Professor Nehal Bhuta's Inaugural Lecture Recording of Professor Nehal Bhuta's Inaugural Lecture View media transcript Welcome everyone to the inaugural action of my friend and colleague, Professor Nehal Buta. I welcome the women in Law sco, but also to those who have come from beyond those who come for me. My name is D Walker. I'm the regs professor of law here in Lawcoo. That's my pleasure and honor to introduce Nehal Dt. Nehal is only the second holder of the established chain of the International law following solder in 1994. Though as Neva will explained to you due course, that does not mean as interesting Illustrious district in this area. So let me get to some brief details about Na his career at his intellectual focus. His academic career started in his Native Australia, where he gained the first class honors degree in law at the University of Melbourne in 1999. Various filtering prizes followed, including the Jessep World Championship club for international Booty, a prestigious chip in Australia defer Judge, and following a move to New York in the early 90s further degrees in both politics and law. Was in that period that he worked both for Human Rights Watch and International Center for criminal justice before taking up his first full time academic post as an assistant professor at the Faculty of law at the University of Toronto in 2007. In 2009, he moved back to New York and briefly out of the circle of Legal Academia, case, taking up a position as an assistant professor in International Affairs at the New School for Social Research. In 2012, he moved back to laws fishing both countries and continents to take up the position of Professor of Public International law at European University Institute of Florence. Leading Graduate School of Social Sciences. I'm just saying that because. He eventually found his way to Era and his present chair in 2018, and also to the institution and the co directorship of the center of International Global Law. Like so many things over the last four years, his inaugural lecture has been somewhat delayed, the victim of long COVID, so to speak. The lecture, that is a hist not the lecture. But as you will see when he starts speaking, even over a long time coming, the lecture is now in good health and has been worth the wait. Now, it says in lecture publicity notes that Neha works on a wide range of doctrinal, historical and theoretical issues in international law, international humanitarian law, international criminal law, and human rights law. All of that and more is certainly true. He has written extensively in all of these registers, doctrinal, historical, and theoretical, and in all of these areas. Indeed, on a crud count, he has well over 60 publications, many leading journals and collections. He's also been a very influential editor and effective international entrepreneur in all of these areas, responsible for a wide variety of initiatives with various leading publishers, including O UP and CP. Yet that bare description of his versatility hardly does injustice. I like to think that Nato's true passion and excellence lies in his fascination with the long pre modern and modern history of the Transnational development move and interaction of legal and political ideas, many of which do take the form of pic international law, which are by no means exhausted by that form. And I will add Namal histories are always also histories of the present. His concerns are never merely academic, but always also with how long historical processes frame our contemporary condition and inform the challenges we currently face. Today's lecture, recovering social rights is, I think, a perfect example of this is defending and offers a particularly telling history of the present. So without further ado, I invite Professor Wu to take the floor to deliver. Thank you to Professor Walker for this very kind production. And thank you to all of you, colleagues and friends. And members of the Enbugh Law School community for turning out on, I suppose, what could be charitablely called a bright evening in Edinburgh, if not, particularly warm spring morn. Now, I had originally written in my remarks that I was pleased to be able to welcome this evening my wife, doctor Nia Lamont. But unfortunately, she is being unable to attend because she had to have a dental procedure this morning that's left her feeling unfortunately indisposed. But I would like to say in reference to her that And our time together in occupied Iraq 20 years ago was without doubt a turning point in my life, and our in many ways, improbable pathways, respectively from Australia and Palestine to New York, Toronto, Florence, and now Edinburgh is testament to a true personal and intellectual partnership. Our sons, Nadim and had, are not here this evening, having been spared the oral of listening to me talk about pouring work stuff for an hour straight. And but despite that, you'll notice that at some point in my presentation, my oldest son Nadim has made a contribution by having created one of my chats. So I'm grateful to both of them for that. So I started this inaugural with two puzzles before entering into the principal subject of my discourse this evening. The first rather practical perplexity is what exactly is this inaugural for? The lack of a satisfactory answer would have the benefit of allowing us to start on the drinks reception immediately. So I feel compelled to attempt to justify the otherwise 60 minute delay. In common usage, inauguration marks an assumption of office you inaugurate presidents, governments, et cetera. But this usage does not seem to me to be at all act to my election tonight. As Neil pointed out, I took up this chair almost five years ago. And this is in no sense thus am I a new office holder. As will be known to many here, The root of inaugurate is Agora. In contemporary Italian, it means to wish well or to celebrate. In Latin, however, it seems most closely connected to Agoro to perform the services of an algo. That is a priest or soothsayer of ancient Rome, who takes augurs. Orgo makes prophecies by interpreting omens. Agurs were taken to read the disposition of the gods in relation to a significant human endeavor, such as the planting of crops or going to war. In order to improve, enhance, org the results. To inaugurate is to proceed with blessings after having discerned positive moments. It is a ritual of consecration, which, as any anthropologist will tell you, is also a ritual of authorization, confirming one's rightful authority in this case, to make claims to know certain things. Now, this meaning seems to amplify Nietzsche's scathing claim that the authority of the professor is little more in a degenerate form of the authority of priests and prophets of small and diminishing significance at a time where knowledge is thoroughly despised. This self serving act of consecrating my own authority seems to me also a rather weak justification for continuing to speak. Perhaps a different etymology, less demanding in terms of what it seeks to achieve, is more helpful. The Latin alga is arguably derived from the Sanskrit and Aditan root of God to show or to make known. Thus, all I can really hope to do in my remaining time is to show or make known a point of view on the emergence of the present, a point of view which could allow us to begin certain projects and understandings anew. Perhaps under a favorable sign, which portends progress in thinking. The chair which I hold was established by a resolution of University courts in late 1993. It was advertised and filled. It was advertised and filled with the first incumbents. Professor Alan Boyle. Commencing his duties in 1994 until his retirement in 2017. This is the University Bulletin announcing the 14 new chairs and advertising their incumbents. You'll notice that it dated 1994, but I think it's fair to say that the moustaches and hairstyles say otherwise. Looking into the University archives, and here I must acknowledge with great gratitude, the assistance of our wonderful archivist, Rachel Posca. It seems that the chair was created as part of the University wide expansion of established chairs. This was made possible by and I pause here in Mild estment, and 11.4% budget increase in the University's general budget, precipitated by the decision of the newly formed Scottish higher education funding Council. One such chair was allocated to the faculty of law, and in a note dated of August 19 93, Then CR Monroe reported the faculty's decision that it should be a chair of public international law because it is a subject area in which Enburgh has long had some strength, and at times a personal chair, end of quote. So this leads me to my second inaugural puzzle. Oxford, Cambridge, UCL, and Kings, established chairs of public international law in the second half of the 19th century. And LSC, I believe, established its chair in international law or sometime shortly after World