Law, Social Justice & Global Development
(An Electronic Law Journal)
Forbidden Relations? The UK’s Discourse of Human Rights and the Struggle for Social Justice
Professor W Bowring
University of North London
This is a refereed article published on: 8 November 2002. It is based on University of North London, Inaugural Professorial Lecture by Bill Bowring.
Citation: Bowring W, ‘Forbidden Relations? The UK’s Discourse of Human Rights and the Struggle for Social Justice’, 2002 (1) Law, Social Justice & Global Development Journal (LGD).
When I was preparing this lecture, I found, on the Internet, that there has already been an inaugural lecture on the topic of human rights and social justice. It was given in October 2001 at the University of Newcastle, Australia, by Rick Farley. Did that mean that my work was already done? Fortunately not. Indeed, Rick Farley’s lecture complements mine in an interesting way. His themes were Australia’s reconciliation with its indigenous peoples, and its treatment of asylum seekers, and his own ‘tremendous disquiet’. His conclusion was that:
‘Globalisation, which opens new markets for our exports, will fail without social justice and protection of human rights’.
I return to globalisation in my final section.
Keywords: Human Rights, Social Justice, Struggle, Discourse, UK
When I was preparing this lecture, I found, on the Internet, that there has already been an inaugural lecture on the topic of human rights and social justice. It was given in October 2001 at the University of Newcastle, Australia, by Rick Farley1. Did that mean that my work was already done? Fortunately not. Indeed, Rick Farley’s lecture complements mine in an interesting way. His themes were Australia’s reconciliation with its indigenous peoples, and its treatment of asylum seekers, and his own ‘tremendous disquiet’. His conclusion was that:
‘Globalisation, which opens new markets for our exports, will fail without social justice and protection of human rights’.
I return to globalisation in my final section.
I could equally have made the themes of my own lecture the treatment by the United States of their prisoners, so robustly criticised by Judge Richard Goldstone in this morning’s Guardian; or our own treatment of asylum seekers.
Another source of reference and engagement is provided by Michael Ignatieff’s Tanner Lectures delivered in 2000 at the Princeton University Center for Human Values, and published under the title Human Rights as Politics and Ideology2. Ignatieff is now the Director of the Carr Center for Human Rights at Harvard University, and therefore an authority to be reckoned with. Ignatieff’s discussion is rich and profound, but situated firmly in the Western, or rather the Atlantic, conception of rights. As aptly summarised by Amy Gutmann, who introduces the lectures, Ignatieff’s position is that Human Rights should not be conceived as guarantors of social justice, or substitutes for comprehensive conceptions of a good life3. But he does note that:
‘the Communist rights tradition - which put primacy on economic and social rights - kept the capitalist human rights tradition - emphasising political and civil rights - from overreaching itself’4,
a point I will return to.
I want to go further than Ignatieff. I will explore the relationship between the two concepts. Indeed, having been appointed to a chair in human rights by a University whose mission statement is ‘Education for personal development and social justice’, it is my duty to do so. This is by way of being my manifesto for future work here.
My intention in this lecture is to explore and illustrate three aspects of the relationship between human rights and social justice. First, confrontation. This refers to the conflict between human rights (or at least, some liberal conceptions of human rights) on the one hand and social justice on the other, exemplified in the political history of the last century, as well as in the writings of some leading scholars, and certain reluctances of the UK government. Second, mediation. This refers to the way in which, for Europeans and increasingly, perhaps for the UK, social justice provides a check on human rights. Or at least on the possessive individualism which characterises the liberal theories of human rights. This stands in contrast to the US practice, in which certain individual rights, notably freedom of expression, and rights to property, will always trump policy considerations. Third, mutual realisation through struggle. I argue that neither the concept of human rights nor that of social justice can have content, meaning and significance except through their constant reinvention and reintegration in the real activity of women and men in the always turbulent and dangerous world into which they are thrown.
This framework also has the advantage of conveying some of the dynamism and turbulence - one might say dialectic - associated with the two concepts. You may also have noted the Hegelian flavour.
But first it is necessary to say a few words about these two concepts. The proviso on which I must insist, as does Adorno in his Negative Dialectics, is that in this area above all, the concept is always and necessarily inadequate to its object.
2. What Meaning Do These Concepts Have?
Human rights and social justice are two phrases which have never before been so much in constant use, especially at the level of government. At times, they seem to be empty, of rhetorical significance only. What, indeed, are their referents?
Take human rights first.
There is no dispute that the present ‘dominant discourse’ of human rights has its roots in Western traditions of natural law. But I agree with Alasdair MacIntyre, the present day follower of Aristotle and fierce critic liberalism in ethics and rights talk, that before the 18 century the concept had no referents or content at all - no-one used it, and it would have had no meaningth.
