IN CONSTITUTIONAL THEORY and in political discourse, much is made of the distinctions between civil and political rights (civil rights) and socio-economic rights (economic rights), with the latter often seen as subordinate. Civil rights are presented as more intimately connected with liberty, with economic rights – like the rights to food and shelter – dismissed as policy preferences and associated with leftist activists keen to compensate for the failure of their preferences in ordinary electoral politics.
Reflection on the rationale of rights, and on their nature, suggests that far too much is made of the differences between the two categories. Economic rights are at least as important to human beings in living dignified and flourishing lives: starving people need food more than votes or due process of law.
And so – whether we rationalise rights based on some notion of dignity, or some account of human flourishing, or some conception of equal liberty – it is hard to conceive of how economic rights might be deemed morally or conceptually inferior.
Similarly, civil rights – just like economic rights – are really just particularly important political claims. They are not absolute imperatives descending on citizens from on high or owing to individuals in virtue of their having been enjoyed in a pre-political state of nature. Rather, they are political constructs. They come into conflict with one another and with the common good and so their practical vindication is necessarily interpretative and involves the balancing of various considerations. These essential similarities suggest that if rights are to be enumerated in a constitutional text at all, the case for the inclusion of economic rights is at least equally as compelling as that of civil rights.
But while they are similar in these broader and more important ways, there are differences between these two kinds of rights that bear on the institutional mechanisms by which they are best realised.
Take a classic civil right like the right to a fair trial, which includes the right to a public hearing before an independent tribunal. Suppose that by legislation a government minister is authorised to determine when convicted murderers become eligible for parole. Such an arrangement places the fate of individuals convicted of murder at the whim of the government minister. If one murderer has been the subject of particular public outrage, the minister may be inclined to set a higher tariff than for an equally culpable but less notorious murderer.
While there are policy considerations at stake – and room for reasonable disagreement as to the best ‘rights’ outcome – the sentencing of offenders is nevertheless, by its nature, more a ‘judicial’ than a ‘political’ matter. Judicial power to intervene, in the context of a constitutional challenge, is surely justified as it is would promote the rule of law by countering the likelihood of sentences being determined in an arbitrary way or on the basis of irrelevant considerations.
By contrast, take a classic economic right like the right to education. Suppose that a child with particular special needs is attending the local school and that in the view of many experts that child’s development would be enhanced if the school had particular technical resources. There may be a dispute between experts as to which particular resources would be most effective and as to the extent of the possible improvement in the child’s development with any kind of resources. But there is general agreement that resources would nevertheless promote the child’s development.
The dispute is no less morally urgent than the dispute concerning civil rights and also, just like the other dispute, it has different potential (and reasonable) outcomes. But a court is a less appropriate setting for its final resolution. Not only is there the question of which particular resource would best promote the child’s development – there is also the fact that there will be other children, with different kinds of special needs, in other parts of the country. And other citizens with other claims on the common public fund.
All of this suggests, in a general way, that different institutional arrangements are called for in vindicating economic, as distinct from civil, rights. The latter dispute is more ‘political’ than ‘judicial’ in its nature. Judicial intervention – or at least final judicial determination – is much less likely to promote non-arbitrary decision-making so far as the distribution of public resources and the general vindication of economic rights are concerned (indeed final judicial determination would likely undermine non-arbitrary decision-making in those respects).
But this is not to argue that courts ought to have no role at all in the vindication of economic rights. While constitutions are for citizens and their representatives more than they are for judges, judges nevertheless are particularly well placed, generally speaking, to act as guardians of constitutional rights. It is not difficult to conceive of scenarios where failures to vindicate economic rights by governments are blatant and egregious. In such cases courts, with suitably constrained power, may play a critical – and democratically legitimate – role in the general political process of vindicating economic rights.
That role cannot be to dictate particular outcomes in particular cases concerning particular individuals. Rather, courts ought to operate as authoritative forums of contestation through which citizens or groups of citizens can hold political power-wielders answerable in cases where their capacity to flourish as equal citizens is undermined by deprivation or economic domination. Courts ought to have formal powers to make declarations that particular failures of the State with respect to social, economic and cultural resources amount to violations of constitutional rights.
This argument will be dismissed by some on the basis of that such declarations were ineffective in some prominent cases in the 1990s. But the potential impact of ‘declarations of incompatibility’ should not be understated. In many constitutional systems, where the respective powers of elected representatives and judges are more legitimately arranged than in Ireland, such remedies are routinely respected.
This prompts a final word on the ‘democracy’ argument in the socio-economic rights debates. Many conservatives who object to judicial power in this context do so on the basis that judges are unelected (including Michael McDowell at the Constitutional Convention). There is something to the argument, but if ‘democracy’ is ultimately concerned with popular control over government, then it involves much more than elections and votes. Just as it involves people electing representatives to govern them, it must also involve people contesting the decisions taken by government day by day and month by month.
In other words, democracy requires (and is not undermined by) institutional forums by which people, whether as individuals or in smaller or larger groups, can contest decisions taken by governments. And while parliament is the obvious main pillar of such contestation, democracy often requires non-electoral contestatory forums (such as ombudsmen, commissions of inquiry, various internal appeals mechanisms and courts). These non-electoral contestatory forums do not undermine democracy: rather, if suitably controlled and operating in appropriate contexts, they enhance it.
We must rail against the insidious notion that these moral norms are not rights at all but are rather privileges bestowed upon the downtrodden by their kindly masters. But equally we must resist the temptation to cede control of our shared political fate to wig-wielding would-be masters on the incongruous rationale that they might do better by us than we can do by ourselves.
With thanks to my colleague Ms Claire-Michelle Smyth whose lunchtime arguments prompted me to reflect on these ideas.
Dr Tom Hickey lectures in public law and legal theory at the School of Law and Government, Dublin City University. He is the co-author of a forthcoming book The Political Theory of the Basic Law: Republicanism and the Irish Constitution (Manchester University Press) along with Dr Eoin Daly, NUI Galway. Twitter: @TomHickey2.
See the contributions made by @DrLiamT, @commentator01, @colmogorman, David Fennelly BL and Lia Hegarty, as well as Michael McDowell SC, at the Constitutional Convention.
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