War two. So why was Ember so late to the party in the creation of a chair of public international law? Based on a review of the University of calendar and some archival material found with the assistance of Rachel. I think there are three distinct reasons. I can't expand on the results of this inquiry, which has been quite fascinating, but in telegraphic form, we can observe the following. First, that 1862-1967, 105 years, international law was taught Ex Cathedral from the Regis chair of the Law of Nature and the Law of Nations. Which actually leads me to think that Neil should be delivering my international law and two lectures this semester. Until 1922, the Regis chair would teach 40 lectures in the Philosophy of law in first term and 40 lectures in public and private international law in the second term. After 1922, the chair taught one term of jurisprudence and two terms of international law each academic year. 1945-1967, the chair taught two terms of jurisprudence and one term of public international law. After 1967, the Regis Chair ceased to teach international law. Second, between roughly 19701983, the Department of International Law was created and led by In McGin. McGibbon was formerly a lecturer at the regis Chair, and it seems to me that he was probably the one actually teaching international law in the 1950s and 60s, or at least in the 1960s, rather than the holder of the chair Professor Archie Campbell. In 1967, McGibbon was awarded the only personal chair of any description in the faculty, a personal chair of International Law. Up until that time, as far as I can tell from the records, there were no personal chairs at all. They were only the five established chairs. McGibbon became dean of the faculty in 1968. And over the 1970s and early 80s, the Department of International Law had up to five full time faculty in any given year, including McGibbon, Kabir man Khan, Alice Monkman, Patricia Berne, Tony Carty, Denny Driscoll, Bill Gilmore, and Steve Neff. Thus, it was only after McGibbons retirement in 1983, that the lack of a chaired professor in international law became sad. I'd like to observe that 1983 was the year that Steve now Professor Neff joined our faculty. And thus 2023 marks the 40th continuous year of his service. Steve can't be here this evening. He's on Sabbatica and has gone down to London, but he did tell me that after McGibbons retirement, international law shrunk to only three full time faculty, and there was some discussion as to whether or not they should continue to teach international law at all, whether the department should be abolished. Now, at a time of scarce resources for the university, he says that himself, Kabir Khan, and Bill Gilmore, would periodically gently remind the faculty of the desirability of a permanent chair in international law. So it seems they persevered and ultimately were successful once the University resources were increased. But thirdly, and finally, my review of University records has revealed that the law faculty in 1929 was offered the equivalent of 3.5 million pounds by Montague Burton to create the Montague Burton share of International Peace. The Regis chair at the time, a former advocate named William Wilson, not WA Wilson, the private lawyer, protested vigorously. He clearly regarded international law as his exclusive demands. And the opportunity for a permanent full time endowed chair was passed over by the university. So much then for the international board chair that never was. Let us now turn to the main subject of this evening's lecture, a reflection on the past and present of social rights. We live in an epoch of widening inequality of wealth and income. These two charts generated from the world inequality database show the ste rising income and wealth share of the top 10% of income and wealth holders over the last 40 years. This is income, and this is wealth. As is well known, this age of increasing inequality comes on the heels of an unprecedented diminishment of inequalities of wealth and income in the advanced capitalist world 1945-1975. The product of the high watermark of the social state. The varieties of post war social democracy were many, but rested on strong trade unions, mass education, high taxes, and large government transfers. It is the unraveling of this political economic settlement, which is closely associated with the return to late 19th century levels of wealth and income inequality, stagnating or declining real incomes for all but the top decile of income earners, and declining measures of social mobility. In the United States, notes economic historian Adam Ts, 1977-2014, the share of national income going to the top 1% had risen by 88.8%. While the share of the bottom 50% declined from 25.6% to 19.4%. A 2017 City Bank report registers rising inequality as a core concern in the industrialized world, which is undermining social cohesion, trusting governance, and underwriting perceptions of declining opportunity. Inequality not only creates conflicts between those at the top and those at the bottom, what we would once have referred to as class war. It also creates a conflict at every step of the social ladder by elongating the social distance between the poles of the hierarchy and increasing status competition for all. Status anxiety. The sense that one's previously recognized social value and esteem is being driven down before one's eyes due to diminishing life possibilities has been theoretically and empirically linked with support for radical anti system political movements. In 2015, well known human rights legal scholar and activist, Philip Bolton lamented that extreme equality and its consequences we should be seen as a cause for shame on the part of the international human rights movement, and that questions of resources and redistribution can no longer be ignored as part of human rights advocacy. But behind this lament, which many self professed human rights advocates would agree with, is also a puzzle. Our epo of rising inequality has also been our epoch of flourishing human rights, law, and politics. The salience of human rights as an esperanto of denunciation and as a repertoire for claim making and political and social change experiences its breakthrough from around 1970. A striking trend for our purposes is that the constitutional entrenchment and judicial enforcement of economic and social rights has also flourished since the end of the Cold War. This is the chart made by my son, Lin. You'll notice something about the chart. It's a time series which shows two points in time, 2000 2016. Almost every one of these economic or what could be labeled social rights increased in its level of constitutionalization and. More constitutions included these rights, and more of those constitutions explicitly made these rights justiciable by a court. Yet the tangible consequences of such developments on the redistribution of resources have thus far been marginal. Chilton and sti in a 2017 paper conclude that constitutionalizing the right to education or the right to health does not change the amount of money governments spend on these public goods. Nor does it correlate positively with improved outcomes. Dickson and Landau, in a 2019 paper, point out that the courts enforcing economic and social rights showed little interest in using social rights in promoting social transformation, and that there is evidence that that judicial remedies for social enforcement benefit middle income groups over the porest or most marginalized. For those who have always been skeptical of the power of legal norms to substantially shift fundamental economic and social dynamics, the parallel rise and rise of both inequality and human rights after 1970 represents one big fat marxist. I told you so. And indeed, when consulted by Unesco in 1947 about the place of social and economic rights. In a proposed Universal Declaration of Human rights, Western Marxists and socialists were skeptical. Hey and Levy, Dean of the Royal College of Science at the Imperial College London and British Communist Party Member, contended, expressing abstract ethical principles would be ineffective unless there was an underlying commitment to the physical and material conditions that may make the emergence of these rights in practice a real possibility. In other words, rights lag, not lead, the kind of social and economic change needed to redistribute resources and tame the inequality generated by capitalist society. While Serbino Maxis, influential post war British sociologist, Thomas Humphrey Marshall, In researching Thomas Humphrey Marshall, I discovered that he's one of the only people I've ever found who seemed to quite enjoy being a prisoner of war in the First World War. He wrote letters back to his family explaining what a wonderful place was, and how much fun he was having and how much time to de i you think. But anyway, Thomas Humphrey Marshall reached a