Christian Courtis University of Buenos Aires

Transcripción

SOCIAL RIGHTS AS RIGHTS1
Christian Courtis
University of Buenos Aires/
University of Palermo
It is not rare to encounter opinions that, denying any legal value to social rights, instead
characterize them as mere declarations of good intentions, of political compromise and, in the
worst case, of deceit or tranquilizing fraud. Although the privileged normative hierarchy of
constitutions and international treaties is accepted, the instruments that establish social rights (or
even better, according to the terminology of the International Pact, 2 economic, social, and
cultural rights 3 ) are considered political documents rather than catalogues of judicial obligations
for the State. This perception is what sets social rights apart from the great majority of political
and civil rights. According to this view, political and civil rights are the only rights that generate
prerogatives for the citizens and obligations for the state, as judicially enforceable. The intention
of this paper is to demonstrate that the adoption of the norms of constitutions and international
treaties which consecrate economic, social, and cultural rights generate concrete obligations on
the part of the State; that many of these obligations turn out to be judicially enforceable, and that
the State cannot justify its failure to fulfilll these obligations by maintaining that it did not intend
to assume judicial obligations with its declaration of good political intentions.
1
This paper is part of a more extensive work, written together with Victor Abramovich.
The International Pact of Economic, Social, and Cultural Rights (hereon referred to as PIDESC). This pact was
adopted by the General Assembly of the United Nations in Resolution 2200 (XX) on December 16, 1966, signed
December 19, 1966 and “entro en vigor” Jan. 3, 1976.
3
We employ the denominations “economic, social, and cultural rights” (that is the designation of the field of
international human rights) and “social rights” (that which is used more commonly at the local level). There will be
commentary about the distinctions between these terms in the introduction of Chapter III.
2
1
I will present my arguments in the following way. First, I will point to the relativity of
the distinction between civil and political rights and economic, social, and cultural rights,
sustaining the idea that there are levels of state obligations shared by both categories of rights.
Second, I will develop the notion that all economic, social, and cultural rights have at the least
some judicially viable aspect.
In countries such as Argentina 1 , Spain, and the majority of
countries in Latin America, constitutional clauses or clauses in international treaties on human
rights adopted by the country, have made social rights positive rights. This paper does not
pretend to construct a “natural right” of social rights, except in the sense that it asks that those
rights promised in a constitution or in international treaties of human rights be honored. Neither
will I delay with questions of the basis of these rights, because they are positive rights as
established by constitutions and international treaties. 2
1.
The Structure of Economic, Social, and Cultural Rights
Those who affirm the thesis that economic, social, and cultural rights, although
intended, are “birth defects,” believe the character and origin of these rights reveal why it is
impossible to enforce them. The arguments put forward by those who deny the justiciability of
economic, social, and cultural rights begin, then, with a differentiation between the character of
economic, social, and cultural rights with that of civil and political rights.
1
The Constitution of Argentina establishes in Article 14 the protection of the rights of labor – individual and
collective, the right to receive social security benefits, the integral protection of the family, family economic
compensation and the access to dignifed housing. In Article 41, it establishes the right to a clean environment, and
in Article 42, the rights of consumers and users. Moreover, there are other things in addition to the constitutional
heirarchy – among others – the PIDSEC, the Convention on the Rights of Children and the Convention on the
Elimination of all forms of Discrimination against Women.
2
See M. J. Añón “Necessidades y Derechos: un ensayo de fundamentacion” (1994); P. Dasgupta “An Inquiry into
Well-being and Destitution” (1993); C. Fabre, “Social Rights Under the Constitution: Government and Decent
Life.” (2000).
Christian Courtis, Social Rights as Rights
One of the recurring themes that sustains this distinction between civil and political rights
and economic, social, and natural rights, lies in the fact that the first type of rights generates
exclusively negative obligations or absentions, while economic, social, and cultural rights could
implicate the birth of positive obligations that in the majority of cases would necessitate tapping
into public treasury. 1 Negative obligations consist of not doing on the part of the State: not
arbitrarily detaining persons, not applying punishments without prior justice, not restricting
freedom of expression, not violating the privacy of correspondence or of private papers, not
interfering with private property, etc. In contrast, the structure of economic, social, and cultural
rights is characterized by obliging the State to do, that is to say, to offer positive services:
providing health services, ensuring education, sustaining the cultural and artistic heritage of the
community. In the first case, it would be enough to limit the activities of the State, prohibiting
its involvement in some areas. In the second, the State must necessarily dole out resources in
order to carry out the positive services for which it is responsible. 2 Thinking in this way, we
1
See F. V. Hayek, “Derecho, Legislacion, y Libertad” (1979), vol. 2, cap. 9. See also M. Bossuyt “La Distinction
Juridique…” This argument is common throughout diverse strains in abundant literature of international human
rights law, constitutional law, administrative law, philosophy, and legal theory, etc.
2
Another intent of differentiation is to identify the specific type of obligation of states as correlates to each category
of rights. Thus, for some authors, while civil and political rights correspond with obligations “of result,” economic,
social and cultural rights correspond only with obligations of conduct. The difference would have concrete effects
from the moment of judgment if the state has violated a treaty. With regards to civil rights, as it is sustained, the
State’s activity will constitute a violation of the obligation of abstention. The State’s responsibility emanates from
results without which the only violation depends on the will of the state. Obligations of economic, social, and
cultural rights, in contrast, are princinipally of behavior. As Garretón Merino sustains, as cited in Nikken :“Its
realization does not depend ‘on only the restoration of legal order nor on mere political decision of governmental
organs, but rather on a social order where just distribution of good prevails, that which only can be attained
progressively.’ The violation, at the most, does not emanate from an act but rather from an omission, many times
contingent upon the existence of resources that allow for the satisfaction of these rights. A state has violated them
when not verifying the right is not being enjoyed ‘but rather that the behaviour of political power, in an order to
accomplish this end, has not made adequate appropriate standards.’ ” ” (Garretón Merino, R., “La sociedad civil
como agente de promoción de los derechos económicos, sociales y culturales,”in IIDH, Estudios Básicos de
Derechos Humanos V, San José (1996), p. 59. Cited in, Nikken, Pedro: “El concepto de derechos humanos”, in
IIDH, Estudios Básicos de Derechos Humanos I, San José (1994). See Eide, A., “Future Protection of Economic
and Social Rights in Europe” en Bloed, A. et. al. (eds.), Monitoring Human Rights in Europe: Comparing
International Procedures and Mechanisms, Dordrecht, Boston, Londres (1993), p. 187-219. But see, van Hoof, G.
H. J., “The Legal Nature of Economic, Social an Cultural Rights: A Rebuttal of Some Traditional Views”, en
Alston, P. y Tomasevski, K. (eds), The Right to Food, Utrecht (1984), pp. 97-110; Alston, P., “No Right to
Complain About Being Poor: The Need for an Optional Protocol to the Economic Rights Covenant,” in Eide, A. y
Helgesen, J. (eds), The Future of Human Rights Proteccion in a Changing World, (1991). Beyond the possibility of
3
Panel 4: The Internal Integrity of Rights
speak only of “rights” as those imposing negative obligations and absentions with determined
normative prescription, while the establishment of positive obligations is conceptually
impossible and materially not viable. Although a constitution or a pact on human rights speaks
of “rights” as a “right to health,” “right to housing,” “right to education,” or “right to work,”
these expressions should not be taken literally, but rather only in their figurative and metaphoric
sense, according to proponents of this view.
These distinctions are based on a naturalistic vision of the role and functioning of state
apparatus. This vision represents the position of the minimalist state, one that only guarantees
justice, security, and defense. 3 Nevertheless, even those theorists of classical political economy
such as Adam Smith and David Ricardo saw that the obvious relationship between the supposed
“negative obligations” of the state, especially the guarantee of the freedom of commerce, and a
large series of positive obligations, relating, for example, the maintenance of political and
judicial institutions, of security and of defense, as necessary for maintenance of individual
liberty. Smith, for example, assigns the state an active role in the creation of institutional and
legal conditions for the consolidation, functioning, and expansion of the market. 4 The same idea
could apply to many other “civil and political” rights, such as due process, access to justice, the
right to marry, the right of association, the right to elect and be elected, and the right to expect
the creation of certain institutional conditions by the State (for example, the existence and
maintenance of tribunals, the establishment of norms and registries that are legally relevant to the
decision to marry or associate, summons to elections, an organization of a system of political
sustaining the distinction, she turns out to be little relevant for distinguishing civil and political rights from
economic, social, and cultural rights. Thus, the denominated “Maastricht Principles on Violations of Economic,
Social, and Cultural Rights” points out that economic, social, and cultural rights generate as many obligations as do
those “of results.” (Principal 7).
3
Carlos Nino qualifies this position “conservative liberalism,” although clarifying that it is “more conservative than
liberal.” C. Nino, “Los Derechos Sociales”
4
Cfr. Smith, A., An Inquiry Into the Nature and Causes of the Wealth of Nations, Nueva York (1937); Billet,
L.,“Political order and economic development: reflections on Adam Smith´s Wealth of Nations”, en Political Studies
35 (1975) pp. 430 y ss.; Santos, B. S., “Sobre los modos de producción del derecho y del poder social”, in Estado,
derecho y luchas sociales, Bogotá (1991), pp. 175-178.
4
parties, etc.)5
Those rights more easily characterized as “negative obligations,” that is to say,
those that require limiting the state’s activity so that it does not impinge upon the liberty of its
citizens – for example, the prohibition against arbitrary detention, the prohibition against the
prior review censorship of the press, or the prohibition against violating the privacy of private
papers and correspondence – also require intense state activity. Not only must the state ensure
that citizens do not interfere with one another’s liberty, it must also be dedicated to reestablishing
freedom, should it falter, and to the reparation of injuries, whenever it is found to have interfered
with its citizen’s liberty (in such a way that the fulfillment of the functions of police, security,
defense, and justice by the state gives the opposite view of the exercise of those rights).
Evidently, the fulfillment of these functions demand postive obligactions, characterized by the
expenditure of resources, and not the mere absention of the state. 6 It is worthwhile to review the
great quantity of resources necessary to effectuate, for example, the right to property. Through
the organization of distinct public services, the state acts to ensure this “negative obligation”;
there is much activity in the civil and criminal justice systems, and property rights are often part
of political platforms.
In addition, the state is involved in inspections of buildings and
automobiles, other special registrations, catastrophic services, and the setting and control of
zoning and the use of land.
In synthesis, the structure of civil and political rights can be characterized as a complex
of negative and positive obligations on the part of the state: the obligation to absent itself from
acting in certain spheres and to realize a series of functions, in effect to guarantee the enjoyment
of individual autonomy and impede the interference of that autonomy by other citizens. Given
5
See van Hoof, G. H. J., cit., p. 97 y sigs.
Cfr. to the opinion of Nino, C., “Los derechos sociales”, cit., pp. 11-17. In an economic sense, the argument is the
central theses of Holmes, S. and Sunstein, C. R., The Cost of Rights – Why Liberty Depends on Taxes, Nueva YorkLondres (1999). See also Bin, R., “Diritti e fraintendimenti”, en Ragion Pratica 14 (2000), pp. 14-25, Fabre, C.,
Social Rights under the Constitution, cit., pp. 44-45 y Plant, R., “Citizenship, Rights and Welfare”, en Coote, A.
(ed.), The Welfare of Citizens. Developing new social rights, Londres (1992), pp. 15-29. In a similar vein, Ruiz
Miguel, A., “Derechos liberales y derechos sociales,”in Doxa Nros. 15-16, vol. II, Alicante (1994), pp. 659-660.
6
5
that this series of positive functions arose at the same time as the definition of the modern liberal
state, 7 the characterization of civil and political rights has tended to “naturalize” this type of state
activity, and has put emphasis on the limits of state action.