I also enjoy his comment that:
‘In the United Nations declaration on human rights of 1949 what has since become the normal UN practice of not giving good reasons for any assertion whatsoever is followed with great rigour’5.
The first statements of natural rights, the ‘first generation’ of civil and political rights, are to be found in the revolutionary documents of the French and American Revolutions. What has characterised talk of natural or human rights then and to this day is their inherently problematic - indeed self-problematising - nature. This is what makes the subject a joy to teach.
What I mean is amply demonstrated in Jeremy Waldron’s Nonsense Upon Stilts, a text I always use6. Here the validity and indeed coherence of human rights are challenged from the right - Edmund Burke, the Irish father of English conservatism - from the centre, Jeremy Bentham, the founder of utilitarianism and of much liberal thought, the English Lenin, at least in terms of his mummified remains preserved at University College London - and from the left - Karl Marx himself, attacking the egotism and atomism of natural rights.
In the contemporary world, these challenges are to be found in three main areas. First, the debates as to universalism and cultural relativism - are human rights really the property of all human beings everywhere and at all times, or are they historically determined and culturally specific? Second, the odious notion of the ‘clash of civilisations’, between two cultures that share the same roots, and the ideas of cross-cultural approaches to human rights developed by courageous thinkers like Abdullahi An-Na’im. Third, the recent suggestion by Alston and others that the so-called ‘third-generation’ ‘rights of peoples’, the rights to self-determination, to development, to a clean environment, to peace - were an effusion of seventies radicalism and have had their day7.
We have a more fundamental problem. There is scarcely a government now that does not proclaim its devotion to human rights, at the same time as many of them fragrantly violate them. I am constantly reminded of this by my work as a Trustee of the Redress Trust, which seeks reparation for torture survivors. Costas Douzinas, in his aptly-named The End of Human Rights8 points out that human rights are the
‘new ideal that has triumphed on the world stage’, yet ‘if the twentieth century is the epoch of human rights, their triumph is, to say the least, something of a paradox. Our age has witnessed more violations of their principles than any of the previous and less ‘enlightened’ epochs’9.
‘As human rights start veering away from their initial revolutionary and dissident purposes, as their end becomes obscured in ever more declarations, treaties and diplomatic lunches, we may be entering the epoch of the end of human rights…’10.
This is of special concern in the UK, the country where, on 17 July 1997, Robin Cook launched the ‘ethical foreign policy’, with his speech ‘Human rights into a new century’, and its promise of twelve policies to put into effect the new government’s commitment to human rights11. The rhetoric of human rights is not nearly so apparent now, at least when it comes to ministerial pronouncements. And Ignatieff makes the adroit comment that:
‘When values do not actually constrain interests, an ‘ethical foreign policy’ - the self-proclaimed goal of Britain’s Labour government - becomes a contradiction in terms’12.
Nevertheless, the UK has now enacted the Human Rights Act 1998 and brought it into force, and in this way has introduced the principles of the European Convention on Human Rights into UK law and practice. More on that in a moment.
The concept of social justice, too, has deep roots. Most notably, these are to be found in the teachings of the Catholic Church. Many of the web-sites which a search on the words ‘social justice’ throws up are church sites. This subversive aspect of Catholic teaching finds its expression in liberation theology and a focus on workers rights - the Catholic trade unions of the European continent. Social justice plays a central role in Islam also.
Whether it is the influence of the Pope or of the imams is hard to say, but the objective of social justice, too, is, in the UK, a central part of government rhetoric.
Many of us will still remember the launch in 1994 of the Report of the Commission on Social Justice, Social Justice. Strategies for National Renewal13, though it took place in a different political age. I was there, but sadly my copy of the Report is not signed by Tony Blair, who presided. He said that it was ‘essential reading for everyone who wants a new way forward for our country’.
The Report suggested that social justice could be defined in terms of a hierarchy of four ideas. It is worth repeating them, just for the record.
‘First, the belief that the foundation of a free society is the equal worth of all citizens, expressed most basically in political and civil liberties, equal rights before the law, and so on.
Second, the argument that everyone is entitled, as a right of citizenship, to be able to meet their basic needs for income, shelter and other necessities. Basic needs can be met by providing resources or services, or helping people acquire them: either way, the ability to meet basic needs is the foundation of a substantive commitment to the equal worth of all citizens.
Third, self-respect and equal citizenship demand more than a meeting of basic needs: they demand opportunities and life chances. That is why we are concerned with the primary distribution of opportunity, as well as its redistribution.
Finally, to achieve the first three conditions of social justice, we must recognise that although not all inequalities are unjust, unjust inequalities should be reduced and where possible eliminated’.
Scotland of course has now followed India’s good example, and has a Minister and a Ministry for Social Justice, tasked with helping Scotland to meet tightly defined objectives.
But later in this lecture I will return to recent developments in the UK’s discourse of social justice and human rights, in relation to the vexed topic of globalisation.