compatible conclusion in his famous 1950 essay on citizenship and social class. For Marshall, social rights represented the terminus at Quem of the long historical process of the construction of the modern idea of citizenship and equality. Civil equality came first, expressed in equal civil rights, followed by political equality and equal political rights, and then ultimately, social equality, expressed as social rights. Crucially, for our purposes this evening, this compelling narrative, I should say, not overly burdened by any actual historical inquiry, placed social rights as an emendation and expression of an existing welfare state, which combine central planning with communal fellowship. The theoretical consequences of this influential historical assertion were significant. The social state was the Conditioinqu non of the reality of social rights. Taking to its logical conclusion, this historical theoretical claim for how to think about social rights could be formulated as follows. That within a mid century global embrace of the state as an interventionist agent of economic management, provider of public goods, and supplier of services from telecommunications to healthcare, economic and social rights represented a kind of shorthand summary of the expected outcomes of an ambitious project of egalitarian national citizenship. This project rested on a theory of national states as robust and effective collective agents that not only mitigated the effects of national and global market capitalism, but remade and contained it in order to achieve, create, and maintain a stable political and economic order. One, which aimed to manage, if not permanently resolve, the critical contradictions inherited from capitalism's anxious triumph in the 19th century. Contradictions between the rising tide of mass democracy and egalitarian demands between decentralized decision making and price setting, and the purposive allocation of resources to provide social goods, raise living standards, and prevent miseration, and between capital owners and wage earners over income shares. Now, if this historical and conceptual account is right, then the implications are devastating for those who look to human rights law a positive legal doctrine as an essential means through which to tackle inequality. Nobody has formulated and made explicit the implication more sharply and politically than Professor Samuel Boyne of Yale. His 2018 book, not enough, Drew on Marshall and many others to throw down historical and theoretical gauntlets to those who believe in hope that that the international legal norms of social rights are adequate to the challenge of inequality. To paraphrase Mine's argument, it goes something like this. The international ification of economic and social rights was symptomatic of a political, economic and social metrics of forces which lay elsewhere. Rights concepts are unable to bring about the welfare status presuppositions of their egalitarian possibilities. As those presuppositions are eviscerated from 1970 onwards, social and economic rights lose their connection with the political economy upon which they lean. Reduced to merely juristic concepts. They cash out as claims of sufficiency, which operate as boundary concepts for the legality of this or that policy. But are untethered from the programmatic structural commitment which was inscribed in the purpose of the social state as a juridical and material order. To put it aporitically, in a way that Moin does not, the social state made social rights. But social rights cannot remake the social state after its 40 year retrenchment. The result of this profoundly deflationary analysis, the result is a profoundly deflationary analysis. Contemporary social rights as international and constitutional human rights are unthreatening to increasing levels of inequality because they are at best palliative and accommodation towards the dominant political economy of the age. They do not confront the widening gap between rich and poor and instead play Moin, a defensive minor role in pushing back against the new political economy of neoliberalism end quo. For Moin, this diagnosis of the limited utility of economic and social human rights is enough to warrant an aspiration and prediction that human rights might lose their imaginative neo monopoly as a framework for reform. So I hope it has become clear by now that a great deal is at stake in how we grasp the history of social rights. Indeed, history has generally become a crucial battleground for how we think about what work human rights can do for us in the present. Is there an argument to be made, historically speaking, that social rights were in the past and thus could now be more than the mere summations of what we expected an existing welfare state to do for us? As C Quentin Skinner put it recently in an interview, maybe what we need to explore is the possibility that some of the ways in which we used to think about our moral and political concepts may be more fruitful and more helpful to our current purposes than the way we are currently thinking about. Believe this particular suggestion has force in respect of social rights. That is, it is possible to discern in the history of these legal political concepts, a way of thinking a way of thinking about them, which is more apt to confront the challenge of inequality, and which also demonstrates the concepts potential to be a political ethical and not merely legalistic, language which energizes and authorizes a vision of human society adequate to the present. But via auditor The history and concept of rights in occidental political thought is a treacherous string. It is a wide and deep topology of legal and political discourses, which, since about 1,200 AD has profoundly shaped our vocabularies of politics, law, ethics, and economics. Within this sea of possible precursors, singular origin stories are, of co impossible. Although origin stories are always important rhetorical devices to sanctify or discredit our present. Instead, we should think of the circumstances of appearance or growth of discourses of social rights as moments of a curve and Senko and find, emergence and invention that are assembled to articulate, explain, describe, defend, and justify certain political economic projects after 1,700. To try and put this argument concisely and punctually and also to stay within a reasonable span of time, I would be somewhat schematic in the balance of this lecture. The claim I wish to make is that discernable in the history of rights discourses in 18th and 19th century, France and England is something that I've labeled collective natural rights ideas. In the course of the 19th century, these collective natural rights discourses became an important nacula for the critique of the consequences of the commercial and industrial revolutions, what we would now call capitalism. One of the outgrowths of these rights claims was, in fact, the articulation of a concept of the state which would organize economic activity in order to ensure a society that was not riven by radical inequality. This state concept was what we would now call a social state. The demand for social rights in these 19th century discourses was not in the mode of a legal right against the state to be litigated before courts. Rather, it was a demand for a new kind of state. What late 19th century writers would start to call the positive state or the social state. So what were collective natural rights? The political legal language of collective natural rights was at its most basic, a claim structure about what a just social and political order owes to its members in order that they not be reduced to a condition equivalent to the definition of slavery in Roman law. A t order was a non tyrannical order, where tyrany encompassed both political tyrany and radical deprivation of means. Political tyranny and drastic inequality of means were understood to have the same consequence, destroying the libertas of a people as a whole and as individuals. Such a people in this theory were no longer free and thus were subjected to the will of another, the Roman legal definition of a slave. The radical thought of the English Revolution combined the natural right of self propriety, ownership over oneself as the condition City ion of liberty with a natural jurisprudence of common endowment, which challenged the injustice of enclosure and the concentration of agricultural lands, and the legitimacy of unconstrained private property accumulation more generally. This articulation of sovereignty as an emanation of the body of the people, brought with it the correlative supposition that equal shares of political authority imply fair shares of material resources essential to livelihoods. Political justice required the means to not be subjected to the arbitrary will of those with vastly superior means, let radical unfreedom return through the back door of the polity