From this perspective, the differences between civil and political rights and
economic, social, and cultural rights are differences in degree, more than they are substantive
differences. 8 We can recognize that the most visible facet of economic, social, and cultural rights
is the obligation to do, and it is because of this that they are sometimes called “service-rights.”9
Nevertheless, it is not difficult, when the structure of these rights are observed, to discover the
concomitant existence of obligations of not doing10 : the right to health implies a state obligation
to not damage health; the right to education supposes the obligation to not worsen education, the
right to preservation of a clean environment implicates an obligation to not destroy the
environment. We will discuss this point in more detail, but it should be mentioned that many of
the cases about the judicial application of economic, social, and cultural rights are driven by a
desire to correct the state inaction, or when a state has failed to fulfill its obligations of not doing.
In summation, economic, social, and cultural rights can also be characterized as a complex of
positive and negative obligations on the part of the State, although positive obligations may
import a greater and important symbolism in identifying them. Thus, for example, Contreras
Peláez, admitting the impossibility of sharp distinction between both types of rights, states that
7
Trujillo Pérez affirms that “(i)n a certain sense, the norms related to the rights of freedom and to the insititutions
linked with those rights are so consolidated in our legal culture that we consider them obvious, although they are
not, as is shown in the history of rights.”. Cfr. Trujillo Pérez, I., “La questione dei diritti sociali”, en Ragion Pratica
14 (2000), p. 51.
8
Cfr. Contreras Peláez, F., Derechos sociales : teoría e ideología, Madrid (1994) p. 21 :“Pure “negative” obligations
(or rights that bring about exclusively negative obligations) do not exist, but it seems possible to affirm a difference
in degree of the relevance of services one or other type of rights require.”
9
Cfr. Contreras Peláez, F., cit., p. 17-20 ; De Castro, B., “Los derechos sociales: análisis sistemático”, en AA.VV.,
Derechos económicos, sociales y culturales. Para una integración histórica y doctrinal de los derechos humanos,
Murcia (1981), p. 15-17.
10
See Fabre, C., Social Rights under the Constitution, cit., pp. 53-65, where the existence of “negative social rights”
is argued.
6
“for social rights, on the other hand, the state service truly represents the substance, the nucleus,
the essential contents of the right; as with, for example, the right to sanitary assistance or to free
education, state intervention has a place everywhere and each one of the times that the right is
exercised; the inexistence of state service automatically means the denial of the righ.”11
Yet, it is possible to point out another type of conceptual problem that makes it
difficult to distinguish radically between civil and political rights, on the one hand, and
economic, social, and cultural rights, on the other, and which underscores the limitations of these
differentiations, reaffirming the need for a theoretical and practical treatment of this distinction.
The theoretical conception, and even the concrete legal regulation of various rights traditionally
considered “autonomy rights,” or rights that generate negative obligations on the part of the
State, has varied in some manner, such that some of those rights classically considered “civil and
political” have acquired a indubitable social aspect. The loss of the absolute character of the
right of property, with all of the social considerations its guarantee now entails, is the most
precise example, although it is not unique. 12
The right to damages has made the social
distribution of risks and benefits central to determinations of the obligation to pay reparations.
The impetuous surge of the right to consume has substantially transformed the form of
contractual bonds covering consumer relations and uses. 13 The traditional interpretation of the
freedom of expression and of the press has acquired social dimensions that have contributed to
the formulation of the freedom of information for each member of society. The freedom of
commerce is shaped by the impact of business pursuits on health or on the environment. 14
Current development of the right of privacy has generated demands for vigorous state measures,
11
Contreras Peláez, F., cit., p. 21.
See Convención Americana sobre Derechos Humanos (Pacto de San José de Costa Rica), art. 21.1: “All people
have the right to use and enjoy their own goods.” La ley puede subordinar tal uso y goce al interés social.” (el
destacado es nuestro).
13
See por todos, Bourgoignie, T., Elementos para una teoría del derecho del consumo , Vitoria (1994).
14
See Felgueras, S., Derechos humanos y medio ambiente, Buenos Aires (1996).
12
7
designed to avoid the damaging potential of information technologies. 15 In essence, many rights
traditionally included in the catalogue of civil and political rights have been reinterpreted in a
social light, in such a way that formerly absolute distinctions become blurry. 16
Traditional justifications for social rights have also generated theoretical
difficulties. For example, an evaluation of the justifications for the right to form unions and to
strike illustrates the insufficiency of the positive/negative obligation distinction. Some authors
disregard this situation as particular to certain kinds of civil and political rights, and others
attribute the blurring distinction to the historical categorization of economic, social, and cultural
rights, recognizing that a right cannot be characterized as only generating positive obligations on
the part of the State.
The assignation of a right to the category of civil and political rights or to category of
economic, social, and cultural rights may have heuristic, ordering, and classifying value, but a
more rigorous conceptualization based on the character of the obligations generated by each right
would produce a continuum of rights, where each right’s place is determined by the symbolic
weight of the positive or negative obligations each produces.
In this scheme, some rights
producing only negative obligations on the part of the State would be found at the end of the
spectrum representing civil and political rights. Examples of such rights are the freedom of
conscience and the freedom to publish ideas without prior review. At the end of the spectrum,
representing economic, social, and cultural rights, would be found those rights fundamentally
characterized by positive obligations on the part of the State. In this case, a good example is the
15
See Murillo de la Cueva, P. L., El derecho a la autodeterminación informativa, Madrid (1990); Pérez Luño, A. E.
, “Los derechos humanos en la sociedad tecnológica”, en Losano M. G. y otros, Libertad informática y leyes de
protección de datos personales, Madrid (1989).
16
Cfr. Ewald, F., L´Etat Providence, París (1985), Libro IV.2. For a more detailed development of this idea, see
Section 3.
8
right to housing. 17 In the space between these two poles lies a spectrum of rights, each of which
consists of a combination of positive and negative obligations in differing proportions.
Identifying a right as belonging to the group of civil and political rights or to the group of
economic, social, and cultural rights is then simply the result of a more or less arbitrary
decision. 18
Along these lines, authors such as Fried van Hoof and Asbjørn Eide 19 have proposed an
interpretation of rights that qualifies each right’s “level” of state obligations, independently of its
assignation to the category of civil and political rights or to that of economic, social, and cultural
rights. According to van Hoof’s proposition, 20 for example, one can discern four “levels” of
17
In this case, it is also possible to determine negative obligations. According to van Hoof, the state would violate
the right to housing if it admitted that modest, lower-income housing was demolished and replcaed with luxury
housing, outside the economic range of original inhabitants, without offering them access to alternative housing with
reasonable terms. See van Hoof, G. H. J., cit., p. 99. With reason, the state should abstain from facilitating this
displacement. A theoretical example: cfr. obligations realized by the Committee of Economic, Social, and Cultural
Rights from the report presented by the Dominican Republic (UN Doc. E/C.12/1994/15), points 11, 19 and 20 (cited
in Steiner, H. and Alston. P., International Human Rights in Context, Oxford (1996), pp. 321-321).
18
For a discussion of the disinction, see Section 3.
19
Eide sustains what is a common error, birthed out of the scant understanding of the nature of economic, social,
and cultural rights. He considers that only the state should satisfy these rights and such a provision would provoke a
disproportionate growth of state apparatus. Understanding that the individual is the active subject of all economic
and social development as it is established in art. 2 of the “Declaration on the Right to Development” –General
Assembly of the United Nations, Resolution 41/128 del 4/12/1986– and therefore on a first level in relation to
economic, social, and cultural rights, we find the state obligation to respect the freedom of action and the use of the
resources of each individual–or of collective groups such as indigenous peoples– in pursuit of satisfying its
economic and social necessities. On a second level, there is a state obligation to protect the freedom of action and
use of resources of third-parties. This state function of guardianship in relation to economic, social, and cultural
rights is similar to the documents that act to protect civil and political rights. On a third level, there is an obligation
of assistence that can assume various forms – for example, art. 11.2 of PIDESC-, and the obligation of satisfactionthat can consist of the direct provision of measures for covering basic necessities such as food and subsistence
resources when no other possibilities exist. The author maintains the argument that what differentiates civil and
political rights from of economic, social, and cultural rights is that the former does not require utilizing public
resources, is only sustainable if we limit the state obligations in relation to economic, social, and cultural rights only
on the third level (assistence and satisfaction) and those linked with civil and political rights on the first level. See
Eide, A., “Economic, Social and Cultural Rights as Human Rights” in Eide, A., Krause, C. and Rosas, A. (eds.),
Economic, Social and Cultural Rights, Dordrecht, Boston, Londres (1995), pp. 21-49, especially pp. 36-38. See also
Eide, A., “Realización de los derechos económicos, sociales y culturales. Estrategia del nivel mínimo,” in Revista de
la Comisión Internacional de Juristas, Nro. 43 (1989).
20
van Hoof, G. H. J., cit., p. 99. See also de Vos. P., “Pious wishes or directly enforceable human rights?: Social
and Economic Rights in South African´s 1996 Constitution”, 13 South African Journal on Human Rights, pp. 223 y
ss. (1997). The distinction was originally suggested by Henry Shue. See Shue, H., “Rights in the Light of Duties,”in
9
obligations: obligation to respect, obligations to protect, obligations to guarantee, and
obligations to promote the right in question. The obligations to respect are defined as what the
State must do in order to not prevent or impede the access to enjoyment of certain goods. The
obligations to protect consist of preventing third parties from preventing or impeding the access
to those goods. The obligations to guarantee entail securing access to those goods when the
holder of the right cannot do so himself. The obligations to promote are characterized as those
conditions that should be developped so that the holders of the right can access the good.
None of these levels can be characterized using only the positive/negative obligation
distinction. However, obligations to respect are certainly fundamentally linked to negative
obligations and abstention, and the obligations to protect, to secure, and to promote involve more
state activism, and thus a greater number of positive obligations and conduct. This theoretical
framework, van Hoof maintains, reinforces the unity between civil and political rights and
economic, social, and cultural rights, although those types of state obligations can be found in
both categories of rights. For example, van Hoof points out the freedom of expression does not
only require the fulfillment of the prohibition of censorship, but also the obligation to create
favorable conditions for the exercise of the freedom to demonstrate – by means of political
protection – and for the pluralism of the press and means of communication in general.
In a
parallel way, economic, social, and cultural rights do not only require the obligations to
Brown, P. G. y MacLean, D. (eds.), Human Rights and the US Foreign Policy, Lexington, (1979); Basic Rights:
Subsistence, Affluence and US Foreign Policy, Princeton (1980) and “Mediating Duties,” in Ethics, no. 98 (1988),
pp. 687-704. Discounting for a difference in terminology – the author speaks of distinct “rights” and not of distinct
levels of “obligations,” the conclusions of Cécile Fabre are similar. See Fabre, C., Social Rights under the
Constitution, cit., pp. 45-49 y 53-57. In the field of internation human rights, the distinction was assumed – with
some correction, that reduces the enumeration to three categories: obligations of respect, obligations of protection,
and obligations of guarantee, satisfaction, and fulfillment – in the principal interpretive documents of the
International Pact on Economic, Social, and Cultural Rights. For this, Committee on Economic, Social, and Cultural
Rights, General Observation, (OG) Nro. 3 (1990) “The Disposition of the Obligations of Party States – paragraph 1
of art. 2 of the Pact,” OG Nro. 4 (1991) “The Right to Adequate Housinga–paragraph 1 of art. 11 of the Pact,” OG
Nro. 5 (1994) “Persons with Disabilities”, OG Nro. 6 (1995) “Economic, Social, and Cultural Rights of Persons
from the State”; “Limburg Principles” (1986); “Maastricht Principles” (1997); CIJ, “Declaration and Plan of Action
for Bangalore” (1995); Encuentro Latinoamericano de Organizaciones de Derechos Económicos, Sociales y
Culturales, “Quito Declaration” (1998).
10
guarantee or to promote, but also a determination of those cases where citizens should have the
respect or protection of the State.
