The following appeared in Volume 97, Number 2 (Spring, 1998) of the APA Newsletters

The Universal Declaration of Human Rights (1948) broke new ground by including in its list of human rights economic and social rights (ESRs) that addressed matters such as education, food, and employment. The first 21 articles of the Universal Declaration declared rights similar to those found in historic bills of rights. These "civil and political rights" included rights to personal liberties, due process of law, and political participation. But articles 22 through 27 declared rights to free public education; a standard of living adequate for health and well-being; social security during sickness, disability, and old age; free choice of employment and protections against unemployment; fair pay including equal pay for equal work; and rest and leisure. In this essay I consider whether the claim that ESRs are universal human rights is defensible, particularly in the changed circumstances of fifty years later.

ESRs were controversial from the beginning. When the effort to convert the Universal Declaration into a binding international treaty was underway in the 1950s, ESRs were put into a separate treaty (the International Covenant on Economic, Social, and Cultural Rights) so that governments could ratify the list of civil and political rights (The International Covenant on Civil and Political Rights) without having to accept the ESRs.

Opponents of ESRs often deny that ESRs are really human rights. They reserve that status for civil and political rights. Objections to ESRs include that they: (1) don't make sense as rights; (2) don't have the importance of civil and political rights; (3) are too burdensome on governments and taxpayers (this burdensomeness may extend to violating other, more important rights); and (4) are not feasible in many countries.

I. Economic and Social Rights as Rights

The Universal Declaration uses the concept of rights extensively without doing much to explain it. The preamble describes the Declaration's goal as establishing "a common standard of achievement" for all countries that is to be promoted by "teaching and education" and by national and international measures to "secure their universal and effective recognition and observance." I suggest that rights, as they are understood in the Universal Declaration, have three characteristics. First, they are high-priority moral norms, they identify extremely important areas of social and political action. Second, they are individuated in the sense of having identifiable holders or beneficiaries (all persons or all citizens) and addressees (primarily governments, and secondarily individuals and international institutions). Third, they are mandatory or obligatory rather than optional. It is this mandatory character that separates rights from high-priority individuated goals.

One might object to the very idea of rights to economic and social benefits by endorsing Hart's view that the central function of rights is "the distribution of freedom of choice."¹ A putative right to free public education, it might be argued, confers education, not choice and hence can't be a genuine right. Two responses are available to this objection. One is that its central premise, Hart's version of the "will" theory of rights, is an unproven philosophical hypothesis about the central function of rights. It has powerful advocates,² but so does the competing "interest" theory of rights which finds no problems with rights to welfare.³ The second response is that even if we accept Hart's view of the function of rights, we should not understand that view as saying that rights can't be to goods such as property, services, or opportunities. What it implies is rather that rights distribute control or decision-making powers in relation to these goods.⁴ A rightholder has legitimate control over the decisions of the addressees about the use or disposition of the goods in question. The right to free public education, for example, takes the decision about whether government agencies will provide educational opportunities to a child out of the hands of public officials (since they are obligated they no longer have discretion in this matter) and puts it into the hands of the child and its parents. The right gives them powers to claim or demand the provision of educational services, and (within the limits permitted by requirements that children be educated) to waive this claim by declining to accept those services.

Another objection to the use of the idea of the concept of rights in the Universal Declaration is that these "rights" can't be real rights because the goals they set are far too demanding for most governments to realize. These "human rights," it is argued, are really ideals. Important ideals, perhaps, but only ideals. On this view it would have been more honest to create a "Universal Declaration of High-Priority Goals." I'll respond to this objection below under the heading of "Feasibility."

II. The Importance of Economic and Social Rights

Human rights, such as rights to freedom from torture, or to a fair trial in criminal and civil cases, set out minimal but extremely important standards that governments everywhere should meet. One might object that ESRs don't meet this standard of extreme importance. Perhaps they identify valuable goods, but not extremely valuable goods. To discuss the issue of importance I'll use three ESRs as examples: (1) the right to an adequate standard of living; (2) the right to free public education; and (3) the right to protection against unemployment. These ESRs require governments to try to remedy widespread and serious evils such as hunger, ignorance, and widespread unemployment.

