SOCIAL RIGHTS AND HUMAN WELFARE Hartley Dean Routledge Re mFt ub 25 has Sars Mion Yk, Abin, Ovn OX ARN Rates git of be Taylor Fac Cy, not si “The sig of Haney Dean be eid if wk ‘Allg rscrved No pak my nepali a esr by 9 tone macan reeh onm u rte. nhigpomepyng necro ay tread sede fr Seaton adc wise 8 Sine is ier Gain Pao ate ‘loge ordre bark nati fr he Dh ary ary of Cop Cain abet Dae ‘Sst lho win/win by Hay Dea, 1. Seda ign 2. Sal policy 2. Pie wll, Sxl ight —Grot Greaney De wll Iain Tae ty hp Mars LL Printed and bound by CPI Group (UK) Ld, Croqdan, CRO AY To Pam, with love and gratitudePREFACE “To seaets interested in hotnan rights and/or etzenship rights this book offer an introduc- tion to social policy, and for readers intereged in socal policy it provides an introduction to right-boved approaches. It book about connections: the connections between socal ights and human welfare; between theory and practice; between debate and reality ‘This i book that hat evolved over period of some 20 yeas It began ifeasa volume centtled Wilfie, Law and Citizenship, published in 1996 by Harveseer Wheatsheaf/Prentice Hall, A second, but differently ited edition, Welfare Rights and Social Policy was published in 2002 by Pearson Edvcaton/ Prentice Hal. This teation ofthe book is uot so much a this coiton a a sccenor to the previous versions. I isin some ways a radially different book, ‘The nature ofits evolotion reflects clmnens ofthe author’ owa intellectual joursey and ts captured in past through the changes in tide. Secal Rights ond Human Wl capes 3 specific rage of rights ~t livelihood an socal curity, to health and social cat, ro educe- ‘ou and cultsrl pactcpaton, co housing and a safe environment ~ while the term “human wel’ captures the esence ofthe wellbeing that may be fulfilled through the realisation of sch rights, Though the ernie welfire and wellbeing have accroed and can convey diferent td each i ible to different challenges and nssinterpectatons, their o lovely interrelated, For the purposes ofthe puriculae book they can be regarded as being if not quite synonytnous asin many contexts virtually iterchangeable, and shall ws them. sccondinghy. “The book hs expanded to consider the human right agenda a mach as itzeaship ight. ‘While sill embracing the role of lw and policy making, i is more focused on mates of ‘generic prineple. Soe of the material froin the earlier books as been retained and ether developed or updated, but detailed shusrations based on the British context have been pared back. This vole looks to expanded horizons and is ddresied to an international readership. eis, ofa at pose, oe elevaot vo emerging welfare systems ofthe global South as well ao established welfare states of the global North, I will touch on deep-seated quetons to ‘do with the Fundamental natore of haan need and the ethical foundations of soil policy. In some ways herefoe, the book is more complex than it predecesors. Bot I make no spology for this, since I belive i to be nevestary to critical understanding of social igh. Prac xh Most fondamentally, I sec 19 nessa socal right a aticultions of human need at rights that ae defined not exclusively by welfae state eicrship of human right fame ‘works, bus dhrough the prictces by which we wcislly negotiate the meine for achieving ‘human welfre or wellbeing In cis book, I go further than Ihave previously in presenting 2 new theoretical perspective on social rights Structure of the book “The book iin thre pas, Part One is concerned with social rights i theory and consis of four chapters. The fise sonsiders the origins of sci rights in the eration of modern capitalist tte. The second ‘rings in the busnan rights agenda and explores competing ideas about the ways in which ‘human needs canbe defined and translated into rights. The third discus the ethical foun= ations of social rights claims and ideas about collective responsibilty. Fisally in Pure One, (Chapter 4 presents a range of seological an theories eriiqus ofthe sel rights concept and of social righs-based approaches to social policy. are Two is concerned with socal rights in practice and alio comiste of four chapters. (Chapter 8 consider the diffrent ways in which social rights have developed und ate under stood around the world, both in the global North and the global South. Chapter 6 is con ‘cerned with rights to work and to subuitence, focusing on generic uaies ad principles of relevance wherever socal rights ate developed. Chapter 7 sddreue rights to human se vices, nclading housing, education, health, and roca cate provision once again focuing o9 generic ssues and principles. Chapter 8 provides 2 discusion of the mechani by which