Social Rights and Political Rights: The False Divide?

My lecture at Goldsmiths College’s Annual Human Rights Law Symposium, held on 17 May 2024.

Social Rights and Political Rights: The False Divide?

Conor Gearty[*]

The division between civil and political rights on the one hand and social and economic rights on the other is an historical anachronism.  The primacy long accorded political rights has been built upon an assumption that no longer applies. By exposing this, the necessary groundwork can be laid to reorient the field along different, more productive lines.

What is the assumption that is questioned here, and from which all else set out follows?  Crudely put, it is this, divided for the sake of simplicity into two propositions: (i) that in the past political rights were assumed to lead to social and economic well-being when in fact as we now know they do not, or at least not necessarily; and (ii) (and here is the cause of (i)) that the democratic cultures into which these rights were inserted after 1945 were nothing like as robust as we came to believe they were during the social democratic era that was both first ushered in – and then protected – by the realpolitik demands of the Cold War, a war that is of course now over for over thirty years.

The focus in what follows will be on the European Court of Human Rights though it may well be thought that the argument extends beyond that judicial body. I explain first how the past landed us with the division of human rights we have today, and why what once made sense of this inheritance no longer governs, leaving us an international (and for present purposes importantly a regional) human rights system) which has no obvious contemporary rationale. I reflect, second, on the difficulties in the human rights paradigm that flow from this untethering from its moorings. This takes me to, thirdly, to what I call the present moment, a short assessment of recent European Court cases, analysed from the perspective of the argument that I will have just developed.  I return in my brief conclusion to the democratic objection to the judicial engagement I have described, and answer it (I am anticipating the argument a little here) by paying close attention to the relationship between the body making decisions of this sort – here the European Court of Human Rights – and the wider polity into which its decisions are inserted.

Let me start therefore with the history. – my first proposition.  I make the following three claims.

First the reception of democracy into pre-democratic systems of government has been necessarily imperfect. I say necessarily because history shows us that total breaches with the past, true revolutionary moments, do not usually end well, even if the rhetoric that accompanies them is at the outset optimistically democratic in nature. The democratic systems that have survived have been achieved by negotiation with the past, not the total defiance of it.  The representative government that results has always been irritatingly imperfect, the will of the majority foiled by the embedding of privilege in institutions that predated democratic reform but linger on nevertheless into the democratic era: absurd hangovers like the House of Lords but also the electoral college that elects the US president and the composition of the Senate in that country. And reactionary courts as well, determined to preserve the truths of past generations into new democratic eras. These have been the prices exacted by power for the surrender of its privilege to the people.

Second claim in these preliminary remarks about history. I say that, historically, the idea of human rights has played an important role in this anti-democratic fortification.  Whatever we call them, human rights, civil rights, common law rights (and they have had different names at different times and in different places) all have had the same effect in the past: to equip the unelected community of experts that we call judges and which non-revolutionary democracy has had to accept as ‘the rule of law’, with the power to hinder the flourishing of the democratic ideal, to hold it back, to defy its implications with a counter-rhetoric of moral absolutism. When we look at old-fashioned democratic socialists – the early Labour party in Britain; the more radical New Deal democrats in 1930s America – we can see that they were right to deplore judicially enforceable rights as obstacles to social justice, as a way of impeding the journey from democracy to socialism that many early democratic idealists thought would be inevitable.

There are countless examples in the past of the rights to liberty, property and freedom of contract trumping the interests of the wider community, particularly where these human rights have been deployed by corporate entities. Where that community has sought nevertheless to make a political mark, we have seen the efforts of its aspiring representatives being routinely impeded by state coercion, with no respect being shown for their supposed right (or liberty) to protest, and with whole political associations being banned where their objectives are judged too dangerous to permit their leaders a chance to shine, restrictions and prohibitions that are let pass without challenge by the supposed custodians of political rights. The only rights that have often seemed to have mattered in the past were those of the possessive individual, and certainly not those of the public whose interests democracy was intended to promote.

But then thirdly, and my final claim in terms of these preliminary remarks focused on the historical context. This relates to the Cold War, the time when our subject took its modern shape, the American-led West (to give it its old-fashioned descriptor) confidently promoting civil and political rights, the alternative Soviet-inspired world countering with its emphasis on social and economic rights: liberty being challenged by equality, democracy by socialism. This is where the current false divide comes from.  Not apparent in the Universal Declaration of Human Rights in 1948, it is epitomised in the not one but two agreements concluded in 1966 that make up the international bill of rights, one on civil and political, the other on the social and economic (and cultural). It is also evident in the way the Council of Europe created two bodies for the protection of rights, one broadly civil and political (the Court) the other focusing on the social and economic (the Committee on Social Rights). One has been operative since the late 1950s the Court, the other (the Committee) has been hearing cases since the late 1990s.

