By Rodrigo Uprimny, CAMBIO, September 1, 2024
(Translated by Eunice Gibson, CSN Volunteer Translator)
In a new presentation in the series “Imagine Democracy”, the jurist and researcher at DeJusticia, Rodrigo Uprimny, in a column titled “Democracy, Liberty, and Social Justice; a Defense of the Social and Democratic Rule of Law”, approaches the complex debate that the world has put forward between liberalism and socialism.
Ever since the second half of the 19th Century and up until today, there has been a very forceful political argument about whether or not both liberal democracy and the search for justice can exist. This debate has sometimes been proposed as whether liberalism and socialism are confrontational or complementary, or a clash between classic civil rights that result from the liberal and bourgeois revolutions (like the right to privacy, property, free speech) and social rights (like the right to work, to education, to health, or to housing) that were vindicated by workers’ movements and the different expressions of socialism.
Simplifying, it’s possible to find four positions in this complicated argument that has heated up political confrontations in the 20th century, and that has not ceased.
In the first place, we find the neoliberal position, sometimes self-denominated libertarian, founded on a radical individualism that considers the protection of individual liberty and of limited government, which are the essence of liberalism, to be incompatible, not just with socialism, but also with social rights. This makes it necessary to suspect and generally to oppose any redistributive policy that seeks social justice.
Thus, that current defends a limited vision of democracy: one that centers on protecting the so-called “negative” liberty or purely liberal for those people. That is, it’s possible for them to act without any interference at all, whether by the government or by other individuals. And property is seen as a decisive element to protect that negative liberty to the extent that it offers the individual a reserved orbit where he can act autonomously. So then the essential function of the government is to protect and shelter that negative liberty and its essence, which is property.
Those perspectives see in the market an optimal mechanism for social regulation, because it represents a spontaneous order that permits the maximization of personal liberty, since all interactions are performed consensually. There the government must protect free private initiative, and protect contracts and property, so as to protect a harmonious performance of the market which, by the famous invisible hand postulated by Adam Smith, at the same time permits better collective wellbeing.
Commencing with those suppositions, these visions consider that a just society is one where the government protects these interactions of the market, defending people against violence, robbery, and fraud. For Robert Nozick, for example, a just society respects the rules regulating appropriation of property and its transmission, no matter the result these transactions could produce.
These positions conclude then, that every redistributive policy is unjust, because it includes the government’s transfer of property from one owner’s hands to those of others, without the consent of those being affected, which is a violation of individual liberty. And it leads to an authoritarian government, where the only way to achieve nonconsensual transfers of property is to impose it by force: the strengthening of government power to the detriment of individual liberty is thus seen as inevitable. Thus, these focuses are the enemies of social rights, as those are seen as incompatible with individual liberty and destructive of the liberal order: “The Road to Slavery”, isthe title of the well-known book by Friedrich Von Hayek, the father of modern neoliberalism.
Leninist Visions
In the second place we find the radical and Communist left, especially the one whose roots are found in Leninism which, paradoxically, shares a basic premise with neoliberalism: that social justice is incompatible with liberalism, because while neoliberalism is founded on private property and individualism, which are the bases of the capitalist economy, sharing the exploitation of the working classes and producing inequality and poverty.
However, these Leninist visions reach a conclusion that’s contrary to neoliberalism, as they believe it’s impossible to achieve social justice within the framework of capitalism, which is a means of production founded on the extraction of capital gains from salaried workers by the owners of the means of production. It’s necessary thus, because of those focuses, to overcome capitalism if we want a society that is just and free of exploitation, which can only be obtained by the socialization of the means of production. Therefore, whoever defends social justice, which the best socialism does, has to be opposed to liberalism, which, as Lenin would say, protects bourgeois liberties, especially the right to property, and that makes socialism impossible.
Therefore, in their most orthodox tradition, the leftist currents close to Leninism thought it was necessary to overcome liberal democracy, characterized by representation, property, and individual liberties, in order to replace it with the dictatorship of the proletariat (in Lenin’s original pronouncement), or with forms of direct democracy based on workers’ councils or associations similar to those of the Soviets in the Bolshevik revolution.
