Social rights, social contract, socialism

* Profesor of Law, Universidad de Chile, Universidad Adolfo Ibáñez. This is a revised version of a paper

presented at the Social Rights and the Market workshop held in October 2013 at the University of Glasgow,

and convened by Emilios Christodoulidis. I am grateful to Emilios for the invitation, and also to the

participants in that workshop David Garland, John Holmwood, Russell Keat and Zenon Bankowski for an

enlightening discussion.

SOCIAL RIGHTS, SOCIAL CONTRACT, SOCIALISM

Fernando Atria*

SOCIAL AND INDIVIDUAL RIGHTS: THE DIFFERENCES, 3

Ottfried Höffe’s list of differences between rights, 3

They belong to the surface grammar of rights, 5

The deep (political) grammar or rights, 8

THE SOCIAL CONTRACT AND ITS LIMITS, 11

The need to bridge the gap between interest and duty, 12

The neutralization of social rights, 15

THE IDEA OF SLOW PEDAGOGY, 15

RESCUING THE SOCIALIST IDEA OF SOCIAL RIGHTS, 19

The neighbor and the stranger, 19

Is the idea of slow pedagogy utopian?, 21

Are there structural differences between so-called “social rights” (or positive freedom

rights) and individual rights (or negative freedom rights)? The relevance of this question

is explained by the fact that traditional forms of judicial protection of fundamental or

constitutional rights used to be restricted to individual, but not social, rights. According to

what is the dominant position, at least in Latin America, this restriction was always

arbitrary, a consequence of a political devaluation of social rights. The solution, at least

for leftist legal thought, is to extend the judicial protection of rights to social rights. But is

it correct to say that the non-justiciability of social rights can only be understood as a

devaluation of such rights? Or to put it in other words: Is the difference in the available

institutional means of protection of rights to be explained by the different structure of

social rights vis-à-vis individual rights, or is it a mark of the political devaluation of the

former when compared to the latter?

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In other words, Why is it the case that individual rights are to be protected judicially,

but social rights are to be interpreted as mere “programmatic” declarations, which are to

be realized (or defeated) in the political arena? The reason, progressive constitutional

scholars tell us, is not a structural difference between these two kinds of rights; it is rather

a political decision which we can nowadays call “neoliberal”

, in which the ideas of

equality and liberty are interpreted only in formal terms. Since social rights are concerned

not with the formal status of individuals but with the substantive content of citizenship, a

neoliberal theory must conclude that declarations of social rights are to be understood as

expressions of good will, not as “hard” rights. From this perspective, the left must fight

for social rights, and the first battle is to guarantee that social rights receive the same

institutional importance as individual rights do meaning in particular the same judicial

actionability. And in this leftist constitutional scholars have been tremendously

successful, because the justiciability of social rights is now, at least in Latin America,

taken for granted. And in the (few) cases in which it is still the case that they are not, this

is widely seen by the left as a notorious ideological (neoliberal) disbalance.

I think this is a serious mistake. Judicial institutions can protect individual rights more

effectively than social rights because the latter imply an understanding of citizenship that

is incompatible with bourgeois law, while the former are its most perspicuous

manifestation. Thus traditional forms of bourgeois law cannot contain social rights.

One could say that this “theoretical” idea has been refuted in practice. For today

social rights are in fact protected by the very actions which were purportedly

incompatible with this kind of rights. If the claim is that something is impossible, what

can provide a more complete refutation that the fact that it has happened? The issue,

however, is not that simple. The thesis I want to develop in this article is that bourgeois

law can protect social rights through its traditional forms of legal protection, but in doing

It is an interesting fact that the label “neoliberalism” is almost entirely absent in political philosophy,

which subsumes it under “liberalism”. This assumes the continuity between what could be called

“classical” liberalism and what is now presented as its neo-version. I believe this is a mistake. In most

relevant areas, and in particular the issue of social rights, “neoliberalism” is illiberal. But this is not the

place to discuss this. See Atria, Veinte Años Después, pp. 77-95.

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so it will inevitably transform them in bourgeois (individual) rights. That is to say, the

cost of subsuming social rights under bourgeois law is to de-socialize them.

SOCIAL AND INDIVIDUAL RIGHTS: THE DIFFERENCES

Ottfried Höffe’s list of differences between rights

This is why it is important to distinguish a socialist critique of the current understanding

of social rights from other liberal critiques of social rights. To this end, we will begin by

considering one of the latter, as formulated by Ottfried Höffe.

Höffe believes that social (he calls them “positive freedom rights”) and individual

rights (“negative freedom rights”) are different, not only in their content. Indeed, such a

difference is fundamental, and implies a kind of ranking order between individual and

social rights

. This difference is that

Negative freedom rights are, as such, indifferent to cooperation; positive freedom rights,

by contrast, are dependent on cooperation

From this fundamental difference stem, according to Höffe, many others.

In the first place, as indicated by Höffe’s labels, individual and social rights are

distinguished insofar as the former are negative whereas the latter are positive. The

content of social rights is not a set of negative provisions (“thou-shalt-no” rights), but

positive provisions to food, clothing, shelter, healthcare and education, to mention a few

Secondly, social rights depend on available resources, and thus their content can be

affected by scarcity. This implies that the demands they ground could be defeated by lack

of resources, while negative freedom rights are invulnerable to economic vagaries: ‘With

the exception of self-defence, it is always the case that those who kill violate a human

right’

Höffe, Democracy in an Age of Globalization, p. 47.