The West was not, however, the paradigm of the civil and political rights that it put centre-stage, not least for the reasons earlier alluded to.  And of course as we know the limitations of the Soviet approach became painfully clear as the decades rolled by before the entire regime upon which its claims were based collapsed in 1989.  A consequence of that defeat is that the old Soviet model no longer influences the contemporary discourse of human rights: we are all Westerners now.  But the West that emerged victorious from the Cold War was not the same West that had gone into it.  Whether as a protection against Soviet-inspired revolution or for some other set of reasons about which it is not necessary to speculate here, a kind of benign social democracy was permitted to settle over Europe.: trade unions thrived, collective rights flourished, non-revolutionary social democrats rose to and retained power.  By 1989, therefore, it seemed natural to assume that the victory of the West was a victory for democracy, not only in the civil and political sphere but encompassing the social and economic arena as well.  The imperfections of the system which had resulted from the incomplete reception of democracy all those years ago – and to which I alluded at the start of this talk – had been forgotten.  Civil and political rights delivered and guarded a properly functioning democratic polity that could then be relied upon to secure social and economic rights for all, and often in a more tangible form than a vague language aspiring towards such rights could ever achieve – a National Health Service Act not a right to health and so on, in other words. Political rights mattered, with all else flowing from the natural effect of their operation: social democracy, it was assumed, was bound to be the choice of a properly-informed electorate.

Now the second of the three propositions I promised to lay before you, on why the current model does not fit so well with developments after 1989.  I can deal with this pretty shortly. Crudely put the assumption behind it – to repeat: that political rights could be relied upon to deliver social rights – was false. The foundations of our democratic culture were much shakier than anyone remembered, and its enemies (those who had unwillingly surrendered their power in the first place) were emboldened rather than silenced by the success of the West.  Universal suffrage remained safe but all around it grew hedges that restricted its capacity for transformative growth while at the same time past democratic gains were being eroded, slowly at first and then at an ever-faster pace.  The solidarity that grew out of working-class self-consciousness and which had produced political movements designed to deliver equality was undermined by emasculation of the trade unions that were at its very core. Controls on press ownership intended to prevent the concentration of power in single individuals were first ignored and then discarded. Money successfully and eventually very easily skirted around restrictions intended to keep the electoral process fair and so over time it became entirely normal to assume that political parties needed vast sums from the uber-wealthy if they wanted to survive, and even more if their hope was to thrive. Individualism replaced collectivism as the common sense of the age, the former reflecting the autonomous individual that was to underpin neo-liberalism, the second a vaguely socialist reminder of a vanquished enemy. Rights were all about liberty, and a decontextualised individual at that. Freedom was increasingly for the rich, the political was to be manipulated and the social removed altogether or at very least emasculated.

The cumulative effect of these changes in representative government, seen to a greater or lesser extent across all the democracies in the old West, has been very damaging for civil and political liberties but far more so for social and economic rights.  Life chances have diminished for many while the gap between the rich and the poor has grown astronomically, especially in what we used to think of as the Anglo-Saxon political sphere.  Despite the dysfunctionality of the capitalist system becoming increasingly apparent, the affluent have grabbed more and more of a relatively static national pie without any fear of retribution.  The anger of lost generations is directed away from the truly responsible and – in time-honoured fashion – towards those in an even worse position than themselves, the refugees fleeing the turmoil, danger and poverty of many troubled spots in the Global South.   An ersatz ethno-nationalism accompanies this anger, risking the diversity and tolerance upon which civilised democratic living depends. Police coercion increasingly prevents protest that seeks a refocus on the inequality that lies at the core of our societal malaise – that effort at truth-telling is redescribed as ‘extremism’ and closed down.

This second of my three propositions can therefore be summed up as follows: so far as the European system was concerned, the difficulties it has encountered are not the result of errors of design that could have been avoided by better construction at the moment of their conception. The failure if there is one – and it is perhaps unreasonable even to call this a failure – is in their inability to keep up with the brutal times that have followed the liberal victory in 1989.  Representative government has been reduced to a kind of shell of itself, and the political rights that were supposed to protect it likewise grossly weakened. Social rights have been among the resultant casualties.  But what could human rights bodies – international, regional, national – have done, injuncted neo-liberalism, ordered the retention of social democracy by court order?

And so to my third of my four propositions, related to the present moment.  Where do we stand today? Some extreme ideologues of the right call for the formal dismantling of our system of European human rights protection, describing it in scathing terms as a relic of a past age, as (to use a cruel cliché) ‘past its sell-by date’.  That is not going to happen anytime soon, I think. Nor is the positive transformation of the human rights framework to make it – to use another cliché – ‘fit for purpose’.  Human rights mandates remain active in the present era, with their courts and committees interpreting their charters and conventions and covenants and so on despite these documents not having been tailored to reflect the more brutal times in which we live.  To put this another way, these human rights bodies have legal mandates, which they are required to follow and which have legal effects (direct and indirect) even in those states hostile to those mandates but without their being so hostile as to dispense with the whole structure altogether.

How has the European Court of Human Rights been operating its mandate in this period of strain? The story is inevitably a mixed one, and there is no space or time to go into detail here, but with precedents to rely upon and the consequentially slow development of case-law, the Court is inevitably not well-equipped to react effectively to the changed democratic circumstances around it. The consensus about equality of esteem, the need for separation of powers and the importance of the rule of law – for years assumed to be so secure as to be beyond argument – is breaking down, at least in some states and perhaps in more than we realise.  Old school rights jurisprudence about this or that abuse of individual freedom by some state authority or other presupposes an underlying support for the ethico-legal framework within which such cases get litigated. What happens when it is the framework itself that is being undermined?

