rights to freedom and well-being confront at least four sorts of practical difficulties. First, free speech and eating are usually not perceived as inhibited by the same forces. Locke taught us to regard the state as a perpetual source of danger to free expression. His predecessor, Hobbes, stressed the threats that our peers pose to freedom of action. While these threats are generally less obvious and brutal today than those envisioned by Hobbes, in most advanced societies informal social pressures—fears that voicing one's opinion will offend one's associates—are probably a more frequent problem than state intervention. Yet the state and one's associates rarely impose similar pressures with respect to eating, particularly for citizens or acquaintances on the brink of starvation. ("Let them eat cake!") The liberal tradition has held that the distribution of material resources is now and ought to be governed largely by impersonal market forces. While many still hold this view, others see conscious human design and manipulation behind market forces.^[10] An extensive market system necessarily creates wage dependency and vulnerability for many as well as highly asymmetrical reward distributions. And other social practices such as intergroup prejudices exacerbate the disadvantages with which some have to cope in attempting to meet basic material needs through the market.

Bernard Williams makes an interesting case that it is immoral for society, especially a society wealthy in material resources, to follow practices that leave some of its members' basic needs unmet.^[11] The purpose of basic goods, Williams argues, is straightforward. For example, medical care is for healing the sick and injured, not just the sick and injured who are rich; medical care that enriches the provider at the expense of those who need but cannot pay for treatment is an artificial perversion of the concept of healing. For Williams any differences in the treatment humans receive in regard to medical needs should be supported by reasons that are relevant (sick or well) as opposed to irrelevant (rich or poor). But in America arguments revealing the human hand behind market

distribution have been stymied by the inertia of the "invisible hand" theory in the political culture.

A second issue raised by arguments for the coequality of rights to freedom and well-being involves conflicting value hierarchies. Robert Nozick, for example, uses the same Kantian point of departure as Williams—that humans must be ends in themselves rather than means—to deny any individual's right to welfare or duty to help others with their material needs.^[12] For Nozick, the individual's freedom not to be treated as a means to another's ends is a paramount value. Grudgingly, he allows for taxes used to finance local police and national defense, purposes that sustain freedom in the long run, but he deems taxes to ensure basic material resources for the unfortunate to be inappropriate constraints on human agency. From this perspective, any claim to such resources runs afoul of the superior and incompatible claims of personal freedom.

Henry Shue proposes instead that we use a priority principle to distinguish among basic rights (food), nonbasic rights (public education), cultural enrichment (Shakespeare over Stallone), and preference satisfaction (Haagen Dazs over Sealtest).^[13] No one's liberty, according to Shue, should extend to the area of preference satisfaction if others are thereby blocked from meeting basic needs. Your yacht should not come at the expense of my starvation.

Nozick's position also introduces a third problem for the coequality of freedom and well-being: the difficulties involved in providing freedom and well-being are different. Here we need to distinguish negative rights—the rights associated with negative liberty or freedom from external constraint—from positive rights, the rights to resources that enable individuals to engage in activities previously beyond their reach.^[14] Free speech is a negative right; eating is a positive right.

Negative and positive rights are widely held to differ in the demands they make on public policy and the obligations they place on other citizens. The negative civil-political rights now broadly recognized among advanced societies are thought by many to require only forbearance on the part of others; whereas, positive socioeconomic rights are said to require some form of active cooperation or help. For example, allowing a destitute malcontent to praise socialism on a city street corner requires no positive acts of cooperation. But if he is to receive expensive medical care, others

will have to contribute, either directly or through the tax system. Suppose, however, that irate citizens attack this soapbox orator. Then, maintaining his freedom of speech will require the intervention of the police and possibly the courts and prisons, all public institutions supported by taxes. Or suppose that he needed medical care for an injury he had sustained while in the army. Then we could say that had the state not called him into service, no cooperation to help him overcome his current malady would now be necessary.^[15] These latter examples blur the distinctions between positive and negative rights and their characteristic balance of government activity and citizen obligation.