social rights may be enforced, including legal and administrative processes a both national and international levels are Thee coutsns two chapters, which concer themselves wit how we might s-think social ight, Captor 9 re-evaluates prevailing debates about righte-bued approsches to pow cxty alleviation. Finally, Chapter 10 reflects on alternative fare scenatios and radical new ‘ways of conceptulising soca right. Acknowledgements tis difficult, if not invidious or any author to singe out even a fw ofthe legions of people who have influenced her/his thinking an, n this instance all 1 cam doi to acknowledge a few of those whose role has ben especially imporeant. My perspective on sci right td ‘naman welfare was forge in dhe years berween 1973 and 1985 when T worked asa welfe rights advice worker in Brixton, South London. From among the colleagues with whom | shared that experienc i isthe influence of Mauseen Boyle and Paul Vercruyssen that has ‘ben for me, pethaps, the mest enduring. The seeds ofthe ides fr the origins] book from Which chs volame evolved were sown by my erstwhile PRD supervisor, Vie George, and _ny first attempts to improve that text were driven by the constructive critics of Mike ‘Ale My more recat conceptual reappraisal of social sights owes mach to my engagement ‘wit the ‘Road to Global Social Citizenship’ research co-operation group which deliberated ring the spring of 2011 atthe Center for Intendiseiplinary Retearch (ZF) in Bile 1 ‘owe a significant debt to my collaborators in that venture ~ Ulrike and Ben Davy, Luz. Leisering, Armando Bartientos, Sony Pellsery and Harvey Jacobs. aim alo grate toVirginia Mantouvsloo, Engin sin and Nick Elion for insightful coments on my se quent temps to develop muy ideas following that experience. ‘Adeitionaly, several poople have provided valuable comments on ealydrafs of chapters for this book, including James Midgley, Gemma Wright, Mike Noble, Polly Vieard an Kin- slus Ngok, Bot many more people have coutibuted to my understanding, most notably all ‘hose master’s eudents ows around che world who studied beeween 2005 and 2013 on the «course entitled Soil Rights and Human Welle tha am sil teaching a the London Sool fof Eeouonsis I belive [ learnt at mich from heir tights and feedback os Ue able to impart o chem, indicated above dh this book represents the latest offering 29 emerge fram my own ‘often fumbling and misguided intellectual journcy Ie dawsupen, develop, revites and cor. rects pase work thas benefied immensely from the insight and aesiance of thove T have identified above, bu responsibility for the undoubted ero aid inadequacies inthe Finished pradict solely rine PART ONE Social rights in theory SOHSSCHHSHSHSOHSHSHHSHHSHSHHSSHHOHSOCHOOOOCSSOOO1 THE SOCIAL RIGHTS OF CITIZENSHIP ‘The erm, social rights subject toa variery of interpretations depending on the conte. te may be applied eo specialised individual ensietnent spevfialy created by soa leg Iatios in the context of welfare tate. As suc they are rights relating to socal weit, ‘rmployment protection, housing, edveation, health and socal cate. These ate rights tht ‘oniginated largely inthe cousse of the twentieth century in industrialised capitalise sates, bur which ae aow aio enierging in various forms sind to varying degres i= developing countries However, the eee socal rights may also be used in a normative see to refer more generally to socstl objectives and the levels of socal protseton that are, of perhaps ‘ought co be, mutually guaranteed within all human societies. Social cights car cinerge, arguably, at an ifort! local level through the customary expectations that people have ‘of one another within the commuvitis in which they live, oat a formal global level ex the subject of internationally negotsted treaties, such atthe UN's Universal Declaration ‘of man Rights (UDHIR). Finally he terms socal rights and welfare rights may be used to refer to an arena of vocational or profesional practice in which activi, development workers advice workers and welfare lawyers engage. Such rights can be more than teeni- cal phenomena or abstact principles, but practiesl tole and diecurve resources for signing, negotiation snd advocacy ~ pastculzly by or on bshalf of vulnerable, poor oF isadvantaged people, Inevitably, these meanings inerect and ovedap, and this book will be concerned with allof them. Righs are cetzal to socal policy not only because they relat tothe substanive entitlement to which the policy making proces ives se, but because they provide the bass ofthe principled clams tha deve wcil policy debates and practices Lawyers sometimes Gefine the fir kind of right as ‘pose’ or “black-letter rights