Ibid.

Ibid. It is odd, given the current intellectual climate, that Höffe ignores the issue of euthanasia.

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This second difference implies a third one: the content of social rights is dependent

upon economic development and culture in a way that negative freedom rights are not:

‘Social rights are dependent on culture as well as resources’

The currently predominant thesis, which understands itself as “progressive” and is, at

least in Latin America, virtually unanimous, rejects Höffe's differences, arguing that they

pertain to the superficial grammar of rights. In my view, this is correct. Today’s

“progressives” are right in thinking that Höffe's differences do not justify the conclusion

that we are dealing with a structurally different kind of rights. Thus these differences are

either nonexistent, and appear plausible only when adopting an unnecessarily and

unjustifiably narrow perspective, or are not structural differences but differences of

content. And what matters is not whether social and individual rights are different

regarding their content, because they obviously are. The point is whether there are

deeper, structural differences that imply institutional consequences.

But though “progressives” are right in rejecting Höffe’s grounds for distinguishing

kinds of rights, I believe Höffe is right in holding that they are indeed different. Precisely

because here is an important difference we must endeavor to locate it correctly. We must

thus begin by explaining why the traditional differences, accurately explained by Höffe,

are to be discarded. The point of this is not to show that there are no differences between

social and negative freedom rights that they must be abandoned; indeed, the opposite is

true. We must show that Höffe's differences are superficial, that they do not account for

what social rights represent, because the real, political difference is to be rescued and

defended. Höffe believes that he can explain social rights within a contractualist theory of

justice. In reality, social rights expose the limits of contractualism as such; or, to put it in

a more provocative way, they show why a contractualist (or, what is the same, liberal)

theory of justice must be abandoned.

Ibid.

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They belong to the surface grammar of rights

The differences that Höffe finds between social rights and negative freedom rights are

evident; that is, they are entirely apparent. A reply to Höffe must be capable to account

for them.

To begin with, the distinction between negative rights and entitlement to benefits,

although evident, depends to a certain extent on the language used to describe the actions

that comply with or infringe them. Every action can be described as an omission. But

additionally, it is simply false to claim that negative freedom rights require only an

omission. It is important here to distinguish good and bad arguments to substantiate this

claim. A traditional argument to show that the action/omission distinction does not

correlate with the social/individual rights distinction is that certain individual rights also

require the state to act in a certain way; for instance, the right to due process implies that

the state must do whatever needs to be done to guarantee due process

. In my view, this

argument is spurious. The right to due process is a negative freedom right, that is, a right

to non-interference. It enumerates the conditions with which the actions of the state must

comply so that it can interfere with an individual’s action without such interference

counting as an infringement of the individual’s negative freedom.

Generalizing, I am skeptical of the idea that one can show Höffe’s mistake by way of

searching for negative freedom rights that require that the state to act in a certain way. I

believe the objection is more radical, and can be easily articulated in the language of

criminal law. For in criminal law it is fairly clear that one can commit a criminal offense

legally described in active terms by refraining from certain actions. Criminal law

distinguishes between “improper omission” crimes, or crimes of ‘commission by

omission’,

and “crimes of mere omission” (breach of a duty to act). The latter are crimes

that are legally defined as omissions, thus imposing a duty to act (in corporate law, for

example: the duty to provide regulatory bodies with some corporate information). The

interesting category here is the former, which are crimes legally defined as actions (like

“killing”), so that the normal way to commit them will be “positive” (=an action). Since

See, for example, Kelley, A Life of One's Own, pp. 23-29.

8 Fletcher, Rethinking Criminal Law, §6.4.1.

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what is punished is an action, the duty imposed is negative: the duty to ‘renounce

something’ (thou shalt not kill). What is interesting about this is that the existence of

crimes defined by actions immediately implies the possibility of crimes of “improper

omission”, i.e. the possibility of commission by omission. Notice what has happened: a

duty consisting in refraining from an action can translate into a duty to act. If negative

freedom rights can be infringed via commission by omission, it is simply not true that

they merely impose the duty to renounce something.

Now, this does not mean that action and omission do not differ. Not every omission

that causally contributes to the relevant result (e.g. the death of a person) is an act that

ought to be understood as commission by omission. For the result to be ascribed to

whoever refrained from acting, an additional element is needed. This additional element

serves the function of bridging the gap between omission and result, and several

circumstances are usually discussed here. One of them will be of particular interest to us:

if whoever refrained from acting could avoid the result and, additionally, had a previous

duty of care towards the interest that is protected by the rule of conduct, then her

omission can be qualified as a criminally relevant “cause” of the result. Thus the

lifeguard who does not save the drowning swimmer is responsible for murder by

omission if the swimmer dies, but the bystander who refrains from saving the victim is

not. A normal bystander does not have, under normal circumstances, a duty to aid

drowning swimmers, but a lifeguards does, if a swimmer is drowning in a pool that is

under his care.

Thus, for a negative duty to become a positive one it is necessary to establish a

special duty of care. This idea will turn out to be important because it will allow us to

explain why negative freedom rights are usually understood as negative rights. For the

time being, however, what matters is to notice that individual rights are negative rights

only because the possibility of commission by omission is excluded. If Höffe is right, and

negative freedom rights are indeed rights that impose a duty to refrain from acting, this is

not because of the structure of negative freedom rights; rather, it is because, in these

cases, it is not possible to establish a duty capable of transforming cases of (‘mere’)

omissions into cases of commission by omission. In other words, it is not by examining

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the active side of negative freedom rights (that is, the side of the right-holder) that we will

learn why Höffe's superficial observation is correct. We will find the explanation in its

passive side, i.e. in the position of the right’s jural opposite (the subjects of which are free

from these previous duties of care).