The argument allows an easier understanding of the
interdependence 21 between both categories of rights; it is a marriage of the type of conduct
required by the State for both types of rights where, on occasion, the same state conduct can
satisfy a civil right as well as a social one.
The author illustrates the model using the four levels of obligations with the right to
adequate nutrition (arts. 11.1. y 11.2, PIDESC). So, the obligation to respect the right to
adequate nutrition implies that the State must not expropriate land from that population for
whom the access to this resource constitutes the only and principal form of securing food, until
the State adopts alternative, appropriate methods. The state obligation to protect the right
includes preventing people from depriving less fortunate people from satisfying their nutritional
needs; for example, the state is obligated to protect those people who are not the dominant
economic groups and who do not have easy access to land, to water, to markets, and to work.
The obligation to guarantee the right to nutrition requires that the State adopts methods
when some members of the population are incapable of supplying themselves with food in
sufficient quality and quantity; for example, in cases of emergency, the state should exhaust its
resources in order to satisfy nutritional necessities. The obligation to guarantee the right can be
accomplished for example by appealing to international aid in order acquire more resources (art.
21
In the field of international law, “the interdependence of civil and political rights and of economic, social, and
cultural rights has been always a part of the doctrine of the United Nations” (Steiner, H. andAlston. P., cit., p. 263).
Mentioned with frequency is American president Franklin D. Roosevelt’s message to Congress in 1944 as a pioneer
in the notion of interdependence: “We have arrived at a clear understanding of the fact that the true individual liberty
does not exist without economic security and independence. People in need are not free people.” (Roosevelt, F. D.,
Decimoprimer annual message to Congress, January 11, 1944, as quoted in Steiner, H. and Alston. P., cit., p. 258).
In philosophy of the law, it is affirmed that “the legal freedom to do or omit something without real freedom, that is
to say, without the real possibility of electing against that permitted lacks all value,” and the real freedom of a large
number of holders of fundamental rights does not find material substance in a ‘vital sphere dominated by these’
rights except that it especially depends on state activities” (Alexy, R., Teoría de los derechos fundamentales, Madrid
(1993), págs. 486-487). In a similar vein, Fabre, C., Social Rights under the Constitution, cit., pp. 9-32.
11
11.2, PIDESC) or through the implementation of an agrarian reform o in order to ameliorate the
production and distribution of food. The author points out that it is difficult to anticipate, in the
abstract, which methods a State should adopt in each situation in order to adequately satisfy its
obligation to guarantee the right, but it is certain that it is the State would be in clear violation of
a rule if it did nothing in a food shortage.
The question of the methods the State should adopt arises again with the obligation to
promote the right to food. Van Hoof maintains that far-reaching methods, in some cases, consist
of the implementation of instructional programs that aim to teach rural people better production
methods in the agricultural sector. 22
In addition to va n Hoof’s application of this theory to the right to food, this idea of
“levels” of obligations is perfectly applicable to the entire spectrum of rights, from those
classified as civil and political rights to those classified as economic, social, and cultural rights.
A great part of the work done by human rights organizations and by international bodies which
apply international norms of human rights – particularly with respect to the right to life and the
right to physical and psychological integrity (and correlated to prohibitions against death and
torture), rights traditionally classified as civil and political – has consisted of reenforcing the
obligation to protect and satisfy those rights through different methods. These methods range
from the investigation of state practices that have violated those rights, the judgment or the
establishment of civil and penal responsibilities of its perpetrators, the reparations to victims, the
modification of legislation so that it establishes special codes of laws governing “death
incidents,” such as disappearance and torture, the modification of programs of the formation of
the military forces and of security, and the inclusion of human rights education in the plans of
regular school curricula.
22
See van Hoof, G. J. H., cit., p. 99.
12
The weakening of the sharp distinction between civil and political rights and economic,
social, and cultural rights also draws into question the principal objection against characterizing
the latter category as enforceable rights. Those who object to enforcement of economic, social,
and cultural rights argue that the very justiciability of economic, social, and cultural rights is
already weak since the realization of these rights depends on the availability of state resources.
This subordination, referred to as “economic conditioning,” makes the universality of these
rights contingent, relegating them to the status of “rights of second category.”23
It is worth repeating that this objection breaks from the simplistic consideration of the
economic, social, and cultural rights as rights that establish exclusively positive obligations, an
idea that we shall see is far from correct. 24 Civil and political rights and economic, social, and
cultural rights are all made of a complex of positive and negative obligations. It is advisable,
then, to delve deeper into this notion, since it will determine the extension and reach of the
enforceability of either type of rights.
In considering negative obligations, one discusses a state’s obligations as refraining from
certain activities: not impeding the expression or diffusion of ideas, not violating the privacy of
correspondence, not arbitrarily detaining, not impeding a person from affiliating with a union,
not interfering with the exercise of the right to strike, not worsening the state of the health of the
population, not impeding access to education, etc.
23
Barbalet, J. M., Citizenship. Rights, Struggle and Class Inequality, Londres (1988), p. 82; Plant, R., “Needs,
Agency and Welfare Rights,” in Moon, J. D. (ed.), Responsibility, Rights and Welfare: A Theory of the Welfare
State, Boulder, (1988).
24
Cfr., in the same sense, Alexy pleads for an ample conception of positive obligations of the state, or in his
parlance, “rights to positive actions by the State.” Such a conception would include the right to protection, the rights
to organization and to due process, and the rights to services in a strict sense. See Alexy, R., Teoría de los derechos
fundamentales, cit., pp. 419-501.
13
As for positive obligations, it is advisable to establish some distinctions that give us a
standard for the type of measures that should be demanded of the state. It is common to link the
positive obligations of the state directly with the obligation to dispense funds. There is no doubt
that the obligation to spend on services is one of the most characteristic forms of accomplishing
the obligations of doing and giving, especially in fields such as health, education, or access to
housing. Nevertheless, positive obligations are not merely those obligations to dispensing of
budgeted reserves to implement a service. Obligations to provide services can be characterized
by the establishment of a relationship between the state and the beneficiary of the service. The
State can also assure the enjoyment of a right through other methods, so that it can take an active
part in other obligatory areas. 25
a)
On the other hand, some rights can be characterized as obligations of the state
25
Cfr. Fabre, C., Social Rights under the Constitution, cit., pp. 55-57 y 146-147; Canotilho, J. J. G., “We take
economic, social, and cultural rights seriously,” in Revista del Centro de Estudios Constitucionales, Nro. 1 (1988), p.
247.
14
to establish some type of regulation, without which the exercise of the right is impossible. 1 In
these cases, the State’s obligation is not always linked with the transfer of funds to the
beneficiary of the service, but rather with the establishment of norms that give relevance to a
determined situation, or with the establishment of a structure that facilitates the implementation
of a determined activity. 2 In this sense, for example, giving operative content to the right to free
association means a state obligation to give legal recognition to the resulting association. Along
the same lines, the right to form a union or to affiliate oneself with a union requires the right to
know the relevant legal consequences to its actualization. The political right to elect presupposes
a choice between distinct candidates; such a choice must be ensured by regulations that assure
the possibility that various candidates will represent political parties and present themselves for
elections. The right to information demands at the very least the establishment of a state
regulation that facilitates access to information of diverse origins and the plurality of voices and
opinions. The right to marry implies the existence of a regulation outlining steps involved in
getting married. Finally, the right to the protection of the family supposes the existence of legal
norms that attach to the existence of a family group some type of differential consideration.
1
Cfr. Alexy affirms that “an action can be legally disabled only if it is a legal act. Legal acts are actions that would
not exist without essential legal norms. Thus, without norms of contract law, the legal act of celebrating a contract
would not be possible, without the right to organize societies, the legal act of founding of societies would not be
possible, without the right to marry, the legal act of celebrating matrimony would not be possible, without due
process rights, the legal act of a lawsuit would not be possible, and without electoral rights, the legal act of suffrage
would not be possible. This essential character that give these actions the character of institutional actions.
Institutional legal actions are disabled when essential norms are corrupted. Therefore, there is a conceptual
relationship between the corruption of these norms and the impossibility of institutional actions.” “ Cfr. Alexy, R.,
Teoría de los derechos fundamentales, cit., p. 189-190. My argument here complements that of Alexy:
“institutional legal actions” are not only disabled when essential norms are corrupted, but also when they have not
been created. If the constitution or a human right pact establishes rights whose exercise depends conceptually on the
creation of norms, this implicates a positive state obligation to create those norms. Alexy reiterates this point when
he discusses the rights to positive action, distinguishing between rights to real positive action and to normative
positive action. Rights to normative positive action are “rights to state acts in norm imposition.” Cfr. Alexy, R.,
Teoría de los derechos fundamentales, cit., pp. 194-195.
2
In the opinion of Trujillo Pérez, for example, “for a right to be actionable, it is necessary to have an intervention of
the legislature and of the state as organizer of institutions: becaue both conditions are related to the rights of
freedom, as well as to social rights, the distinction between these becomes superfluous.” Trujillo Pérez, I., cit., p. 54.
15
From the point of view of this logic, in most cases, obligations demand at the least the
creation of permissive or optional norms, and not simply the absence of a prohibition. 3
Moreover, the mere creation of a permissive norm facilitating the creation or incorporation of an
institution – for example, of a norm that establishes the requisites required in order to marry; to
create a union, an association, or a political party; to present oneself as candidate for a position;
to request public information to the power of the State, etc. – would be insufficient for the
plentiful enjoyment of these rights. The enjoyment of these rights entails a complex of norms
that establish relevant legal consequences to original permission. Certain permissive norms are
essential, such as an association’s ability to contract. Prohibitions against particular state actions
are also important: for example, making it impossible to impose arbitrary or discriminatory
restrictions in the exercise of the aforementioned rights, or prohibiting discrimination by the state
between children born within a marriage and those born out of wedlock. Finally, enjoyment of
these rights does bring about mandates for the state, such as the obligation to recognize union
delegates and political candidates.
b) In other cases, there are obligations that established state regulations should be
established limiting or restricting the actions of private persons or imposing obligations on them
in some way. Many regulations associated with labor and union rights have this characteristic,
as do the relatively recent rules dealing with consumption and the protection of the environment.
Thus, the establishment of a minimum wage, the principle that established the equality of
renumeration before the equality of tasks, required breaks, the limited workday and paid
vacations, protections against arbitrary firings, guarantees for the representation of guilds in
negotiations, etc. will have little effect if made enforceable only when the state is the employer.
In dealing with market economies, the state is obligated to establish a regulation that extends to
3
To understand civil rights as the mere absence of prohibition is to confuse, for example, the structure of the right to
associate or to contract with the right to scratch one’s head or to look at the sky. The enumeration in a constitution
of all prohibited conduct would be absurd, although the enumeration of norms that establish powers seems
summarily relevant to us.
16
private employers. The same can be said with respect to the norms that govern the relationship
between consumption and the the establishment of environmental obligations.
In other areas, state regulation can establish limitations or restrictions to the free interplay
of economic factors in the market by promoting access to sectors of scarce resources, such as the
housing sector. State regulation of interest rates for mortgages and of landlord-tenant relations
where the state has a goal of family housing is an example of this type of measure. Nevertheless,
these limitations are not limited to the economic realm. The right to “rectification or response”
is a good example of this: in these cases, the state restricts the free use of a private journalistic
medium, which it feels is reporting inexact or aggravating information. The state obligation to
secure the “right of every person to benefit from the protection of moral or material interests that
correspond by reason of scientific, literary, or artistic productions of that is author,” supposes the
establishment of a regulation that affects not only the state, but also third-parties.
a)
Finally, the state can accomplish its obligation of providing services to its
population through means that combine state expenditures with regulations affecting certain
private persons through restrictions, limitations, or imposed obligations. The forms with which
the state can accomplish positive obligations are multiple: the organization of a public service –
for example, ensuring the functioning of tribunals, securing the right to a jurisdiction,
guaranteeing the right to counsel in cases where the defendant cannot pay for a lawyer; the
organization of a public education system–the offering of development programs and training,
the establishment of public/private coverage forms–for example, through the organization of
private contributions for the maintenance of social works, encompassing employees and their
families, as well as establishment of a public health system covering persons not covered through
their employment– the public negotiation of credits–for example, the mortgage credits for
housing– the delivery of subsidies, the realization of public works, or the awarding of benefits or
17
exemptions.
