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Economic Rights As Group Rights BLUMENSON_FORMATTED[1].DOCX (DO NOT DELETE) 12/5/2011 6:35 PM ECONOMIC RIGHTS AS GROUP RIGHTS ERIC BLUMENSON* This article considers the moral claim that all persons have a human right to the material necessities of life, and that governments are obligated to assure them to individuals who have no other way to obtain them. It assesses that claim by exploring three questions. First, does the redistribution potentially required by even the most minimal economic right violate other rights, as libertarians say it does? Second, if redistribution is not barred by libertarian constraints, is a state obligated to provide a safety net against severe deprivation, or may it elect whether to do so? And finally, if there is a human right to the necessities of life, what are its parameters? I conclude that that there is a human right to material necessities, but that typical formulations of the right misconstrue it. Economic rights are commonly described and promulgated as individual rights analogous to liberty rights. The arguments herein endeavor to show that, on the contrary, an economic right makes moral and practical sense only when framed as a group right by which the worst-off group collectively has a claim to essential resources that, with limited exceptions, prevails over any alternative, non-essential individual or societal use. INTRODUCTION .......................................................................................................................... 87 I. THE LIBERTARIAN OBJECTION TO ECONOMIC RIGHTS ....................................... 88 II. A LIBERTY-BASED COUNTERCLAIM ......................................................................... 89 III. A DISTRIBUTIVE JUSTICE COUNTERCLAIM ............................................................ 95 IV. A PLAUSIBLE FORMULATION: ECONOMIC RIGHTS AS GROUP PRIORITY RIGHTS ............................................................................................................................ 101 V. CONCLUSION ................................................................................................................. 107 INTRODUCTION All human rights, whatever their content, share certain characteristics. They assert that the interest protected should prevail over the collective will and welfare, at least in the usual case. They claim application everywhere, regardless of the contrary views of any particular culture. And because they belong to every person, they suggest that all human beings share some qualities * Copyright March 2011 by Eric Blumenson. I am grateful for the counsel and insights offered by the faculties of Suffolk University Law School and Di Tella University in Buenos Aires, at which I presented earlier versions of this article. I also thank Weldon Brewer, Alan Cibils, Nir Eisikovits, Eva Nilsen, Pat Shin, and Marion Smiley for their comments on the manuscript. Published by Penn Law: Legal Scholarship Repository, 2011 BLUMENSON_FORMATTED[1].DOCX (DO NOT DELETE) 12/5/2011 6:35 PM 88 UNIV. OF PENNSYLVANIA JOURNAL OF LAW AND SOCIAL CHANGE [Vol. 15 that give rise to these rights. These are very strong claims. We should expect that, given the great variety of personal values, ambitions, and ways of life in the world, only a small subset of individual interests would be shared universally, and that very few of these would be so morally compelling as to trump the competing interests of the community as a whole. Your rights to life, bodily integrity, and religious liberty reflect such fundamental interests; here I consider whether economic security also counts as the kind of interest that generates rights to adequate nutrition, shelter, health care, and other basic necessities. To answer that question, I will explore three issues. First, does the redistribution potentially required by even the most minimal economic right violate other moral rights, including rights to property and to the fruits of one’s labor, as libertarians say it does? Second, if redistribution is not barred by libertarian constraints, is a state obligated to provide a safety net against severe deprivation, or may it elect whether to do so? And third, if there is a human right to the necessities of life, what are its parameters? I conclude that there is such a right, but that it cannot be understood as an individual right analogous to liberty rights. To make moral and practical sense, an economic right must be understood as a group right, according to which the worst-off group collectively has a priority claim to essential resources that, with limited exceptions, prevails over any alternative, non-essential individual or societal use. I. THE LIBERTARIAN OBJECTION TO ECONOMIC RIGHTS The cardinal human right is the right to life, a right that guarantees