Introduction: Equal Citizenship & Social
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Notes INTRODUCTION: EQUAL CITIZENSHIP & SOCIAL INEQUALITY 1. One should probably note that the terms 'Neo-liberalism' and 'So cialism' are not terribly important in themselves, other terms being possible. Neo-liberalism, for instance, is sometimes called Libertarian Liberalism, and some authors identify both with what they call the 'New Right'. The kind of socialism which is going to be discussed here, certainly not a Marxist socialism, is sometimes referred to as a specific version of 'Egalitarian Liberalism'. Since the arguments of each view will be defined and discussed in great detail, discussions about which label should be attached to which view do not seem to be of paramount importance. 2. The expression 'overall theory of justice' is borrowed from J. Gray's lecture at Nuffield College, Oxford, on 3 March 1993, entitled 'Why There Cannot Be an Overall Theory of Justice'. 3. T. H. Marshall (1950/1992). 4. A. Marshall (1873/1925). 5. A. C. Pigou (1925), pp. 101-18. 6. A. Marshall (1873/1925), p. 102. 7. T. H. Marshall (1950/1992), p. 6. 8. Ibid. It is interesting to note that T.H. Marshall acknowledges the fact that Alfred Marshall did not identify the life of a gentleman with the status of citizenship. 'To do so', he added, 'would have been to express his ideal in terms of legal rights to which all men are entitled. That, in turn, would have put the responsibility for granting those rights fair and square on the shoulders of the state, and so led, step by step, to acts of state interference which he would have deplored.' 9. T. H. Marshall (1950/1992), p. 8. 10. Ibid., p. 6. 11. Ibid., p. 7. 12. Ibid. 13. Ibid. 14. Ibid., p. 47. 15. Ibid., p. 49. 16. The classical reference for the classification of legal rights is W. Hohfeld ( 1919). Two excellent introductions to this work may be found in A L. Corbin (1923) and]. Feinberg (1973), chapters 4-6, pp. 55-97. This overview will follow mainly Feinberg's work. 17. In fact, Hohfeld mentioned two further categories besides claim-rights and mere liberties: abilities or powers, and immunities. But only the first two are relevant to our discussion. 18. J. Feinberg (1973), p. 56. 19. In this sense, of course, all rights comprehend liberties, but not all liberties comprehend rights. But one should not confuse 'a liberty' 197 198 Notes (or 'liberty-right') with a claim-right to liberty. As D. D. Raphael puts it, in (1970/1990), p. 106, 'the first is called a liberty because it is a freedom to do what you want to do. The second is one kind of claim right, a claim against someone else to be left free, that is to say, a claim that he is obliged to leave you alone.' 20. As J. Feinberg rightly observes, in (1973), p. 62, when one speaks of duties entailed by rights one does not mean 'that a person's rights ought to be contingent upon performance of his own duties' (moral correlativity), but only that 'his rights are necessarily linked with the duties of other people' (logical correlativity). The problem of moral correlativity will not be addressed here, unless in so far as it relates to the general status of citizenship, which includes rights and duties. 21. J. Feinberg (1973), p. 60: 'The right of an accident victim to be assisted by anyone who happens to be in a position to help is positive and in rem'; whereas 'if you promise me to stay off the public road near my home, then I have a right ... which is in personam ... and negative'. 22. J. Feinberg (1973), p. 60. 23. This Declaration may be consulted in UNESCO ( 1948), where a 'Memorandum Circulated by UNESCO on the Theoretical Basis of the Rights of Man' and also a 'Report of the UNESCO Committee on the Theoretical Basis of Human Rights' may be found. Henceforth the whole document will be referred to as the UN Declaration. And yet, some earlier versions of social rights appeared in France, in a Jacobin declaration of 1793 and a socialist Manifesto of Babeuf in 1796, both republished and discussed in Marcel Gauchet (1989). In Rights of Man and The Agrarian Revolution, Thomas Paine refers also to some sort of social rights, namely the right to social security. 24. J. Feinberg (1973), p. 84. 25. R. Aron (1974), p. 75. CHAPTER 1: PRESENTATION: THE MIRAGE OF SOCIAL JUSTICE 1. F. A. Hayek (1976), p. 103. 2. Cf. Unesco (1948). 