[VOL. 48: 773, 2011] Socioeconomic Rights and Theories ofJustice SAN DIEGO LAW REVIEW in accordance with other institutional virtues? Hayek has devoted a large part of his life to arguing that it would: that the modem regulated welfare state is incompatible with the rule of law. 5 It is pretty clear that Rawls disagrees with him about that.52 But the deeper disagreement is that Rawls thinks it is the job of a theory of justice to select principles for evaluating economic institutions along exactly these lines, whereas Hayek simply denies that that is a legitimate concern about justice. I have taken this digression into the Hayek-Rawls misunderstanding because I want to stress again that in a theory of justice like Rawls's, we cannot guarantee that socioeconomic rights will emerge in a familiar or predictable form. As an abstract matter we can say, with the drafters of Article 25 of the UDHR, that everyone has "the right to a standard of living adequate for the health and well-being of himself and his family."5 But that may not necessarily emerge as a specific legal or constitutional guarantee: a just society may not have a rule to that effect or even any particular agency charged with administering this standard. There may be a variety of provisions and arrangements, ranging from tax breaks to educational opportunities to rent control to unemployment insurance schemes, all of which taken together may represent the bestand genuinely the best-that can be done in an institutional framework to honor the underlying claim for the individuals in whose behalf it can be made. V. CONTRACTARIAN ARGUMENTS FOR PRINCIPLES OF JUSTICE I said at the beginning of this Article that it is not devoted specifically to John Rawls's theory of justice or to the implications of that particular theory for socioeconomic rights. Still, Rawls's theory is a good paradigm to work with, and it has contributed to the study of justice a number of ideas that have more general application. One of them is the contractarian idea of the original position: the idea that it might be fruitful to approach questions of justice by imagining people making decisions about important structural aspects of their society or about important political and legal principles that they were to be committed to 51. See FRIEDRICH A. HAYEK, THE ROAD TO SERFDOM THE CONSTITUTION OF LIBERTY 205-06 (1960). 72-73 (1944); F.A. HAYEK, 52. Otherwise he would not take it for granted that a just basic structure will have a transfer branch that "guarantees a certain level of well-being and honors the claims of need." RAWLS, supra note 4, at 244. 53. G.A. Res. 217 (III) A, supranote 1, at 76. 791