3. Russia - A Test Case
First, however, I would like to illustrate the problems associated with human rights and social justice in relation to Russia, the country in which I do a great deal of work, and which I have been visiting regularly since 1983. My own work in Russia for the UK government assists one of the five outputs of the new Country Strategy for Russia 2001-2005, based on the UK Government’s commitment to work for the elimination of poverty - our new ‘Five Year Plan’. This output is entitled ‘More responsive and transparent political systems, wider access to justice and adherence to human rights’, and seeks to support the reform process in Russia.
Contrary to some pessimists, I can report that there is indeed a reform process, much of which is situated in a human rights framework. Thus, Russia joined the Council of Europe in 1996, and ratified the European Convention on Human Rights in 1998. The European Court of Human Rights in Strasbourg recently heard the first oral argument in a case against Russia - the easy to remember Kalashnikov v Russia, which concerns a small-time banker charged with not very major fraud, who spent five and a half years in custody in appalling conditions awaiting trial. The Court found his application admissible. The first cases brought by Chechen women who lost their children in Russian bombing will soon reach the Court. The penitentiary system has been de-militarised by transferring it from the Ministry of the Interior to the Ministry of Justice in 1998, and serious work is being done improving conditions and reducing numbers. Russia, which had the highest incarceration rate in the world, is now number 2, having been overtaken by the USA. Criminal legislation and the court system are being radically overhauled. And, of course, Russia has now enjoyed a number of free elections, and despite everything there is substantial freedom of speech.
This is part of what the DFID strategy describes as the ‘transition process’.
And yet - and yet!
In the last year, three highly significant books have been published in the USA. They are by way of acts of penitence for US aid intervention in Russia since 1989, albeit not shared as yet by the US government. Their titles tell the story. First, there is the historian Stephen Cohen’s Failed Crusade: America and the Tragedy of Post-Communist Russia14. Next, political scientist Janine Wedel’s Collision and Collusion: The Strange Case of Western Aid to Eastern Europe15. Finally, there is a massive volume, with perhaps the most resonant title: The Tragedy of Russia’s Reforms: Market Bolshevism Against Democracy by political scientists Peter Reddaway and Dmitri Glinski16. Each of these books describes and analyses, with a wealth of evidence, from a variety of perspectives and academic disciplines, a common phenomenon.
In Stephen Cohen’s words:
‘Since 1991, Russia’s realities have included the worst peacetime industrial depression of the twentieth century; the degradation of agriculture and livestock herds even worse in some respects than occurred during Stalin’s catastrophic collectivisation of the peasantry in the early 1930s; unprecedented dependence on imported goods (foremost food and medicine); the promotion of one or two Potemkin cities amid the impoverishment or near-impoverishment of some 75 % or more of the nation; more new orphans than resulted from Russia’s almost 30 million casualties in world war II; and the transformation of a superpower into a beggar state existing on foreign loans and plagued, according to the local press, by ‘hunger, cold and poverty’ and whose remote regions ‘await the approaching winter with horror’’17.
As Cohen ironically points out,
‘All this, scholars and journalists have called reform, remarkable progress, and a success story.’
Wedel explores the remarkably influential partnership between Harvard academics (now being prosecuted in the USA for their activities in Russia) and Russian government figures like Anatolii Chubais - I saw him in 1989 when he was a humble lecturer, now he is one of the richest men in the world, a lesson for us all - which determined so much of Russian social and economic policy during the 1990s, and to this day.
Reddaway and Glinski identify the fundamental problem firmly in the realm of social justice.
‘The failure to redistribute power and wealth in the period of ‘reforms’ in a way that would be legitimate by the standards and norms of Russian culture is the most fundamental reason that the present system possesses little legitimacy. This lack of legitimacy corrupts the very foundations of the state... the basic reason for this pervasive illegitimacy is that under Yeltsin the state abrogated its unspoken social contract with population - a contract that was deeply rooted in the nation’s history and culture, at least as an ideal’18 .
Geoffrey Hoskings’ new history of Russia makes much the same point.
Russia is supposed to have gained democracy, and from this human rights will follow.
However, in his recent article in Third World Quarterly ‘If democracy, then human rights?’19, Andrew Evans argues that we should treat the relationship between democracy and human rights with caution. His own conclusion - not too startling to many of us - is that democracy promotion has more to do with global economic interests than with delivering human rights to the poor and excluded in less developed countries. Thus, he argues that:
‘By adopting a definition of democracy that places emphasis on the creation of formal institutions, which promises limited changes to civil and political rights but has little to say about social and economic reform, ‘repressive abuses of human rights continue, usually against the familiar targets of labour, students, the left and human rights activists’’20.
This is a good point at which to turn to the first of my three aspects of the relationship between human rights and social justice.
