[VOL. 48: 773, 2011]
Socioeconomic Rights and Theories ofJustice
SAN DIEGO LAW REVIEW
In general, it is arguable that the civil and political liberties on Rawls's
list can be dealt with qua rights separately from the other concerns of a
theory of justice. In and of themselves, the civil and political liberties do
not have massive implications for the issues of social and economic
distribution that Rawls's other principle addresses. 5 (I do not mean that
civil and political rights have no resource implications at all; I mean that
their resource implications are patchy, sporadic, and often indirect.)
Socioeconomic rights, on the other hand, have very substantial
implications, both for the resources that Rawls's Second Principle is
likely to govern and for the basis of our overall assessment of the impact
of the basic structure on people's life prospects. This means, first, that if
socioeconomic rights were included in the First Principle, then the First
Principle would do much of the work supposedly allocated to the Second
Principle.66 And it means, second, that if socioeconomic rights were
inserted in this fashion anywhere in Rawls's theory-not necessarily
under the auspices of the First Principle-then it would turn out to be the
case that a very substantial part of the work of the theory would consist
simply in a list of rights, and its systematic theoretical character would
be largely lost. One gets the impression that some if not most of the
conclusions of Rawls's theory are supposed to be presented as derivations
from "general definitions and comprehensive first principles," even if
the list of basic liberties is not.67 But if socioeconomic rights are
articulated in the way we have been imagining, then it will be the case
that the whole theory begins to look makeshift, not just a part of it.
All of this leaves open the possibility, however, that when it comes to
the elaboration and defense of his Second Principle, Rawls might be
constrained by the original-position method to include fundamental
constraints that require attention to the issue of poverty and deprivation.
After all, the Second Principle is itself complex: it conjoins the Difference
Principle with a Principle of Equal Opportunity that constrains its
65. See STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS 115-16
(1999); HENRY SHUE, BASIC RIGHTS 75-76 (1980).
66. H.L.A. Hart, Rawls on Liberty and Its Priority,in READING RAWLS 230, 23637 (Norman Daniels ed., 1989) made an analogous criticism of Rawls's early suggestion
that the First Principle governed the distribution of liberty in general, not just specific
basic liberties. Because all resource allocation involves the allocation of liberty via the
right to use and the right to exclude, such an agenda would cover the whole domain of
resource use.
67.
RAWLS, supra note 60, at 292.
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