andthe later as “moral” ‘ghts. Social scientists tend to recognise chat ll our right ate in one way or another socially or ideologically consrocted. We shall be concerned throughout tis Book with ineractions Dereon competing conceptions of toca right and the effets of these interactions on how sci ight are framed and how they work in practice In this incoductory chapter, however, we shall sare with «conceptual discussion of the social eights of itizenship. | shall cas the way in which the concept of social ight entered4. Sed rghtsin tory explicit at defining featone of citizenship under welfine sate cipitaliany, before reflecting ‘on the prior origins ofctzenship rights and finally saalysing recent devclopmens alecting the nature of social rights in the welfre sites of the lokal North, We sal roaéen the dis cussion in late chapters to conser the place of scil sights within the notations! human rights agenda and o reflect on the docper origins of socal right. The coming of welfare capitalism Social sights acconting to the sociologist TH. Marshall (1950) were the unique achieve ment of dhe vventethecoutury capitalist welfare at. His exemplar was se Bris case. fn Iritain the seugge to ackiew civil ght be. evi hiertes sil peoperey and legal igs) hal by and large saccee hy the eighteenth centr, ad the struggle © achieve pois) rights (be. voting and democratic rights) tok masor strides inthe sinecenth cencury. The tstsblishincnt of social rights ~ that sentient to bai tinder of edeation, hele ant social cate and housing and income miintenance ~ was completed with the formation ofthe “ppodern” wale wate ater the end ofthe Second Word War. Maral may’ be acciscd of ‘vergenraistion,pariculsey in his chariterisation of differen historical periods, but his ‘ought otto obscure the impostancs of his argutient aud the idea tat the coming of the ‘apilistwelfze state ~ py Britain and elsewhere ~ had wshered ina new fora of rights fora new economic andsocal order. Hs contentions were firs, that weil conflicts and ineiuli= tues based on cas divisions had heen oF could be ‘ameliorate through the development of citizenship, and second, that fll eiizensip ruined three components ~ not jus il and political sights, bue socal rights a wel Beyond class society? . “The fist of these points Finds support smong many commentaors and supporters of the welfare sate, including, those on the social democratic left (George & Wilding. 1994: ch, 4). However, TH. Matshall was social liberal rather than a social demo- cat, His use of the term ameliortion had been directly drawn from the works of the sinetcenth-eentury economist Alfred Marshall. [wasn a series of lectures is memory of ‘feed Marchll chat T-H. Marshall advanced the proposition thatthe post-Secoud World ‘War weltire ate ay founded i Britain reprecated che ‘atest phase in a evolution of Citizenship which has been in continuous progress for some 250 yeers (1950: 7). a 50 doing, he chimed he ws addressing 2 quetion ried by his etstwhile tamesske ome seven decades before, namely ‘whether the amelioration ofthe working clases has limits beyond whieh i eat pat foe} whether progress may not go ou steadily, if lowly, il hy occupation at leat, every man isa gentiemn” (Alfred Marshall 1873, cited in T.H. Marshall, 1980: 4-8). “The equality foreren by Marsll, che ninetecnth-eentury evonomist was an equality of ‘opportunities and satus rather than a mitral equality oF inoue or Weald. Technological sulvancs he believed woul ameliorate the stduous nature of mana about, while compl- sory clmientry education would civilize the manners ofthe working elses. Marsal, the wenticth-century wocologs,simisy belived eat ‘equality oF status i more innportnt than equality of income (1980: 33). The development ofa range f cil services and cs The soci rights fiers 5 benefits inenced sous taxation cle did involve an eqaliation a incomes, bat this was 20 its only or even its primary achievemen ‘What matters chat there i gener enrichment ofthe concrete sobaance of civilised life, general reduction of risk and insecurity, an equalisation between the more and the less fortunate at all levels ~ between the healthy andthe sick, the emplayed an ‘the employed, the old andthe ative, the bachelor and de iter af 2 lye Ei. quaisaton mt so nich berween cases as between indivi within 3 population hich s now treated for ehis purpose as though it were one els (Marshall 1980: 33) “Te asgurent then ie that social gts could abolish inequality bat on clas iffeence: Social policy schlirs, sch as Titmuse (958, 198), aged tac the development ad wiin= tenance of tte weltire provision consiuted 2 orl impenitive insoir a i fepresented he peaceful