As you can see, the complex of obligations that can encompass a right is extremely
varied. Economic, social, and cultural rights are characterized precisely by a vast spectrum of
state obligations. Consequently, it is false that the justiciability of these rights is scant: each type
of obligation offers a range of possible actions, that from the denunciation of unfulfillment of
negative obligation, to diverse forms of control of the fulfillment of negative and positive
obligations, to the requirement of the fulfillment of those positive obligations not fulfilled.
Finally, in accordance with some positivist theories, the satisfaction of economic, social,
and cultural rights often exceeds the potential of the state and should instead be situated in terms
of international cooperation. There are concrete obligations that the state assumes when it adopts
constitutional clauses or an international instrument that consecrates economic, social, and
cultural rights. In a context of relative economic scarcity, the assumption of obligations of this
type demand that the state cuts back on only certain activities. 4 This work intends to implement
concrete forms of requiring such an accomplishment on the part of the obliged subject (the state)
and by the initiative of beneficiary subjects (persons).
2. The justiciability of economic, social, and cultural rights
The history of the birth of the social state is the story of a transformation from a society
where the public authority presents help to the poor as an option motivated by charity to one
4
This idea turns out to be applicable to those rights referred to as civil and political rights. The prohibition against
torture, or the establishment of procedural guarantees for the accused, for example, presupposes an self-limitation of
political and penal persecution by the state, that of course can be evaluated in budgeted terms. As in the case of
civil and political rights, as with economic, social, and cultural rights, the state imposes on itself a catalogue of
priorities in the disposition of budgeted funds, a fulfillment which is perfectly verifiable. Cfr. Ferrajoli, L., “El
derecho como sistema de garantías”, en Derechos y garantías. La ley del más débil, Madrid (1999) pp. 19-28.
18
where concrete benefits correspond to the individual rights of citizens. 5 If the principal
economic, social, and cultural rights have been well consecrated in diverse constitutions and –in
an international plan – in numerous instruments, their universal recognition as full rights will not
be achieved until they can overcome obstacles that impide their adequate justiciability
(understood as the possibility to demand before a judge or a tribunal of justice the
accomplishment at the least of some of the obligations that will lead to the right.)6
Although states often satisfy those necessities or interests protected by a social right (for
example, the development of a program to provide food to a population threatened by hunger),
no observer could conclude that the beneficiaries of state conduct enjoy this right (e.g. of the
right to adequate food and to be protected against hunger –art. 11.1 y 11.2, PIDESC–) as a
subjective right, until a population can judicially demand state services before an eventual
unfulfillment. That which qualifies the existence of a social right as a full right is not simply
conduct of the state, but rather the existence of some judicial power in refusing to enforce the
right when the indebted obligation is not fulfilled. 7 To consider an economic, social, or cultural
right as a fully-enforceable right is only possible if –at the least in some means– the holder of the
right can produce by means of a demand or complaint the demand of the fulfillment of the
5
Hartley Dean calls this process the juridification of welfare. V. Dean, H., “The juridification of welfare: Strategies
of discipline and resistance” in Kjonstad, A. y Wilson, J. (eds.), Law, Power and Poverty, Bergen (1995), pp. 3-27.
6
See along these lines, International Human Rights Internship Program, A Wave in Tranquil Waters, Washington
(1997), p. 15.
7
Cfr. in this respect, the classic position of Kelsen: “A right in the subjective sense only exists when in the case of a
lack of fulfillment of the obligation, the sanction the legal body – especially a court – must order only can give a
mandate to the subject whose interests were violated by the lack of the fulfillment of the obligation .... In this sense,
to have a subjective right is to have a legal power granted by objective law, that is to say, to have the power to take
part in generating an individual legal norm by means of a specific action: the lawsuit or the complaint.” (Kelsen, H.,
Teoría General de las Normas, México (1994), pp. 142-143). Today, in a similar sense, Ferrajoli affirms that “the
second principle guaranteed is that of jurisdictionability: in order that injuries to fundamental rights, liberal as well
as social, are sanctioned and eliminated, it is necessary that such rights are all jusiticiable, that is to say, actionable
against subjects responsible for the violation, a for the commision or for the omission.” (Ferrajoli, L., Derecho y
razón, Madrid (1995), p. 917).
19
obligation generated by the right. 8
It is evident that in order to determine the justiciability, we must identify the minimal
obligations of the states in relation to economic, social, and cultural rights. This is perhaps the
principal deficit of constitutional rights and of international human rights; that there has been
little doctrinal contribution in the formulation of the norms that consecrate these rights, or in the
elaborations of national and international organs charged with the application of constitutional
clauses and of treaties.
In the opinion of Scheinin 9 –in reference to international human rights–the reasons that
complicate the development of the justiciability of economic, social, and cultural rights are
sometimes valid and sometime are not. It is invalid to say that there is no justiciability of
economic, social, and cultural right because of the inherent nature of this category of rights.
Among the valid reasons are the vagueness of normative texts formulating rights and the lack of
an institutional practice of interpretation of those texts, principally due to the absence of
appropriate mechanisms of implementation.
8
Alexy retraces the necessity of distinguishing conceptually between the level of those enunciated as rights (such as
“A has a right to do X”) and those enunciated as protections (such as “A can claim the violation of his right to do X
through a lawsuit.”). Cfr. Alexy, R., Teoría de los derechos fundamentales, cit., pp.180-183. In the same sense,
Canotilho, J. J. G., “We take economic, social, and cultural rights seriously,”cit., p. 252. It is probably that both
types of propositions are not coextensive: to have a right seems also to connote a legitimate foundation for realizing
an action or accessing a good, although to have a claim is only linked with the protection of this possibility. In all
senses, the conceptual problem is that of the relationship between both levels, if the power to claim the protection
necessarily forms part of the notion of the right. Without pretending to resolve the problem, I point to the notion of
a subjective right as understood as having at least some power of claim. To demand the power to sue in all cases of
violation of a right would yield paradoxical conclusions: none of the stipulated rights in the constitutions of Western
countries could meet this demand. The right to property, for example, which constitutes the model around which
modern theories abour the subjective right turn, suffers from restrictions in the possibilities of legal claims when it is
the state that affects the right: in the contintental administrative tradition, verdicts against the state only have
declarative effect and lack performability. One can enumerate other restrictions to the possibility of claims relating
to the right of property: insolvency of the debtor, protection of the goods of the debtor and the regime of “family
welfare,” situation of economic emergencies, etc. No one in a healthy judiciary, nevertheless, would deny that the
right of property is an enforceable right because of these restrictions.
9
Scheinin, M., “Direct Applicability of Economic, Social and Cultural Rights: A Critique of the Doctrine of SelfExecuting Treaties”, in Drzewicki, K., Krause, C. and Rosas, A. (eds.), Social Rights as Human Rights: A
European Challenge, Turku (1994), pp. 73-87.
20
Dispensing with the notion that only civil and political rights are justiciable and
understanding that all rights generate to the state a complex of negative and positive
obligations, 10 we can now analyze that the type of obligations offer the possibility of its existence
through judicial actualization. The problem refers to one of the classical debates about the
definition of rights, that concerning the relationship between a right and the judicial action it
demands. Some conceptual difficulties that are raised by this discussion are a source of constant,
circular responses and have a direct relationship to the narrow association between the classical
idea of subjective right, the notion of property, and the model of the liberal state. 11 Given that a
large part of the substantial notions and appropriate procedures of the traditional continental
judicial system are determined by this conceptual framework, many of the almost automatic
responses to the potential justiciability of economic, social, and cultural rights point to the lack
of actions or concrete procedural guarantees social rights. Some of the highlighted elements are
linked with the collective character of many claims linked with economic, social, and cultural
rights:12 the inadequacy of the structure and of the position of judicial power such that the
10
Cfr., the vote of Judge Piza Escalante, in OC-4/84, on January 19, 1984, “Proposal of modification to the Political
Constitution of Costa Rica related to the naturalization”, of the International Court of Human Rights, on point 6:
“...the distinction between civil and political rights and economic, social, and cultural rights obeys merely historical
reasons and not differences in legal nature of one or the other; in reality, it is important to distinguish, with a
theoretical legal technique, between subjective rights that are fully enforceable, or “enforceable directly by each
own,” and rights of progressive character, that share more with reflective right or legitimate interests and are
“indirectly enforceable,” through positive requirements of political pressure, on one hand, and of legal actions of
refutation which oppose the discriminatory granting of these rights. The concrete criteria for determining what kind
of right a case deals with are circumstantial and historically conditioned. Generally, when it is determined that a
particular right is not directly enforceable on its own, it is due to the presence of at least one indirectly enforceable
element.”
11
See the lucid analysis of José Reinaldo de Lima Lopes, “Direito subjetivo e direitos sociais: o dilema do
Judiciário no Estado Social de direito,”in Faria, J. E. (ed.), Direitos Humanos, Direitos Sociais e Justiça, San Pablo
(1994), pp. 114-138.
12
See in a similar vein, the observation of Bujosa Vadell, commenting on class actions in U.S. federal courts: “Even
conscious of the diversity of legal contexts which develop and of the usual risks of comparative studies, we consider
a careful examination of the procedural rule, FRCP Rule 23, useful, introducing to the Spanish debate of lege
ferenda new and imaginative solutions for resolving legal conflicts in which masses of affected parties intervene,
with the objective of adapting the old individualistic schemes to new times, while sufficiently respecting individual
guarantees.” (Bujosa Vadell, L., “El procedimiento de las acciones de grupo (class actions) en los Estados Unidos
de América”, en Revista Justicia 94, Nro. 1 (1994), p. 68).
21
fulfillment of obligations involves dispensing funds to political powers, or the inequality that
would generate from the success of some individual actions making the right enforceable but the
rest of individual cases are not brought in court. Even noting this theoretical difficulty–which of
course acknowledges the limit to the justiciability of some obligations arising from economic,
social, and cultural rights– it is necessary to produce a theoretical analysis outlining the distinct
types of situations in which the violation of economic, social, and cultural rights is correctable
through judicial action. One can add, in addition, that the inexistence of concrete procedures to
remedy the violation of certain obligations arising from economic, social, and cultural rights
does not mean it is a technical impossibility to create and develop such procedure. The argument
of the inexistence of suitable actions simply describes the current state of affairs, 13 which is of
course susceptible to modification.
On one hand, as we have said, in many cases violations of economic, social, and cultural
rights come from the unfulfillment of a state’s negative obligations. In addition to some of the
given examples, it is useful to remember that one of the liminary principles established with
13
This “gap” indicates a failure of the system, according to the terminology of Ferrajoli. See Ferrajoli, L., “The
right of a system of guarantees”, cit., p. 24. Ferrajoli indicates that “it is recognized for the great part of such rights
[social rights] our legal tradition has not elaborated techniques of guarantee as efficacious as those established for
the rights to freedom. But this stems from the delay of legal and political sciences, that until now have not theorized
a social state on the old model of the liberal state. This delay has permitted the social state to develop on its own
through a simple enlargement of the discretionary spaces of the administrative apparatus, unregulated pressure
groups and clients, the proliferation of discrimination and privileges, and the development of normative chaos that
political scientists themselves now denounce and think of as a “crisis of regulating capacity of the right,” id., p. 30.