There is a strong tradition within liberal thought according to which social justice is a dangerous threat to freedom. This was perhaps epitomised by Friedrich Hayek. Volume II of his Law, Legislation and Liberty was entitled The Mirage of Social Justice.21 For him, social justice ‘is a mirage…’. The expression described
‘the aspirations which were at the heart of socialism’; indeed ‘the prevailing belief in ‘social justice’ was at present probably the gravest threat to most other values of a free civilisation’22.
‘So long as the belief in ‘social justice’ governs political action, this process must progressively approach nearer and nearer to a totalitarian system.’
He added that:
‘The phrase embodies a quasi-religious belief, almost the new religion of our time, but has no content at all, serves merely to insinuate that we ought to consent to a demand of some particular group’.
As Steven Lukes points out, this perception is perhaps the key to Hayek’s entire political philosophy: justice not as fairness, as it is for the classic liberal, John Rawls, but as the elimination of arbitrary coercion23. Thus, the version of utilitarianism which Hayek espoused was that which maximised average expectations:
‘the good Society is one in which the chances of anyone selected at random are likely to be as great as possible’24.
As Lukes points out, this was the principle Rawls considered to be one of the main rivals to his own25.
Taken with one other factor, this perception - or prejudice - is at the heart of British problems with social justice, indeed with the notion of social and economic rights.
The other factor is the legacy of the Cold War. It should not be forgotten that the Council of Europe was founded in 1949 as the ideological counterpart of NATO. Its purpose was to demonstrate in the clearest way that the Western side of the Iron Curtain was really serious about the Council’s ‘three pillars’. These are pluralistic democracy, the rule of law (defined as the absence of arbitrary rule), and the protection of human rights. Thus, the promulgation of the European Convention on Human Rights in 1950 was truly revolutionary, in a way which made the United Kingdom deeply uneasy. For the first time in history, an international court was created with the power to interfere in the internal affairs of member states, and to render obligatory, binding judgments. But note that the rights protected were, with the exception perhaps of rights not to be deprived of education, and a circumscribed right to private property, the ‘first generation’ civil and political rights of the French and American revolutions. As time has gone by, the Convention has looked increasingly long in the tooth.
If the role of Council of Europe was to demonstrate that the West’s rights were serious and capable of being enforced by individuals against their governments, the Soviet Union and its allies had their own ideological counterpart. It is often forgotten that the Soviet Constitutions - the Stalin Constitution of 1936, the Brezhnev Constitutions of 1977-8, were endowed with fully-articulated human rights chapters. The difference was that these chapters started with social and economic rights. The Soviets did not invent social and economic rights. As binding legal documents these made their first appearance in the West in 1919, in response to the Russian Revolution, in the International Labour Organisation, now an organ of the United Nations. But the USSR and its allies put them into practice. Thus, in the Soviet Constitutions, we find the right to work, the right to social security and protection, the rights to health care and free education, the right to leisure and to culture. And, indeed, the Soviet state delivered to a greater or lesser extent - the social contract to which Reddaway and Glinsku refer. Of course, you were probably in a job you did not want, and it was a crime not to work, and your living accommodation was likely to be shared. But health care, education, and cultural provision were second to none, while freedoms of expression and association, to respect for private life and belief and conscience, did not exist.
This polar opposition, which lasted from 1949 until 1989, is (along with Hayek’s influence) one of the root causes of UK suspicion of social and economic rights.
It is notable that the Human Rights Act 1998 does not protect the full range of rights contained in the United Nations 1948 Universal Declaration on Human Rights - since the Soviets participated in its drafting, it is no surprise that it does enshrine both civil and political and social, economic and cultural rights.
In her important book Values for a godless age. The story of the United Kingdom’s new bill of rights26, Francesca Klug describes the omission of social and economic rights, save education and property rights, from the Human Rights Act, as an aspect of its out-datedness27. She is unhappy with the notion of ‘generations of rights’, and locates what she calls the ‘second wave’ of rights not in 1919 and the aftershock of the Russian Revolution, but in the post World War II reckoning. In this way, I think she misses the political content of the very real dichotomy between civil and political rights on the one hand, and social and economic rights on the other. Her ‘third wave’, in which she situates the Human Rights Act, is connected to globalisation, a theme to which I will turn shortly.
But she does acknowledge that:
‘the inclusion of social and economic rights is crucial if the relevance of the human rights approach to current political debate is to become clear’28.
Her argument is that the:
‘combined values that have driven human rights thinking since the Second World War - liberty, justice, dignity, equality, community and now mutuality - inevitably lead to a concern with social and economic rights, whatever means of enforcement is adopted’.
This leads ‘straight back to the terrain of those seeking a new progressive politics, distinct from the Left and Right of old’29.