Regarding social rights' susceptibility to be defeated by scarcity, Höffe fails to

distinguish the meaning of the statement that describes the right and its application.

Certainly, a society’s cultural and material conditions affect the content of social rights.

Here one should distinguish between the fact that certain circumstances may render a

right unenforceable, and the fact that a certain action may not belong to the set of actions

required by a right. The former is not new, and is not particular to social rights; for every

normative statement there will be circumstances under which the duty imposed by it will

(or at least: may) be defeated. Höffe believes this distinguishes social rights from

negative freedom rights, because only the former are defeated by scarcity: scarcity does

not excuse murder (at least not normally: but what about Fuller’s Case of the Speluncean

Explorers?

). The relevant category, however, is not scarcity but ‘circumstances under

which fulfilling a right imposes an unreasonable burden on the debtor’. Since social

rights normally adopt the form of claims for the provision of certain services, these

‘circumstances’ usually appear as material scarcity: if fulfilling the right to housing leads,

in the circumstances, to an unreasonable sacrifice of other interests, this might justify

failure to provide adequate housing. But scarcity is only a particular instance of a generic

possibility; that is to say, it is only one of the cases in which fulfilling a right imposes an

unusually heavy burden to the debtor. Negative freedom rights are likewise limited.

Hence it is a mistake to rule out, as Höffe does, self-defense cases. To these we can also

add necessity.

Höffe’s third difference is that the content of social rights is susceptible to cultural

conditions, whereas that of negative freedom rights is not. Again, this is intuitively

correct, but only until one recalls that rights may be infringed not only with intent but

also without, that is, by negligence. And the standard of care is clearly sensitive to

Fuller, "The Case of the Speluncean Explorers".

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cultural considerations. Assuming that workplace safety regulations, for instance, are a

manifestation of the individual right to life or to physical integrity, it is clear that material

and cultural developments affect the content of those rights.

The deep (political) grammar or rights

Does it follow, then, that there is no difference whatsoever between social rights and

negative freedom rights? Many self-proclaimed promoters of social rights reach exactly

this conclusion. Yet here lies a conspicuous irony, which can best be revealed by going

back to Höffe’s (correct) starting point. The emergence of the very idea of social rights

can only be understood as a critique of the liberal idea of individual (natural) rights,

precisely because they are indifferent to cooperation (they are “the rights of selfish man,”

as Marx called them

). Social rights arise, therefore, as a way of affirming – in terms of

justice – the importance of understanding human self-realization as reciprocal rather than

individual. But if this is the case, then it is central to the very idea of social rights to

preserve the distinction between them and individual rights, because the point of social

rights is to subvert the idea of individual rights, to turn it against itself. This is why social

rights can only be understood as anomalous grafts in bourgeois law; the foundation for

the latter is the idea of individual rights.

But of course, for them to be grafts they had to be formulated in terms that can

resonate and be recognized by the rationality of the host. That is the reason why they

have to be understood as “rights”. This is a risky move, and the risk is usually associated

with the leftist critique of social democracy. For though the idea that grounds social rights

is the opposite to the idea that grounds bourgeois law, the language to express it is not the

language of opposition (which could not be understood by the rationality of the host), but

that of continuity: social rights as the full realization of what is important in those rights

that are central for bourgeois law (civil and political). This is the importance of

Marshall’s claim that rights come in historical progression: civil rights (18

century),

followed by political rights (19

century) and then social rights (20

century). The

important point, of course, is not how accurate in historical terms is this progression.

Marx, "On the Jewish question".

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What is important is the idea of movement, in which each step shows in a more

developed way the content of the previous. Marshall expressed this as the idea of

citizenship. We are not dealing here with three independent ideas. The same could be said

by reference to the revolutionary trilogy: liberty, equality, fraternity. Each idea more fully

realize and specify the content of the previous one: equality is the realization of liberty

(for, in Billy Bragg’s line, “freedom is merely privilege extended, unless enjoyed by one

and all”), and fraternity is the realization of equality (for the idea of fraternity shows

human realization as reciprocal rather than individual). In the same spirit, political rights

show civil rights in a different light, and social rights transform (one could say:

transfigure) the idea of political rights.

The “social democratic” risk is that, by using the language of the host, the attempt to

reinterpret the rationality of the host in the light of the graft immediately creates the

possibility of neutralization: this happens when the transformational content of the graft

is negated and it is reinterpreted according to the rationality of the host. We must look

into this in some detail.

Grafting creates an unstable situation, that is, a situation which has an immanent

tendency towards its resolution. This resolution can, in principle, adopt one of two forms:

the transformation of the host or the normalization of the graft. In the first case, bourgeois

law ceases to be bourgeois law, or at least ceases to be a legal system built upon the

notion of individual right, indifferent to cooperation, and becomes a system built on the

idea of reciprocal duty, which is constitutive of social rights. In the latter case, social

rights cease to be understood as grounded on the notion of reciprocity and are now

understood as yet another kind of individual right, that is, indifferent to cooperation, only

distinguishable from other individual rights because of their content (say, housing instead

of property). The irony is that today, progressive promoters of social rights loudly

proclaim that there is no difference between social and individual rights, but bourgeois

law is still bourgeois law. The right to healthcare, for example, has ceased to be a right to

a system which provides healthcare according to necessity and not ability to pay, and has

become a right to have one’s medical necessities attended even when the cost of

treatment is unreasonably high, even if as a consequence the need of other people will

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have to be neglected. Regarding these other needs, whoever sues for his need to be cared

for may reply as parties in the market: am I my brother's keeper?