The importance of food and other basic material conditions of life is not hard to show. These goods are essential to people's ability to live, function, and flourish. Without adequate access to these goods interests in life, health, and liberty are endangered and serious illness and death are probable. The connection between access to the goods the right protects and having a minimally good life is direct and obvious-something that isn't always true with other human rights.

In the contemporary world lack of access to educational opportunities typically results in limits (both absolute and in comparison to other people) on people's abilities to participate fully and effectively in the political and economic life of their country. Contemporary economies have few positions available for people who lack literacy and numeracy, and hence lack of education increases the likelihood of unemployment.

Showing the importance of employment requires a more complicated story. Children and dependent spouses can survive and flourish without employment as long as they have access to the money or goods to which employment is the normal means. But remunerative work provides the most prevalent, reliable, and acceptable means of providing for one's survival, flourishing, and self-esteem. Unemployment is a threat to self-esteem, particularly for those who are socially designated as primary breadwinners.⁵

Another way to support the importance of ESRs is to show their importance to the full implementation of civil and political rights. If a government succeeds in eliminating hunger, providing education to all, and minimizing unemployment, this promotes people's abilities to know, use, and enjoy their liberties, due process rights, and rights of political participation. This is easiest to see in the area of education. Ignorance is a barrier to the realization of civil and political rights because uneducated people often don't know what rights they have and what they can do to use and defend them. It is also easy to see in the area of democratic participation. Education and a minimum income make it easier for people at the bottom economically to follow politics, participate in political campaigns, and to go to the polls and vote.⁶

A good might be important and yet attempts to ensure its availability to everyone might impose extremely heavy burdens on people and institutions. In such a case we would probably say that a general right to that good couldn't be justified because of its heavy costs.

Let's distinguish between a claim-to some good and a claim-against someone to provide that good. The previous section dealt with the importance of the claims-to that ESRs involve; here we need to deal with the justification of the associated claims-against other persons to contribute to the availability of goods such as food, housing, education, and employment. People's ESRs are, at least initially, claims against their governments to ensure that they have access to things such as food, housing, education, and employment. But unless governments have enormous oil wealth, or something of that sort, they will have to pass the costs of providing these guarantees on to their citizens in the form of taxes or reduced wages.

Frequently the claim that ESRs are too burdensome uses other, less controversial HRs as a standard of comparison, and suggests that ESRs are substantially more burdensome or expensive than liberty rights. But liberty rights such as freedom of association and movement are claims not just to respect for one's freedom to associate and move, but also to government protection for that freedom. And people can't be adequately protected in their liberties unless they also have security and due process rights. The costs of liberty, as it were, include the costs of law and criminal justice. Once we see this, liberties start to look a lot more costly. To provide effective liberties to engage in independent economic activity, for example, it isn't enough for a society to make a prohibition of interference with these activities part of its accepted morality. An effective system of provision for these liberties will require a legal scheme that defines personal and property rights and protects these rights against invasions while ensuring due process to those accused of crimes. Providing such legal protection in the form of legislatures, police, courts, and prisons is extremely expensive. We shouldn't think of ESRs as simply giving everyone a free supply of the goods they protect. Systems guaranteeing food and housing will be intolerably expensive and will undermine productivity if everyone simply receives a free supply of welfare goods. A viable system of ESRs will expect most people to provide these goods for themselves and their families through work as long as they are provided with the necessary opportunities, education, and infrastructure. Government-implemented ESRs provide guarantees of availability, but governments should have to supply the requisite goods in only a small fraction of cases. Note that primary education is often an exception to this since many countries provide free public education irrespective of need.