In a similar sense, referring to the American context, Archibald Cox affirms “the accepted domestic
philosophy of the 18th and 19th centuries in the United States imposed on the government principally the duty to
impede extreme forms of aggression of one man against another, leavingt men alone to forge their own spiritual and
economic salvation. In the 1930s, political philosophy came to accept in theory, as well as in practice, the principle
that government is not merely about policy, but also has affirmative obligations to satisfy basic necessities of its
citizens: subsistence, housing, work, education, and, more recently, medical attention. In this way, constitutional
law should make this change. A measure increasing the dependence of the citizen upon the government, will also
increase the proportion of cases in which the critical consequences of human freedom, equality and dignity, depend
on how well the government satisfies its obligations. The Court will fulfill its difficult task and historical role to
protect the individual from the state, adopting substantial constitutional rights and the processes of constitutional
legal construction, and will retain its vitality in spite of the difficulties arising from this new approach. This is the
next great challenge of North American constitutionalism.” (Cox, A., The Role of the Supreme Court in American
Government, Buenos Aires (1980), pp. 118-119.)
22
regard to economic, social, and cultural rights is the state obligation not to discriminate in the
exercise of these rights (cfr. art. 2.2 del PIDESC), the most established and important negative
obligation for the state. This type of violation opens an enormous field of justiciability for
economic, social, and cultural rights, whose recognition also limits and ends impunity for state
activity not respecting said rights. There are many exampes of when a regulation establishes
discriminatory access to the enjoyment of certain rights: as with in the state’s violation of the
right to health – as well as with environmental contamination carried out by state agents; or in
the violation of the right to housing, as in the forceable removal of inhabitants from a specific
area without offering alternative dwelling; or in the violation of the right to education, such as
the limitation of education based on sex, nationality, economic condition or other prohibited
discriminatory factors; or in the violation of any another right of this type. In these cases, many
of the traditional judicial actions turn out to be perfectly viable, as actions of unconstitutionality,
refutating or voiding statutes with general or private reach, and are declarative of certainty, of
protection, and sometimes include a claim for damages. The resulting positive state activity
which violates the negative limits imposed by an economic, social or cultural right is in fact
judicially questionable and, the judge may strip the manifestation of the corrupted state’s will of
any legitimacy.
On the other hand, there are cases where the state has failed to fulfill its positive
obligations to carry out actions or measures to protect and satisfy the rights in question. Herein
lies the greatest number of doubts and questions regarding the justiciability of cultural, social,
and economic rights. The issue presents a multiplicity of facets to be reviewed. It can be
granted that in the case of the complete and absolute unfulfillment of every positive state
obligation, it is extremely difficult to force direct fulfillment through judicial action. Some of
the traditional objections are persuasive in this respect: the judiciary is less adequate to carry out
the plans of the political public; the framework of a judicial case is not appropriate for
23
discussions of general reach; there are problems of inequality for those persons affected by the
same state failure to fulfill an obligation who cannot participate in the judgment; the judicial
power lacks measures to force the state to fulfill obligations ordered by a judicial decision; and
the substitution of general measures, which should be provided by regulation and legislation,
with a judges’ ad hoc decisions in a private case can also be a source of undesirable inequalities.
Even admitting the difficulties, it is important to point out some nuances to these
objections. In principle, it is with difficulty that one imagines a situation in which the state
completely and utterly fails to fulfill every positive obligation associated with a cultural, social,
and economic right. As noted in previous paragraphs, the state complies in part with rights, such
as the right to health, to housing, or to education, through regulations which extend these
obligations to individuals and which intervene in the market through rules and the exercise of the
police power, exercised a priori (through authorizations, entitlements and licenses) or a
posteriori (through inspections). The state obligation is in part accomplished by taking measured
steps to guarantee these rights, even in the cases in which those steps do not directly provide the
services by the state. However, there is always the possibility of presenting the violation of
obligations to a court, focusing on the discriminatory provision of the right. The possibilities are
limited, however, when the state effectively provides a service, even if in partial form, but
discriminates against entire segments of the population. It is difficult to make a state fulfill a
positive obligation in this case.
In second place, beyond the multiple theoretical and practical difficulties besetting the
articulation of collective actions, in many cases the unfulfillment of the state can reformulate
itself, even in the traditional procedural context, in terms of individualized and concrete
violations, rather than in a generic form. The general violation of the right to health can be
24
reformulated as a particular action, in which an indiviudal alleges a violation produced by the
lack of production of a vaccine or by the failure to provide a medical service on which life
depends; by the establishment of discriminatory conditions in the access to education or housing;
or because of the establishment of discriminatory or unreasonable rules governing the access to
social assistance benefits. Key to this debate is the intelligent description of the entwining of
negative and positive violations of obligations, as is the concrete demonstration of the
consequences of the violation of a positive obligation arising out of a cultural, social, and
economic right, upon the enjoyment of a political and civil right. If the violation affects a
generalized group of persons, the numerous individual judicial decisions will alert the political
powers to a general situation where obligations deemed important by the public are not being
fulfilled.
In the third place, even in cases in which a judge’s sentence requiring political powers to
dispense funds is not directly enforceable, there is value in a judicial action where the judicial
power declares that the state has unfulfilled its assumed obligations in the matter of economic,
social, and cultural rights. As in the case of the previous paragraph, when judicial decisions that
declare the unfulfillment of the state obligation and eventually communicate this decision to
political powers, the sentences obtained can constitute important vehicles in directing political
powers towards the necessities of the public agenda, as expressed in terms of rights and not
merely through lobbying or the demands of political parties.
Now then, even admitting the difficulties, it is possible to point out some subtleties to
these objections. Firstly, it is difficult to imagine a scenario in which the State would totally and
absolutely fulfill all of the positive obligations required by an economic, social, and cultural law.
As we have said in previous paragraphs, the State partially complies with rights such as the right
to health, housing, or education, through regulations that extend obligations to people, through
25
market intervention (authorizations, financing, or licenses), or a posteriori (through prosecution).
And so, because the State is obligated to take measures to partially guarantee these rights, even
in the cases when the measures do not directly involve the State rendering services, the State’s
violations of its obligations by enforcing laws discriminatorily could certainly be judicially
outlined. The possibilities are even clearer when the State effectively provides partial service,
discriminating against entire layers of the population. Clearly procedural and operational
difficulties could arise in the course of such cases, but it would be difficult to argue that the
partial or discriminatory fulfillment of a positive obligation is not a justiciable matter.
Secondly, to surpass the many theoretical and practical difficulties that stall the
articulation of collective actions, in many cases the non-fulfillment of the State can be
reformulated, even in a traditional procedural context, in terms of individualized and concrete
violations, instead of in generic form. The general violation of the right to health could be
reorganized or reformulated through the articulation of a personal action, headed by a named
individual, who alleges a violation produced by the lack of production of a vaccine, or by the
refusal of a medical service upon which the life or health of this person depends, or by the
establishment of discriminatory conditions in access to education or housing, or by the
establishment of unreasonable or discriminatory standards for access to the benefits of social
assistance. The achievement of the plan will be rooted in an intelligent description of the
interweaving of violations of positive and negative obligations, or even in demonstrating
concretely the consequences of violating a positive obligation that arises from economic, social,
and cultural law, for the enjoyment of civil and political rights. This could show that if the
violation affects a generalized group of persons, in terms denominated by contemporary
procedural law as individual and homogeneous rights and interests,14 the numerous individual
judicial decisions will alert the political powers of a generalized situation of non-fulfillment of
14
See, Brazilian Code in Defense of the Consumer, art. 81.
26
obligations in matters relevant to public policy. This effect will be especially valuable to those to
whom we refer in the next paragraph.
In the third place, even in cases in which the sentence of a judge is not immediately
effective in urging the provision of funds by the political powers, it is possible to emphasize the
value of a judicial action in which the Judicial Power declares that the State is behind on its
payments or has not fulfilled the obligations it took on in matters of economic, social, and
cultural rights. As much in the case presented in the preceding paragraph – many individual
judicial decisions which are effective – as in the case of this paragraph – judicial decisions that
declare the State’s non-compliance with its obligations in certain matters, and that eventually
communicate the decision to the political powers – the judgments obtained can be important
vehicles to channel the goals of the public agenda, expressed in terms of injury of rights to the
political powers, and not merely of a complaint carried out, for example, through lobbying or
political-partisan lawsuits. As Jose Reinaldo de Lima Lopes says, “the Judicial Power,
adequately provoked, can be a powerful instrument in the formation of public policy. An
example of this is the case of social security in Brazil. If it were not for the commitment of the
citizens as a whole to judicially vindicate their interests and rights, we would be more or less
where we have always been.”15 There is no doubt that the implementation of economic, social,
and cultural rights depends in part on planning and foresight and must follow a path that
corresponds to the path of the political powers, since the cases are limited in which the Judicial
Power can handle the work of taking the place of people’s inactivity. 16 Now then, one of the
15
Lopes, J., “Direito subjectivo e direitos sociais: o dilemma do Judiciario no Estado Social de direito.” cit. p. 136.
Limited, but not impossible. The vast judicial experience in the United States in matters of racial desegregation of
the system of public education, and of making the administration of psychiatric hospitals and prisons comply with
constitutional rights, offer examples of these cases – the limits of judicial activism. Evidently, judicial activism is
motivated by the gravity of the violation of rights in question. See, as an example of these cases, Wyatt v. Stickney,
344 F. Supp. 373 (M.D. Ala 1972). For a not ingeneous account of the judicial imposition of affirmative broad
duties on government in the United State context, see Cox, A., The Role of the Supreme Court in the North
American Government, cit., chaps. III and IV.
16
27
meanings of the adoption of constitutional clauses or of treaties that establish rights of persons
and obligations or commitments of the State, is that it is possible to demand fulfillment of these
commitments not as a gracious concession, but rather as a government program taken on as
much internally as internationally. It seems evident that, in this context, it is important to
establish mechanisms of communication, debate, and dialogue that remind the political powers
of their commitments, forcing them add to government priorities steps toward fulfilling their
obligations in matters of economic, social, and cultural rights. It is especially relevant in this
respect that it be the Judicial Power itself that “communicates” to the political powers their nonfulfillment of obligations in this matter. The logic of this process is similar to that which informs
the requirement of exhaustion of internal recourses in appeals before the international human
rights protection system: offer the State the chance to recognize and fix the alleged violation,
before asking the international sphere to denounce the non-compliance. When the political
power does not fulfill the obligations for which the Judicial Power is dunning it, amen to the
possible adverse consequences in the international plane. The political power will face the
political responsibility it deserves, due to its delinquent behavior toward its own population.
Finally, as I have already suggested, some objections directed against the justiciability of
economic, social and cultural rights are circular, since the only thing they prove is that traditional
procedural instruments – which are used in the context of disputes over individual interests, the
right to property and a non-participatory conception of the State – turn out to be of limited use
for demanding these rights judicially. In many cases demands for economic, social, and cultural
rights could be reorganized into demands for civil and political rights, and in these cases
traditional procedural mechanisms are at least partially adequate. So then, the lack of adequate
judicial mechanisms or guarantees does not say anything about the conceptual impossibility of
making economic, social, and cultural rights justiciable. Instead – as has been said – we should
rather demand the imagination and creation of procedural instruments capable of bringing these
28
complaints to a head. 17 Some of the advances in contemporary procedural law are directed
toward this objective: new perspectives on actions for protection, the possibility of carrying out
actions claiming unconstitutionality, the development of the accion declarativa de certezta, class
actions, the public civil action, and the Brazilian mandados de seguranca y de injuncao, and the
ability of the Public Ministry or Public Defender to represent collective interests, are examples of
this tendency. It is fitting to also add that another source of hypothetical difficulties in actions
that attempt to expose the non-compliance of the State with economic, social, and cultural rights,
is rooted precisely in the privileges that the State can count on when it is brought to justice,
privileges which would not be admissible if similar actions were being carried out between
individuals. Thus, far from constituting a closed question, the sufficiency of procedural
mechanisms for forcing the State to respect economic, social, and cultural rights through a
judicial solution requires an imaginative force which incorporates new uses for traditional
procedural mechanisms, an expanded consideration of economic, social, and cultural rights as
rights, a certain judicial activism – which includes a dose of creativity, and legislative proposals
for new types of actions capable of mobilizing collective complaints and lawsuits of general
scope in the face of the political powers.