If we are to avoid this ironic conclusion, we must say that social rights are indeed

different from individual rights. But the usual ways in which this distinction is portrayed

(as the distinction between positive/negative rights, or between

defeasibility/undefeasibility by scarcity or culture) conceals the political meaning of the

aforesaid distinction. Höffe's starting point, according to which negative freedom rights

are indifferent to cooperation while social rights are founded on cooperation, is

promising, but it seems to take the conclusion as the premise. Indeed, if we want to get a

clearer understanding of the political sense of the distinction, we will have to give a

closer look to those features of these rights that are connected to the fact that some rights

are indifferent to, and others presuppose, cooperation.

One of the peculiarities of negative freedom rights is that the specification of their active

aspect (the right-side) is immediately a specification of their passive aspect (the duty-

side, its jural opposite). A complete specification of a right’s content entails identifying

three elements: an active subject, a passive subject, and a given action someone is not

under a duty to perform (in the case of W. N. Hohfeld ‘privielges’ or liberties) or is under

a duty to perform (in the case of Hohfeld’s ‘rights’)

. For negative freedom rights, the

dominant side is the active side. In other words, it is enough to specify that to which the

holder is entitled in order to provide a full specification of the content of said right

Thus, albeit risking an over-simplification, we may say: the right to life is the right not to

be murdered. Here the passive aspect is the reflection of the active aspect, directed

generically against a universal subject. The active aspect of the right to life immediately

reveals its passive aspect, thus fully specifying who has what duty. The passive subject

Hohfeld, "Fundamental legal conceptions".

There is a different, unrelated way of identifying the ‘dominant’ position in a pair of jural opposites: by

looking at the action concerned. Thus, in the opposition right/duty the dominant position is the passive

(duty), for the action concerned is always an action of the debtor. In the liberty/no right opposite, the

dominant position in this sense is that of the liberty holder, because the action involved in his or her action.

I mention this only to prevent confusion between this sense in which a position is or is not dominant and

the sense in which I am using the expression in the main text.

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must be universal because these rights are “natural” rights. Their being “natural” rights is

not a claim about what happened in a by-gone time when there was no government, but a

political claim: they are rights that do not presuppose any artificial (=non-natural,

political) relations between individuals.

When it comes to social rights, a specification of the interest which the right serves –

that is, its active aspect – is not enough to specify its passive content. In other words, it is

not enough to identify an interest worth protecting to ground a duty to protect it. This is

what Höffe observes when he objects that

Some treat the demands aimed at this multifaceted social nature rather generously.

Without any prior conceptual demarcation, they formulate extensive lists of social rights

from obligations of solidarity and philanthropy or even a subsequent assessment of their

legitimatory basis. This lack of a proper basis cannot be solved by the frequent, even

inflationary appeal to social justice in politics

The excess of enthusiasm of these promoters of social rights consists in believing that it is

enough to find an important aspect of someone’s well-being (i.e. an interest worth

protecting) to conclude that, therefore, every human being has a right to whatever is

necessary to satisfy it (i.e. it is protected). But this is mistaken, because it ignores that the

point is to ground duties, duties that would warrant the conclusion that X is compelled to

do something towards Y. And to ground X’s duty it is not enough to show that it would

be good for Y to get something. The question, then, is how to bridge the gap between the

interest of the right-holder and the duty of the debtor?

THE SOCIAL CONTRACT AND ITS LIMITS

Does a contractualist theory of justice have a determinate content qua contractualist? In

general, contractualist authors do not dwell on the substantive content of the metaphor

they use, and present it claiming for it a merely expositive function; it is thus justified

simply by showing that it is “a useful way to study ethical theories and their underlying

assumptions”

. But the idea of social rights shows that the metaphor is not innocent and

Höffe, Democracy in an Age of Globalization, p. 46.

Rawls, A Theory of Justice, §3.

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carries with it a determinate political content, regardless of the way in which it is

developed in this or that version.

The need to bridge the gap between interest and duty

We begin where we left at the end of the previous section: the specification of the active

content of a social right does not fully and immediately specify the content of the

correlative duty. The right-side represents the interest protected by the right, but an

appeal to that protected interest is not enough fully to specify the content of the duty-side.

When dealing with individual rights, the aforementioned interest is specified by referring

to others' interference. For instance, the interest protected by the right to life cannot be

characterized as the interest to remain alive, but as the interest not to have one’s life

terminated by a third party. By this reference to third parties’ interference, the

characterization of the interest which the right protects fully determines the passive

aspect of that right (the duty imposed on others). But when dealing with social rights (to

education, or to healthcare, etc.) the protected interest is not characterized by reference to

third parties’ actions; it is only characterized by the holder’s well-being. How can we

translate a statement about the holder’s well-being into one about others’ duty?