3. We shall see later that the concept of 'rules of just conduct' is crucial to Hayek's political philosophy. But, for the time being, it is sufficient to cite the author's own basic definition of these rules: 'those end independent rules which sen·e the formation of a spontaneous order, in contrast to the end-dependent rules of organization', in F. A. Hayek (1976), p. 31. Hayek identifies these rules of just conduct generally with rules of private and criminal law (but not with public law) and he assigns them the features of generality, abstractness, non-retroactivity and universality. At this stage, we may say that those rules of just individual conduct constitute for Hayek the hard core of what liberals usually refer to as Law, which must be equal for all and whose empire is the first condition of a liberal regime, whether it may or may not be democratic. At this point of our inquiry it is not to indulge in a major lack of rigour to identify those rules of just conduct with the Notes 199 Law, general, abstract and equal for all, which is so much praised by liberals. In due course we shall introduce necessary precision and corresponding complication. 4. F. A. Hayek (1976), p. 101. 5. Ibid. 6. Ibid., p. 102. 7. Hayek cites Article 22 (everyone 'is entitled to the realization ... of the economic, social, and cultural rights indispensable for his dignity and the free development of his personality'), Art. 23(1) (a claim to 'just and favourable conditions of work'), Art. 23(3) (a claim to Just and favourable employment'), Art. 27(1) (the right 'freely to participate in the cultural life of the community and to share in the scientific advances and its benefits'), Art. 28 (everyone is 'entitled to a social and international order in which the rights and freedoms set forth in this Declaration are fully realized'). Later on he cites Article 24 whereby every one has a 'right to just and favourable remuneration, including reasonable limitations of working hours and periodic holidays with pay'. Cf. F. A Hayek (1976), pp. 104-5. 8. F. A. Hayek (1976), p. 104. 9. Ibid. 10. Ibid., p. 105. 11. Ibid., p. 106. 12. Ibid., p. 105. 13. Ibid., p. 102. 14. Ibid., p. 103. I must here recall that Hayek at this stage identifies the duties corresponding to social and economic rights as the government's duty to determine the particular material position of individuals or groups. I shall argue later that this identification is not necessarily true and that one of the crucial errors of Hayek lies precisely in the assump tion that it is. For the time being, however, I accept the identification. 15. F. A. Hayek (1976), p. 103. 16. Ibid., p. 106. 17. See above, p. 14. 18. On the distinction between a spontaneous order and an organization, cf. below, pp. 15-16. Cosmos and Taxis. 19. F. A. Hayek (1960), especially chapter 6, 'Equality, Value and Merit', pp. 85-102. 20. F. A. Hayek (1978), ch.9, pp. 119-51. 21. F. A. Hayek (1973), (1976), (1979). 22. F. A. Hayek (1978), ch.5, pp. 57-68. 23. F. A. Hayek (1988). 24. F. A. Hayek (1960), pp. 85-102. 25. Ibid., p. 88. 26. Ibid., p. 87. 27. 'Coercion, however, cannot be altogether avoided because the only way to prevent it is by the threat of coercion', in F. A. Hayek (1960) p. 21. On the paradox of unlimited freedom see Karl R. Popper (1945 vol. I), pp. 123-4, 265-6. 28. F. A. Hayek ( 1960), p. 11. 200 Notes 29. Ibid., p. 21. 30. Ibid. 31. Ibid., p. 85. 32. Ibid., p. 87. 33. F. A. Hayek (1976), p. 82. 34. F. A. Hayek (1960), p. 95. 35. F. A. Hayek (1976), p. 72. 36. F. A. Hayek (1960), p. 98. 37. F. A. Hayek (1976), p. 74. 38. Ibid., pp. 75-6. 39. Hayek understands order as 'a state of affairs in which a multiplicity of elements of various kinds are so related to each other that we may learn from our acquaintance with some spatial or temporal part of the whole to form correct expectations concerning the rest, or at least expectations which have a good chance of proving correct', in F. A. Hayek (1973), p. 36. 40. F. A. Hayek (1973), p. 36. 41. Ibid., p. 40. 42. Ibid. 43. Ibid. 44. Ibid., p. 173. 45. Ibid., p. 49. 46. Ibid. 47. Ibid., p. 50. 48. Ibid., p. 133. 49. Ibid., p. 46. 50. F. A. Hayek (1978), p. 73, emphasis added. 51. F. A. Hayek (1973), p. 46. 52. Robert Nozick, in (1974), pp. 149-50, presents a similar view in a very telling manner: 'Hearing the term 'distribution', most people presume that some thing or mechanism uses some principle or criterion to give out a supply of things ... However, we are not in the position of children who have been given portions of pie by someone who now makes last minute adjustments to rectify careless cutting.