The Journal of Things We Like (Lots)
Select Page
Steven L.B. Jensen & Charles Walton, Social Rights and the Politics of Obligation in History (2022).

The political and conceptual disagreements of the past are never quite buried; their excavation can do much to inform the present. So much is true in human rights, as demonstrated by an illuminating new collection on Social Rights and the Politics of Obligation in History, edited by Steven L.B. Jensen and Charles Walton. The book draws out the debates and positions taken with respect to economic and social rights, from a long history of medieval Christendom in Europe to indigenous peoples in South America and Africa, and to the 20th century attempts at international distillation exemplified by the Universal Declaration of Human Rights, the human rights treaties, and beyond. This broad history is accompanied by a complex understanding of obligation – religious, moral, cultural, social, legal–which helps deepen our understanding of human rights.

The thesis of the book, with sixteen robust and varied chapters, is twofold. First, the history of human rights has been distorted by the neat chronology of generations, whereby “second generation” rights to social security, education, food, health care, housing, and labor protections, succeeded the first generation of civil and political rights, with only the initial generation offering a mature, serious, and enforceable version of what gets to be labelled human rights. (Later environmental and collective rights have often been termed the “third generation” of human rights, with even more distance; a “fourth generation”, focused on new technologies, has also been posited.) Here, the contributors contest both the chronology and the neat categorizations themselves.

The second thesis of the book is that disagreements about human rights will always be mistaken without due attention to the parallel debates about obligations. Obligations are central; they are also heterogeneous. The book’s study therefore forces a highly contextual understanding of the role of the state, the place of religion, the assumptions made about the market and the family, and the challenges of taxation, administration, debt, and corruption.

On the book’s thesis itself: it should be acknowledged that the generations theory, of Karel Vašák or TH Marshall, was always a heuristic; and that the obligations conundrum was never far from social rights debates.1 Yet what the book achieves, by the force of careful detail, is an enormously insightful take on just how narrow and cartoonish our history has been. These chapters are not advocacy pieces–misery is never far from ambition; oppression tracks closely with human solidarity or progress. Yet neither does the book offer yet another reproach to the apparent naivety of those struggling with new vocabularies of emancipation or new focal points of struggle. Instead, this collection pulls off a feat rarely achieved in such collections: its variety helps deepen, rather distract from, its thesis. And just as the generations are problematized, so too are other legal or status categories–think gift, contract or property–as the promise of justice and rights flails in the context of war, colonization, or global capitalist disruption.

This jot is too short to provide a full review of this collection of histories; in short, chapters by Julia McClure, Dan Edelstein, Charles Walton, Philip Kaisary, Stephen W. Sawyer and William J. Novak and Nicolas Delalande offer important new evidence about the contributions made by religious discourses, economic revolutions, and regulatory technologies prior to the twentieth century. Rosie Doyle, Laura Frader, Bernard Thomann, and Scott Newton each engage in sharp, and heavily contextual studies, of states grappling distinctively with post-World War II social questions and social exclusions, including the (very different) acknowledgement of race, gender and class in Mexico’s liberation theology and indigenous rights, France’s post-war family politics, Japan’s welfare society, and the Soviet agenda and execution of it.

In the final part of the book, Samuel Moyn, Mark Goodale, Meredith Terretta, Christian Olaf Christiansen and Steven L.B. Jensen, and Philip Alston all explore how post-war internationalism was carried out far beyond the recently-elevated contradictions between equality or sufficiency (even Moyn debates his former self on this point) or the tensions between liberal, social-democratic, socialist, or religious ideals (with Communist states actively undermining economic and social rights). This section also offers an implicit rebuke to those who would freeze the meaning of human rights to the Universal Declaration of Human Rights, as an assumed highwater mark.2

In focusing on both rights and duties, Jensen and Walton (both historians, based at the Danish Institute for Human Rights and University of Warwick respectively) seek to fill a pervasive intellectual blind-spot. They acknowledge that the vectors of obligation can point in many directions, but do not thereby simply forfeit the conceptual enterprise. Instead, they have curated chapters which focus on different points in history and distinctive formations of state, empire, religion, civil society, corporations, families, and the individual. The mechanisms of law are highly varied; so too are whether private law or public law; judges or (more often) administrators; or justice or transformation offer the main responses.

For example, Julia McClure’s opening chapter of Part I begins with a 2016 case from Italy’s Supreme Court of Cassation, which made headlines when it exempted a homeless and destitute person from criminal sanction, after he had attempted to shoplift two pieces of cheese and some sausages. The man had taken the food, which amounted to 5 Euros, “in the face of an immediate and essential need for nourishment,” wrote the court, thus justifying the defense of necessity. (P. 30.) The case became emblematic of the failure of redistributive systems in the broader context of the European refugee crisis and the unpredictable activism of the courts. But as McClure makes clear, medieval tropes about obligations to the poor are deeply familiar. The rights of the poor have long provided the basis for avoiding prosecution, suspending penalties, and supporting active humanist claims upon the rich. Charity, for example, was not always associated with a “voluntary” obligation. This insight opens up a variety of legal implications, some spare and minimal but others more sweeping.3

In addition to this intellectual blind-spot, Jensen and Walton fill a cultural and political blind-spot: they explore how notions of obligation can, more effectively than violence, recast the moral and cultural question of “who owes what to whom”. Notions of freedom, coercion, and dignity take on particular resonance. In opening up this question, the editors draw on cultural anthropologist Marcel Mauss, writing in 1925, whose analysis of the gift relationship is suggestive as a complex statement of obligation, when he exhorts more “care for the individual” with attention to each person’s “life, his health, his education (which is, moreover, a profitable investment), his family, and their future”. Alongside this call, Mauss sought “more good faith, more sensitivity, more generosity in contracts dealing with the hiring of services, the letting of houses, the sale of vital foodstuffs. And it will indeed be necessary to find a way to limit the rewards of speculation and interest.” (P. 18.)

These understandings give us not just layers of history, but layers of useful complexity. Too often, evaluations of rights rest on limited legal formulas of base entitlements and state duties, and less on the privileges, immunities, and liabilities that can (but often do not) arise from conceptions like Mauss’. Perhaps for this reason, rights analyses often seem unable to survive contact with the intellectual threads woven by biopolitics, communal design, theology, macroeconomics, or economic sovereignty. And yet the editors have embraced each of these perspectives, and more. The collection makes for rich and indispensable reading.

Download PDF
  1. For past attempts at international legal classification, see Katharine G. Young, Rights and Obligations, in Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran & David Harris, International Human Rights Law (4th ed, 2022).
  2. On this recent international trend, which includes the U.S. Commission on Unalienable Rights, see Katharine G. Young, Human Rights Originalism, 110 Geo. L. J. 1097 (2022).
  3. This possibility connects with a spate of recent work in fields such as law and political economy and comparative constitutionalism: e.g. Anna Chadwick, Law and the Political Economy of Hunger (2019); Katharine G. Young, Constituting Economic and Social Rights (2012).
Cite as: Katharine Young, Social Rights and the Morals of History, JOTWELL (October 13, 2022) (reviewing Steven L.B. Jensen & Charles Walton, Social Rights and the Politics of Obligation in History (2022)), https://intl.jotwell.com/social-rights-and-the-morals-of-history/.