Two different conceptions of social rights stem from the way in which the gap

between the holder's interest and others’ correlative duty is bridged. A contractualist

theory of social rights is the first possibility. As any form of contractualism, its starting

point is the fact that individuals have opposing interests, interests that can only be

coordinated by contract. What moves the parties to contract is the desire to safeguard

their interests, and the fact that it is rational for them in the circumstances to give up

something (like: their natural freedom, or the right to adjudicate the natural law) in order

to achieve some level of protection. Since the contract is the foundation for all political

bonds, there can be no duty which simultaneously presupposes and precedes the contract;

this is why the notion of commission by omission does not apply to natural rights (it is

impossible to argue for the special position of care prior to the contract, since there are no

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special relations before the contract)

. Within the limits set by the basic feature of a

contractualist explanation, therefore, it is possible to ground social rights only on the

rational interest of each to ensure that all parties will benefit from the contract in order to

demand, in return, that they renounce their natural freedom (i.e. that they abide by law).

This certainly provides a way to link interest and duty: law’s authority can only be

justified by reference to the fact that being subject to law improves the condition of the

individual, in such a way that it would be irrational for him or her to reject it. Only if this

condition is met we can label his rejection a case of free-riding, and ignore it. Hence all

have reason to agree to provide the less fortunate with whatever is necessary to make sure

that they benefit from the move from the natural to the civil condition

. This minimum

level of welfare is what might constitute “positive” rights. The political consequence of

this way of linking interest and duty is evident. Social rights here do not manifest an ideal

of equality, but at best a protection against poverty; they ground not universal public

services but strictly targeted (means-tested) programs. And the basis for these policies is

not the well-being of the poor but that of the rich, who thus ensures that the poor are

bounded by the contract.

Höffe criticizes Nozick and Locke for in their characterization of the state of nature they “prematurely

break off the process of abstraction required by the

state of nature” (Höffe, Political Justice, p. 189), by claiming that in the state of nature there could be such

a thing as natural rights. According to Höffe, “The state of nature must be imagined as not only free of the

state but also of all subjective rights” (ibid). For reasons explained in the main text, I believe this to be a

mistake. What the state of nature requires is the exclusion of all political bonds between individuals

because the contract, which is to be the way out of the state of nature, is the ground of political bonds. In

some versions (such as precisely Locke’s and Nozick’s), natural law is defined precisely as law that exists

before the political, law the validity of which does not rest on political authority. There is here neither

contradiction nor a process of abstraction that is prematurely broke off. This is not to endorse Nozick’ or

Locke’s view about natural law or natural rights, but to understand the political sense of the idea of the state

of nature. Authors like Nozick and Locke do not incur in any “petitio principii” (ibid) when they make

reference to natural law or natural rights. But of course, that a claim does not involve a petitio principi does

not make it correct. Or to put it in other words, if it is the case that “primary state of nature is void of law

and state” (Höffe, Democracy in an Age of Globalization, p. 29) this is a consequence of a thesis about law

(=its validity rests on political authority), not about the state of nature.

Again, risking oversimplification, we can say: it goes in the interest of the rich that the poor are bounded

by law, and hence it goes in the benefit of the rich that the move from the natural to the civil condition is

shown to be in the benefit of the poor.

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The second way to understand social rights is T.H. Marshall’s, as presented in his

famous Citizenship and Social Class

. In this sense, social rights constitute the substance

of citizenship, its content. They contain the idea that certain aspects of the well-being of

each are everyone’s responsibility. Since they rest on the idea of self-realization as

reciprocal, they cannot be understood as indifferent to cooperation. But thus understood,

social rights cannot be identified in the state of nature, because they presuppose the bond

of citizenship which the contract purported to found. A contractualist account of justice,

therefore, cannot but ignore them.

As we have seen, the idea that individual and social rights are structurally identical,

and differ only in content, has become a commonplace among promoters of social rights

and social rights activists. But now that we have found a difference, what are we to make

of this claim? Here we have to return to the graft/host unstable situation identified above.

By ignoring the need to offer an argument that would connect interest and duty,

Marshall’s idea of social rights is lost. This explains, in my opinion, the current

popularity of two ideas that reciprocally reinforce each other, the hegemony of which is

the extent to which the political meaning of social rights properly so-called has been

defeated.

The first of these ideas is a contractualist justification of political association, which

presents itself as politically neutral, that is, as if it stood outside and above the left/right

political divide. One could thus, allegedly, find ‘left-wing’ and ‘right-wing’ versions of it

(Rawls and Nozick immediately spring to mind). But in terms of social rights,

contractualism is a way to bridge the gap between interest and duty, and hence it cannot

be politically neutral; it implies that what is politically relevant is not equality but poverty

(more or less extreme). This is because the idea of citizenship cannot play but a

secondary role, since what is politically fundamental is the protection of interests that can

be identified in the state of nature.

Marshall, Citizenship and Social Class.

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The neutralization of social rights

The second, and related idea, is the neutralization of social rights. Because it is

Marshall’s notion of social rights which expresses their true content, as social rights (that

is, rights which belong to the citizen, and thus cannot be identified when one dispenses

with the bond of citizenship, as is the case in the state of nature). By excluding or

demoting Marshall’s idea of citizenship as the link between interest and duty, this

conception of social rights is neutralized, and it is incorporated into bourgeois law in the

only way that really existing bourgeois law can incorporate it. Bourgeois law being the

law of individual rights, social rights can be incorporated only by de-socializing them, by

transforming them into individual rights to a minimum provision of well-being.

This neutralizes social rights because, as we have seen, social rights are not individual

rights, but a subversion of the language of individual rights. Their recognition by

bourgeois law was meant to create an unstable situation. This instability implied an inner

tendency towards resolution, which was meant to come about via the transformation of

bourgeois law, which would cease to being founded on the liberal idea of self-interest but

would instead revolve around the socialist notion of reciprocal duty. But today this

resolution has been reached not because of the transformation of bourgeois law into

something else but by the transformation of social rights into individual rights to a

minimum standard of living: social rights are now based in the same idea of self-interest

which grounds bourgeois law.