The Liberal Ideal
Along with the two previous visions that see liberal democracy as incompatible with the search for social justice, we find two others that differ from that approach, because they don’t see an unresolvable contradiction between liberal democracy and social justice; on the contrary, they think they are compatible and mutually necessary.
In these visions, the liberal ideal is that the government protects our autonomy so that our way of developing our life plan makes sense and should be maintained. But they believe that individualistic liberalism that defends a market without any restrictions is insufficient, because it’s insensitive to social inequalities and material privation. Thus, for the great majority, the recognized liberties are not real because people living in misery are not going to be able to realize their potential. Thus, liberalism’s promise of equal liberty for everyone can only be obtained if at the same time social rights are guaranteed effectively; not only civil and political rights that include taking redistributive measures to reduce extreme inequalities and eradicate poverty, so that everyone can exercise their liberties effectively.
Nevertheless, these currents believe that the conquest of social justice only brings a sense of emancipation if it preserves individual liberties and democratic processes; thus these visions reject Leninism and fight against everything authoritarian.
Ideological Traditions
Those currents that see continuity between liberalism, democracy, and social justice are very diverse and include at least two variants.
On the one hand (and it’s the third position on the relationship between democracy and social justice), we find democratic socialism, defended by writers like Jean Jaurés of France, or Gerardo Molina in Colombia. They seek to overcome capitalism (and so they call themselves socialists), but preserving democracy and individual liberty politically, so their socialism is democratic and not authoritarian like that of Lenin.
Gerardo Molina, in his notable and unjustly forgotten book, “The Progress and Destiny of Liberty”, written in the ‘50’s, suggested that the individual liberties of liberalism and the liberation from material privations as proposed by the socialists are complementary. So he defends a democratic socialism respectful of the Rule of Law, as he believed that genuine socialism was “a direct son of liberalism” that perfected it by overcoming its limitations. Molina was not unaware of the tensions between those ideological traditions, but he believed they could be harmonized creatively into a form of democratic socialism that should be conquered and defended through democratic liberties, thus explaining his rejection of the “dictatorship of the proletariat”.
On the other side we find more moderated postures that accept capitalism but always when it is progressive and egalitarian. It’s the fourth posture and defends a form of social constitutionalism in the framework of the market economy.
An example is Stiglitz’s most recent book that even with its title, “The Road to Freedom”, seems to be a response to the neoliberal postures of writers like Von Hayek, and attempts to defend a capitalism that’s capable of achieving social justice and satisfying social rights. These postures are proposing a harmonization of the market economy with a guarantee of social rights, in the framework of democratic government; this is social constitutionalism.
In this book, he defends the fourth alternative, so he commences by discarding the socialist alternatives that are understood as the overcoming of capitalism by socializing the means of production. I’m very skeptical about that possibility, not just because of the poor results of past and existing socialist experiences, but also because of a theoretical reason that I share with writers like Piketty, believing that Marxism has not given a satisfactory answer as to how to organize a society where private capital is totally abolished without falling into social and economic totalitarianism. That’s why I think that the market and private property play a necessary and positive role in modern democracies and post-industrial economies. But that doesn’t mean, not at all, defending neoliberalism. That appears unacceptable, not just philosophically but also because of the effects of its results.
At the philosophical level, I think that the reduction of human liberty to negative liberty, as neoliberalism does, is questionable for at least two complementary reasons which have been highlighted in different ways by writers like Van Parijs, Amartya Sen, or Francisco Cortés in this country.
On the one hand, the radical neoliberal conception is blind to the social conditions that really permit enjoyment of liberty, as it’s obvious that, without certain material means it’s not possible to exercise certain rights, even when those rights are recognized by our systems, and neither others nor the government are trying to interfere with my actions. So, to use a hackneyed example, in spite of the fact that the government doesn’t prohibit people from traveling to foreign countries, it’s obvious that anybody who doesn’t have the money to pay for transportation, in practice, he isn’t permitted to leave and enter the country. So the formal recognition of a right is not sufficient if a person doesn’t have the material means to exercise it.