In sum, if it is conceded that there are limitations to the justiciability of economic, social,
and cultural rights, it is possible to end with the opposite viewpoint: given their complex
structure, there is no economic, social, or cultural right which does not have at least some
characteristic or facet which allows judicial consideration in cases of violation. 18 In the words of
Alexy: “As the jurisprudence of the Federal Constitutional Tribunal [German] has shown, in
17
Compare in this respect the opinion of Farrajoli: “It is more difficult to find equilibrium in matters of social
rights, though it is only because the corresponding techniques of guaranteeing them are more difficult and are much
less developed…” (Ferrajoli, L., Law and Reason, cit., pp. 917-918).
18
See, for the case of the right to health, Leary, V., “Justiciability and Beyond: Complaint Procedures and the Right
to Health,” in Magazine of the International Commission of Jurists, Num. 55 (1995), pp. 91-110, with interesting
jurisprudential citations.
29
some ways a constitutional tribunal is impotent when faced with an non-functioning legislative
branch. The specter of its procedural-constitutional abilities extends, from the mere proof of a
violation of the Constitution, through the fixing of a place in which Constitutional legislation can
be passed, to the direct Judicial formulation of what is ordered by the Constitution.”19
3. Does it make sense to maintain the category of “social rights”?
If, as I have been arguing, the difference between civil and social rights cannot be based
on deontological arguments, or on the presence or absence of characteristics such as
justiciability, it is possible to question whether maintaining the distinction makes any sense, or,
put another way, if any factor exists to justify the distinction. In my opinion, the distinction is
only useful in the sense that it reflects the operation of two different politico-ideological
paradigms 20 or matrices of judicial regulation, and permits, as well, the form in which the
different rights have been conceptualized and positivized to be situated in a historical context. I
will dedicate this section to briefly analyzing some descriptive lines that differentiate these
paradigms of regulation.
To begin, it is useful to make some methodological clarifications. The attempt to describe
two disciplinary paradigms or matrices of judicial regulation entails delineating two ideal types,
useful – we believe – for analytic and explanatory purposes, but which do not try to exhaustively
capture the enormous complexity of the historical and normative reality of all the countries in
19
See Alexy, R., Theory of Fundamental Rights, cit., p. 497.
The use of the notion of disciplinary paradigm or matrix is inspired by the notion developed by Thomas S. Kuhn
for the natural sciences. See Kuhn, T. S., The Structure of Scientific Revolutions, Mexico (1971). We have
employed the notion, referring it to law, in Abramovich, V. and Courtis, C., “The Rings of the Serpent.
Transformations of Law between Work and Consumption,” in Judges for Democracy. Information and Debate,
Num. 22 (1994), pp. 54-63. En a relatively similar sense Jurgen Habermas uses the term in Facts and Validity,
Madrid (1998), Ch. IX, “Paradigms of Law,” defining it as the “implicit images of society itself which provide a
perspective on the practice of the production of legislation and of the application of law, or put in general terms,
give an orientation to the project of realization of that association of free and equal members that is the judicial
community.” Cit., p. 473.
20
30
which the distinction between civil and social rights has operated. The utility of the attempt lies
in its ability to capture characteristic features that give meaning to the use of the different terms –
civil, social – in paradigmatic examples. But of course it is possible to find examples of judicial
regulation of rights in which features of the two disciplinary matrices coincide, or in terms of
which the explicatory fertility of the two ideal types is scant. This should not cause much
epistemological alarm: reality – even that of conventional entities such as judicial norms and the
use of terms or classifications – is much richer, varied, multifaceted, and contradictory than the
analytical categories that we invent to order it. To suppose that activities such as the adoption of
legal norms and the creation of juridical categories follow an unequivocal pattern of rationality,
when they depend on the successive interaction of many actors, on politico-ideological factors,
and on interests and motivations which are not necessarily rational, is an obvious error. This
argument does not derive its meaning from the effort to find some regularities in the common use
of a term and to describe the characteristic features and assumptions of these regularities. In
social sciences, the evaluation of the productiveness of a theoretical category should not depend
on its capacity to absolutely explain a phenomenon – in our case, for example, the usefulness of
the classification civil rights/social rights – but rather on its potentiality to explain a phenomenon
more or less completely. This, however, in terms of efficiency, is better than renouncing all
attempts at explanation – and affirming, for example, that the classification shows no pattern and
is completely arbitrary.
In the second place, it is necessary to keep in mind that the attempt to theoretically
explain the use of a term should at least take historical notice of the fundamental features of its
past use: although establishing by stipulation the conditions for “correct use” of a term ex nunc is
acceptable from a logical point of view, the yield of this stipulation in terms of theory will be
poor if it leaves aside the most relevant examples of historical use of the term. For example: if
the stipulated conditions for use of the term “social right,” for analytical reasons, leaves behind
the historical positivization of workers’ rights standards, no matter how irreproachable this is
31
from a logical point of view, it will be seriously deficient in terms of its capacity for
retrospective explanation. Said in another way: the explicative ability of an ideal type is
undoubtedly related to the possibility to capture or take note of the relevant features of historical
specimens. The manifest separation of the historical use of a term is a sign of the inadequacy of
the analytical stipulation that is made. This implies, at least, the need to elaborate analytical
categories that keep in mind, for example, the sense in which social constitutionalism, the
branches of social rights, social tribunals, or the distinction between international civil rights
agreements and social rights agreements, etc., have been spoken of in the past.
The notion of a paradigm of judicial regulation is a construction which attempts to
explain a group of techno-juridical solutions based on a definite theory of the functions that the
State should take on, and a theory about the bonds between individual and society. It is clear that
the construction of ideal types cannot be more than a gross generalization, which allows
explanation in broad strokes at the cost of sacrificing nuances and particularities. The exposition
of the assumption of a theory of the State and of a theory of relations between individuals and
society cannot be, in this context, more than an elemental sketch, in terms of features that define
in a very general way the most well-known aspects of these theories, without trying at all to
account for the great richness of specific theoretical formulations on which the abstraction is
based. With all of these caveats, I believe, however, that the generalization is useful, at least in
pointing out phenomena such as the historical rise of new branches of law, of new spaces of
academic autonomy, or of new techno-juridical solutions in the face of a different perception of
the regulatory needs of certain areas of social life.
Having said this, I will move on to the description of two different paradigms or models
of judicial regulation, which I will call, respectively, the “classic private law” model and the
“social law” model. Historically, the former abstracts the most well-known characteristics of
32
continental Europe’s civil codification, and of the establishment of the classical contractual
doctrine of Anglo-Saxon law, in the eighteenth and nineteenth centuries. The second tries to
capture the defining aspects of a cycle begun in Europe with the modification of the rules that
governed workplace accidents and labor contracts at the end of the nineteenth century, and was
completed by state intervention in fields such as education, health, and social security, during
most of the twentieth century.
What are the traits that characterize the judicial regulation in the classic private law
model? It is about the transcription in juridical terms of the presuppositions and prescriptions of
classic political economy, so that it is not difficult to recognize in the juridical constructions
positivized based on this model, a liberal theory of the functions of the State and a theory of the
relation between individual21 and society which are typical of that formulation. It could be
briefly jotted down, for example, in this way:
1.
the unit of analysis of human action is the individual
2.
the rationality of the subject acting is assumed, as well as his capacity to know and
want what is best for him
3.
it is postulated that the market is the best mechanism for creating wealth and for
assigning economic factors.
4.
society is considered in equilibrium or in a stable situation. Destabilization or dis-
21
See Lo Vuolo, R., “Political Economy of the Welfare State: Neoliberal and Keynesian Populist Mythology,” in
Isauni, E., Lo Vuolo, R. and Teti Fanfani, E., The State Benefactor. A Paradigm in Crisis , Buenos Aires (1991), p.
34.
33
equilibrium caused voluntarily will require mechanisms to restore equilibrium
5.
the functions assigned to the State are the maintenance of a trustworthy legal and
institutional framework, which foments predictable transactions, protection of the
equilibrium state, and its restoration in cases in which a modification has occurred
through impermissible mechanisms.
Translated into juridical terms, the presuppositions generate:
1.
the construction of subjects of law as individuals
2.
the equality of the subjects of law, expressed in notions such as formal equality
before the law and equality of contracting parties
3.
the consecration of the principle of free will, and of the contract as a valid mechanism
for the exchange of goods and services; on a similar level, the establishment of personal
and subjective factors for assignment of civil responsibility, such as fraud and guilt
4.
the limitation of the functions of the State to the creation of general and abstract rules
(legislation), protection of individual juridical goods and of the institutional conditions of
economic equilibrium (security, defense), the reestablishment of economic equilibrium
when facing the illicit production of harm or the non-fulfillment of contractual
agreements (civil justice) and, in the most serious cases, the imposition of penal sanctions
(criminal justice)
5.
the design of individual procedural actions, in which the measure of legitimacy is the
individual claim of right
Having presented this model, it is easier to comprehend how the construction of so-called
civil rights (or rights to liberty or autonomy) is adapted to its framework. The technical
elaboration of the individual juridical guarantee traditionally called civil rights is a response
34
to the need to configure judicially an autonomous space for action, in which the state
interference in individually adopted decisions is at a minimum. Although that space allows
various types of action – development of the personality, emotional relationships, culture,
politics, religion, expression of ideas, art, entertainment, etc., and not just the economy –
given the hegemonic role of the market in this model, much of the judicial construction of the
notion of subjective right and of jurisdictional protection revolved around the securing of
patrimonial rights. 1 This framework assigns, of course, preeminence to the contract as the
mode of distribution and exchange of goods. It is relevant to point out, in this scheme, that
the regulation of any area of human interaction tends to place emphasis on the role played by
individual will and the achievement of rights. 2 In this way, rights are configured as liberties
or powers: freedom to learn and teach, freedom of conscience, freedom to work, religious
freedom, freedom of expression, freedom of movement, freedom of action except that
expressly prohibited (crimes, for example), freedom to have a family, etc. It is not strange, in
this context, that freedom is the central value in this model. 3
It is worthwhile to repeat here that the model is not mainly defined by the character of the
State’s obligations: the work of defining rights, protecting them, and reinstating them in case
of violation does involve positive State obligations, or in any case interference and State
1
This explains, for example, the difficulties of judicial treatment of non-patrimonial goods, such as life, freedom of
conscience, religious freedom, or the super-personal rights. The attempt to thematize these goods through the
conceptual network of classic private law consists generally of the translation of their meaning into economic terms
– “loss of chance,” “frustration of life plan,” “profit ending,” etc. – that clearly capture in a very limited way the rich
theory and philosophy that underlies them. See, on this point the reflections of Juan Ramon Capella, “Limits of
Capitalist Democratization,” in Capella, J. R., The Slave Citizens, Madrid (1993), pp. 71-77. In a similar vein,
Barcellon, P., Proprietary Individualism, Madrid (1996), pp. 55-66. See also Jose Reinaldo de Lima Lopes’s analysis
of the links between the notion of subjective law, the notion of property, and the traditional conception of the notion
of procedural legitimization in Lopes, J. R. L., “Direito jubjetivo e direitos sociais: o dilemma do Judiciario no
Estado Social de direito,” cit. pp. 116-124/
2
See Habermas, J., Facts and Validity, cit.: “This ‘society of private law’ was cut in half by the autonomy of
juridical subjects that, above all in their role as market participants, had to search for their welfare and find it
through the most rational pursuit of their own interests possible,” at p. 483.
3
See Hayek, F. v., Law, Legislation, and Liberty, vol. I (“Norms and Order”) Madrid (1978) and vol. III, (“The
Political Order of a Free Society”) Madrid (1982), and the influential work of Isaiah Berlin, “Two Concepts of
Liberty,” in Berlin, I., Freedom and Necessity in History, Madrid (1974), pp. 133-182.