These ideas reinforce each other, because the latter lends credibility to the former:

since social rights, once neutralized, can be grounded by a contractualist doctrine, today

contractualism can claim to be the common grammar in which old political positions

express themselves, when in reality this is the extent to which one of them has been

defeated.

THE IDEA OF SLOW PEDAGOGY

Contractualism, then, is the replacement of equality for poverty as a politically relevant

matter. The main legitimatory goal is not equality but improving the lot of what Rawls

calls “the least advantaged”. But this raises the following question: why contractualism?

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This is the often unasked question, since contractualism is seen as politically neutral. We

have already seen that Rawls justifies this perspective by appealing only to its expository

clarity, since it allows one to easily identify ethical theories and their assumptions. But

given the political consequences that flow from this idea, it is manifest that clarity is not a

sufficient justification to adopt it. When dealing with politically important matters, clarity

might be important, but it would be absurd to hold that it ought to be held as a substantive

political criterion. Thus: why contractualism?

Every contractualist doctrine assumes the priority of individual over community. The

meaning of this priority is not crudely ‘normative’, as if it were the claim that community

is for individuals rather than individuals for community. The priority consists in the idea

that the sense or point of the political lies outside the political, so that it can be identified

from a pre-political perspective (be it state of nature or original position). It is from this

perspective that the terms of political association are to be determined. For this reason,

justice has no history; the state's conditions of legitimacy are determined by referring to

what individuals with no bonds would agree to, which is why the principles of political

justice do not develop in time. From whatever moment we are in, in principle we could

always ask the question of which are the terms we would agree to in the original position,

and since the question and the relevant circumstances are the same the answer would

have to be the same. The content of this pact are principles valid “once and for all”

Contractualism radically excludes the possibility of what Charles Taylor called slow

pedagogy, that is, the notion that what we owe each other is something we learn by living

political lives:

Here’s a hypothesis from within a Christian perspective: humans are born out of the

animal kingdom, to be guided by God; and the males (at least the males) with a powerful

sex-drive, and lots of aggression. As far as this endowment is concerned, the usual

evolutionary explanation could be the correct one. But being guided by God means some

kind of transformation of these drives; not just their repression, or suppression, keeping

the lid on them; but some real turning of them from within, conversion, so that all the

energy now goes along with God; the love powers agape, the aggression turns into

energy, straining to bring things back to God, the energy to combat evil...

Rawls, A Theory of Justice, pp. 12, 75, 161.

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This is the fallen condition. There are two dimensions. God is slowly educating

mankind, slowly turning it, transforming it from within... . But at the same time, the

pedagogy is being stolen, has been misappropriated, and misapplied; the education is

occurring in this field of resistance…

Now God’s pedagogy operates in this field of opposition. In this field, it can be a

positive step, bringing us back closer to God, if the numinosity around some

untransformed practice is bent back, brought into some kind of relation of service to God;

even though one might suppose that the ultimate goal would be to leave this practice

behind altogether. One can’t leap altogether to the end. That’s the truth of the slow

pedagogy.

But on the other hand, there can and must also be leaps

Of course, in our context we have to give a political reading to references to God, and to

do so we may take advantage of the fact that one can always invert theological concepts

and understand them in political terms. A political paraphrase of the idea contained the

fourth paragraph of Taylor’s passage (which can be said to provide a clue to the

interpretation of the whole passage) is that the education with which we are concerned is

that of the people: the people educates itself slowly, through political coexistence, and

progressively learns what it means to live in recognition

. Thus the people transforms

itself, although, simultaneously, this pedagogy is stolen and misapplied: political

education takes place in this field of resistance. This means that if we adopt the

perspective of the state of nature to explain the political, we will find individuals who do

not recognize each another, or (what is effectively the same) who do so in purely

instrumental terms: each tries to use the others to his or her own ends (Taylor: As far as

the natural condition is concerned, the usual evolutionary explanation could be the correct

one). But by living together we learn how to understand and recognize one another.

Contractualism is a doctrine of denial. Denial of the possibility of slow pedagogy.

Since the priority is on the pre-political individual, the content of the political bond is

settled before there is any possibility of slow pedagogy. And this carries another

consequence. We have seen that for contractualism justice has no history. But there is a

Taylor, A Secular Age, pp. 667-8.

What is interesting about this inversion of theological language is that it also throws light on theological

concepts, because of the “systematic analogy” (Schmitt, Political Theology, p. 37) between political and

theological language. On this, see Atria, "Living under dead ideas". For notorious examples of this

inversion (my words) regarding the theology of revelation, , see Segundo, El Dogma que Libera and Torres

Queiruga, Repensar la Revelación.

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history of what we could call the technology of justice: we can learn from experience

what institutional arrangements work better in the protection of (pre-political) rights. This

is why the natural subject of a contractualist (liberal) theory of justice is institutions

rather than individuals and their conduct (this is explicit in the very first paragraph of

Rawls’ A Theory of Justice).