means of mitigating the unacceptable consequences of els inequality; social righ ‘were 2 eivilising force which compensited for dhe diswelfares ofthe industaised capitalist, sytem. ‘One Bekish Labour politician, Anthony Crosland (1956), wont x0 ft a to argue that the development of social legnation and the rise of labour and tre union power evald roger sife the balance so fe aginst the old spite cla syste 38 0 promise the jmmsinent eulisaton of a denycratie form of cis. Kn reality, however, TH. Marshalls oncept of citizenship was not a all consstne with socialist pretensions. Marshall saw ‘kivenship, particlily through he efects of a cruly meritocrate state education system, as an alternative instrument of soca) srasBcatan, (1950: 39) Cesta, le believed the emergence of sci rights signalled the extent co whieh lies fue capitalism had been supereded. Bot the result would be a society bsedon ator and desert, ater than contract and mere good fortune: ‘Social right in their modern frm iply 2 ieasion of contact by satus, the ssbordinition of lathe price 2 social justice, the eplbcemtent ofthe fee bargain by the declaration of rights’ (1950: 40). Paradoxically, shont of any con to economic equity this liberal view oF sci rights ca be rendered consistent orca at leas cohabit with 3 form of onc-nation conservatsn adie ideal of 9 non-conflictual or stable vocal onde, Unstable chizenship? CCptainn ofcourse never did achieve» non-conflictua socal onder David Locked has argued thst the srocting of life chances in capitals welfare sates was the dive rele ofthe instatinalsation of etizenship der conditions of socal and economic inequality (0986: 53) and that the enon betwee state and market was managed by the fine-tening, ‘of social righ’ (199: $35). The result he called a process of ‘ivi statfcatio. whieh depends on the onc hand on he extent 0 which citneship rights are allowea to develop and ‘onthe other the nature ofthe relative gains and deficits citizens might experince depending ‘on their social stats, We sl seein Chapter 6 thatthe adoninirative power of the capital ist welfare state can be snapliated in the perpetuation or shaping, of social divisions, Caw struceares have been changing, but depte ee welfare ste, wacio-economic clas stati ( «{6 Sock rights in theory stongly cores with an unequal distribution of life chances (Crompton, 200), Sci Ineaity has ately aeslerated throughout much ofthe developed work (OBCD, 2011) lens ofthe nab of pound apace can be sd now to ser fiom contesuence of india ks ake than activ cae confer Bec, 1992), The re dominant ine in the occupation] aructore of post indi expt societies now sive tn natae and His oot Between ‘worker and ‘bone or even betwen mana od ‘non-manval workers, but between securely employed, highly tramed and well paid ‘core’ ‘workers onthe one hand and precio employed, lw dil a poorly pid periphe™ Workers onthe other Standing, 209,201). Changes in cas strut ave been driven by Changes in the nature of cpa il, rather chan by any diet infoence of the wee sate (Eping-Andesen, 1999), For the momen, however, et ws ern to the second fini of LH, Maral aga sven which was that civil, pliial and soci ight ae all cer toa mature foe Of cizemip. Markl recogited che tense in which cizenship based on broad eqal- fry of ighis might poteatially conflict with the workings of «copa market econo. [Neverteln, bested that ul eknenip need wot inhi a market econo, provided 2 sate of equilibrium ean be atined between poial, sca nl civil right in what he Cfaraeteried ava ‘hyphenated sett, ‘dermcrat-welfre-coptain! The pens inthis formulation symbole the interconnecednow of + dewocrate polity, « wellie ste atid 2 mined econ, ll fsetoning in harmony (981). The malninance ofa floursbleg, ‘nyphenated sony is therefore sma of achieving the ight blace between the conti cent componcnts of czenship. Upon this premie ieo mac eopan xeing laced Capt oct on oo right producer and conaiers nd Hot enough upon ou hts to paripate in democrat decison making and our rights to gusatteed living tandads ‘social powson, samc hi creats a nibslaace betwee the ei, polis aid cecal pects of cizenship, poses a potential three asi, Sma, socal wpe in pow communist epmes sacha the former Soviet Union, ght be regarded «con sequence of vikent shi nthe equim of cies. Under forme taint eles, torial rights hd been guarntedy while cv and poli igh were iter supposed of neglected, but subtequenty poli rights were promoted at the expe of cil tights rd Without an adequitefamework of cl ight (Deacon, 1953). Manhll’s sociological model of tizatp, thoog highly int Tantl,has aac etic tim on uae of count, Fie, fini fo parca have complied that hs