Countries that don't accept and implement ESRs still have to bear somehow the costs of providing for the needy, since these countries-particularly if they recognize democratic rights of political participation-are unlikely to find it tolerable to allow sizeable parts of the population to starve and be homeless. If government doesn't supply food, clothing, and shelter to those unable to provide for themselves, then families, friends, and communities will have to shoulder this burden. It is only in the last century that government welfare systems have taken over a substantial part of the burden of providing for the needy. The taxes associated with ESRs are replacements for other burdensome duties, namely the duties of families and communities to provide adequate care for the unemployed, sick, disabled, and aged. Deciding whether to implement ESRs is not a matter of deciding whether to bear such burdens, but rather of deciding whether to continue total reliance on a system of informal provision that distributes benefits in a very spotty way and whose costs fall very unevenly on families, friends, and communities.

Once we recognize that liberty rights are burdensome, that intelligent systems of provision for ESRs supply the requisite goods to people in only a small minority of cases, and that these systems are substitutes for other, more local ways of providing for the needy, the difference between the burdensomeness of liberty rights and the burdensomeness of ESRs doesn't seem to be a large one.

Another version of the burdensomeness objection says that the reason why ESRs aren't important enough to be human rights is that the injustice of letting people go hungry or without education isn't nearly as severe as the injustice of torturing them, denying them fair trials, or infringing their freedom of speech. But this objection just begs the question. If we can establish that ESRs are basic human rights by satisfying the appropriate justificatory steps, then it will follow that violating those rights is a severe injustice. We can't be sure that our list of severe injustices is complete until we know that our list of basic rights is complete.

IV. The Feasibility of Economic and Social Rights

Real rights are more than ideals or goals. They impose duties (or other mandatory normative burdens) on their addressees. But for these duties to be justified, they must require things that most of the addressees are actually capable of doing. It may be alleged that ESRs, because they are burdensome, fail this test. Because ESRs are not in fact feasible to implement everywhere today, they can be ideals or high-priority goals but not real rights.

Because of the great variations between countries in wealth, and in human and institutional capacities, the authors of the Universal Declaration faced great difficulties in formulating norms for the entire world. They wanted to formulate rights that were specific enough to provide clear guidance, but they also somehow had to address all of the world's governments. The approach they took was to formulate relatively high standards. The Declaration's list of human rights presupposes that countries have, or will soon have, the financial and other resources needed to construct democratic political institutions, operate a humane and procedurally fair legal system that protects important liberties and rights, and provide a comprehensive welfare state. This list of demands is appropriate to the world's richer countries, but is far too demanding-even fifty years later-for most of the world's countries. To deal with this, the International Covenant on Economic, Social, and Cultural Rights called for progressive implementation:

Each State party to the present Covenant undertakes to take steps...to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.⁷

The issue raised by this view of implementation is whether it turns economic and social rights into ideals or high-priority goals. Is progressive implementation compatible with the mandatory character of rights? To be mandatory, norms must not impose obligations that their addressees cannot meet. The trouble with economic and social rights, on this view, is that at least half of the world's countries lack the financial and institutional resources to implement ESRs.

There are two problems with this objection. One is that it assumes that the implementation of ESRs is an all-or-nothing matter, whereas in fact most countries can and do take at least partial measures to implement ESRs. Most countries provide free public education at the elementary level, and most take some steps to prevent famines and assure that food is available to the poorest parts of the population.

In dealing with groups of addressees with very mixed capacities, we often impose duties that not all of those addressees can meet, or fully meet. For example, the duties of parents to provide for their children are demanding, and the fact that some parents are-due to illness, psychological problems, or unemployment-unable to provide everything these duties call for doesn't cause us to retreat to the view that these are really just goals. Instead we say that parents should at least meet the most important of these duties, and perhaps that assistance should be provided in doing the rest.

As this suggests, the alternative to admitting that ESRs are really high-priority goals or ideals is to appeal to the "ought implies can" principle to explain how ESRs impose full duties on countries capable of fully implementing them and more limited duties on countries not capable of fully implementing them. If a country genuinely lacks the ability to provide a system of social security, the duty to do this is inoperative. Once the country is able to fully implement the right while discharging its other responsibilities the duty will become more demanding.

