Property, Justice and Rights: Reconciling Distributive Justice with Social Rights

Patricio Espinoza Lucero MA Legal and Political Theory University College London

The aim of this proposal is to address the problem of grounding socioeconomic claims such as access to education, health and social security, on rights (moral or human) rather than considering them as demands of distributive justice which are not possible to grant as rights. In doing so, the paper will deal with three major concepts on political and moral philosophy: Property, Justice and Rights because the most dominant conceptions of them seem to pervade the possibility of giving the status of rights to socioecononic claims of the mentioned kind. I will argue that it is possible to conceive these conceptions in a broader way that they have been understood so far, including among the most important principles and values in society the socioeconomic claims that can be identified as "Social Rights". In arguing for this broader conception, I will demonstrate, following the ideas developed in this regard (mainly) by John Tasioulas, Jammes Penner, C.B. Macpherson, Jennifer Nedelsky and Jeremy Waldron, that it is not possible to conceive Justice, Property and Rights as absolutes values and principles in the traditional way in which they have been understood. On the contrary, I will demonstrate that it is possible to argue in favour of a comprehensive an inclusive conception of them, making it possible, therefore, to reconcile these concepts with the notion of social rights within the framework of a theory of rights. In consequence, the strategy for addressing this task will run as follows. First I will give an acount about how social rights have been conceived among the libertarian and liberal egalitarian theories of justice. Second, I will confront the conception of property as an absolute right by assessing the criticism that Jammes Penner has made by developing the concept of "Property Fetichism" which states that the concept of property is distorted in such a way that we think it applies where it does not, or perhaps we think it an illuminating model of a relation even where we recognize that the relation being modeled is not, strictly speaking, property (Penner, 2009: 194). I will argue instead for an inclusive conception of property able to be regulated according to the necessities and interests of the society rather than serving exclusively the private owner. Two conceptions will be offered; on the one hand, Macpherson's inclusive idea of property and on the other hand, Nedelsky's relational one. Both perspectives will support my argument that there is no theoretical problem in redistributing property for funding social rights; the question here is political rather than economical or legal. Third, following Tasioulas, I will offer an alternative approach to the idea of justice as a value among others and not as the only possible value. Regarding the notion of social rights this idea has two consequences: on the one hand it is possible, according to Tasioulas, to argue in favour of a certain type of subjective right to justice (rather than conceiving it as an intangible value) and therefore to ground socioeconomic claims on it. On the other hand, not being the idea of justice a sacred one, it is possible to think about Rawl's first

principle of justice (the primacy of liberty) as including the core of socioeconomic claims leaving its regulation to the domain of the second principle. Fourth, I will challenge the idea that liberal rights can just protect liberties and individualistic claims; and instead, following Tasioulas and Waldron, I will argue that it is perfectly possible to establish the basis of an alternative theory of rights including social and collective interests such as those included among the so called social rights. Finally, I will propose a conception of social rights capable of reconciling the demands of distributive justice with the language of rights, which I will name the "comprehensive conception" of social rights which distinguishes the core that must be considered as moral or human right, and its extent, that must be a matter of regulation through deliberation in the political forum.