anal fled wo adéte sci dvions ter than cli: his ‘mage of niece” (950: 29) dd not ontrsily or neces iaclude women, dled people organs om aia terns 2s inlgenowysbe-boied male cies (e Lter 2009). These are ues to whi sal rerum in Chapter 4, Second, though Marshall here the functional rl of wc cizen- thip in elton to the ametioation of ci a, he led vo account for the impact which toca aes have had on the developmen of chiensip (otomore, 1992) The develop- trent of evil igs andthe beginning of plight ruled, a we shal see fom the ‘ugg of an emerging capa dato wre power fom the fal aritocacy. The mote recent development of political rights and aspects of the beginnings of social rights owed {huch wo the srogglr of wocking-ds oration ~ the Cart, the trade unions and toca and social democrat partes Maral exposed te coi foi which ieship ‘ay emerged in terms of clashes between opposing principe ater thn between OFPOBPE, claees The develope nd maintenance of epi wef ites has bee analysed. rom ‘The soci Sghs of ership 7 ifering perspectives, by other commentators (eg. Esping-Anderien, 1990; Korpi, 1983; OF, 1984) wth reference on the one hand to politial pressures applied dieclychrough the demo ‘rade process and on the other wo the influence of corporat. Corpoatnm, in this eomtext, Jn the proces oft: partite negotiation between the repotentatives of capt, labour and the tte (customarily refered to as “social partners). What is often involved in the development ‘of soci sights is nota inpersonallyexablished equilibrium between formal principle, but 2 directly negtited compromise between substantive chs interes, ‘A third objection is dhat Manball’s account of sate and market was at bet edstioniet may be observed thatthe anagonism between state and market to which social etizensip ‘an supposedly bring equilibria is nota simple opposition, since in some eicunstances responsive market systems can and do elf social needs, while in others autoriatun sate welfare systems can frustrate them (Hines, 1987), What is more, there are many places on [Earth where effective markets and legitimate state apperatuses upon which Marsal’ cit- zenship ideal depend simply do not exist (Gough e al, 2004). Finally, Marshall, atthe tiene the presented his theory of social igh, was strangely silent with egard the contemporaneous ‘emergence of an iterations! human rights regime (U. Davy, 2073) and the ide of rights thot are universal, And six decades later ina “Globalizing Worl! (Frascr, 2010), hit nation- based approach to social rights has, arguably heen supereded (Dean, 2013), ‘This los argument is one to which we shall return i later chapters. Bat rather han look co frre global trends, we need for 2 moment to consiger where conceptions of sd esump= tions about ‘tizenship’ and ‘ight first eame from and how they have evolved and changed fn the capitals weltae tates where they originated ‘The origins and species of rights Rights and citizenship ate inimately linked and dhe orthodox asumption i that their co ‘mon origins lei antiquity and the creation inthe fifth century BCE ofthe Athenian city state, where rights of etizenship were implied through roles of wlf-governznce adopted by patrician male elie (Held, 1987: ch. 1). Such rights id not extend beyond the city. Nor for that matter did they extend to women and slaves within th ety, Citizenship entailed mem bership ofa ditincdly exclusive political eommunity, but ako a practice based on principles and procedures, Later forms of citizenship similarly invoke principle or deiner on the one Inand and provide procedures forthe making and resolution of elas om the other, Through the dialectal engagement between doctrines and clin emerge competing understandings ‘of sights, both formal and subaive. Our rights may be determined by abtract oF const tional deci, of they may rie from cline or political demands, They may be framed in ecm of formal feeds or interna of eubtantve entitlements, "The signifiance of thete distinctions ~ between doctinal and claims-based rights and beeen formal and substancve rights ~ may be considered in both historical and jurispra- ential contexts, Doctrines ond claims: The emerging significance of property eis important to recognive that what might once have been succesfully demanded frost below as clains-baed rights may chrough processes of compromise and aceptance assume ‘he character of doctrinal thodowies handled dows from above, while conversely rights that1B Socal ight in theory save conferred by doctrinal decree may eablnsthonelves oF be acapted 2 4 bass For oe ‘mulating or articulating new cains-bised demas, Historically speaking, the form of sights in “hyphenated” democratc-welfire-capitlse