arguing from fundamental premises for something quite specific, such as
health care, social security, or minimum income, in a sort of line-item
way, proponents of a theory of justice are arguing from fundamental
premises for principles, such as the "Difference Principle,"l 4 that are
intended to operate at a much more general level. What I am urging
when I say that it would be a good idea to bring these bodies of argument
into some careful relation with one another is that we need to get a better
sense of how the line-item claims that we call socioeconomic rights fit
into a bigger picture that takes these fundamental values as seriously as
the proponents of socioeconomic rights take them.
I emphasize that last point. The aim of this Article is not to haul
socioeconomic rights before some tribunal of efficiency or aggregate
utility. Critics who regard efficiency or aggregate utility as the be-all
and end-all of public policy have already committed serious mistakes:
they have an impoverished conception of value, and they pursue the
values that they recognize in an inappropriate way by concentrating on
arithmetical aggregates rather than on individualized or distributive
concerns. Theorists of justice avoid mistakes like these. They may not
agree with one another about the proper conception of value for public
policy-welfare, primary goods, human capacities, et cetera-or what
exactly the distributive structure of an appropriate theory ought to be.
But they are committed to evaluating social policy in terms that
take individuals seriously and that have the capacity to take the special
concerns of poor people seriously. The game is not rigged against the
distributive concerns of the theorist of socioeconomic rights like it is in
the economic critique. One could say that to ask about the proper relation
between a theory of social-economic rights and a theory of justice is to
ask afair-asopposed to an unfair-question.
Benefits, I believe, will accrue to both sides if theories of socioeconomic
rights are brought together with theories of justice. Theories of justice
sometimes tend to consign their consideration of specific lines of public
policy to an afterthought, tacked onto the main structure and argued for
half-heartedly and often superficially. This is certainly true of the
comments that Rawls makes about welfare provision and what he calls
"the social minimum."" A clearer sense, within a theory of justice, of
how particular public policy commitments could rise to the status of
rights would improve matters. Such consideration would fully take into
account the need to consider the public policy line in question in relation
to other competing claims and commitments, but it would also be
looking to justify it, in this context, as a right-as something that would
14.
15.
778
See RAWLS, supra note 4, at 65-73.
See id. at 244-45.