And what is the justification for all of this? Here it is useful to turn to Höffe, who

offers an answer:

The two basic approaches of institutional and personal interpretations of the state can be

understood as opposing poles, so that moral demands imposed on the polity can be

directed either exclusively at institutions or at persons. Those who only rely on individual

morality, hope for a better, possibly new human being, free of any self-interest. Political

liberalism sees here an unrealistic and excessive demand, and for this reason alone it

identifies contract theory as an alternative to virtue ethics. In addition, it understands

civic virtues as particularist elements that are not compatible with universal principles

Let it be noted: the only argument for contractualism is the unrealistic naivety of virtue

ethics. Of course it is unrealistic and naive, if seen from the state of nature (or the original

position)!

The question of justice must be asked in this context. If it is posed, as in

contractualism, sub especie aeternitatis, in order to answer it “once and for all”: What

aspect of others’ well-being is my duty?, the answer will be: the minimum (‘negative’)

rights: non-aggression. In that case, only the situation of those who live below that

minimum offends justice. Social rights are individual rights to a minimum. As previously

mentioned, this is a way to neutralize social rights; they no longer subvert bourgeois law,

because they no longer contain the idea of slow pedagogy. Their content is now given by

what can be warranted as a an actionable claim. It is important to understand the structure

of the argument here: According to Höffe, the reason that justifies contractualism, and

why the perspective to judge the principles of justice is that of radically independent

individuals, indifferent to one another, is not a positive argument about this perspective,

or about the 'true' form of human motivation, but a default reason as it were, grounded in

Höffe, Democracy in an Age of Globalization, p. 132 (emphasis added).

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the fact that a different perspective would demand too much, would be “unrealistic and

excessive”.

RESCUING THE SOCIALIST IDEA OF SOCIAL RIGHTS

The neighbor and the stranger

It might be useful to consider here an idea which, hidden in a text that is little more than a

work of propaganda, has not received, to my knowledge, the attention it deserves. In F.

Hayek’s The Mirage of Social Justice, volume 2 of his trilogy Law, Legistlation and

Liberty

, Hayek claims that

the moral feelings which express themselves in the demand for 'social justice' derive from

an attitude which in more primitive conditions the individual developed towards the

fellow members of the small group to which he belonged. Towards the personally known

member of one's own group it may well have been a recognized duty to assist him and to

adjust one's actions to his needs. This is made possible by the knowledge of his person

and his circumstances

This primitive condition changes, according to Hayek, in the “Great Society,” which

required the extension of the process of material exchange beyond the aforesaid small

groups. This in turn was made possible by an equal recognition given to neighbours and

foreigners alike. Hayek continues:

This application of the same rules of just conduct to the relations to all other men is

rightly regarded as one of the great achievements of a liberal society. What is usually not

understood is that this extension of the same rules to the relations to all other men

(beyond the most intimate group such as the family and personal friends) requires an

attenuation at least of some of the rules which are enforced in the relations to other

members of the smaller group. If the legal duties towards strangers or foreigners are to be

the same as those towards the neighbours or inhabitants of the same village or town, the

latter duties will have to be reduced to such as can also be applied to the stranger

While the second volume is little more than a work of propaganda, the first volume of the trilogy

(Hayek, Rules and Order) contains an idea that is relevant for the concept of slow pedagogy: see Atria,

"Socialismo hayekiano".

Hayek, The Mirage of Social Justice, p. 88.

Ibid.

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This is an important claim: to deny the neighbor any special status is a condition for the

universalization of rights, which strictly speaking requires that the bond of citizenship,

given its particularistic nature, must be emptied of special obligations. When Hayek

claims that this step, the universalization of rights, is “one of the greatest achievements of

liberal society,” it is hard not to agree with him. But the point is that to take this step one

must define duties with neighbors by reference to duties with strangers. Hence the

attractiveness of the notion of social contract: my duty to others must be such that its

content can in principle be established before the political, because otherwise it could not

be understood as universal. This implies, however, that the content of that duty be

minimal. Consequently, there exist only negative freedom rights, and ‘social rights’ (that,

for this very reason, lose their truly ‘social’ aspect) can be justified, but not by reference

to the normative notion of reciprocal duty, but as a condition to secure that the transit

from the state of nature to the civil state benefits all. Politically speaking, we have seen

that this means that ‘social’ rights deal not with inequality but with poverty. Legally

speaking, this has implied an enormous increase in the relevance of international law of

social rights. The implication of all this is precisely the phenomenon we are discussing:

social rights cannot be understood as Marshall does, that is, as the content of citizenship.

Hayek’s argument holds only if one ignores Taylor’s notion of slow pedagogy.

Indeed, if the question is for the rights and duties of each one that can be established once

and for all, the answer will have to be based on the most primitive aspects of human

behavior (which is why there is an intrinsic connection between liberalism and

neodarwinism). This reduces humanity to a biological fact (=membership to a biological

species). A political comprehension of the idea of 'humanity', however, sees it as a goal of

history, a goal the value of which depends not on whether it will be achieved, but on

granting us the capability to identify what counts as progress and what counts as regress,

which is of course the very condition of any form of pedagogy

This is why it is important to retain a notion of social rights according to which they

remain anomalous grafts, that is, rights which cannot be treated institutionally as

See McCabe, Law, Love and Language, pp. 35-67.

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individual rights. By transforming them into individual rights (rendering them capable of

being claimed before a court of law) the anomaly is lost, and they become the rights of

‘isolated man’ to minimum protection of one's health or education. Here social rights

cease to provide a vantage point which is always out of reach, and become a demand

which can be satisfied once and for all. Certainly, progressive promoters of this

neutralization of social rights will claim that, in this way, they will be fulfilled and will

cease to be ‘empty promises’ or ‘merely programmatic declarations’, but they ignore

Hayek's point about universalization: if social rights are understood as rights that can

today be fully realized, their content will have to be defined by reference to the rights a

stranger can claim. This is the significance of Taylor’s idea that the truth of the slow

pedagogy is that one can’t leap altogether to the end.

