The right way to think about social and economic rights

The Universal Declaration on Human Rights, which we celebrate every December 10th, offers both a powerful and beautiful statement of what it means to be human and the goals we should pursue as a society. But the Declaration is an incomplete guide to designing the programs to meet these goals: it offers inspiration to advocates, but not a guidebook for pragmatists.

Pragmatists and policy makers need to read the Universal Declaration through the lens of economists, rather than don the robes of lawyers.

If the economic method is a science, then many have, with good reason, called it the dismal science, but if it were theatre then it would surely be a tragedy. The idea that social and individual decisions involve trade-offs between competing ends is one of the first principles of this dismal science, the core subtext of its script. We cannot have it all, and tragically have to choose.

Human rights advocates may do a disservice to their goals by ignoring this lesson. When they argue that the courts should enforce social and economic rights and pursue their objectives solely through adjudication, they risk not only wasting important political capital, but just as importantly implementing wasteful and unsustainable programs.

Scarcity defines the economic way of thinking

Scarcity is a simple idea, yet it has major implications.

If, as individuals or as a society, we have multiple objectives, and if our desires for these goals exceed the time and resources that can be used to attain them, then given that these resources can be used in different ways it matters how we allocate them. It matters because our goals differ in their significance.

We have to choose, we have to recognize the terms of the trade-offs between the choices available to us, and we have to do this in a way that gets us as much as we possibly can from the scarce resources available to us.

The economic way of thinking gives us guideposts for making these choices, most notably that we should pursue an objective up to the point that the additional benefit we get from taking an extra step toward it just equals the additional cost in all the things we have to give up in making that step.

Economics certainly should not inform all public policy discussions.

But when it should and doesn’t, the decisions made are usually done from an overly short-term perspective, are not mutually consistent, generally have hidden or unintended consequences, and are not sustainable in the long-term.

Civil and political rights are matters for the courts, not the economist

Economic reasoning should not inform public policy if the issue is fundamentally not one of scarcity. Human rights are a case in point when they are defined as civil and political rights, as for example in parts of the Universal Declaration on Human Rights.

For example, Articles 3 to 21 of the Declaration deal with political and civil rights to which everyone is entitled. These range from rights to life, liberty, and security—prohibiting slavery, servitude, the slave trade, torture and cruel, inhuman, or degrading treatment or punishment—to rights to a fair trial, freedom from arbitrary arrest, and rights to freedom of movement, privacy, and freedom of thought and religion as well as rights to political participation.

A right entails a duty, and therefore involves not just the right holder, but also an agent who is responsible and held accountable for upholding the right. The right is inherent to the individual, the duty is required of the state. The International Covenant on Civil and Political Rights accompanies the Universal Declaration, and is the legally binding instrument associated with these rights.

Rights of this sort are considered “universal and indivisible”: they are absolute and non-conflicting. As such there is no preferential ranking among them: some rights are not held with more importance than others. It is not as if a government can permit arbitrary arrest and torture because, for example, security is more of a priority, and still claim it is respecting human rights. So in a sense we are not talking about multiple goals, but rather confront only a single objective.

Furthermore, the duty required by the state is often considered a “negative duty,” as an obligation to refrain from an action. As such the resources required to undertake these duties are in comparative abundance. In the extreme no resources are required to refrain from undertaking an activity. Negative duties can be performed simultaneously without being limited by scarce resources.

In other words, none of the conditions motivating choice as an economic problem seem to hold. This is not an exercise in trade-offs. It does not entail opportunity costs. As a result, if a right is compromised it is a matter of adjudication, there is a need to make the duty-holder accountable through the law. A right, is a right, is a right; it holds for all people, in all places, at all times; it is upheld or it isn’t; and the legal obligation to uphold it is immediate and absolute.

Economic and social rights are different, they require resources that could be used in different ways

But all of this is not the case when we address economic and social rights, which entail “positive duties.” The International Covenant on Economic, Social, and Cultural Rights and other covenants like, for example, the Convention on the Rights of the Child speak to rights of this sort.

Economic, social, and cultural rights entail the duty-holder to undertake actions, to offer assistance or aid. For example, the International Covenant on Economic, Social, and Cultural Rights states that, among other things, governments will recognize the right of everyone to health care, to education, and to an adequate standard of living. In some cases it is very specific about the actions that governments must undertake as, for example, in Article 13, which addresses the right to education:

The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

In fact, the framers of the Covenant recognize that it may not be feasible to simultaneously fulfill all positive obligations, and that they may be subject to resource constraints. Article 2 establishes the nature of the legal obligation by stating that a signatory is committing to taking steps to fulfill its obligations “to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

At its core this is describing an economic problem: “maximum of available resources” and “progressive realization” imply that the positive obligations should be a priority of government spending, but also that resource constraints may not imply immediate fulfillment of the obligation.

The economic way of thinking accepts the validity of these rights as an expression of a social goal, but not as a method to attain them. In particular, “the adoption of legislative measures” may be necessary or not, but it is certainly not sufficient. A right is a right, for all people, in all places, at all times. But in the face of multiple priorities and limited resources passing a law does not make it so immediately and everywhere. These goals still require the design of effective and sustainable programs.

The wrong way to think about social and economic rights

Yet when it comes to acts of public policy informed by this objective it is sometimes the case that the lessons and implications of decision-making under scarcity are not appreciated.

Consider an example involving investments in education in a document published by the United Nations Development Program. The document, called “Poverty Reduction and Human Rights“, is meant as a “practice note,” a practical guide for field staff that is intended to inform and guide their policy making from a rights perspective.

After outlining the principles underlying a human right-based approach to poverty reduction—one of which is universality and indivisibility—it offers the following practical example concerning human rights and support for education.

Studies have traditionally shown that the rate of return on public investment in primary education is higher than on post-primary schooling. Government and donors have a limited amount of funds available to support the education sector. If new studies would to [sic] show that post-primary education yields higher returns, would they make a difference?

The market logic would re-direct funds toward higher levels of education, as this provides the highest rate of return. The human rights-based logic, on the other hand, would be unaffected by these results. Government has the responsibility—the International Covenant on Economic, Social and Cultural Rights (article 13)—to respect, protect and fulfil the right to basic education. The article states, “Primary education shall be compulsory and available free for all”. Hence, the results of the new studies would not really matter as to the priority objective. Primary education is a fundamental right and entitlement; it would keep the highest level of priority focused on basic education even if the rate of returns to such public investment would be lower than other options.

This can only make any economic sense if society has one goal, or if resources are unlimited. But it makes no economic sense in the context defined by the authors: “limited amount of funds.” To invest in primary education without regard to its marginal return, even to the point of driving it to zero, wastes resources that could be used to pursue other goals that have a higher marginal benefit. This higher benefit would increase society’s surplus and in the future lead to more resources that could be allocated to other goals.

That we have to choose between primary and higher education, between the rights of children and others, or that we do not have sufficient resources to meet these rights immediately is unfortunate and some would say even a tragedy, but to do otherwise and not make these choices in a rational way is not only a tragedy but also a waste.

[ This post is an excerpt drawn from my text book, An Introduction to the Dismal Science of Economics for Those Interested in more Noble Pursuits, available as an incomplete draft here (pdf). ]