in the form of concentrations of land and livelihoods in the hands of a few. Part and parcel of this collective natural right topos was the problematic of distribution, especially of land as a critical lets test for the conformity with requirements of natural justice. The 19th century chartist movement in England, Wales, and Scotland would return to the language of natural rights to make collective claims for political and social fair shares. They challenged the uninterrupted exclusion of the property lists from political franchise in Britain, maintaining that the transition to political society preserved those natural rights, which conduced to a cooperative and democratic society of equals. A political order which did not protect those rights failed to meet the requirements of natural jurisprudence. Cardinal among them was the right to vote. But it would be a mistake to read this, as I suspect TH Marshall did, as the demand for some kind of pure political right to electoral participation. Part and parcel of this demand was the idea that participation in political power required and would entail a means of common livelihood, which did not compel members of society to subject themselves to the tyrannical power of those who controlled the means by which labor could earn a decent living. The litany of social and economic grievances of a generation who had been exposed to the first industrial revolution, who were overworked, or unemployed, ill paid, badly housed, deskilled, exploited and suffering from what was seen as the effects of the wig class legislation of the 1830s was claimed to be the result of an unnatural monopoly of political power, which enabled the unnatural concentration of economic means, depriving labor of its natural right to the fruits of its work. On this narrative, the political despotism of the property in class s led directly to an economic despotism that destroyed the livelihoods of working people and rendered them unable to exercise the self propriety necessary for natural liberty. Political tity reproduced economic tity. The correction of political inequality demanded and was expected to result in the correction of economic inequality on behalf of the social whole. Thus, the editor of the poor man's guardian, an underground paper which sold around 16,000 copies a week at its peak, declared in 18 35, Names will tell you that it is because you have no property that you are unrepresented. I tell you on the contrary, it is because you are unrepresented that you have no property. Universal Suffrage, what Marshall would have called the second phase of political right after civil right, but before social right, was, in fact, linked from the outset to a demand for a fair share of the political and social hole. To end the possessing classes monopoly on legislation was to turn legislation into a means of restoring to the unfranchised what was due to them as a matter of justice. Not just fair wages, but also as set out in the Charter of London Democratic Association in 18 37, abridgement of the hours of labor in factories and workshops, the total abolition of labor, and the destruction of inequality. At the 18 38 Cs More meeting, which reportedly attracted around 100,000 people in support of the chartists. Popular Northern Minister JR Stevens declared the right to vote to be a knife and fork question after all. He said, this question of universal suffrage was a knife and fork question after all. This question was a bread and cheese question. And if any man were to ask him, Stevens what he meant by universal suffrage, what he meant by universal suffrage, he would answer that every working man in the land had a right to have a good coat to his back, a comfortable abode in which to shelter himself and his family, a good dinner upon his table, and no more work than was necessary for keeping him in health, and as much wages for that work as would keep him in plenty and afford him the enjoyment of all the blessings of life, which a reasonable man could desire. Now, what's interesting for our purposes is the framing of a critique of the social and economic consequences of capitalism within a language of natural right that can be understood as collective and constitutional and which imperatively unites the achievement of democratic egalitarian citizenship and the protection of natural liberty with the taming of monopolies of political and economic power. Particular kinds of entitlements and demands, food, housing, education, a certain level of comfort or leisure, are expressions in this register of a natural social law that must be guaranteed and reproduced through the conscious political and economic decisions of an authorized collective agent, the state, to deliver justice in respect of the social harms flowing from the concentration of money and property in the hands of a few implied a reorganization of economic authority and a redistribution of the fruits of labor. The resulting rand of social right is a natural jurisprudence for the dispossessed and non possessing classes, which demanded both liberty in the sense of self propriety and justice in the sense of giving each their due as a part of the whole. A right to one's own Became a right to a fair share, in order to protect against the real risk in market society, that one's own became so disproportionately engrossed, and Anos became so drastically diminished, that public power ceases to be so and becomes the arbitrary private will of individuals, the classical definition of corruption itself. In France, after 17 99, the grammar of social rights as collective natural rights would have an enduring influence in Republican and proto socialist responses to the so called social question and to the liberal concern with limiting universal suffrage. This influence would not be in the form of a direct enumeration of rights as legal entitlements. Instead and more powerfully, a renewed appropriation of Jacob rhetoric of natural social right and Republicanism combined with a critique of the observed dynamics of market society to outline a concept of the Democratic social state as governor and regulator of private property and private economic rights. The Society of the Rights of Mn, a Parisian political club founded in 18 33 to revive Jacoban political ideas, Dreing Sanimonians, and Fuists, early socialists, but also a new generation of radicals for whom the labor question was the political question of the Epoch. The demand to regulate and govern the destructive competition of market society and assure to labor a just share of the value of the product of labor was articulated by Neo Jacobin writers, such as Bloc and God, in terms of a right to work. This was not a positive legal right claimed against the state. It was an idea of right, which expressed an order of political, social and economic relations that amended or replaced the ruthless dynamics of competition in a market society. In Considers articulation, the right to work was a natural right preserved within society that reflected the right of man to benefit from the common pool of wealth made possible by the creation of society and produced through labor. The right to work both entailed both a right to subsistence by restraining the ruthless competition and profiteering considered responsible for the admisration of labor, and the right to adjust share of the whole by regulating the conditions under which labor was performed and rewarded, including by reorganizing the structure of production into labor associations and cooperatives under the supervision of the state. The Nir Jacobin went on to have a decisive influence on the political discourses surrounding the 18 48 revolutions in France and beyond. Their ideas retain the fundamental structure of what I have called collective natural rights thinking. In so far as they anticipated the realization of natural rights within society through the creation and intervention of a unified public power. The fundamental purpose and nature of this power was reflected in its Democratic constitution as a Republic, through universal suffrage. The Democratic Constitution of the Republican state, within this collective natural rights grammar, entailed the rights and need to organize or rather reorganize social and economic relations through legislative power in order to end the exploitation of labor and prevent the destruction of social solidarity through the excessive accumulation of wealth. A Blanc, for example, argued that men could have no other goal in forming societies to mutually protect themselves against the undertakings of the most cunning, the most audacious, and the strongest. In this way, the idea of the state is born precisely from the need to protect against tyrany, But included in Blondes typology of tyrany was the tyrany of property over non proprietors, which is worse than that of the Anson Regime despots. Since it is polymorphous, and invisible, holds no one