wcieties is Inscapably eraeable to Weer lightenment attenspts in the seventeenth and eighteenth centries o achieve a forma separation between masks (the economy) and sate (politics), but jose as fandatnentally 20 ‘subs the inalienabiiy or freedom’ of property. Prior to this, in pre-Enlightenment Feudal Europes lssical Greco-Roman conceptions of citizenship had lapsed into obscurity and there had beet no rights other than the right to govern: 2 nara right supposely bestowed by God upon the sovereign and the pabil- iy, To the extene thar dhere were paternalistic dati! ataehed to such rights, hen privileges ani gratuities mighe be conferred fom: tine to time upon the common people (Kaen & ‘Ty, 1975), bur they enjoyed no rights in the modsen legal sense. Though lauded for having prefigured the modern concept of rights, England's Magna Cart of 1215 was no more than ! concession of restricted liberties by the Crown tothe nota: i was not wnt the English Patton of Rights i 1628 thatthe process that would lead tothe modem concept would ‘onfld (Perry, 1964). A necessary precondition ws the invention dhroughoot Europe ofthe sovereign sation state (partially atrbtable tothe Treaty of Westphalia of 1648) and concep- sions of citizenship that now applied beyond the narrow sphere ofthe city state ‘The doctrines of ‘atu’ aw opon which feudal beliefs and practices had been founded aMforded abekte power to 4 potently capricious Crown and artoceay, while imposing ‘onsttints upon property ownership. Natural law Frustated the market Feedoms neces tary to the economic fovndaion of capitalist sociey. Belief in natal law had therefore te te replaced over time by liberal belief in 'nan-niade ws (women continue at that time to have no legal eat) Hols Fine (1984) 2s contended har the doctrines which laid the Foundations for man-made laws were insepasie from the doctrines of political economy. In the philosophical writings of Lacke (1690) and the politcal writings of Paine (171), We ae reflected a mira discourse by which ‘natural’ Fights were Fi recast at inalienable individual rights to ‘if, liberey and este [e. property] and chen exshanged, a i were, 0 lbccome civil right under doctrines of iberal governance (Raphael, 1989), This in ewence was the diacourse of rights that inforned the Boglith Bill of Rights of 1689 and a century lotr the American Declsation of independence of 1776, the USA Consition of 1787 an ‘he French Declaration of Rights of 1789. By these consiutional instruments i was not the lain of ordinary people that were ascendant over poversments, so much a the interes of| teipien property-ovning mide clases over shose of od aristocraces. [Neverthelew, the subiequent interpretation and inflence of thew varios instruments would difer significantly: The eolbeoted French Revolutionary slogan, Liberté get, Fr ‘emit, embodied «set of potential contradictions the objectives of Freedonn, Equality al Solidarity are not eary conipanioxs (Hobsbawm, 1962). Equality is eapable of competing interpretations ~ a point to which we shall shortly return ~ wit, at root, Freedow and Solidarity are conflicting principles. Hegel (1821) clearly understood this. He aerted that the ulimate Feedons i the right of personal as opposed to common ownesship but he also sckoowledged that citizens are mutually interdependent, such that pubic provision should lhe made for poor reli, esl, education and public works: “The sate will floes, if it hat good laws, of which fee property isthe fundaten tol condition, Bur since bata why environed by my patticusrty, | havea right to ‘Te social ight of tien demand thu im connecting myself with others I sal farther my special happiness... [That eight] contain dhe two fllowing Factors. asks Firstly that person and property should be wcued by the removal of al fortitoss hindrances, and secon thatthe secuity ofthe indiidalssubsitence and happiness pariclae well-being, should be regatded and actualized a eight (95229-230) “This he recogni tobe controversial. The notion of propesty wt a conestable at wos cesses, For heuristic purposes we can deaw a broad disinction between the lier t= eichip tradition tat came to charcterie the Anglophone world and the eivi-republcan rmadivion tat cans to choracterise the Western continental European word. The formicr prioritised individual Freedom the Inter acknowledged Solidarity. The Wieral odiion Feflected Locke's view of property rights a individual prepositive rights (1620); the civie= republican tradition reflected Rousseau (62) view of property tights as powssive clini ‘pon common ates, leitimsised only through the collective will oe 1avy, 2012) "The origin of rights in