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Rights 14/12/17 (Fitzpatrick, Bengtsson & Watts 2014 Rights to…

- - - - The limits of legal rights to housing
        
        p115 There are some obvious reasons why enforceable legal rights to housing may be viewed as a progressive step in addressing homelessness. First and foremost, they may be seen as a preferred alternative to what Goodin describes as ‘more odious forms of official discretion’ (1986, p.232). Those who administer welfare goods or services such as housing have power over claimants because they have an effective sanction against them (Spicker, 1984), and it can be argued that legal rights-based approaches create a counter-hierarchy of power by giving service users a ‘right of action’ against service providers (Kenna, 2005). Rights-based approaches can thus be viewed as a bottom-up form of regulation that permits service users a central voice
        
        A second and linked argument is that providing welfare benefits such as housing as a matter of discretion stigmatises recipients, whereas receiving them as a matter of right does not. When service users are beneficiaries rather than rights holders, there is an implied debt of gratitude as the beneficiary is unable to honour the powerful norm of reciprocity. As such, the giver gains status, and the receiver loses it (Spicker, 1984). Rights-based approaches, it is argued, overcome this problem of stigmatisation (Dwyer, 2004) and safeguard the self-respect of welfare recipients (Rawls, 1971) because they reflect their equal status as citizens rather than their unequal status as dependants (Spicker, 1984)
        
        p116 BUT Enforceable legal rights such as a right to housing may be thought to contribute to the ‘juridification of welfare’, such that social policy becomes ‘over-legalised’, frustrating its fundamental purposes (Dean, 2002, p.157). There may also be practical limitations to legal rights-based approaches, with Goodin (1986), for example, highlighting the costs and difficulties faced by service users attempting to realise those rights
- - - - Rights in what sphere?
        
        Social
        
        Political
        
        Civil
      - What kind of rights?
        Fitzpatrick 2014: 7
        "instead of adopting Marshall’s potentially confusing (and oft misinterpreted) language of civil and social rights, we will use the more modern (and transparent) terms of legal vs. programmatic rights. While legal rights are enforceable by individual citizens in domestic courts (Fitzpatrick and Watts 2011), a programmatic approach to rights to housing “binds the State and public authorities only to the development and implementation of social policies, rather than to the legal protection of individuals”
        Fitzpatrick et al 2014: 6-7
        "Marshall himself takes housing to illustrate what he views as a critical conceptual distinction between “civil” and “social” rights. While civil rights are claims that must be met by the state in each individual case, with social rights:
        ... the obligation of the State is towards society as a whole, whose remedy in case of default lies in parliament or a local council, instead of to individual citizens, whose remedy lies in a court of law. (Marshall 1949/1964, 104–105)
        Thus, Marshall distinguishes between, on the one hand, the enforcement of individual citizens’“civil” rights to own property or to have their tenancy conditions respected, and on the other the “social” right of the citizenry as a whole to the general housing standard members of a society can legitimately expect"
        
        this is interesting because it opens up a debate about who constitutes society. Is it only the citizens, or others I.e. Non-citizens who also count? If the latter, then is the obligation still on the state to provide?
        
        Justiciable/Civil
        
        enforceable
        
        Fitzpatrick et al 2014: 7
        "Legal rights, on the other hand, provide an explicit “right of action” for individual citizens."
        
        In housing
        Fitzpatrick et al 2014: 8
        "Such enforceable rights to accommodation for those who lack it are far from common in the housing and homelessness field, and where they do exist they are almost always limited to emergency accommodation"
        Fitzpatrick et al 2014: 9
        "there are some obvious reasons why enforceable legal rights may be preferred to programmatic rights in the housing field. To begin with, those who administer welfare goods or services such as housing have power over claimants because they have an effective sanction against them (Spicker 1984), and it can be argued that legal rights-based approaches create a counter-hierarchy of power by giving service users a “right of action” against service providers (Kenna 2005). A second and linked argument is that providing welfare goods such as housing as a matter of discretion stigmatizes recipients, whereas receiving them as a matter of right does not."
        