to account, evolves in a framework of legal equality and dons the mask of liberty, allowing each of society's members to enjoy what he or she has required. The Democratic state, that's the end of the quote. The Democratic state must be placed above such individual tyranies, in order to constitute the real path to liberty. Its social power being necessary for the development of an authentic individualism, one that enables each person to design and shape his or her own existence without succumbing to the will of others. The demand for a right to work in this period, in this context, was framed in the vernacular of a natural constitutional right. But it's better grasped as a cynic doh for the construction and authorization of a collective agent in the form of a democratic social state, which would solve the social question through a wide range of interventions and management of economic and social relationships. In 18 43, Long blos the right to work as a collection of correlative duties to the healthy citizen, the state owed work. To the old and infirm, it owed aid and protection. To the young, it owed free and obligatory education. This is all the natural extension in his view of the concept of the right to work as a means of organizing a political economy. Feminist, Jean Dar oi, argued in the short lived pine, which was a magazine that existed between January and August 18 49, that the basic right to life entailed the right to develop one's capacities through equal education for all, the right to work, access to all social functions. Society itself was based on three principles, the right to consume, through the redistribution of the fruits of labor of all, according to the needs of each and the necessities of his trade. The right to work through the distribution of the instruments of labor needed to produce to each according to his trade in proportion to the means of consumption, and the right to make sovereign decisions through the equal contribution of all without sex distinctions regarding the means and fruits of labor. Even as French, German, Hungarian and Austrian revolutions of 18 48, tragically, all ended in failure, marginalization, exile, imprisonment, even death, for many of those protagonists, so Bog, for example, went into exile here in the United Kingdom, and his papers are still held in the British library. The historian Christopher Clark reminds us that the political and ideological consequences of these political and social revolutions were felt, like a seismic wave through European administrations, changing structures and ideas, bringing new priorities into government or reorganizing old ones, reframing political debates. Many radicals and conservatives moved inwards from the fringes to affiliate with centrist groups close to state authority, bringing with them new ideas about what the state was for. Perhaps one of the most powerful new ideas brought to the center of politics by the mid century Unrest was one indebted to the collective natural rights idea described above. Both English Chartim and Neo Jacoban Republican socialism invoked a notion of collective right as an expression of an imminent order of justice to be imperatively realized within society and at the same time as a principle subtending the authority and legitimacy of the collective agent duty bound to realize that order, the state or government. Common remote languages was another critical implication. That democratic political equality required the rigorous restraint of economic inequality, entailing the suppression of the frontier between the political as the reign of the collective will and the economic, as the realm of the uncoordinated pursuit of individual interests. This logic of social rights paved the way for a new conceptualization of what the state was for and how it could be made to be that way in reality. A conceptualization that would ultimately shape the theory and practice of the state and its economic and social functions for the next hundred years. A influential early formulation of the idea of the social state was provided by German law professor and state theorist, Lorenz Stein. Later Lorenz onstin, that he was ennobled by the Austrian Emperor. Stein had closely followed the writings of Blanc and the Neo Jacobin in France and indeed befriended some of them during his stay in Paris in 18 41 and 18 42. Writing in the immediate aftermath of the 18 48 revolutions, Stein argued that the Neo acaban demand for social rights, like the right to work required the creation of social democracy. If I'm not mistaken, I think he might have coined the term social democracy, in which the social dependence of the working class was overcome through the role of the state in advancing social equality. Starin grasped that the realization of social rights required more than assistance to the need. It entailed the state becoming a powerful agent of economic organization by managing class conflict, distributing a share of economic prosperity and providing what we would now call public and social goods. In order to realize the right to work, he concluded, the state would have to become, not only the highest administrative power, but also the greatest capitalist. D. Stein would go on to become the most influential figure in public law, administrative law, and state economic law in 19th century Europe. His work inspired the creation of the field of social policy and social economics through the formation of the Vera Foti, whose academic members would in turn go on to train the first generation of American economists, most of whom did their PhDs in Heidelberg. These economists, the Americans, in turn, advanced theories and arguments about the necessity of a positive state as economic regulator, redistributor, and planner, in the US context, and trained the generation of economists who would then shape the new deal. Stein also directly influenced Bismarck's famous program to create the state provided sickness Insurance and old age pension. In his speech to the DT introducing legislation, Bismarck explained the legitimacy of such provisions by invoking them as the realization of the right to work. I have elaborated in this lecture on one of the ways in which we used to think about and use the concept of social right, and pointed to some evidence concerning the ways in which these concepts of social right, in fact, helped us conceive of and imagine the social state. What I have called collective natural rights endowed us with a claim structure for a fair share of political and economic order. Specific rights claimed in this register included the right to work, the right to subsistence, and the right to the product of one's labor. Once graded with an analysis of capitalism and the nature of social conflict between classes, this claim structure engendered a variety of possible answers. One such possibility was brilliantly articulated in the form of a state theory and state concept, an Spontin. This state theory would have a global impact, shaping the first constitutionalizations of social rights in the Mexican and ima Constitutions in 1917 and 1919, the world's first social Democratic constitutional charters. What is noticeable about the place of social rights in these constitutions is that they have functioned as axios of political and legal order that articulated fundamental theorems about what the state was for and how it ought to be made that way in reality by the political and social movements of the time. Such a state was a public power representing the whole of society, which submits economic rationality and the market to a different order of values by organizing it. Inherent in these rights, inherent in these rights claims was also a notion of what the nature of social freedom within the state amounted to. Positive equality enabling the development of the human personality in solidarity with others as political and social equals. The challenge for our time is whether this profoundly political ethical ideal can be recovered and renovated as the animating principle of a social state which realizes social rights. Thank you very much. Feb 19 2025 14.41 - 14.41 Professor Nehal Bhuta's Inaugural Lecture Edinburgh Law School presents: The Inaugural Lecture of Professor Nehal Bhuta
