Nehal BhutaRead PDFRead PDF
This paper responds to a fundamental challenge made against social rights: that they are an inadequate legal and political language to address widening income and wealth inequality. In the opening sections of this chapter, I set out the terms of this challenge and situate it within wider critiques of the law and practice of human rights. These critiques, which have intensified and accelerated over the last fifteen years, collocate several different streams of remonstration against human rights: that they are beholden to a neo-liberal political economy; that they are excessively legalist and thus inadequate for deeper, transformative, social change; and that, in any event, social rights in particular were never more than emanations of changing socio-economic dynamics driven by other social forces – and therefore inapt to drive such changes in their own right. Growing economic inequality within states, even as the juridification and constitutionalization of social rights has flourished since 1990, appears to provide a summative example of the validity of these criticisms. I argue that these claims reflect a great deal of truth about the present of social rights, but do not accurately characterize their past. In the latter sections of the paper, I recover a different register of social rights thinking that has faded from our collective memories – a register which infused the discussions of social rights in the drafting of the Universal Declaration of Human Rights. I call these “natural social rights” or “collective natural rights,” and trace their lineages through English Radical thought, French Physiocratic thought, Jacobin and Neo-Jacobin thinking, to early twentieth century state theories and constitutional social rights. The essential insight gained from recovering these repertoires of social rights is the surprising extent to which social rights ideas laid the conceptual foundations for the social state. Rather than understanding social rights as nothing more than the weak offspring of a social welfare state brought into being by social conflict, we can seem them as a historically -powerful political-ethical discourse that helpedarticulate and motivate the concept of the state as a public power that must organize the economy in order to ensure a “society of equals” [Rosanvallon]. At the heart of 19th century ideas of social right was the demand for the creation of equal social citizens and the construction of social democracy, through the creation of a social democratic state. Recovering these ideas helps us better understand the ways that social rights could be a germane response to the challenge of inequality in the present.