Another version of the "too burdensome" objection suggests that ESRs are incompatible with already-established human rights because the taxation and redistribution required to implement them violate people's rights to liberty and property.⁸ I think that this objection depends on a view of property and economic liberties that is too inflated to be plausible. To put it differently, I submit that ESRs (when intelligently understood and implemented) neither directly violate other human rights nor pose indirect risks to liberty and property (when those are intelligently understood and implemented). But to argue this one needs to develop and defend a view of liberty and property rights and of their weights in relation to other rights-and that is a project that goes far beyond the scope of a newsletter article.

After 50 years it is useful to ask whether conditions and circumstances have changed in ways that should cause us to rethink the claim that ESRs are universal human rights.

Perhaps we should begin with two things that haven't changed. One is the importance of ESRs in relation to human welfare, dignity, and freedom. Not having access to education, food, housing, and employment is as bad for people as it ever was. And hundreds of millions of people worldwide continue to lack adequate access to these goods.

Another thing that hasn't changed is that some countries are prosperous and well-organized and others are impoverished and disorganized. Efforts at international development have only been partially successful. There has been progress in the last fifty years in getting more countries up to a middle level of development, but most of the almost 200 countries in world are still incapable of fully implementing the entire list of ESRs. And increasing these capacities through international assistance has proven to be surprisingly difficult.

Important changes include the following. First, technological and economic change has become more rapid worldwide, making high levels of education and adaptability more necessary.

Second, people are now more aware of how expensive the implementation of ESRs can be. In the last two decades, every welfare state in the world has had to restrain expenditures in order to remain viable. Education (particularly where it includes higher education), income maintenance, and health care have turned out to be enormously expensive.

Third, the idea that economic development could be achieved and income and jobs provided for all through large state-run industries and enterprises has been discredited, as has the idea of promoting full employment by subsidizing large private industries and protecting them from international competition. The capacity of large government-run or government-subsidized enterprises to be engines of development and employers for the masses now seems much smaller than it once did.

If these propositions are correct, their effect is to show that problems about feasibility have not diminished. The lack of fit between the goods that it is vitally important for everyone to have and what it is possible to provide through existing governments and international institutions is about as bad as ever. In light of this, perhaps we should consider scaling back the list of ESRs. Basic nutrition and education would remain as universal rights, but the others could be viewed as universal high-priority goals.

Notes

1. H.L.A. Hart, "Are there any natural rights?" Philosophical Review 64 (1955), 184.

2. Prominent contemporary "will" theorists include Hart and Carl Wellman. See Carl Wellman, Real Rights (Oxford: Oxford University Press, 1996).

3. Prominent contemporary advocates of an "interest" theory of rights are Neil MacCormick, "Rights in Legislation," in P. M. S. Hacker and J. Raz, eds. Law, Morality and Society: Essays in Honour of H. L. A. Hart (Oxford: Oxford University Press, 1977), 189-209; and Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 165-92.

4. Carl Wellman, Welfare Rights (Totowa, NJ: Rowman and Littlefield, 1982), 32.

5. On the right to employment see Richard Arneson, "Is Work Special? Justice and the Distribution of Employment," American Political Science Review, 84 (1990), 1127-47; Jon Elster, "Is there (or should there be) a Right to Work?," in Amy Gutmann, ed., Democracy and the Welfare State (Princeton: Princeton University Press, 1988); and James W. Nickel, "Is There a Human Right to Employment?," Philosophical Forum 10 (1978), 149-70.

6. The best source for linkage arguments of this sort is Henry Shue, Basic Rights (Princeton: Princeton University Press, 1980). See also James W. Nickel, Making Sense of Human Rights (Berkeley: University of California Press, 1987), 100-105.

7. International Covenant on Economic, Social, and Cultural Rights, Part 2, Article 2, section 1.

NEWSLETTER ON PHILOSOPHY AND LAW

• From the Editor
• From the Guest Editor
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• Articles
  • The Universal Declaration and the Cold War, Louis Henkin
  • Economic and Social Rights After Fifty Years, James W. Nickel
  • Recognizing Women's Rights as Human Rights, Susan Moller Okin
  • The Universal Declaration-Amibiguous or Amphibious?, Carl Wellman
• Bibliography
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