On the other hand, these perspectives have not served to justify consistently why it’s ethical to respect the current distribution of resources and property. Thus, writers like Nozick think it’s fair that that whole situation may be the result of behaviors that have respected the rules of appropriation of things and circulation of property by free exchange. Nevertheless, these writers have not been able to formulate a respectable principle of appropriation. The rule used most often to justify initial ownership of natural goods is something like the concept occupied by ancient Roman law where the person who obtains a thing for the first time has the right to keep it. But that principle, if it’s applied rigorously, leads to moral scandals.
Suppose a person occupies the only water source that exists in a desert. According to the principle of appropriation, we would have to conclude that that person could legally allow everyone else living in the region to die of thirst, or he could impose any price for a glass of water. This would be a conclusion that very few would be disposed to accept. To be precise, to avoid such “moral horrors”, even a radical neoliberal like Nozick accepts the so-called “Lockean clause”, according to which the original acquisition by occupation does not operate if the appropriation of a good affects the rights of third parties negatively. In such events, Nozick concludes, so that the acquisition of a good that is in short supply may be possible, those affected must receive adequate compensation. That way the principle of appropriation maintains a certain respectability by avoiding morally scandalous consequences like famines, but at the risk of undermining its own bases because, as is stressed by Sen and Van Parijis, that once we have admitted that property ownership can be limited to avoid extreme social injustice, it’s no longer clear what might limit ownership and the negative liberty represented in redistributive policies.
The staunch defense of minimalist government and the radical respect for property ownership is thus unsustainable philosophically, because it includes acceptance of situations that not only do serious harm to real liberty and personal dignity and don’t achieve the development of all a person’s potential and capacity; rather they erode the quality of democracy. Who could reasonably deny that the lack of food, health care, housing, or education does harm to human dignity and thereby diminishes people’s capacity to be free and to function as autonomous citizens? That has been understood for 200 years by writers as diverse as Rousseau and Adam Smith.
The first of them pointed out, in “The Social Contract”, that the exercise of democratic liberty supposes a minimum of actual equality, so that “no citizen will be rich enough to buy another citizen, and no citizen will be poor enough to have to sell himself”. For his part, Smith indicated, in “The Wealth of Nations”, that the satisfaction of certain needs, such as food or clothing, is indispensable, not only to assure people’s physical survival, but also so that they have “the capacity to appear in public without blushing”.
In addition to the foregoing, the economic and social effects of neoliberalism are questionable. Because of lack of space, I won’t approach that aspect in this column, and I’ll limit myself to recalling that the neoliberal globalization and the policies aiding it, although they permitted some growth and reduction of poverty in some countries, were accompanied by a profound increase in inequality and made workers’ situations precarious. That’s serious because inequality, as Richard Wilkinson and Kate Pickett demonstrated in their best seller in England, “The Spirit Level”, the countries with greater equality have better results in nearly every field than those that are more unequal, noting violence, life satisfaction, health, life expectancy, drug abuse, or interpersonal confidence. And social mobility is greater in those more equal countries, such as the Nordic countries, than in those where inequality has increased, like the United States. That has shown that the so-called “American Dream” that anyone can achieve success by his own efforts, now has a much greater probability of accomplishment in Denmark or Sweden.
Besides that, inequality has lowered the quality of democracy, not only because it feeds populist authoritarians, but also because it has permitted the excessive and inappropriate influence of the money of the most powerful in election processes. It’s enough to point out that deterioration in the United States. Because of all that, I’m a supporter of a market economy, but not of a market society, which, at its base, is a neoliberal aspiration. The market has to be domesticated by democracy and framed by social and environmental rights.
A genuine constitutional democracy thus supposes the recognition of at least three types of constitutional rights: rights that defend against the government, so as to protect the autonomy of individuals, to protect them from arbitrary government, which are the liberal rights; the right to equal political participation, or rights to political citizenship that have their clearest expression in the universality of the vote; and finally, some material guarantees that make up a fate of “social citizenship” because only if those rights exist can a citizen be free and equal, with the capacity to take part in democratic deliberation. And at its base, that is the social and democratic Rule of Law established in our Constitution.