Social and Cultural Rights (ICESCR),2 and in national instruments such
as Articles 26-29 of the South African Constitution's Bill of Rights.
Now the articles just mentioned are legal or quasi-legal provisions.
I really want to ask about the principles they embody or seek to embody.
What is the relation between something like the principle that everyone
has a right to social assistance if they are unable to support themselves
and the principles typically comprised in a theory of justice?
By a theory of justice, I mean something that does the sort of thing
that John Rawls did in his book A Theory ofJustice4: set out and defend
some very general principles governing the basic structure of society in
regard to their impact on the life prospects of and the enjoyment of
primary goods by individuals. I do not by any means regard Rawls's
work as canonical. Later in the Article, I shall refer to two alternative
theories, at least one of them quite stridently opposed to Rawls's. But
Rawls's work affords a fine example of the sort of thing I mean by a
theory of justice, and it makes clear the difficulty of the question I want
to ask. Rawls's theory is certainly not hostile to the idea of welfare
provision, but principles of the kind alluded to in the previous paragraph
do not feature among Rawls's principles of justice as fairness-among
the two complex principles that constitute his conception of justice.5
Why is this? The most plausible explanation is that socioeconomic rights,
or principles embodying socioeconomic rights, are usually formulated at
the wrong level of generality or abstraction to be included among the
most fundamental principles of a theory such as Rawls's. But then we
should ask, What is the relationship between abstract principles of
justice and these somewhat less abstract principles requiring welfare
provision?
For the purpose of answering this question, Rawls's theory has the
advantage of being quite complicated in the set of abstract principles that
it yields, in its internal structure, and in the system of argumentation
associated with it. His theory is built up on the basis of certain-by now
familiar-model-theoretic ideas, such as the original position6 and the
veil of ignorance. 7 It comprises a number of meta-ethical conceptions
about reflective equilibrium and the relation of a philosophical construction
2. International Covenant on Economic, Social
2200 (XXI) A, Annex, U.N. Doc. A/6316, at 50-51
example, rights to social security, to special protections
freedom from hunger).
3. S. AFR. CONST., 1996, arts. 26-29 (declaring,
adequate housing and health care services).
4. See JOHN RAWLs, A THEORY OF JUSTICE 52-78
5. Id. at 52-56.
6. Id. at 181.
7. Id at 130-60.
774
and Cultural Rights, G.A. Res.
(Dec. 16, 1966) (declaring, for
for mothers and children, and to
for example, rights of access to
(rev. ed. 1999).