35
activity, and not just abstention. Nevertheless, the State is excluded (tangentially, of course)
in this model from the chance to make decisions that displace individual decisions or affect
goods subject to individual decisions. 4
The model of social law cannot completely take the place of classic private law, but
rather is a corrective model of what are considered dysfunctions of the latter. 5 The
articulation of this model is founded, on one hand, in the modification or subjection to
criticism of some of the presuppositions and postulates of the model of classic private law –
without supplanting them completely. This is manifest, for example, in the field of
assumptions of societal theory and the relations between society and individual. 6 On the other
hand, they demonstrate the limitations of the mechanisms of classic private law, supporting
the need for state intervention when the functioning of the market does not guarantee
acceptable results. 7 The construction of this juridical model is one of the vehicles through
which the functions of the social State, the welfare state, and the provident State develop. In
sum, we can note among the postulates that inform the model of social law:
1.
the introduction of a collective dimension into the analysis of human action. This
dimension incorporates collective analytical concepts – such as those of social class,
4
This is not an open question of problems of interpretation, in the sense in which the notion of individual decision is
not a “natural object” and also a necessarily defined thing – such that in this model discussions about what sign
should be taken as an expression of a decision are common, or when a decision should be taken as definite, which is
the sign that should be taken as real in the face of contradictory signs, etc. See Gordon, R. W., “How to Melt Legal
Realities: A Critical Approximation of Law,” in Courtis, C. (comp.), From Another Point of View. Texts of Critical
Theory of Law, Buenos Aires (2001), pp. 364-366.
5
See Habermas, J., Facts and Validity, cit.: “The model of the social State (or model of law linked to the social
State) arose from reformist criticisms of formal bourgeoisie law,” at p. 483. See, in the same vain, Ewald, F., “The
Concept of Social Law,” in Magazine Contexts Num. 1 (1999), p. 101-134; Histoire de l’Etat providence. Les
origenes de la solidarite, Paris (1999), and Jose Luis Monereo’s historical reconstruction in Monereo, J. L.,
Doctrinal Fundamentals of Social Law in Spain, Madrid (1999), Ch. 1.
6
See Ewald, F., “The Concept of Social Law,” cit. p. 102.
7
See, Anon, M. J. “The Test of Inclusion: Social Rights,” in Anton, A. (coord.), Work, Social Rights, and
Globalization. Some Challenges for the Twenty-First Century, Madrid (2000), pp. 148-191.
36
group, ethnicity, race, gender – and the idea of social mediation of all individual and
human action
2.
the pointing out of the limits of the rationality of actors, and the limits of their
cognitive and volitional capacities to know and do what is best for them. These limits
would be marked by diverse factors: the proof of irrational motivations of human beings,
their changing desires, the effect of collective pressures, the lack or incomplete character
of available information, the differences in power between interacting subjects, need, coaction, etc.
3.
the generation of wealth stops being the only factor relevant to analyzing economic
results. To this are added other factors, such as equality and equity. Thus intervention in
the market can be justified based on other values.
4.
society is considered in a state of permanent conflict: this generates mechanisms of
negotiation and precarious truces that are constantly renewed
5.
the functions assigned to the State multiply: the State takes on political regulation of
the economy, and takes charge of decisions about what areas of human interaction will
remain subject to the market, and which areas will be partially or totally de-marketized.
The orientation of this state action is directed toward redistribution and stabilization of
revenues, making goods and services accessible to disfavored sectors of the market: the
State tries in this way to equalize or compensate for social inequalities which are
considered undesirable. 8 Typically, the State de-marketizes 9 or intervenes in areas
adjudged essential for the maintenance of minimum standards of life for all human
beings: work, health, education, transportation, housing, consumption, environment, etc. 10
8
In Mazzioti’s terms, “equilibrating and moderating function of social disparities.” Mazzioti, M. “Diritti Sociali,”
en Enciclopedia del Diritto, Milan (!964), p. 804.
9
The introduction of this term was made by Karl Polanyi. See Polanyi, K., The Great Transformation, Madrid
(1997); Esping-Andersen, G., The Three Worlds of the Welfare State, Valencia (1993), pp. 57-80; Titmuss, R.,
Social Politics, Barcelona (1980), pp. 62-80.
10
For a comparative analysis of the judicialization of the work relationship and the relationships of consumption in
37
During a phase closer to our time, the State has incorporated other functions inspired by a
similar orientation, such as that of protecting differences esteemed as valuable and
promoting the access of historically passed over groups to institutions or activities in
which they were underrepresented. 11
Translated into juridical terms, these suppositions generate:
1.
the introduction of collective dimensions into the law: among them, the construction
of collective subjects of law (such as labor unions or consumer groups) and the
articulation of instances and skills of collective negotiation, which displace individual
negotiations (such as collective work agreements), or even the construction of collective
or group categories (worker/employer, consumer/professional, beneficiary of a social
service, member of a vulnerable group, etc.) upon which the juridical treatment received
depends.
2.
the consideration of material inequalities – of political and economic power and of
information – between different classes subject to the law, institutionalized through the
unequal treatment of subjects in different positions. Consequently, principles of
interpretation are generated (like the principles of favor operari and favor consumatori),
as well as procedural rules (like the reversal of the burden of proof ascribed to harm in
the work relation, or the establishment of procedural presumptions that favor the party
considered weaker) in accord with this unequal treatment.
3.
the establishment of limitations on the principle of freedom of contract. The typical
accord with the model of social law, see Abramovich, V. and Courtis, C., “The Rings of the Serpent:
Transformations of Law Between Wor,k and Consumption”, cit., pp. 54-63.
11
On the continuities and ruptures of state intervention in the redistribution of resources and intervention for the
recognition and promotion of the position of disadvantaged groups, it is worthwhile to review the debate between
feminist authors such as Iris Marion Young and Nancy Fraser. See Young, I. M., Justice and Politics of Difference,
Valencia (2000), and “Political Life and Group Difference: A Criticism of the Ideal of the Universal Citizen,” in
Castells, C. (comp.), Feminist Perspectives on Political Theory, Barcelona (1996), pp. 999-126; Fraser, N., Iustitia
interrupta. Critical Reflections from the “Postsocialist” Position, Bogotá (1997), Chs. 1 and 8. See also Añón, M. J.,
“Differentiated Citizenry and Rights of Minorities,” in de Lucas Martín, F. J. (dir.), Rights of Minorities in a
Multicultural Society, Madrid (1999), pp. 43-118.
38
mechanisms of social law in this matter are varied: the establishment of minimums public
interests which are then unavailable to individuals to contract away, founded in the need
to protect values such as health, safety, dignity (for example, the so called “orden publico
laboral” or the “orden publico de consumo”), the nullification of contractual clauses
considered abusive or deceptive, the state control (a priori and a posteriori) of the public
sale of goods and services, etc.
4.
the displacement or limitation of the scope of action of contractual mechanisms, or
their substantial regulation by the state. De-marketization is expressed in legal terms in
the advance of public law throughout the area in question, generally beginning with the
organization of a public service, of state regulation of sectors left to private management,
or of the establishment of regulatory agencies. In this vein, the State takes on the function
of promoting opportunities for disadvantaged or historically passed over social groups in
areas such as access to work, education, and political activity. These functions are
legislated through proactive methods: for example, the establishment of quotas, of
preferences, or of fiscal incentives, or demands for accommodation directed toward the
public sphere, in the State’s relations with private contractors, and even in the relations
between individuals.
5.
the modification of the criteria for assignment of civil responsibility: the generation of
risk and the need to establish social criteria for the distribution of harm give rise to the
notion of objective responsibility, independent of subjective factors.
6.
The broadening of State functions: the State adds new permanent areas of
interference, through its direct management, of functions of regulation and control, of the
protection of public goods, or of its role as mediator/pacifier in cases of negotiation and
of collective conflicts. Given that these areas thus end up governed by different principles
than those of classic private law, the role of Justice is diversified, its spheres of action
broadened to include the solution of conflicts that arise from the application of special
39
rules of law (such as those of work, consumption, etc.), and the judicial control of
administrative activity in de-marketized areas.
7.
the incorporation of collective or trans-individual procedural actions, in which the
legitimate actor represents group interests or invokes the protection of collective goods
(such as class actions, collective aid, the public civil action, the collective actions of
consumer groups, etc.).
Reviewing some of these features, Ewald characterizes social law by:
a) being a law of groups and not of individuals. The individual enjoys his benefits only through
the medium of his membership in some group; it deals with a situated or qualified law of the
individual
b) being a law of inequalities, which tries to make itself and instrument of comparison,
equalization, or compensation. It is about a juridical model that tends to conceive legal
relations as structurally unequal, rejecting the concept of the contract in terms of equal
contribution, free will, or protection of consent.
c) it finds itself link to a sociology, oriented toward pointing out which are the pertinent social
relationships, which relationships link different classes or groups, what are the needs or
aspirations of those groups, etc. This sociological orientation replaces a philosophical or
moral one, fundamental to classic private law. 1
Having reviewed the features of this model of law, it is apparent that the so-called “social
rights” are fruits of the techno-juridical attempt to elaborate subjective (individual or collective)
juridical positions configured in consonance with the logic of this paradigm. Certainly, a
common feature of judicial regulation of the areas modeled from the model of social law is the
1
Ewald, F., L’Etat Providence, cit., p. 451-452; see also “Le droit du travail: une legaite sans droit?,” in Droit
Social num. 11 (1985), pp. 723-728
40
use of State power, with the purpose of equalizing disparate situations – perhaps through the
attempt to guarantee minimum standards of living, 2 better opportunities for passed over social
groups, or to make up for the differences in power in individual relations. Hence, the value that
generally stands out in terms of social rights is equality. 3
In these terms, it is possible to make several reflections. In the first place, given the great
diversity of functions that the social law model requires of the State, the type of subjective forms
that could arise from the different forms of intervention takes on an enormous variety: as much
the individual right to obtain medical aid from the state, as the right of a labor union to organize
a strike, as the right of consumers to state control of abusive clauses when faced with mass sales
of a product, as the right of the female gender to increase its participation in political life, etc.,
are techno-juridical manifestations of this model, and, thus, its heterogeneity is clear. In this
sense, the use of the category of “social rights” provides some scant information about the
correspondence between a techno-juridical solution and a juridical-political model, but not much
more. The informational value of the term is no more than to point out a certain familiar air, but
it serves with difficulty to clarify the structure of a many-colored group of juridical constructions
that is very different within itself. The right to aid is just an example of these constructions, but
not the only one, and, in many areas – such as, for example, consumer rights, or the right against
discrimination – not even the most important.
On the other hand, it is evident that the broadening of the functions of the State in the context
of the model of social law has not necessarily been translated into the configuration of subjective
rights following the model elaborated of the paradigm of classic private law. In many cases, the
State has assumed these functions through discretionary interventions or organizational forms
whose social and economic effects are not directed at particular subjects, be they individuals or
2
See Baldassarre, A., “Diritti Sociali,” in Enciclopedia giuridica, Vol XI, Rome (1989): “the theoretical
justification of social rights [is located in] the concept of freedom from certain forms of deprivation, and its end is
the realization of equality, or, more precisely, a synthesis between liberty and equality,” at p. 6.
3
See Anon, M. J., “The Test of Inclusion: Social Rights,” at p. 153.
41
groups. Nevertheless, there is no “defect” in the nature of the type of state intervention that
characterizes social law that prevents the elaboration of subjective rights that can be demanded
individually or collectively. What happens in many cases is that the State has left to its own
discretion the aid or intervention that the constitutions or human rights agreements portray as
rights. 4 In these cases, there is no factual or conceptual impossibility of constructing social rights
that are judicially protected:5 taking a constitution or human rights agreement that consecrates
social rights seriously, demanding that it be constructed to represent not only normative value
but supreme normative value, destined to limit and impose obligations on public powers. These
agreements cannot be constructed – as they have been by many jurists – as meaning a figurative
or metaphorical expression by the term “right” when they refer to social rights, an interpretation
that they would not support when dealing with civil rights.