The problem, I think, is that not only does this not explain the omission of social and economic rights from the Human Rights Act, it does not give any reason for three recent phenomena. These are first, Britain’s adamant refusal to accede, at Maastricht, to the European Union’s Social Charter, with an emphasis to this day on private provision and labour deregulation. Second, the prolonged rearguard action which the UK fought to exclude solidarity - mainly labour - rights from the EU’s Charter of Fundamental Rights, and its insistence that these rights should never become justiciable30.
Third, and for me the most shameful, is our deep reluctance to ratify the Council of Europe’s Revised Social Charter of 1996, which we signed in 1997. This is the revised, updated version of the Council’s 1961 Social Charter, intended as the social and economic counterpart to the European Convention on Human Rights, but never until now giving a right of redress to a judicial organ. The new Revised Social Charter not only protects a wide range of rights to and at work, to housing, to social security, etc, but for the first time gives a right of collective complaint, by trade unions and non-governmental organisations, to the European Committee for Social Rights. On 14 June 2000 and 10 May 2001, Keith Vaz gave written answers to the effect that the United Kingdom had not yet ratified the Revised Social Charter, which has been ratified by most members of the Council of Europe, and came into force in 1999. It is not known when we will ratify. Russia signed in 1999, and is likely to ratify before us.
It is clear that for the United Kingdom - as for the United States, which has to date not even ratified the United Nations’ Covenant on Civil, Political and Cultural Rights of 1966 - human rights which may be enforced by the courts, do not extend to social and economic rights, which alone can underpin social justice.
Note the inclusion in the Revised Social Charter of the right of collective complaint. Another aspect of the confrontation between liberal human rights is the deep antipathy in the West, and in the United Kingdom in particular, to collective or group rights. For John Packer, for example - and he is Adviser to the OSCE’s High Commissioner on Human Rights and one of the most serious theorists of minority rights - human rights philosophy is necessarily liberal and individualist, so that any tendency to communitarianism leads to nationalism, which itself is ‘inherently conflict-creating’31. We have ratified the Council of Europe’s 1994 Framework Convention for the Protection of Rights of National Minorities, but on the basis that our law does not recognise the existence of national minorities, simply a right of individuals to non-discrimination.
But it is readily apparent that social justice will never be exclusively a matter of individual rights. Groups, collectivities, minorities will always be the largest part of its subject-matter. Ignatieff notes, taking the Kurds as an example, that
‘For too long human rights has been seen as a form of apolitical humanitarian rescue for oppressed individuals’32.
But he sticks resolutely to individualism. In his way of thinking,’human rights is only a systematic agenda of ‘negative liberty’, a tool kit against oppression, a tool kit that individual agents must be free to use as they see fit within the broader frame of cultural and religious beliefs that they live by’.
However, there is an aspect of the relationship between human rights which the UK has not escaped.
Despite what I have just said, the European approach to human rights was not simply a Cold War artefact. That is one reason why the UK was despite its distinctive common law heritage able by stages, reluctantly, to embrace the European Convention. And, as the government is from time to time obliged to realise, the institutions of the welfare state, and a certain collectivism are deeply rooted in the UK. As Professor David Feldman, Legal Adviser to the Joint Select Committee on Human Rights, has noted,
‘… the Convention’s approach is far more closely in tune with the essentially collectivist cultural heritage which forms part of the bedrock on which the constitution of the United Kingdom developed and must build…’33.
What this means is that protection of many of the first generation, civil and political rights protected by the Convention, is coupled with and balanced by the right of the government to interfere, providing this interference is carried out for a legitimate purpose in the interests of society, according to law, and is proportionate to its aim. This does not apply to the rights to life and to freedom from torture. But it most certainly applies to rights to personal liberty and fair trail, to respect for family and private life, and to freedoms of conscience, expression, and association. Particularly with regard to freedom of expression, this approach could not differ more sharply from American traditions of ‘rights as trumps’, in Ronald Dworkin’s phrase, especially freedom of expression. In Europe, at least, human rights are always the product of the balance between the interests of the individual and of society. Ignatieff, too, criticises the
‘larger illusion that human rights is above politics, a set of moral trump cards whose function is to bring political disputes to closure and conclusion’34.
Nowhere is this brought out more clearly than in the case of James v United Kingdom (decision of 21 February 1986), one of the strangest cases - at least for my ex-Soviet students - the European Court of Human Rights has considered. James was none other than the Duke of Westminster’s surveyor, with the Duke himself as second applicant. The Duke complained that his Convention right to private property had been violated by the then Labour Government’s Leasehold Reform Act 1967, enabling his Belgravia tenants to purchase their homes.
The relevant provision of the Convention asserts that no-one shall be deprived of his possessions ‘except in the public interest’. The Court was obliged to decide the meaning of the words ‘public interest’ in the case of the Duke and the Labour Government.
In doing so it used the phrase ‘social justice’ no less than four times.