Other considerations distinguish negative and positive rights. Negative rights, products of the natural rights of the seventeenth century, may be seen as focusing on procedures, as, in effect, tools of procedural or formal justice; whereas positive rights may be described as products of the twentieth-century human rights movement and as concerned with outcomes or substantive justice.^[16] To ensure the rights to freedom, then, all we need to do is identify a set of procedures—a uniform legal code, for instance—as appropriate. But to ensure well-being we would need to examine whether all individuals have the resources (money to hire an attorney) to make use of the code.

Even for those who do not insist that, as a result of these distinguishing provision problems, positive and negative rights differ in kind, differences in degree are important. For instance, the financial burdens that police, courts, and prisons place on the state are small in comparison to those arising from social programs. Additionally, some have argued that it is "easier to state a negative right without reference to degree than a positive one"^[17] —although the degrees of, say, free speech are also uncertain and frequently controversial. Among the limits we place on this negative right are restrictions on slanderous speech and statements that exacerbate a "clear and present danger," as well as the perennial injunction against yelling "Fire!" in a crowded theater.

A fourth problem for the coequality of rights to freedom and well-being is posed by the following argument.

Negative rights are generally only valuable to those whose rights they are if they are able to do or have that which the right involves, for example to

walk. If they cannot or do not, then a merely negative right could be useless. A positive right, on the other hand, will not normally be of much help to someone who already has what such a right would require others to help supply him with. A negative right, then, can be useless and a positive one redundant. And if negative rights are all we grant, then we may expect the poor and unadvanced to be disgruntled, while if we insist on positive rights as well, the wealthy and powerful might similarly be unhappy. [Narveson, "Human Rights," p. 177]

In other words, rights to expressive freedom and basic resources benefit different groups and rely on varying concepts of liberty. In the United States, a nation steeped in the tradition of negative liberty, negative rights have been more thoroughly supported than positive rights. The well-known association between political participation and socioeconomic status, particularly strong in the United States in the absence of large-scale working-class organization, reinforces the dominance of negative rights of interest to the politically active, materially comfortable portion of society.^[18]

The Reagan administration's recent attacks on social programs and through them, socioeconomic rights, are not the first instances of the powerful resisting the extension of opportunities they already possess as rights to a broader section of society.^[19] In London at the turn of the nineteenth century, wealthy and politically powerful citizens who could afford private security forces denounced a proposal to establish a public police force as an infringement on liberty.^[20] The nineteenth-century British struggle over the extension of political rights also exemplifies this pattern. Suffrage was extended to some middle-class males in the 1830s, but universal male suffrage was opposed by many in the socioeconomic elite who, enjoying extensive political privileges, had no use for political rights.^[21] Time and again elites have argued that severe, even civilization-destroying consequences would follow the extension of rights to the masses, whom the elites depicted as too flawed to exercise any new rights in a constructive fashion.^[22] Clearly, extensions of political and socioeconomic rights are quite different matters, but the constancy of the opposition's themes is note-worthy. On the subject of socioeconomic rights, in the United States today we again hear the privileged decrying the character of those less fortunate than themselves. Distinctions between negative

and positive rights thus derive not only from abstractions and theoretical premises but also from the material interests of different groups.

In sum, rights to freedom and well-being differ in the typical fashions through which they are constrained, their relative positions in conflicting value hierarchies, the manners of their provision, and their primary beneficiaries. Depending upon one's philosophical perspective, these differences are modest, amounting to minute variations of degree, or so sharp as to be contradictory in their implications. No set of conceptual tools can bridge the gap between philosophical positions supportive of rights to well-being and those hostile to such rights, but I believe some headway can be made.