Another point to make is raised by the use of the term subjective law. Although the politicoideological context which culminated in the technical articulation of this term, and in the
elaboration of judicial guarantees of protection, used the law of property as a model, nothing
prevents us from being conscious of the limitations generated by this context, and adapting the
construction to the particularities of other needs of regulations, such as, for example, the
collective dimension of some conflicts or claims, or the peculiarities of a sentence that
establishes obligations to work. These particularities are not sufficiently important to require the
abandonment of the use of a term whose most important connotations – such as the legitimacy of
reclamation and the power to be tried in front of an impartial authority in case of non-fulfillment
– we are trying to preserve.
This observation brings us to another question which is also important to point out: as must
already be clear at this stage, the non-exhaustiveness – and more importantly, the relative
plasticity – of the features that characterize the models of classic private law and social law, and
4
5
See Ferrajoli, L., “Stato sociale e stato de diritto,” en Politica del diritto, a. XIII, nro. 1 (1982).
In fact, many of them, especially those bound up with the relation to work, have been elaborated in this way.
42
the notions of “civil rights” and “social rights,” make it in a certain sense unproductive to try to
wholly encompass in these categories some principles and guarantees, from which rights are also
derived. For example, many of the component elements of the guarantee denominated “due
process,” such as the right to be judged in a reasonable location, the procedural principle of
equality of methods, or the right to produce proof of innocence, could only with difficulty be
ascribed to just one of these models. At most, some typical feature of a model might stand out in
the face of specific procedural solutions – for example, the interpretive principle of favor
operari, the reversal of the burden of proof in proving over-production in matters of public
domestic services or of the right learned assistance provided by the State to fight a criminal
accusation in cases where the State cannot pay for the services of a lawyer, seem to respond to
explicatory principles more in accord with the paradigm of social law. Even at the risk of being
excessively indefinite, it could be said that many instrumental rights in court, such as the
procedural guarantee, or the right to information, or even those rights which define in judicial
terms the minimum elements indispensable to participation in life, such as the right to life, the
right to recognition of one’s legal person, or the rights denominated super-personal, inform
equally the models of classic private law and of social law. The point is that, as we have said, if
the model of social law is corrective of the model of classic private law, as well as in a relation
of rupture with it in terms of certain solutions – especially, those bound up with the distribution
of functions between the State and the market – there is also a relationship of continuity between
these models, an unsurprising fact, since both are variants of the same politico-philosophical
root, the modern conception of the world.
During the twentieth century, the coexistence of expressions of both models has been a noted
characteristic of legislation and – more generally – of the adoption of public policies in the
developed countries of the West and in the countries they influence, varying, certainly, the
weight given to the components by each model in accord with the politico-ideological
fluctuations between them. Nothing foreshadows the complete suppression of either of the two
43
models in the immediate or near future.
It remains to clarify another aspect of the nature of disciplinary paradigms or matrices. The
distinction between these paradigms does not come from their different objects of regulation, but
rather from their modes of regulation. This means that the same object of juridical regulation –
for example, the sale of human labor for foreign money – could be schematized in terms of
classic private law or social law. Nevertheless, due to the fact that historical regulation of some
rights has coincided with the period of codification of the paradigm of classic private law, this
law is generally identified with that regulation. This is the case of property law or freedom of
commerce. Notwithstanding – as I have said before – it is possible to think of social-type
regulation of the same rights.
The same happens with the regulation of some of the so-called social rights: the conceptual
presuppositions of their historical regulation are intimately bound with the social law form of
regulation. The right to work has been, without a doubt, the first complete historical expression
of the social model. Nevertheless, it is not theoretically impossible to imagine the regulation of
the same juridical object through the conceptual framework of classic private law. 6 In fact, in the
last few years, the right to work has suffered some attacks destined to return the regulation of the
sale of work to the paradigm of classic private law. Several aspects of so-called “labor
flexiblization” exemplify this phenomenon. 7 The framework of general regulation of labor law –
the denominated “fundamental principles or institutions of labor law” – correspond, nevertheless,
to the form of social law. In similar terms, areas such as health, education, or housing can also be
adjudicated based on the postulates or premises of classic private law, but the results of such
6
See the opinion of Ewald on the point: “If social law is thought of simultaneously as a process of transforming law,
linked to a specific governmental practice, and as the development of a new type of law with a new structure, the
situation takes on a meaning that would be totally different than the one that would arise from its reduction to labor
law or social security law. In the first place, because it is clear that the structure of social law dies not necessarily
correspond to labor law or social security law, given that the existence of these branches of law can be conceived of
without obeying the rules of social law. Secondly, because the process of socialization of law is not limited to one or
another branch of law, such that the two classic types of should be seen as two examples – undoubtedly well-known
but not special – of a law of more universal application.” Ewald, F., “The Concept of Social Law,” cit. p. 102.
7
See, on the point, Abramovitch, V and Courtis, C., “Possible Futures. Labor Law at a Crossroads,” in Juridical
Magazine of the University of Palermo, year 2, Nums. 1 and 2 (1997) pp. 166-174 and bibliography cited therein.
44
adjudication only bear slight resemblance to the type of regulation characteristic of social law:
the schematization of classic private law would keep close to the state guarantee of the
functioning of market rules in those areas. In those terms, the idea of the “right to health,” for
example, would be limited to that of not being deprived of health by the State or by other
persons, and would not include the right to access to medical services when one could not afford
them. A similar conception thus results, nevertheless, unrepresentative of the content we
normally associate with the right to health, precisely because the identification of this sphere as
an area subject to regulations different than those that govern other transactions – the sale of
neckties, for example – results from a substantive and non-market selection operation typical of
the model of social law.
One last commentary must be directed toward the formulation of contemporary theories that
argue that both the model of classic private law and the model of social law have been
superceded, and glimpse the advent of a new paradigm of law. 8 Beyond the interesting attempt to
reconstruct the different models and the articulation of criticisms of some historical solutions
adopted by both, none of these theories clearly indicates what the techno-juridical solutions
typical of this paradigm are, and how they differ from the models considered superceded. It is
fitting to proceed with some caution before so easily announcing that early models have
disappeared. To begin with, it is difficult to assert even today that the model of social law is a
complete or mature paradigm: many of the sketches drawn throughout this text – the problems of
adapting the design of traditional procedural actions, the lack of development of specific
guarantees, the lack of concreteness of social rights as true subjective rights – are perfect
examples of this lack of abundance, and the solutions that are being articulated to these problems
are indications of still incipient evolution, though in many cases clearly perceptible, in the
direction of a future, more articulated form of this model. Even if in some spheres a retraction
8
See Habermas, Facts and Validity, cit. ch. IX. What is said here can be extended to the proposals of constructing a
“reflexive law,” forwarded by Gunther Teubner. See Teubner, G., “Substantive and Reflexive Elements in Modern
Law,” in Law and Society Review 17 (1983), pp. 239.
45
from the model of social law can be seen (such as in the field of labor law, or in the recently
forecast reforms of the system in various Latin American countries), in some others social
regulation has manifestly displaced or modified the model of classic private law (right of
consumption, environmental rights, procedural rights, right to health, rights of disabled persons).
The constitutional reforms experimented with in Latin American countries during the 1990s have
been, without a doubt, social constitutionalist ones, rather than in liberal.
On the other hand, it is also important to relativize the supposed novelty in the tendency
toward the proceduralization of law. It is too much to try to prove that either the classic private
or social law can uniquely claim among its own features the tendency toward proceduralization.
In the case of classic private law, Max Weber himself points out as one of the characteristics of
the modernization of law the concession to individuals of the “ability to automatically regulate,
within certain limits and through judicial mechanisms, their reciprocal relationships. . . . The
volume of contractual freedom, that is to say, of the content of the judicial methods guaranteed
as valid for co-active power, and as such, the relative importance of the norms that authorize
those ‘powers’ of disposition in the totality of an order which are, naturally, in the first place, a
function of market development.”9 This “decentralization of juridical creation” (a term which
Weber takes from Andreas Voigt 10 ) is, precisely, a tendency toward the proceduralization of
juridical interaction. Within certain limits, only the formal exercise of judicial abilities yields to
the judgment of the judicial authority, but not the review of the substantive matter that results.
In the case of social law, together with some features of substantialization or materialization
of rights already described, tendencies toward proceduralization can also be seen. 11 In this way,
much of collective labor law consists of the structuring of collective procedures of negotiation
and normative creation (celebration of collective work agreements), control of the economic and
9
Weber, M., Economy and Society, Mexico, (1964), p. 533.
Weber, M., Economy and Society, cit. p. 586.
11
Ewald, for example, describes social law as “an agreement, a compromise, always revisable between conflicting
groups and interests.” See Ewald, F., “The Concept of Social Law,” cit. p. 118.
10
46
labor management of business (right to information and consultation for the labor union) and of
self-protection (right to strike) on the part of collective actors (the labor union or the business
committee). 12 In the same vein, labor organization establishes rules of creation, recognition,
representation, internal functioning, and protection for discharge from work of the delegates, all
on the procedural or instrumental front. Contemporaneously, the law of consumption has adopted
some of these institutions, establishing procedural rules of creation and recognition of the
associations of consumers and of participation in the planning and solution of consumer
conflicts, such as in the control of public services and in the modification of contractual or tax
regimens. 13 In the same sense, the development of the law of participation and consultation of
cultural minorities or disadvantaged groups in the decisions that can affect them14 are examples
of this tendency. The tendency affects even rights such as the right to health, where a series of
procedural requirements has been developed for making decisions about medical treatment or
surgical intervention. 15
In one case after another, forms of proceduralization accompany the diverse ways of
conceiving of the relationships between individual and society in each model: in the case of
classic private law, proceduralization privileges the place of the individual and the individual
will; in the case of social law, the design of the procedures takes into account collective
dimensions and inequalities of power and information between classes of different subjects.
12
See, in this respect, the lucid exposition by Antonio Baylos Grau, in Baylos Grau, A., Labor Law: Model for
Taking Arms , Madrid (1991), Ch. 4. See also Supuiot, A. (coord.), Work and Employment. Transformations in
Work and the Future of Labor Law in Europe, Valencia (1999): “The general tendency is for the law to empty itself
of substantive elements and fill itself with procedural rules intended to guarantee the right to collective negotiation.
Following the cases, the collective conferences replace, prolong, develop, or execute the legislative dispositions. In
al systems of labor relations, one sees this movement toward more autonomy of social groups and businesses in the
face of public power,” at p. 154.
13
See Bourgoignie, T., Elements of a Theory of the Right of Consumption.
14
See, in this respect, Young, I. M., “Political Life and Group Difference: A Criticism of the Ideal of the Universal
Citizen,” cit., pp. 111-117 and 125.
15
Such as, the denominated right to confidentiality of medical records, the right of a patient to access his clinical
history, the right to receive explanations of prescription treatments, and the so-called “informed consent.” See
Brazier, M., “Rights and Health Care” and Montgomery, J., “Right to Health and Health Care,” in Coote, A. (ed.),
The Welfare of Citizens, London (1992), and Kraut, A. J., Patients’ Rights, Buenos Aires (1997), Chs. VII and VIII.
47
Habermas provides little evidence to identify the form of rights that would develop from a purely
procedural paradigm, or to differentiate between the procedural tendencies of the model of
classic private law and social law.
In conclusion, differentiating between civil and social rights makes some sense if, in this
way, one attempts to point out the different regulatory matrix that corresponds to the
positivization of each law. The distinction may provide some information about the historical
origin and politico-ideological context of the regulation of different spheres of human
interaction. However, the use of the distinction also has limitations: for example, it is not
exhaustive, since it is possible to point to rights that do not correspond exclusively to either of
the two labels, and it is too generic, such that, within each category, fall rights with completely
heterogeneous structures, which are impossible to reduce to one form.
48

Christian Courtis University of Buenos Aires

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