ownership lads a competing understandings of social right Rights and equality before the Iw ae snivertal only in the formal and abstract sense eat ivan ordered (capitals) society everybody hasta relate to aud respect everybody ele as proprietors. Even people without land or goods a cei disposs ay ‘own’ (and therfore sel) their Inbour power It bas been suggested that social rights are or ongh tobe diecty analogous to property rights and that ‘government largess’ (auch 3 welfare benefit, bsi- dies, grants education, ete) constitu a kindof property which may be subject o the sme legal rules and categories ax obser propery frm (Reich 1964, This i one way of Woking st social rights as an expresion in legal fornt ofthe logic of individual ownership. Such benefits ~ provided all the conditions of cligiblty are met ~ are avilable a4 an entitlement rather than as gift, and the principles which give rise to that entitlement oe suppose to ‘operate with indifference to the personality and status ofthe recipient. They ean he rights within the liberal definition ofthe sue of aw. In contrat, the rhetoric of social rights camm= paigners and activist ir more usally cant in erm ofa vety different doctrinal understand sng of property. For example, opposition by nineteenth-centory Owenites and Charts the tightening of che English Poor Laws was founded upon solidaisically conceived “bith ight’ tae to say: ‘he right wo have a living out of the land of our birth in exchange for labour daly and honey performed the right in case we fl ito distress, to have ar wants suf Fcicutly relieved out ofthe produce of the land, whether that distress arose from sick- ess, fom decrepit, from old age o fon inability to Find employment (Willisss Cobbety, cited in EP, Thompson, 1968: 836) ‘The claim here ~ the right wo work, the righ to a living wage, the right tan adequate {income in the event of incapacity, woezuploymient or reirement~ is premise onthe idea of ‘common ownership through birth, yet t speaks nonetheless the significance of property for social rights. ‘The doctrines that informed the coming ofthe twenteth-century hums rights agen, which we shall discus in Chaprer 2, centred neither upon the endinsnees of Got! Klug, 2000), nor necssrly upon principles of property ownership (Jacabs, 2013), but upon the10 Soci ights in theory porentally problematic ides of humanity's inherent “dignity: Nevertheless Cake (1996) ‘hs argued, it was cigs rights thot provide the model for human rights and not the other sway round The history of she right-bearing subjects ‘etize’ as proprietor and (nore recently) as “human isa nartative of social construction: is a continuing story of shifting Mdctrinal orthodoxies and innovative laims-making. The formal and the substantive: Meanings of equality “The language or'scourse’ of right should be evident, is shot ehrough with ambigutis. Not only i there a distinction 0 be drawn between the kinds of rights that ae prescribed From above by established doctrine and the kinds of rights that are framed and claimed from below, thete ate aso competing wnsertandngs of what it means fr citizens, proprietors or Ihutaans to have ua rights. The liberal ctizenaip tradition has tended towards x formal fo procelil approach to equality ~ the civic-republican tradition to s more substantive approach. The liberal tradition embraces the ideal of equality under the law. A its meanest this is captured by Anatol Franc’ celebrated aphorism: “The law, i its majestic equality, forbids the rch ax well athe poor to sleep under bridges, to begin the streets, and to steal tread” (1849). More inclisive understandings of iberslis recognise that fee markets can perpetuate soil disidvantage and 0 favour equality of opportunity andthe idea that every Etzen shouldbe allowed to seveed on the bass of ber ability. Communitarian versions of the cive-republican tradition emphasiae equality of belonging, inclusion ad respect rather than strict material equality, though social democratic devivations of the wadivon support rood equality of material outcomes "These are jsues to which we sll sepeatedly return. But fr the moment we shall rai cased on rights ofctrenship. I mentioned 2 dhe beginning ofthis chapter the distinction lawyers make between bck te’ rights that ate written down and enforceable as opposed o> “inoral rights tht are extalled and debated but have no necesary effect. The uitarian phi- Iowophe Jeremy Bentham (1789) dissed a ‘nonsense on sis the very idea tas there can be hase moral igh tht natoraly belong to every inivual citizen: what mater, he Believed ave the laws we might make to cnsute the greatest good of the greatest umber of eiizens. “This represents + legal posit train, which refers to any right that lealy defined as a ‘positive’ right as tines fom amet mora right, which i unspecified and unenforesibe Other egal scholar, however, have debate a quite diferent sinetion between ‘negative’ sights, which formally protect the individual from external interference, and ‘postive igh, ‘which substantively guarantee wate inervention, Here the term postive is being used wth 2 iferent meaning. The distinction berween vegatve and positive ‘beri! was draw by Isiah Berlin to matk the diference becween aright’ to forbearance by others 8 opposed to "the fiedom which consis in being ones own axaste(1967: 149). The words iberty” and synonymous but they ca refer to diffrent species of rights, Hobfeld (946) identified four kinds of right: iberses, claims, immunities and powers. Liberties and Smmunitie re what might be ealed species of negative rights because they signal a feior fom something, wheres clims and powers ar postive rights because they signal n eie- ‘mont something, In practi, fone takes, for example, what might be regarded as the most lemental of soca sight, the right to be ce fom hunger, tis woul imply aright to food or, eles, othe means of sbsstence, Tobe pose inthis sense the sight ust have substance it requires smieone or somicbody not merely to feta fom action, But to act ‘The social sights czenship 11 ‘The ditinction between formal and substantive can be exprened st oly ia terms of negative and positive rights, bat in terms of different cheores of right: the will or dace theory onthe one hand snd the inere ox Benefit taeory on the other (eg. Campbell, 18, 2006; B. Jones, 1994). The former is premised on the idea that every human idividl ‘with a fice will must necessarily lave dhe right eo exercise choice in elation to er dealings With others The lstter i premised on the idea tha right are created by rules which benefit the human individal by imposing obligations on ofber individuals to protect of further ship tadions and neither alone can secount for the ways in which social 1 Inve both procedural form (Chrough the way they are established) and material substance (Gn toxms of what they actually deliv). An attempt to do thie nas boot: made by Roms ‘Dworkin (1977), who draws « diffrent kind of distinction ~ between backend rights an ‘nsinsonl rights. Background eights embody the fundamental fri principle tha jostify political and judicial decison making, while institotional rights are policy- or goubdireted tnd impose swbstantive dies on people or the govecnient. The background rights that {inform institutional eights imply not an empty morality of the kind dismissed by Benthat, but a notion of socal jamie, nich as that espoused by Rawls (1972). However, background rights maybe translared into more of less substantively gener naitutional rights, depend ing on just how they are framed, For instance, Dworkin’ background rights would seem to uate to what Michsel Walzce (1994) has described s ‘hin’ ot mnimabiee moles: they represent, as it were, dhe lowest common denominator in tnm ofthe principles upon which her than a ‘thick’ oF maximalise moral andertacng of the substantive rights of citizenship. (Ths dstixetion betwoen thin ann thick undersondings will become siporeant in ovr diceson of human needs in Chapter 2) ‘We may conclude fist, that rights ae ideological constructions, albeit that they have real consequences, andl second, that their nature and meaning ae inevitably fluid and change Post-industrial capitalism and the privatisation of social rights “The final st of preliminary debuts tha this chapter mot addres relates to the distinctive nature of social rights as demands upon resources and the extet to which, having bees lnvente as creatures of capitalism, they will survive in che capitalist word ax capitan elf volves. shall be concerned: first, with the way in hich social rights entailed or enbled «partial de-commodifiation of both labour power and human service: and second, with, the criss of che modcen weltse state andthe revslking process of re-commodifiation or "privatisation We shall sce tat inthe welfe tates where they were fir created the nature of social sights changing Social rights and de-commodification ‘The development of twenteth-centary capitalist welfre sages wat achieved through oxl= tes of social legislation that extended the (postive! or sebutantive rights of citizenship by expanding public services. Wheress civil and political rights primarily entail ‘negative? or formal rights (eg reedoms of movement and opinion), social rights ental sabatantve rights to the provision of goods and serves necessary for human welling. Social rights came