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Prominent individuals and NGOs now clamour for economic and social rights in the new constitution. They want them incorporated as “fundamental rights” in a new Bill of Rights.
To quote a recent Daily FT column, such rights would cover “education, food, water, adequate housing, social security, a living wage, decent and safe work, freedom from forced evictions, and a safe, clean and healthy environment.” Alongside basic civic and political freedoms, these would be the State’s “hard” obligations, not just “soft” or aspirational goals. In other words, these rights would be justiciable, subject to judicial review and enforceable in the courts.
This is a terrible idea. It is guaranteed to defeat these advocates’ aims. But first consider constitutional precedents here and abroad.
Part III of the International Covenant on Economic, Social and Cultural Rights (ICESCR) encompasses the rights mentioned above. Its intent is aspirational: governments are expected to make progress towards realising these goals, but without hard, justiciable inter- or intra-national enforcement.
Sri Lanka needs a new constitution that safeguards civic, political and economic freedoms
The European Social Charter is similar. The South African Constitution – a favourite for Sri Lankan constitutional activists – contains economic and social rights, but its language is more aspirational than justiciable. The Indian Constitution states explicitly that economic and social rights are the State’s policy prerogatives, and should not be enforced by any court. That is also true of the Sri Lankan Constitutions of 1972 and 1978.
What could be wrong with these rights? Why shouldn’t they be justiciable? Surely we are all in favour of universal access to decent education, health care, food, water, housing, wages, conditions of work and social security, and to a clean environment. The arguments against are both philosophical and practical. I will review both.
First to philosophy. Early modern constitutions focused on civic rights to guarantee the freedom of speech, assembly and association. Classic examples are the English Bill of Rights following the Glorious Revolution of 1689, and – for many the touchstone – the Bill of Rights in the US Constitution. Political rights, notably democracy through the extension of the franchise to all adults, came later. Economic rights were also embedded de jure or de facto.
These guaranteed freedom from state intervention for producers and consumers, embodied in the freedom of trade, freedom of contract, and the freedom of individuals to own, buy and sell property. These were mostly private-law rights, developed especially in the English common-law tradition that was exported to British colonies. They had quasi-constitutional effect. In the USA, the courts 
interpreted the Constitution’s Commerce Clause to restrict the State’s encroachment on private property rights until the New Deal in the 1930s.
Until the twentieth century, civic and economic rights were liberal rights. Following John Locke, the father of modern liberalism, such rights protect “negative” freedom: the freedom to do as one wishes, except where specifically prohibited so as not to restrict others’ freedom. John Stuart Mill explicitly defined freedom in this negative sense in his On Liberty. Negative rules protect individuals’ freedom by restricting power – the power of private parties and the power of the state.
Only after the Second World War did a different conception of rights and freedom find its way into constitutions. The UN Charter’s chapter on international economic and social cooperation, and the subsequent ICESCR, opened the door to positive economic, social and cultural rights –“positive” in that rights are provided for explicitly or prescribed, as opposed to negative rights that only proscribe specific actions. This presents wide vistas for collective action, especially for the state to provide and guarantee education, food, water, health care, housing, decent wages, labour and environmental standards, and other things besides. The list could be never-ending.
Rather than limiting the state, positive rights are an open sesame for its expansion. AmartyaSen and John Rawls are the most influential modern theorists of positive rights. The Lockean rights tradition is classical liberal; Sen and Rawls belong to a collectivist, social-democratic tradition of distributive justice that goes back to Aristotle.
Now I will put my cards on the table. I am a classical liberal. For me, negative rights are paramount. That subsumes civic, political and economic rights. In my ideal constitution, freedoms to trade, domestically and internationally, to strike contracts, and to own and dispose of property, would be justiciable. Of course that would severely curtail the powers of the state. But I appreciate this is a minority view everywhere around the world. Enforcing such rights would lack popular consent and legitimacy. Therefore I have to argue for policies and laws to expand economic freedom in the public square.
This is a matter for electoral politics, not constitutional amendment, at least until there is sufficient popular support for constitutional reforms. These, then, are the parameters of liberal democracy, which balances liberal rights with popular will.
Now turn to positive rights. And here I will combine philosophical with practical objections. Like most people I would like to see better education, health care, wages, housing and so on for everyone, especially for those who have been deprived of them. But I think the best way to provide these “goods” is through a free-market economy, with maximal freedom to save, invest, be entrepreneurial, and create jobs and wealth. Only prosperity allows for sustainably higher incomes, and better educated, better housed and healthier people. That is the lesson from the West and East Asian Tiger economies.
Positive rights are problematic because they are inherently subjective. What is a “fair” or “living” wage? What is “decent” education, housing or health care? What is a “clean” environment? We can all wish for them in a very general sense. But there is no objective way of pinning them down in concrete situations. Making them hard laws, stretching to fundamental rights in a constitution, invites all sorts of arbitrary government and judicial interventions. It would restrict economic freedom, and it could be disastrous for economic welfare.
Constitutionalising high wages (above prevailing productivity levels), and high expenditure on education, health care and other public services, would stall the market’s wealth-generating engine. Interest groups demanding more “rights” would swarm around politicians, officials and judges like bears to a honeypot. More interventions – higher taxes, more borrowing, price controls, trade protection – would follow. Some well-organised, politically connected minorities might benefit, but everybody else – the broad majority of ordinary people – would lose out.
What about trade-offs among all these “rights”? Advocates assume positive rights – a list as long as Jack the Beanstalk – are “free”. They are not: they all have economic costs. So should a relatively poor country like Sri Lanka trade-off better education for worse wages or housing? Or the other way round? Again, these are inherently subjective decisions; they cannot be subject to an objective rule. And where would it end? Shouldn’t rights extend to the constitutional right to happiness? That could mean all sorts of things, and invite never-ending interventions from a state “that knows best” to restrict individuals’ freedoms “for their own good”. This is the slippery slope to Hayek’s Road to Serfdom. It is also the road to collective destitution.
There are other practical objections. Judges are wholly incompetent to prescribe economic and social policy. How on earth would they know what wages to set, and what educational, housing and environmental standards to enforce? In a democracy, these are matters for public argument, elections and elected representatives’ decisions. Giving judges the final say would undermine democracy itself.
Finally, constitutionalising economic and social rights would centralise power even further. The powers of provincial and local councils would be clipped – at precisely the time when Sri Lanka needs a new constitution that decentralises power closer to the citizen.
Sri Lanka needs a new constitution that safeguards civic, political and economic freedoms. Many contribute to constitution-drafting. Some are political and legal experts, but economic literacy is conspicuously lacking. Some constitution-drafters say they are political liberals, but few, if any, are economic liberals. In fact most are economic collectivists. Some advocates of economic and social rights in the new constitution are unabashed socialists who disdain free markets and love command-and-control economics. Others are more sympathetic to a well-functioning market economy. All sing the hymn of Yahapalanaya.
I would ask self-professed liberals and good-governance activists to think again. Don’t be fellow travellers and useful idiots of diehard collectivists who want to take this back to the 1970s, when living standards were in precipitous decline, with bread queues and hunger marches. To repeat, economic and social rights in the new constitution is a terrible idea. I cannot think of a better way to promote bad governance. All clear-thinking, public-spirited citizens should oppose it.