Here are the most significant passages.
‘Neither can it be read into the English expression ‘in the public interest’ that the transferred property should be put into use for the general public or that the community generally, or even a substantial proportion of it, should directly benefit from the taking. The taking of property in pursuance of a policy calculated to enhance social justice within the community can properly be described as being ‘in the public interest’. In particular, the fairness of a system of law governing the contractual or property rights of private parties is a matter of public concern and therefore legislative measures intended to bring about such fairness are capable of being ‘in the public interest’, even if they involve the compulsory transfer of property from one individual to another’.
The same applied to compensation, which could be less than the full market value. The Court stated that the Convention:
‘does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of ‘public interest’, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. Furthermore, the Court’s power of review is limited to ascertaining whether the choice of compensation terms falls outside the State’s wide margin of appreciation in this domain’.
I think the significance of this decision, and the language used by the Court, have received insufficient attention in the New Labour UK, except perhaps in Clare Short’s DFID. That is, that human rights as now entrenched by legislation are not so much constrained and balanced by individual responsibility, as the communitarians in the Cabinet insist, at any rate where the responsibility is that of single parents and welfare recipients. On the contrary, the true responsibility is that of individuals and corporations which wield true economic power, and whose rights to unfettered enjoyment of their property have been significantly enhanced.
I now turn to my their aspect of the relationship between human rights and social justice
6. Mutual Realisation Through Struggle
One reason I especially enjoy the teaching and study of human rights is that the topic can only be approached through a number of disciplines. Lawyers will always tend to reduce human rights to just another set of positive instruments. To understand the roots of the concept, philosophers and anthropologists are needed. It is impossible to understand the practical application and content of human rights in the absence of collaboration with political scientists and sociologists.
Social justice does not yet exist as a separate discipline, though my colleague Dr Svetlana Stephenson, who has just joined UNL, is a member of the impressive International Social Justice Project, in which sociologists from Germany, the USA, and Eastern Europe and the former USSR, study the relationship between political culture and the postcommunist transition from a social justice point of view35. Svetlana’s contribution is entitled ‘Public Beliefs in the Causes of Wealth and Poverty and Legitimisation of Inequalities in Russia and Estonia’, and concludes that in both countries an increase in support for government intervention in distribution can be observed.
But it can be seen that social justice concerns inform not only social policy, but other substantive disciplines. Here is a selection of very recent journal articles. Take, for example, health policy: Fabienne Peter, explores health equity
‘on the premise that social inequalities in health are wrong not simply because actual health outcomes deviate from some pattern of health outcomes that is considered ideal, but rather because, and insofar as, they are the expression and product of unjust economic, social and political institutions. It thus embeds the pursuit of health equity in the pursuit of social justice in general’36.
In the field of urban and regional research, my former colleague Michael Harloe, reflects on the fact that the concern with competitiveness which is central to New Labour breaks away from social democratic ideology,
‘with an attack on ‘welfare dependency’ as well as a strong emphasis on individual and community self-reliance and on a conservative conception of community and core values’37.
Closer to my own discipline, Jonathan Stein argues that the new Community Legal Service, designed to improve access to justice, needs a social justice mission38. He argues that the CLS has, by seeking cost efficiency in individual legal aid cases, missed the opportunity to promote social justice.
Education policy is another area in which social justice considerations play a central role.
It will be seen that the content of all of this critical research is not simply the exploration of an academic discipline. It concerns the real lives of women and men. In particular, it touches on the centre of government policy, here and abroad. Marcel Wissenburg of the University of Nijmegen in the Netherlands has in my view put his finger on the nature of the problem39. He argues that New Labour’s ‘third way’ practice contradicts both John Rawls’ ideas about redistributive justice, and social justice in a wider sense. He observes:
‘Rather than obliterating the worst of socialism and replacing it with the best of liberalism, it seems that as far as social justice is concerned, the ‘third way’ has replaced the best part of socialism, distributive justice, by the worst part of liberalism, the survival of the fittest’40.
Why do I use the word ‘struggle’? I would argue that questions of social justice always and inevitably concern the lives and hopes of groups, collectivities of people. That is why individualist liberalism is so hostile to the concept.
I have argued elsewhere for an application of a critical realism, finding its roots in the insights of Karl Marx. As Norman Geras explains:
‘Marx’s apparent statements of moral relativism expressed, in fact, a moral realism, specifying the material conditions necessary for achieving ‘higher’ standards of fairness, rather than denying that such historically transcendent ethical judgments could be made. Categorising principles of justice as juridical is too narrow; they can be envisaged also, independently of any instruments of coercion, as simply ethical principles for evaluating and determining the allocation of social benefits and burdens. ‘To each according to their needs’ is such a principle, a norm of distributive justice, its aim an equal right to self-realisation; even though viewed by Marx as to be achieved with the disappearance of coercive state apparatuses’41.