Professor Nehal Bhuta's Inaugural Lecture Recording of Professor Nehal Bhuta's Inaugural Lecture View media transcript Welcome everyone to the inaugural action of my friend and colleague, Professor Nehal Buta. I welcome the women in Law sco, but also to those who have come from beyond those who come for me. My name is D Walker. I'm the regs professor of law here in Lawcoo. That's my pleasure and honor to introduce Nehal Dt. Nehal is only the second holder of the established chain of the International law following solder in 1994. Though as Neva will explained to you due course, that does not mean as interesting Illustrious district in this area. So let me get to some brief details about Na his career at his intellectual focus. His academic career started in his Native Australia, where he gained the first class honors degree in law at the University of Melbourne in 1999. Various filtering prizes followed, including the Jessep World Championship club for international Booty, a prestigious chip in Australia defer Judge, and following a move to New York in the early 90s further degrees in both politics and law. Was in that period that he worked both for Human Rights Watch and International Center for criminal justice before taking up his first full time academic post as an assistant professor at the Faculty of law at the University of Toronto in 2007. In 2009, he moved back to New York and briefly out of the circle of Legal Academia, case, taking up a position as an assistant professor in International Affairs at the New School for Social Research. In 2012, he moved back to laws fishing both countries and continents to take up the position of Professor of Public International law at European University Institute of Florence. Leading Graduate School of Social Sciences. I'm just saying that because. He eventually found his way to Era and his present chair in 2018, and also to the institution and the co directorship of the center of International Global Law. Like so many things over the last four years, his inaugural lecture has been somewhat delayed, the victim of long COVID, so to speak. The lecture, that is a hist not the lecture. But as you will see when he starts speaking, even over a long time coming, the lecture is now in good health and has been worth the wait. Now, it says in lecture publicity notes that Neha works on a wide range of doctrinal, historical and theoretical issues in international law, international humanitarian law, international criminal law, and human rights law. All of that and more is certainly true. He has written extensively in all of these registers, doctrinal, historical, and theoretical, and in all of these areas. Indeed, on a crud count, he has well over 60 publications, many leading journals and collections. He's also been a very influential editor and effective international entrepreneur in all of these areas, responsible for a wide variety of initiatives with various leading publishers, including O UP and CP. Yet that bare description of his versatility hardly does injustice. I like to think that Nato's true passion and excellence lies in his fascination with the long pre modern and modern history of the Transnational development move and interaction of legal and political ideas, many of which do take the form of pic international law, which are by no means exhausted by that form. And I will add Namal histories are always also histories of the present. His concerns are never merely academic, but always also with how long historical processes frame our contemporary condition and inform the challenges we currently face. Today's lecture, recovering social rights is, I think, a perfect example of this is defending and offers a particularly telling history of the present. So without further ado, I invite Professor Wu to take the floor to deliver. Thank you to Professor Walker for this very kind production. And thank you to all of you, colleagues and friends. And members of the Enbugh Law School community for turning out on, I suppose, what could be charitablely called a bright evening in Edinburgh, if not, particularly warm spring morn. Now, I had originally written in my remarks that I was pleased to be able to welcome this evening my wife, doctor Nia Lamont. But unfortunately, she is being unable to attend because she had to have a dental procedure this morning that's left her feeling unfortunately indisposed. But I would like to say in reference to her that And our time together in occupied Iraq 20 years ago was without doubt a turning point in my life, and our in many ways, improbable pathways, respectively from Australia and Palestine to New York, Toronto, Florence, and now Edinburgh is testament to a true personal and intellectual partnership. Our sons, Nadim and had, are not here this evening, having been spared the oral of listening to me talk about pouring work stuff for an hour straight. And but despite that, you'll notice that at some point in my presentation, my oldest son Nadim has made a contribution by having created one of my chats. So I'm grateful to both of them for that. So I started this inaugural with two puzzles before entering into the principal subject of my discourse this evening. The first rather practical perplexity is what exactly is this inaugural for? The lack of a satisfactory answer would have the benefit of allowing us to start on the drinks reception immediately. So I feel compelled to attempt to justify the otherwise 60 minute delay. In common usage, inauguration marks an assumption of office you inaugurate presidents, governments, et cetera. But this usage does not seem to me to be at all act to my election tonight. As Neil pointed out, I took up this chair almost five years ago. And this is in no sense thus am I a new office holder. As will be known to many here, The root of inaugurate is Agora. In contemporary Italian, it means to wish well or to celebrate. In Latin, however, it seems most closely connected to Agoro to perform the services of an algo. That is a priest or soothsayer of ancient Rome, who takes augurs. Orgo makes prophecies by interpreting omens. Agurs were taken to read the disposition of the gods in relation to a significant human endeavor, such as the planting of crops or going to war. In order to improve, enhance, org the results. To inaugurate is to proceed with blessings after having discerned positive moments. It is a ritual of consecration, which, as any anthropologist will tell you, is also a ritual of authorization, confirming one's rightful authority in this case, to make claims to know certain things. Now, this meaning seems to amplify Nietzsche's scathing claim that the authority of the professor is little more in a degenerate form of the authority of priests and prophets of small and diminishing significance at a time where knowledge is thoroughly despised. This self serving act of consecrating my own authority seems to me also a rather weak justification for continuing to speak. Perhaps a different etymology, less demanding in terms of what it seeks to achieve, is more helpful. The Latin alga is arguably derived from the Sanskrit and Aditan root of God to show or to make known. Thus, all I can really hope to do in my remaining time is to show or make known a point of view on the emergence of the present, a point of view which could allow us to begin certain projects and understandings anew. Perhaps under a favorable sign, which portends progress in thinking. The chair which I hold was established by a resolution of University courts in late 1993. It was advertised and filled. It was advertised and filled with the first incumbents. Professor Alan Boyle. Commencing his duties in 1994 until his retirement in 2017. This is the University Bulletin announcing the 14 new chairs and advertising their incumbents. You'll notice that it dated 1994, but I think it's fair to say that the moustaches and hairstyles say otherwise. Looking into the University archives, and here I must acknowledge with great gratitude, the assistance of our wonderful archivist, Rachel Posca. It seems that the chair was created as part of the University wide expansion of established chairs. This was made possible by and I pause here in Mild estment, and 11.4% budget increase in the University's general budget, precipitated by the decision of the newly formed Scottish higher education funding Council. One such chair was allocated to the faculty of law, and in a note dated of August 19 93, Then CR Monroe reported the faculty's decision that it should be a chair of public international law because it is a subject area in which Enburgh has long had some strength, and at times a personal chair, end of quote. So this leads me to my second inaugural puzzle. Oxford, Cambridge, UCL, and Kings, established chairs of public international law in the second half of the 19th century. And LSC, I believe, established its chair in international law or sometime shortly after World War two. So why was Ember so late to the party in the creation of a chair of public international law? Based on a review of the University of calendar and some archival material found with the assistance of Rachel. I think there are three distinct reasons. I can't expand on the results of this inquiry, which has been quite fascinating, but in telegraphic form, we can observe the following. First, that 1862-1967, 105 years, international law was taught Ex Cathedral from the Regis chair of the Law of Nature and the Law of Nations. Which actually leads me to think that Neil should be delivering my international law and two lectures this semester. Until 1922, the Regis