Given it will be neither abolished nor rejuvenated by state support, what is the European Court of Human Rights to do?

First the Court needs to be much clearer about fighting for the civil society space within its member states. It must in particular avoid decisions that eviscerate the capacity of civil society actors to deliver for their members, whether these be trade unions (as arguably has occurred recently, in Humpert v Germany), human rights bodies or religious groups. This is not about this or that political right (though their protection too is very important); it is about the health of the underlying body politic.

Second the Court needs to be imaginative, even creative, in the way it interprets the rights it has available to it to secure a level playing field for all political actors, across the spectrum of the electorally possible. Vehicles like article 3 of the first protocol, article 10 of free speech and article 14 on equality need to be mustered in defence of democracy itself, not subverted from within by destructive individual claims.

Third the Court needs to be alive to the deficiencies in the underlying democratic framework within many of the members states and not unthinkingly hide behind the appearance of rights-respect: subsidiarity quickly becomes surrender if it allows the domestic window-dressing of rights to replace their substantive protection.  Where the matter relates to our very democratic existence, let not the court get carried away by the margin of appreciation or by other false claims of deference.

Fourth, there is the social rights issue.  The divide with the political is already closed to some degree in the Convention itself– the right to marry; the right to education for examples. Procedural rights too have been deployed to give the recipients of state benefits and/or those disadvantaged by state action a chance to put their side of a story to decisionmakers.  Positive obligations can have the same effect. People should not have to suffer a poverty so extreme that it can be classed as inhuman and degrading treatment; abject failure to deliver promises of environmental health produce breaches of the Convention guarantee of respect for privacy; decayed health systems endanger the right to life; and so on. In developing this side to their jurisprudence the court should play its part in pushing towards an holistic human rights perspective by engaging with the complaints and conclusions issued by its specialist sister-body the European Social Rights Committee more frequently and effectively than it does at present.  The Court recently proved itself able to deal with a wide range of issues related to health and living conditions in Klimasenniorinen – why not do the same beyond the climate context?

There is an agenda for powerful action here, for ‘activism’ its critics might call it.  Those who would disown the entire human rights system have a secondary position as deep critics of any ‘mission creep’ on the part of the Court.  But what I have described above is not ‘mission creep’; it is a humane response (controlled by its own foundational charter) to the mismatch between what a state says it guarantees and what it truly delivers. That gap is the result of the deficiencies in our democratic framework which I earlier discussed. But these critics of the Court need to ignore all this, assuming as they invariably do that the alternative decision-making point in the system (the one that the court has ‘usurped’) is a model of democratic integrity.

The much maligned (by these anti-rights ideologues) ‘living instrument’ is simply the rhetorical flourish that underpins acknowledgement by the Court of the world it is in, one where the gap between a human rights vision of equality and the reality of the lived experiences of so many people is so stark. This takes me finally and by way of my conclusion to the recent climate litigation Klimaseniorinnen and the democratic critique. What happens if there is no ‘effective political democracy’ or even if there is that the threat is so grave that it would have difficulty generating right action, much less one that is already pockmarked by money and the abuse of power? This is not quite the same as what I have been discussing where the court forces states to take seriously their assumed obligations to the vulnerable living. What about the vulnerable young or the yet-to-be-born whose life chances are being catastrophically eroded by the failure to tackle climate change today?  To Judge Eike, the matter is one for democratic discussion; his dissent in the case is rooted in a confidence in democratic processes that much of this paper has suggested is idealistic but (increasingly) inaccurate.

If all of this involves the emergence of an actio popularis which some have argued has emerged from the Klimaseniorinnen case, then well and good.

Many of the criticisms of the climate decision assume an authority for it analogous to that of a domestic court with the power to order an immediate outcome and then demand its realisation on pain of penalty.  Like most international human rights agreements, however, the court’s power of enforcement is so qualified as to be barely present.  The judgment is legally binding for sure and carries with it an international law obligation that it be enforced, but the power of oversight and enforcement is left to others, in this case the Council of Europe’s political arm, the Committee of Ministers. But like all of this Court’s interventions, it is a stimulus to further discussion, not a declaration Deus ex Machina.

Given the democratic defects I have mentioned earlier though, would not a stronger judicial presence, a notional European Supreme Court be better, on an American model, with the Parliamentary Assembly of the Council agreeing appointments in the way that the Senate does in that jurisdiction (and with the nominations emanating as now from the states not the Council’s Secretary General acting as a presidential chief executive)? I think not.  The answer to a democratic deficit is not to double it.  The court’s relative weakness is in fact its greatest strength: and if it is to be an ethical bully pulpit then it is important to keep its sermons up-to-date. And at least the majority judges in the case can say while the waves inundate us, the storms shake us and the millions displaced by the disastrous misjudgements of the present and past generations beg desperately for us to open our doors, they can say ‘we did our best’. Bravo.


[*] Professor of Human Rights Law LSE; Member of Matrix Chambers.