Let us begin, then, from the relatively uncontroversial logical-empirical position that well-being is a prerequisite to human agency and is a coequal of freedom in this regard; that is, well-being and freedom are each necessary but not alone sufficient. Then we must ask, What sort of moral right to well-being might be persuasively argued, particularly in the hostile American context? As Maurice Cranston suggests, "the standard way of justifying a moral right is to demonstrate that it has been earned."^[23] Let us see what we can make of this. It is not unreasonable to assume that a society can agree on the rough limits of basic material needs within the context of its time and culture. Federal guidelines about dietary needs and the proportion of household budgets appropriately allotted to these needs represent a working attempt to do this.^[24] Some aspects of these needs are universal, like the need for protein, while others are time or culture bound, such as what sources of protein—fish or fowl or insects—are suitable. With respect to these needs, let me suggest a rule: Those who contribute to the product of society shall in return have secured the resources for meeting these needs. Stated differently, justice in the distribution of basic goods resides in reciprocity: goods in return for contributions. This formulation of earning rights fits the dominant "work ethic" in the United States. Those who consciously strive to help themselves and their households by working should receive in return for their efforts the goods necessary for meeting basic material needs.

Such a formulation raises the issue of how to measure contributions to the social product. Somewhat reluctantly, I propose to use

GNP, or more simply, paid labor, as the index of the social product. In moral terms this is a needlessly restrictive conception, for the social product may be reasonably thought to imply the result of more than earnings-generated labor. Parents assuredly contribute to the social product by rearing children, homemakers contribute through their household activity, and hospital volunteers and struggling artists contribute as well. But even though many of these contributions are as or more important than some activities of the paid labor force, within American political culture at this point in time, only income-producing work has a realistic chance of being accepted as earning socioeconomic rights. Since my purpose is to show how systematic social program protection can be compatible with existing American values, I have made the pragmatic choice: Those who contribute to the social product earn rights to support for basic needs in the face of social hazards. (The choice of GNP as an index of the social product also raises the issue of how paying jobs can be made available to all those who want to contribute and thus earn socioeconomic rights. I devote considerable attention to this matter in chapters 6 and 8.)

The principle of reciprocity in the earning of socioeconomic rights must be complemented by provisions to extend socioeconomic rights on the basis of need to people who are physically unable to work and to those who should not work, including children.^[25]

This linkage between rights to resources and duties to produce creates a tight fit between my conception of socioeconomic rights and Cranston's first test of human rights: practicality. The means for providing the resources these rights entail are generated at least in part by earning the rights. The conception also meets another of Cranston's tests for human rights: paramount importance. The benefits these rights bestow are not aimed at equalizing income or assuring that everyone has a videorecorder. Instead they focus on those basic material resources that by general agreement are deemed to be prerequisites to full human agency.

The conception of socioeconomic rights I am proposing, however, departs from Cranston's third criterion, universality, in two respects. First, the resources to be provided would vary from one society to another. I would not expect Tanzania to support basic needs in the same way the United States might. As Michael Walzer

says: "rights beyond life and liberty . . . do not follow from our common humanity; they follow from shared conceptions of social goods; they are local and particular in character."^[26] In fact, the underlying justifications for rights—life and liberty included, Walzer notwithstanding—may be of little interest beyond the frontiers of Western culture. There are ways of recognizing human dignity apart from rights.^[27] Second, these socioeconomic rights would be extended only to participants in the paid labor force. They do not arise simply from being human, and they are thus not human rights, nor even what Beveridge called citizen rights. They are, with exceptions, producers' rights. Again, such restrictions are based on a pragmatic assessment of the kind of socioeconomic rights American political culture will support.

Though distributed somewhat more narrowly than Walzer's counterparts, such socioeconomic rights do fit his conception of independent spheres of justice and autonomous distributive criteria for these spheres.^[28] Holding modest consequences for the essential character of many spheres of social life, my suggestion is a fairly conservative one. For instance, the market remains the primary device for production and distribution decisions. Although the latter are constrained with respect to basic resources, a wide range of goods and services would continue to be distributed through the market. And matters such as the criteria for office or the relative autonomy of family and religious life would remain largely unaffected. It is generally the case that changes in one feature of an interdependent social system will have repercussions for other features, and it is not clear how far the ripples of these socioeconomic rights would reach or how high their crests might be. It does seem unlikely that they will precipitate anything remotely resembling simple equalities.