chair would teach 40 lectures in the Philosophy of law in first term and 40 lectures in public and private international law in the second term. After 1922, the chair taught one term of jurisprudence and two terms of international law each academic year. 1945-1967, the chair taught two terms of jurisprudence and one term of public international law. After 1967, the Regis Chair ceased to teach international law. Second, between roughly 19701983, the Department of International Law was created and led by In McGin. McGibbon was formerly a lecturer at the regis Chair, and it seems to me that he was probably the one actually teaching international law in the 1950s and 60s, or at least in the 1960s, rather than the holder of the chair Professor Archie Campbell. In 1967, McGibbon was awarded the only personal chair of any description in the faculty, a personal chair of International Law. Up until that time, as far as I can tell from the records, there were no personal chairs at all. They were only the five established chairs. McGibbon became dean of the faculty in 1968. And over the 1970s and early 80s, the Department of International Law had up to five full time faculty in any given year, including McGibbon, Kabir man Khan, Alice Monkman, Patricia Berne, Tony Carty, Denny Driscoll, Bill Gilmore, and Steve Neff. Thus, it was only after McGibbons retirement in 1983, that the lack of a chaired professor in international law became sad. I'd like to observe that 1983 was the year that Steve now Professor Neff joined our faculty. And thus 2023 marks the 40th continuous year of his service. Steve can't be here this evening. He's on Sabbatica and has gone down to London, but he did tell me that after McGibbons retirement, international law shrunk to only three full time faculty, and there was some discussion as to whether or not they should continue to teach international law at all, whether the department should be abolished. Now, at a time of scarce resources for the university, he says that himself, Kabir Khan, and Bill Gilmore, would periodically gently remind the faculty of the desirability of a permanent chair in international law. So it seems they persevered and ultimately were successful once the University resources were increased. But thirdly, and finally, my review of University records has revealed that the law faculty in 1929 was offered the equivalent of 3.5 million pounds by Montague Burton to create the Montague Burton share of International Peace. The Regis chair at the time, a former advocate named William Wilson, not WA Wilson, the private lawyer, protested vigorously. He clearly regarded international law as his exclusive demands. And the opportunity for a permanent full time endowed chair was passed over by the university. So much then for the international board chair that never was. Let us now turn to the main subject of this evening's lecture, a reflection on the past and present of social rights. We live in an epoch of widening inequality of wealth and income. These two charts generated from the world inequality database show the ste rising income and wealth share of the top 10% of income and wealth holders over the last 40 years. This is income, and this is wealth. As is well known, this age of increasing inequality comes on the heels of an unprecedented diminishment of inequalities of wealth and income in the advanced capitalist world 1945-1975. The product of the high watermark of the social state. The varieties of post war social democracy were many, but rested on strong trade unions, mass education, high taxes, and large government transfers. It is the unraveling of this political economic settlement, which is closely associated with the return to late 19th century levels of wealth and income inequality, stagnating or declining real incomes for all but the top decile of income earners, and declining measures of social mobility. In the United States, notes economic historian Adam Ts, 1977-2014, the share of national income going to the top 1% had risen by 88.8%. While the share of the bottom 50% declined from 25.6% to 19.4%. A 2017 City Bank report registers rising inequality as a core concern in the industrialized world, which is undermining social cohesion, trusting governance, and underwriting perceptions of declining opportunity. Inequality not only creates conflicts between those at the top and those at the bottom, what we would once have referred to as class war. It also creates a conflict at every step of the social ladder by elongating the social distance between the poles of the hierarchy and increasing status competition for all. Status anxiety. The sense that one's previously recognized social value and esteem is being driven down before one's eyes due to diminishing life possibilities has been theoretically and empirically linked with support for radical anti system political movements. In 2015, well known human rights legal scholar and activist, Philip Bolton lamented that extreme equality and its consequences we should be seen as a cause for shame on the part of the international human rights movement, and that questions of resources and redistribution can no longer be ignored as part of human rights advocacy. But behind this lament, which many self professed human rights advocates would agree with, is also a puzzle. Our epo of rising inequality has also been our epoch of flourishing human rights, law, and politics. The salience of human rights as an esperanto of denunciation and as a repertoire for claim making and political and social change experiences its breakthrough from around 1970. A striking trend for our purposes is that the constitutional entrenchment and judicial enforcement of economic and social rights has also flourished since the end of the Cold War. This is the chart made by my son, Lin. You'll notice something about the chart. It's a time series which shows two points in time, 2000 2016. Almost every one of these economic or what could be labeled social rights increased in its level of constitutionalization and. More constitutions included these rights, and more of those constitutions explicitly made these rights justiciable by a court. Yet the tangible consequences of such developments on the redistribution of resources have thus far been marginal. Chilton and sti in a 2017 paper conclude that constitutionalizing the right to education or the right to health does not change the amount of money governments spend on these public goods. Nor does it correlate positively with improved outcomes. Dickson and Landau, in a 2019 paper, point out that the courts enforcing economic and social rights showed little interest in using social rights in promoting social transformation, and that there is evidence that that judicial remedies for social enforcement benefit middle income groups over the porest or most marginalized. For those who have always been skeptical of the power of legal norms to substantially shift fundamental economic and social dynamics, the parallel rise and rise of both inequality and human rights after 1970 represents one big fat marxist. I told you so. And indeed, when consulted by Unesco in 1947 about the place of social and economic rights. In a proposed Universal Declaration of Human rights, Western Marxists and socialists were skeptical. Hey and Levy, Dean of the Royal College of Science at the Imperial College London and British Communist Party Member, contended, expressing abstract ethical principles would be ineffective unless there was an underlying commitment to the physical and material conditions that may make the emergence of these rights in practice a real possibility. In other words, rights lag, not lead, the kind of social and economic change needed to redistribute resources and tame the inequality generated by capitalist society. While Serbino Maxis, influential post war British sociologist, Thomas Humphrey Marshall, In researching Thomas Humphrey Marshall, I discovered that he's one of the only people I've ever found who seemed to quite enjoy being a prisoner of war in the First World War. He wrote letters back to his family explaining what a wonderful place was, and how much fun he was having and how much time to de i you think. But anyway, Thomas Humphrey Marshall reached a compatible conclusion in his famous 1950 essay on citizenship and social class. For Marshall, social rights represented the terminus at Quem of the long historical process of the construction of the modern idea of citizenship and equality. Civil equality came first, expressed in equal civil rights, followed by political equality and equal political rights, and then ultimately, social equality, expressed as social rights. Crucially, for our purposes this evening, this compelling narrative, I should say, not overly burdened by any actual historical inquiry, placed social rights as an emendation and expression of an existing welfare state, which combine central planning with