In his early work, the philosopher Roy Bhaskar showed how these insights rather than the currently fashionable social constructivism could underpin the possibility of a genuine social science42. One of the most powerful insights of this mode of thinking, for me, is insistence on the scientific reality of social structures. The sociologist Margaret Archer explains that:
‘the church-goer or language user finds their beliefs or language ready made at birth’, so ‘people do not create society. For it always pre-exists them... Social structure.. is always already made’43.
If the concept of social justice acquires a content through the injustices suffered by people, individually and in groups, human rights come to life through struggle. The black American legal scholar Patricia Williams has described how the language of human rights, which for the most part is the discourse of the powerful and privileged, is transformed into a material force, capable of bringing about social change, through the ‘alchemy’ of their capture by the poor and dispossessed44.
7. The Spectre of Globalisation
Finally, I would like to return to UK government policy. It is interesting to note how social justice has acquired a new partner, globalisation, in the discourse of government. I do not have time this evening to unravel the complexities of this apparently illicit relationship. I simply propose that it could be the subject matter of more than one research project.
Gordon Brown, following in the footsteps of John Smith, is the most fervent advocate of social justice, to judge by his public pronouncements. He has elaborated on this theme not only in speeches to Oxfam (the Gilbert Murray lecture on 11 January 2000)45, and the Child Poverty Action Group on 15 May 200046, but more recently in his 16 November 2001 speech to the Federal Reserve Bank in New York47. He mentioned social justice no less than four times in the speech. His theme was breathtaking - that the alliance forged against terrorism since September 11
‘confirms a profound and pervasive truth… that this generation has it in its power - if it so chooses - to abolish all forms of human poverty’.
Thus, according to Brown,
‘well-managed, globalisation… is the road to rising prosperity and social justice’. His answer to anti-globalisation campaigners was ‘we shall not retreat from globalisation. Instead, we will advance social justice on a global scale…’.
Of course, there are many who question the content or utility of the word globalisation, or its very existence. But, according to my colleague Peter Gowan,
‘most of the notions of what globalisation is about focus on the growing mobility of capital across the globe, and upon the impact of this mobility on national economies’th.
He says that:
‘global capital markets’ are ‘about trading in royalties on future production in different parts of the world, or about businesses engaging in various kinds of insurance against risks’48.
His argument, based on detailed analysis, is that ‘the central features of what has been called globalisation have their origins in deliberate decisions of the Nixon administration taken in order to secure the continued international dominance of American capitalism’49.
That is, of course, not the UK Government’s conception.
The Department for International Development has most publicly espoused globalisation. Its policy has shown an interesting development. The First White Paper of November 1997, ‘Eliminating World Poverty: A Challenge for the 21 Century’st, was followed by a research report of April 1999, entitled ‘Global Social Policy Principles: Human Rights and Social Justice’50. This argued for the development of a global social policy on the basis of the human rights agreements and minimum standards. Its author, Clare Ferguson, stated that:
‘One of the biggest challenges to the achievement of social justice, in the context of globalisation, is finding ways to ensure that these organisations - transnational corporations and non state providers of public services as well as governments - accept their responsibilities to respect minimum standards in all their activities.
But the December 2000 White Paper had a new message. Its title once more starts ‘Eliminating World Poverty’, but this time no challenge. Instead, ‘Making Globalisation Work for the Poor’51.
In her speech to the TUC Congress on 16 September 1999, Clare Short spoke of the trade union movement and Labour Party’s ‘struggle for social justice’, ‘managing’ industrialisation. The new challenge was to ‘manage the globalisation process equitably and sustainably’. Yet in her speech to the United Nations on 1 February 2001, ‘Making globalisation work for the poor: A role for the United Nations’, Clare Short made no mention of social justice (mentioned once in the second White Paper), or of human rights (frequent references). Instead, she spoke of the
‘struggle to ensure that the benefits of globalisation reach the poor… to ensure that the wealth and abundance being generated by globalisation brings real benefit to the poor of the world’.
It is not my intention to criticise DFID unduly, not because I work for it in promoting human rights and access to justice for the poor of Russia, but because I admire its uniquely consistent attempt to put a pro-poor policy into practice. But the notion of ‘the benefits of globalisation’ cries out to be problematised.
How are human rights and social justice to be brought together? For my sins, I am a lawyer, and one answer is to seek to bring about change at the constitutional level. This is what Professor Keith Ewing does, in relation to the Canadian experience, but with direct relevance to the UK. He says:
‘It may well be true that the ‘struggle for social justice is much larger than constitutional rights’ and that ‘it is waged through political parties and movements, demonstrations, protests, boycotts, strikes, civil disobedience, grassroots activism, political commentary and art’.