To ignore this and argue for the opposite effect, that is, to redefine the content of my

duty to the stranger based on my duty to my neighbor leads, as Höffe remarked, to

extensive lists of social rights stemming from obligations of solidarity and philanthropy,

which rest on nothing but an inflammatory appeal to social justice in politics. We must

accept his criticism but reject the closure of his solution. This means abandoning the

liberal idea that our duties to each other can only be understood universally if they are

established from a pre-political vantage point; the opposite move is to assume that the

political (including the notion of political justice) is subject to development in history,

because recognition is something that we learn by living together. Without recognition,

however imperfect, there is nothing but Hobbes’s state of nature; with perfect

recognition, we have arrived to the Kingdom of God. The political is what lies in

between. A contractualist perspective invites us to determine the content of mutual

recognition, implausibly, from the vantage of point of a state in which such recognition is

nonexistent.

Is the idea of slow pedagogy utopian?

If the idea of slow pedagogy is ignored, then the choice is between liberalism or

ethnocentrism. This is a position nowadays supported by an unlikely alliance. Not only

does it face a predictable (neo-)liberal criticism, which holds that we have nothing to

learn. Indeed, the very idea of a pedagogy addressed to the citizen looks totallitarian to

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the (neo-liberal, who believe that any pedagogy must assume (i) that the individual is a

child, and (ii) a clear distinction between student and teacher (Taylor’s slow pedagogy

serves precisaley to show that both of these assumptions are flatly untrue); it also faces

criticism from the postmodern left, according to which history should abandon the

notions of progress and ‘grand narratives’. Indeed the idea of slow pedagogy seems to

imply a kind of “forward march” to a better world.

But it is precisely because of this that we must emphasize that this is a slow

pedagogy, always exposed to being stolen, misappropriated, and misapplied. The most

evident way to do this is by undestanding pedagogy as as instrumental step to move from

one point to the other, thus denying that it is constitutively, and not contingently, slow.

This misapproppriation is constitutive of the idea of ‘leftism’ or ‘left-wing communism’

as ‘an infantile disorder’. Leftism views pedagogy as training, that is, only as a means.

But the best training is that which allows one to acquire the desired skills as

inexpensively and quickly as possible. Yet the sense in which political pedagogy is

relevant is not instrumental, because it is what MacIntyre calls an ‘internal good’ of

political practices (the practice of living political lives). The point is not to learn a certain

propositional content for which, in principle, it is enough to be shown a convincing

argument; the point is to learn to live in a different way.

The idea of goods internal to practices is opposed, of course, to that of external goods.

External goods can, in principle, be obtained in various ways, such that once they have

been acquired, the way in which they were acquired is irrelevant. When it comes to

external goods, there is a fundamental distinction between means and ends, and the goal

is to deploy the most adequate strategies to obtain the ends at the least possible cost.

When it comes to internal goods, however, this distinction between means and ends

collapses

Of what nature are the goods to which we aspire in politics? The (neo-)liberal reply is

that they are external goods: ‘to secure these rights, Governments are instituted among

See generally MacIntyre, After Virtue, pp. 188-203.

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Men, deriving their just powers from the consent of the governed’, as the American

declaration of independence has it. Politics is here a means to secure pre-political rights.

The idea of slow pedagogy implies a different understand of the political: political

institutions (or, in MacIntyre’s terms, the practices supported by political institutions) are

not a means to acquire something which in principle could be an be defined

independently of them (an external good), but they are, in a sense, the end goal. To put it

in theological terms, institutions have a sacramental dimension. Just as sacraments in

Christian theology are ways in which the Kingdom of God is already among us, but not

yet, political institutions are ways in which full reciprocal recognition is already among

us, but not yet.

Yet, do we have, beyond sheer optimism, any reason to believe in the idea of slow

pedagogy? In my opinion, slow pedagogy is distinctly a part of our political experience.

Consider, for example, the difference between the American and the British discussion on

healthcare. While in the US a rather moderate healthcare reform has just been achieved,

after serious threats of being struck down as incompatible with the most fundamental

rights of the American people, in Britain the discussion begins with the existence of a

universal system which, though of course subject to acute political controversies, is a

stable institution. How can we account for this difference? At least one of the things that

clearly distinguishes, in this sense, the United States from the United Kingdom is that the

UK has had a national healthcare system for over six decades. It is not the case that

Bevan or Beveridge thought of a “killer” argument that has escaped Obama and his

advisers to convince their opponents about the idea of universal healthcare. It is, rather,

that an institution like the NHS creates its own support, which means: living under

conditions in which individuals can see their interests as common, individuals learn about

themselves. Thus Ed Milliban was right when he said that “If [the NHS] was proposed

today, we would be told it could not be done”

. Since the point is not to find an

argument which proves, beyond all doubt, that our interests are ‘really’ common, but to

live under conditions in which interest appear to the individual as common, the teaching

‘The Future of the NHS’, speech to the RSA, 4 April 2011, available at http://www.labour.org.uk/the-

future-of-the-nhs---ed-miliband.

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process – the pedagogy – is to be slow. AS Marx and Engels said, when discussing

French materialism, “If man is shaped by environment, his environment must be made

human”

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