        Link to citizenship
        Fitzpatrick et al 2014: 9
        "Approaches based on legal rights, it is argued, may overcome this problem of stigmatization (Dwyer 2004), and safeguard the self-respect of welfare recipients (Rawls 1971), because they reflect their equal status as a citizen rather than their unequal status as a client"
        
        Programmatic/Social
        
        not enforceable
        
        Fitzpatrick et al 2014: 7
        "As programmatic rights thus “express goals which political actors…agree to pursue” (Mabbett 2005, 98), such rights are best viewed as primarily “political markers of concern” Bengtsson (2001, 255)"
        
        Use of un-enforceable rights
        Fitzpatrick et al 2014: 14
        "human rights discourses retain a key strength. “The articulation of imperfect duties” (UNDP 2000, 26) encompassed in the human rights framework has been argued to constitute a discursive resource (Dean 2010, 9), with “rhetorical and agitprop merits … when it comes to exposition or to ‘consciousness raising’” (UNDP 2000, 24). From this perspective, human rights are “political instru- ments to mobilize dissent, protest, opposition and collective action aimed at social and economic reform"
    - - Contemporary understanding of human rights
        
        International Covenant on Economic, Social and Cultural Rights (ICESCR)
        Vizard, 2015: 44
        "The ICESCR is part of the International Bill of Human Rights, which, with its sister treaty the International Convention on Civil and Political Rights, sets out the core human rights that are recognized internationally. The ICESCR recognizes the right to an adequate living and freedom from hunger (article 11); the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (article 12); the right of everyone to education (article 13) and compulsory primary education, free of charge (article 14); the right to work (article 6); and the right to just and fair conditions of work (article 7) and the right to social security (article 9)."
        
        UN Universal Declaration of Human Rights
        Vizard, 2015: 42
        "The contemporary idea of human rights is embodied in the Universal Declaration of Human Rights (1948). This suggests that all individuals everywhere have basic entitlements to a core set of freedoms—civil, political, economic, social, and cultural—which should be secured on the basis of non- discrimination and equality, regardless of country, nationality, and citizenship, or characteristics such as gender, age, race, and ethnicity, or other characteristics or status"
        Fitzpatrick et al 2014: 11
        "While this resolution is not formally binding, it is considered a key part of international customary law and has provided the principal foundation for subsequent debate on universal human rights. "
        
        Widening scope of responsibility
        Vizard 2015: 57
        "Under international human rights law, national authorities have traditionally been viewed as being responsible for the implementation and enforcement of human rights. As Stiglitz notes, globalization requires both a downscaling of responsibility (for example, to cover non-state actors such as private companies) and an up-scaling of responsibility (to the global arena—for example, with more emphasis on collective responsibilities)."
        Fitzpatrick et al 2014: 11
        In addition to the UNUDHR: "Other international instruments do impose oblig tions on ratifying states, binding in international law, which are relevant to the right to housing. "
      - Human rights approach to disadvantage
        Vizard 2015: 45-46
        "Whilst the idea of human rights remains contested, the international human rights framework can still play an important role as a pragmatic starting point (p.46) for characterizing disadvantage in terms of the denial of a broad set of critical freedoms (civil, political, economic, social, and cultural), which are basic entitlements of all individuals everywhere, on the basis of non-discrimination and equality."
        
        Positive and negative duties
        Vizard 2015: 44
        "It has become increasingly accepted that all human rights—civil, political, economic, social, and cultural—give rise to positive duties on states to protect and promote human rights as well as negative duties on states to refrain from undermining human rights. This shift provides an important step in the development of a formal theory of human rights towards a substantive understanding of human rights that takes into account the things that in practice people can do and be (Vizard, 2006)"
        
        Rights and responsibilities
        Vizard 2015: 46
        "Human rights can also provide an analytical bridge between the idea of (dis)advantage and the concepts of responsibility, obligation, and accountability. Logically speaking, human rights are not simply descriptive characterizations of critical freedoms, but are linked to normative obligations on the part of others to guarantee the freedoms involved."
        "...The international human rights framework provides a starting point for addressing these questions and for developing an overall framework of accountability and responsibility for addressing poverty and multidimensional deprivation"
        
        Challenges
        
        Against positive duties or obligations
        
        Libertarian theories of justice e.g Nozick
        
        focus on negative obligations (Vizard, 2015: 47)
        
        Liberal theories of justice
        
        May argue that general deprivations do not give rise to duties; only perfect obligations which give rise to specific actions can give rise to human rights claims (Vizard, 2015: 47). More general goals are 'imperfect' obligations and cannot be effectively claimed or enforced.
        