But if so, political action must be undertaken for a purpose, and that purpose presumably is to effect political change, which one way or another will be reflected in law if it is to be sustained. That being so, the highest form of expression which Western legal systems typically acknowledge is constitutional law, and it is there that we should aim to entrench social gains made in the political process, without denying that ‘rights discourse’ is a ‘blunt tool’ for ‘redressing social injustice’52.
A good start for the United Kingdom would be ratification of the Revised European Social Charter, and its entrenchment in domestic legislation in the same way that the Human Rights Act entrenches the European Convention on Human Rights1.
1 Rick Farley ‘A Personal Journey - Inaugural Human Rights / Social Justice Lecture’, The University of Newcastle, at www.newcastle.edu.au/humanrights
2 Michael Ignatieff Human Rights as Politics and Ideology (Princeton University Press, 2001)
3 Ignatieff, p.x
4 Ignatieff, p.19
th Alasdair MacIntyre After Virtue. A study in moral theory (Duckworth, 1990)
5 MacIntyre, p.69
6 Jeremy Waldron Nonsense Upon Stilts. Bentham, Burke and Marx on the Rights of Man (Methuen, 1987)
7 Philip Alston (ed) Peoples Rights, (Oxford, 2001)
8 Costas Douzinas The End of Human Rights
, Oxford, 2000)
9 Douzinas, p.2
10 Douzinas, p.380
11 at www.fco.gov.uk/text_only/news/speechtext.asp
12 Ignatieff, p.23
13 Social Justice. Strategies for National Renewal The Report of the Commission for Social Justice (Vintage Books, 1994)
14 Stephen Cohen Failed Crusade: America and the Tragedy of Post-Communist Russia (Norton, New York, 2001)
15 Janine Wedel Collision and Collusion: The Strange Case of Western Aid to Eastern Europe (Palgrave, New York, 2001)
16 Peter Reddaway and Dmitri Glinski The Tragedy of Russia’s Reforms: Market Bolshevism Against Democracy (United States Institute of Peace Press, Washington, 2001)
17 Cohen, p.32
18 Reddaway and Glinski, p.630
19 Tony Evans ‘If democracy, then human rights?’ (2001) 22 Third World Quarterly, pp.623-642
20 Evans, p.630
21 Friedrich Hayek The Mirage of Social Justice (University of Chicago Press, 1976)
22 Hayek, p.65, 66-67
23 Steven Lukes ‘Social Justice: The Hayekian Challenge’ (1997) 11 Critical Review pp.65-80, 77
24 Hayek, p.132
25 Lukes, p.79
26 Francesca Klug book Values for a godless age. The story of the United Kingdom’s new bill of rights (Penguin, 2000)
27 Klug, p.165
28 Klug, p.204
29 Klug, p.205
31 John Packer ‘On the Content of Minority Rights’ in J. Raikka (ed) Do we need minority rights? (Kluwer, 1996)
32 Ignatieff, p.26
33 David Feldman ‘The Human Rights Act 1998 and Constitutional Principles’ (1999) Vol 19 No 2 Legal Studies pp. 165-206, p.178
34 Ignatieff, p.21
35 Bernd Wegener ‘Political Culture and Post-Communist Transition - A Social Justice Approach: Introduction’ (2000) 13 Social Justice Research 75-82
36 Fabienne Peter ‘Health Equity and Social Justice’ (2001) 18 Journal of Applied Philosophy pp.159-170, 160
37 Michael Harloe ‘Social Justice and the City: The New ‘Liberal Formulation’’ (2001) 25.4 International Journal of Urban and Regional Research pp. 889-897, 890
38 Jonathan Stein ‘The Community Legal Service needs a social justice mission’ 6 July 2001 New Law Journal
39 Marcel Wissenburg ‘The ‘third way’ and social justice’ (2001) Journal of Political Ideologies pp.231-235
40 Wissenburg, 235
41 Norman Geras ‘Justice’, in Tom Bottomore et al (eds) A Dictionary of Marxist Thought (Blackwell, 1991, 2nd ed), p.276-7
42 See Roy Bhaskar ‘Realism’, in Bottomore, pp.458-460
43 Margaret Archer Realist Social Theory: The Morphogenetic Approach (Cambridge, 1995)
44 Patricia Williams The Alchemy of Race and Rights (Harvard University Press, 1991)
th Peter Gowan The Global Gamble. Washington’s Faustian Bid for World Domination (Verso, 1999), p.8
48 Gowan, p.12
49 Gowan, p.126
st cm 3789
50 Clare Ferguson ‘Global Social Policy Principles: Human Rights and Social Justice’, DFID, April 1999, http://184.108.40.206/DFIDstage/Pubs/files/sdd_gsp.pdf
51 cm 5006
52 Keith Ewing ‘Just Words and Social Justice’(1999) 15 Review of Constitutional Studies pp.53-75