that one’s survival is not determined by utilitarian calculations, market value, or majority rule. If it were subject to such external factors, we would be stripped of the moral status that is rightfully ours, the status of personhood. The right to life recognizes that each of us is an autonomous person who belongs to himself, not merely a fungible social resource. Respect for personal autonomy, and the self- ownership it implies, also leads directly to individual rights protecting freedom of speech, religious liberty, security of the person, and other “negative” liberty rights that keep us free from state interference. Libertarians (or more precisely, libertarians of the right)1 take an extremely expansive view of self-ownership. They believe that autonomy-based liberty rights apply as fully to our economic activities as our political and personal ones, and dismiss asserted rights to adequate nutrition, shelter, and other necessities on this basis.2 In their account, rights exist in order to 1 For simplicity, in this article I use the term “libertarianism” as it is most commonly understood, to connote libertarianism of the right. But there are also theorists like Noam Chomsky, Michael Albert and Robin Hahnel who identify themselves as libertarian socialists and reject the views ascribed to “libertarianism” in this article. Their definition of liberty is not confined to negative liberties, rejects absolute rights to private property, and includes worker self- management and other rights quite alien to right-libertarianism. See, e.g., ROBIN HAHNEL & MICHAEL ALBERT, QUIET REVOLUTION IN WELFARE ECONOMICS (1990); MICHAEL ALBERT & ROBIN HAHNEL, THE POLITICAL ECONOMY OF PARTICIPATORY ECONOMICS (1991). As an exemplar of right-libertarianism, I invoke the version Robert Nozick presented in his seminal book Anarchy, State and Utopia. Thirty-five years after its publication, that book remains the most prominent rendition of the libertarian view by an academic philosopher. ROBERT NOZICK, ANARCHY, STATE AND UTOPIA (1974). 2 See, e.g., NOZICK, supra note 1, at ix (arguing that the only aid to the poor that is morally permissible is voluntary charity). This book set out Nozick’s “entitlement theory,” by which whoever “makes something, having bought or contracted for all other held resources used in the process . is entitled to it.” Id. at 160. In contrast to this theory, Nozick criticizes “end-state” principles of distributive justice, which instead would impose redistribution of holdings to https://scholarship.law.upenn.edu/jlasc/vol15/iss1/5 BLUMENSON_FORMATTED[1].DOCX (DO NOT DELETE) 12/5/2011 6:35 PM 2011] ECONOMIC RIGHTS AS GROUP RIGHTS 89 guarantee self-ownership, and self-ownership more readily suggests a right to be left alone than a right to state assistance. Indeed, they say the former rules out the latter, since state assistance to some will generally require coercive taxation of others. For libertarians, the right to be left alone, and the specific negative rights that comprise it, leave the state with little role other than to defend its people and protect each person’s opportunity to pursue the kind of life he chooses for himself.3 As I write these words, the libertarian objection to redistribution is center stage in American political discourse, thanks to the sudden rise of both the Tea Party and Occupy Wall Street movements. Putting the objection most strongly, the libertarian philosopher Robert Nozick famously wrote that redistributive taxation is “on a par with forced labor.”4 For staunch libertarians, taking some of the fruits of your labor so someone else can eat is no different in principle than extracting one of your kidneys so someone else can live: each destroys self-ownership by appropriating your body for another’s benefit. Rights to one’s property and to freedom of contract are the legal instruments that reflect and protect the moral entitlements to keep, sell or donate the fruits of our own labor, as we wish. It is worth noting that this philosophy has only partial salience to real- world conditions: it applies only to holdings that result from a continuous history of purely voluntary exchanges untainted by theft, fraud, force, war, or slavery, and, as Nozick admits, the record of unjust transactions in history could justify substantial redistributive rectification by a temporarily activist state.5 We can put that problem aside, however, because our focus here is on the libertarian principle, whatever its application. The libertarian objection to redistribution is not self-evident and suffers from two weaknesses. It (1) overstates the liberties that respect for autonomy demands, and (2) shortchanges distributive justice because its vision of justice is almost exclusively procedural. The following two sections address
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