        Alternative conception: negative obligation to avoid poverty
        
        "characterization of global poverty as a violation of negative duties. In Pogge’s ethical framework, the more advantaged (specifically, the global rich) are viewed as having stringent negative duties to refrain from supporting socio-economic
        arrangements that impede the fulfilment of basic social and (p.48) economic rights." (Vizard, 2015: 47)
      - Limitations
        Vizard, 2015: 58
        "a human rights approach is not the same as a full theory of substantive equality. Indeed, the idea of a human rights approach has been proposed by some as a minimum conception of justice"
        
        same issue as the capabilities approach
        
        Fitzpatrick et al 2014: 11
        "key problems with human rights – and their applicability in the housing and homelessness field – are considered here: their contested normative value and coherence, their lacking enforceability and their abstract nature."
        
        inc. value pluralism p12
    - - Citizenship and migration
        Shutes 2015: 263
        "Citizenship and immigration policies confer different rights on citizens of a country and non-citizens (foreign nationals), and different groups of non-citizens (EU citizens and non-EU citizens, high-skilled and low-skilled workers). Those rights include rights of entry to a country, entitlements to employment and state welfare provisions, and rights of residence."
        
        See ideas about 'earned citizenship' in Groups section on migrants
        
        The liberal paradox
        Dean 2011
        "Should migrants enjoy the same social rights as indigenous citizens? There is a fundamental tension - dubbed the 'liberal paradox' (Hollifeld 1992) - between individual freedom of movement on the one hand and the principles of national sovereignty on the other"
      - Citizenship as a precursor to social rights
        Shutes 2015: 268
        "According to Marshall’s conception of citizenship, with the expansion of welfare states during the twentieth century, citizens acquired social in addition to political and civil rights"
        Shutes 2015: 269
        "Underlying analyses of social rights and welfare regimes were the assumptions, first, that social rights should be granted on the basis of citizenship, and, second, that citizenship denotes equality of status and equality of rights among individuals."
      - Positive and negative citizenship rights
        Dwyer 2004: 276
        "The standard distinction made in relation to the triumvirate of citizenship rights is between “negative” civil and political rights on the one hand, and, “positive” social rights on the other. "
        
        Positive
        Dwyer 2004: 276-277
        "Supporters of “positive” social rights on the other hand hold that in modern capitalist societies this approach is not enough; agency requires “some minimum material provision — that is, some sort of right to welfare” (Griffin, 2000: 29)."
        
        Negative
        Dwyer 2004: 276
        "According to the negative view, the state’s duty is to promote civil and political rights which ensure agency by protecting individuals from interference from others. The emphasis here is on is on autonomy and liberty."
    - - Ways of understanding need: inherent vs interpreted
        Dean 2014
        "Human need can be conceived in a reflexive or systemic way as being inherent to
        the individual by dint of her humanity. Or else it may be conceived in an interpretive manner with reference to the experience of everyday life. Inherent conceptions of human need require an explicit or implicit theory of 'personhood' and translate into doctrinal understandings of social rights. Interpreted conceptions of human need may be culturally constituted or pragmatically formulated and translate into claims-based understandings of social rights"
        
        Inherent
        "Inherent conceptions entail a strong, if not hegemonically dominant, conceptual framework, that may be intellectually, ideologically or possibly religiously derived. They envisage the individual normatively: for example, as a utility maximizer pursuing her objective interests; as a market actor pursuing her subjective preferences; as a psychological subject responding to inner drives; as a human being striving to realize her humanity. Doctrinal understandings of rights correspondingly attribute rights to the dictates of God or Nature; or some legal code, moral logic or intellectual principle."
        
        Interpretive
        "Interpretive conceptions of need entail a hegemonically weaker or more flexible conceptual framework. Interpretation may occur as a matter of social custom or the conventions of everyday discourse and practice; or through the struggles of community activists; or it may be undertaken on behalf of the citizenry, for example, by responsive welfare professionals or policy makers. Claims-based understandings of rights correspondingly regard rights as the realisation of legitimate demands, or as achievements of struggle."
      - Linking them to the market
        Dean 2014
        "The right to have needs met is doctrinally conceived in that the efficacy of markets is believed to depend on principles of equal opportunity. Such a right arises selectively where it can be proved that a particular need exists and a particular benefit will result from meeting it."
  - - - But they are recognized as a framework from which to reference
        Vizard 2015: 56
        "In the British context, equality and human rights have an increasing role beyond the Courts—as the basis for public action, as elements of an overall regulatory framework, and as minimum standards in public policy. Equalities and human rights standards are referred to in a broad range of contexts from child poverty to medical neglect and poor treatment in public services."
  - - - Rejection of the reciprocity principle
        Dwyer 2004: 280
        "The reciprocity principle is also dismissed as seriously flawed. As Goodin notes the obligations that we have to each other should be more properly regarded as mutual rather than reciprocal.
        We each have obligations to the other, but those obligations are independent of one another. Consequently, my obligations toward you remain in force, even after you have defaulted on yours to me (Goodin, 2000 :8)"
- - - - Forms of social contract
        
        typologies discussed p33