Individual and social rights

A constitution is the most prominent formal institution, as it is the grundnorm which determines the set of rules governing political institutions and market interactions. The contractarian approach to constitutions builds upon the ideal covenant among individuals, who recognize their self-interest in enter­ing a political institution fostering social cooperation.

The conception of liberty and rights which a constitution should put for­ward is one of the most critical and controversial questions of constitutional theory. The view that individuals have moral rights against any attempts by the government to impose moral values on them is also shared by Dworkin’s view on liberalism. The state should not endorse any substantive ethical theory, as the realization of moral values is a prerogative of individuals only, and the judiciary must be ethically neutral to be compatible with every individual’s equal right to individual liberties. However, Dworkin more ambit­iously argues that in as much as income inequality is due to the ethically non-neutral distribution of natural talents and abilities across individuals, constitutions should allow for progressive taxation aimed at eliminating undeserved conditions of ‘disadvantage’ (Dworkin, 1978). In the same vein, Rawls advocates the equality of primary goods: the surplus from social cooperation should be devoted to improving the well-being of the worst off (Rawls, 1971) and international law should impose redistribution worldwide to improve the chances of progress of the most deprived peoples (Rawls, 1999).

Habermas (1988) points to a social dimension of individual identity by blurring the division between individual and social rights.

We are then faced with alternative conceptions of the individual which constitutional rules should address. On the one hand, the economic liberalism advocated by Hayek and Buchanan criticizes excessive state intervention in the sphere of autonomy of the individual, such as the equalizing policies pursued by fiscal authorities which diminish the propensity to risk, and result in a fall of the incentive to invest and to work. On the other hand, a variety of principles of justice - ranging from equality of opportunity to equality of resources - interpret democracy as the political organization in which the individual is endowed with the rights defined by the cultural underpinnings of a society. The notion of equal right to equal liberty then establishes a link between the system of rights and democracy, whereby public policies need to cope with multidimensional inequality due to differential opportunities across individuals.

These two different approaches to a liberal and democratic society are reflected by the two principles of ‘negative freedom’ and ‘positive freedom’, respectively (de Ruggiero, 1925 [1927]; Berlin, 1958).

The second principle entitles every individual to the right to enjoy all material and moral conditions for self-realization. The democratic and social­ist lines of thought, which have in different ways developed the Marxian view of society and the economy, argue that a constitution should indicate which institutional setting is most capable of coping with the problem of inequality ‘at the starting gate’, which is typical of modern capitalist society. The multiple dimensions of inequality (family environment, health, education, one’s community social capital and so on) could prevent equal individuals from being equally free, in the sense of the positive freedom to have access to an equal chance of a good life. A conception of rights based on ‘negative freedom’ interprets a right as the prohibition of interference with an individ­ual’s freedom. A conception of rights based on ‘positive freedom’ instead asks society to create the appropriate conditions for the right to be exerted. Some constitutions explicitly call them ‘social rights’.

Due to scarcity of resources, and despite the tumultuous growth experi­enced in the last centuries, modern capitalist societies are still constrained by the necessity to choose among alternative objectives.

The need for ‘active’ policies to affirm and guarantee the exercise of ‘positive’ rights is justified by the existence of wide income inequalities causing large disparities across individuals regarding their chance of a good life. An important aspect of this problem is the tendency of inequality to reproduce itself across generations. A possible economic cause of the intergenerational path dependence of life conditions is the power asymmetry among individuals, all equal in the matter of democratic voting but often unequal in the marketplace. This hiatus between the market and the demo­cratic institutions - whereby the market responds to the principle of suffrage censitaire and the democratic institutions respond to the principle of suffrage universel - establishes the legitimacy of democratic institutions to have a say in the regulation of market exchanges (Fitoussi, 2002). The constitution should aim to put individuals in a position whereby they have equal opportu­nities to exploit their own talents and abilities, which requires appropriate institutions to foster social cooperation. However, the recognition that the individual is entitled to rights - and what these rights consist of - is only spelled out in constitutions. The theoretical debate is still far from a thorough investigation into the question of devising institutions that foster equal oppor­tunities and make viable the realization of individual rights.