Social Rights and Liberalism

Question 1

Very briefly summarise Fabre’s argument.

Answer 1

1) If we support social rights, we must support constitutionalising them
2) The fact social rights are positive doesn’t affect constitutionalising them
3) Fabre believes judiciary should remind the government that it is under a duty, not tell the government how to fulfill it

Question 2

What is Fabre’s distinction between positive and negative rights?

Answer 2

• duty distinction : negative rights ground only negative duties while positive rights ground positive duties to provide certain things. Social rights always involve positive duties.
• conflict distinction: while negative rights are duties of non-interference, positive duties depend on the existence of finite resources and so are in conflict with each other due to the scarce nature of goods.
• Fabre argues that while the duty distinction is correct but can’t ground objections against constitutional social rights, and that the conflict distinction is not correct and at all.

Question 3

Why does Fabre want us to consitutionalise social rights?

Answer 3

• Main reason is autonomy
• Symbolic value, effort to change takes them outside the realm of ordinary politics if they’re made part of the constitution.
• A certain level of housing, work, food etc is essential otherwise you will never be an autonomous agent
• There are certain material preconditions which are necessary in order to enjoy freedom, right to vote meaningless without basic social rights

Question 4

Difference between constitutionalising social and economic rights vs civil and political rights?

Answer 4

• FALSE DISTINCTION
• Fabre argues that if I believe in civil, political and social rights and that civil and political rights should be constitutionalised then I should also support the constitutionalisation of social rights since all 3 categories of rights are “moral valuable” as they rest on seeing people as autonomous agents with some form of control over their own lives. Autonomy requires that rights be constitutionalised.
• Not all civil rights are negative i.e jury trial- so argument that civil and political rights are constitutionalised only because they’re negative falls apart.
• Argument that negative rights can be constitutionalised due to lack of scarcity- sometimes respecting another’s right to free speech can entail renouncing your own.

Question 5

Why do we assign rights?

Answer 5

• Waldron: Rights exist when someone has an interest that is important enough to hold someone else under some duty.

Question 6

Autonomy and rights?

Answer 6

• Of all the reasons we assign rights, autonomy is the most important as to be autonomous is what separates man and allows us to live a meaningful existence
• Autonomous agents need the capacity for planning. Autonomy is a venue which allows an agent to be who she is, self-determination. Constitutionalisation provides a constant, which is a platform for agents to build up their rights.

Question 7

Fabre’s argument against social rights?

Answer 7

• Argument against constitutionalising social rights- if no resources to afford it, government cannot offer them.
• Scarcity means gov can’t always provide social rights- this is an argument against constitutionalising.

Question 8

Fabre on judiciary’s competence w, social rights?

Answer 8

• Judiciary lack skills to tell govs HOW to allocate resources but can remind gov of constitutional responsibility to social rights.
• Courts should adjudicate using principles of equality and priority. You compare both parties against the background of their capacity to realise their autonomy.
• Court will have to make a judgement which implies some distribution of resources- is this in their competence?

Question 9

How does Fabre resolve arguments against the duty distinction with rights?

Answer 9

• A linguistic objection, expressing them differently (Fabre thinks this fails)
• Shue arguments that “negative” rights also involve positive duties (i.e right not to be killed also involves gov taking steps to prevent murder), but Fabre doesn;t understand why this right can’t be split into the positive and negative elements.

Question 10

Why would people argue judiciary lacks legitimacy to defend social rights?

Answer 10

1. WOULD INTERFERE W GOV BUDGET, ENCROACHING ON GOV POWERS (fabre believes judiciary should remind the government that it is under a duty, not tell the government how to fulfill it)
2. Due to resource scarcity, adjudicating social rights involves prioritising, which shapes society- (fabre argues adjudicating conflicts between interests protected by negative rightsmay be as difficult)

Question 11

Why would people argue judiciary lacks competence to defend social rights?

Answer 11

• Judges lack the training and information-gathering tools required to decide whether funds have been spent the way they should have and whether a particular individual got the resources the constitution entitles him to
• However judges increasingly assess whether resources have been allocated according to the law, most notably, in theUK, with respect to education, housing and health care, which suggests that they would not be reluctant to adjudicate constitutional social rights

Question 12

How should Judiciary enforce rights?

Answer 12

Fabre believes judiciary should remind the government that it is under a duty, not tell the government how to fulfill it

Question 13

Mandela on constitutionalising social rights?

Answer 13

• a simple vote without food, shelter and health care is to use first generation rights as a smoke screen to obscure the deep underlying forces which deem human rights people. It has created an appearance of equality and justice, while by implication socio-economic inequality is entrenched. We do not want freedom without bread, nor do we want bread without freedom.