communal fellowship. The theoretical consequences of this influential historical assertion were significant. The social state was the Conditioinqu non of the reality of social rights. Taking to its logical conclusion, this historical theoretical claim for how to think about social rights could be formulated as follows. That within a mid century global embrace of the state as an interventionist agent of economic management, provider of public goods, and supplier of services from telecommunications to healthcare, economic and social rights represented a kind of shorthand summary of the expected outcomes of an ambitious project of egalitarian national citizenship. This project rested on a theory of national states as robust and effective collective agents that not only mitigated the effects of national and global market capitalism, but remade and contained it in order to achieve, create, and maintain a stable political and economic order. One, which aimed to manage, if not permanently resolve, the critical contradictions inherited from capitalism's anxious triumph in the 19th century. Contradictions between the rising tide of mass democracy and egalitarian demands between decentralized decision making and price setting, and the purposive allocation of resources to provide social goods, raise living standards, and prevent miseration, and between capital owners and wage earners over income shares. Now, if this historical and conceptual account is right, then the implications are devastating for those who look to human rights law a positive legal doctrine as an essential means through which to tackle inequality. Nobody has formulated and made explicit the implication more sharply and politically than Professor Samuel Boyne of Yale. His 2018 book, not enough, Drew on Marshall and many others to throw down historical and theoretical gauntlets to those who believe in hope that that the international legal norms of social rights are adequate to the challenge of inequality. To paraphrase Mine's argument, it goes something like this. The international ification of economic and social rights was symptomatic of a political, economic and social metrics of forces which lay elsewhere. Rights concepts are unable to bring about the welfare status presuppositions of their egalitarian possibilities. As those presuppositions are eviscerated from 1970 onwards, social and economic rights lose their connection with the political economy upon which they lean. Reduced to merely juristic concepts. They cash out as claims of sufficiency, which operate as boundary concepts for the legality of this or that policy. But are untethered from the programmatic structural commitment which was inscribed in the purpose of the social state as a juridical and material order. To put it aporitically, in a way that Moin does not, the social state made social rights. But social rights cannot remake the social state after its 40 year retrenchment. The result of this profoundly deflationary analysis, the result is a profoundly deflationary analysis. Contemporary social rights as international and constitutional human rights are unthreatening to increasing levels of inequality because they are at best palliative and accommodation towards the dominant political economy of the age. They do not confront the widening gap between rich and poor and instead play Moin, a defensive minor role in pushing back against the new political economy of neoliberalism end quo. For Moin, this diagnosis of the limited utility of economic and social human rights is enough to warrant an aspiration and prediction that human rights might lose their imaginative neo monopoly as a framework for reform. So I hope it has become clear by now that a great deal is at stake in how we grasp the history of social rights. Indeed, history has generally become a crucial battleground for how we think about what work human rights can do for us in the present. Is there an argument to be made, historically speaking, that social rights were in the past and thus could now be more than the mere summations of what we expected an existing welfare state to do for us? As C Quentin Skinner put it recently in an interview, maybe what we need to explore is the possibility that some of the ways in which we used to think about our moral and political concepts may be more fruitful and more helpful to our current purposes than the way we are currently thinking about. Believe this particular suggestion has force in respect of social rights. That is, it is possible to discern in the history of these legal political concepts, a way of thinking a way of thinking about them, which is more apt to confront the challenge of inequality, and which also demonstrates the concepts potential to be a political ethical and not merely legalistic, language which energizes and authorizes a vision of human society adequate to the present. But via auditor The history and concept of rights in occidental political thought is a treacherous string. It is a wide and deep topology of legal and political discourses, which, since about 1,200 AD has profoundly shaped our vocabularies of politics, law, ethics, and economics. Within this sea of possible precursors, singular origin stories are, of co impossible. Although origin stories are always important rhetorical devices to sanctify or discredit our present. Instead, we should think of the circumstances of appearance or growth of discourses of social rights as moments of a curve and Senko and find, emergence and invention that are assembled to articulate, explain, describe, defend, and justify certain political economic projects after 1,700. To try and put this argument concisely and punctually and also to stay within a reasonable span of time, I would be somewhat schematic in the balance of this lecture. The claim I wish to make is that discernable in the history of rights discourses in 18th and 19th century, France and England is something that I've labeled collective natural rights ideas. In the course of the 19th century, these collective natural rights discourses became an important nacula for the critique of the consequences of the commercial and industrial revolutions, what we would now call capitalism. One of the outgrowths of these rights claims was, in fact, the articulation of a concept of the state which would organize economic activity in order to ensure a society that was not riven by radical inequality. This state concept was what we would now call a social state. The demand for social rights in these 19th century discourses was not in the mode of a legal right against the state to be litigated before courts. Rather, it was a demand for a new kind of state. What late 19th century writers would start to call the positive state or the social state. So what were collective natural rights? The political legal language of collective natural rights was at its most basic, a claim structure about what a just social and political order owes to its members in order that they not be reduced to a condition equivalent to the definition of slavery in Roman law. A t order was a non tyrannical order, where tyrany encompassed both political tyrany and radical deprivation of means. Political tyranny and drastic inequality of means were understood to have the same consequence, destroying the libertas of a people as a whole and as individuals. Such a people in this theory were no longer free and thus were subjected to the will of another, the Roman legal definition of a slave. The radical thought of the English Revolution combined the natural right of self propriety, ownership over oneself as the condition City ion of liberty with a natural jurisprudence of common endowment, which challenged the injustice of enclosure and the concentration of agricultural lands, and the legitimacy of unconstrained private property accumulation more generally. This articulation of sovereignty as an emanation of the body of the people, brought with it the correlative supposition that equal shares of political authority imply fair shares of material resources essential to livelihoods. Political justice required the means to not be subjected to the arbitrary will of those with vastly superior means, let radical unfreedom return through the back door of the polity in the form of concentrations of land and livelihoods in the hands of a few. Part and parcel of this collective natural right topos was the problematic of distribution, especially of land as a critical lets test for the conformity with requirements of natural justice. The 19th century chartist movement in England, Wales, and Scotland would return to the language of natural rights to make collective claims for political and social fair shares. They challenged the uninterrupted exclusion of the property lists from political franchise in Britain, maintaining that the transition to political society preserved those natural rights, which conduced to a cooperative and democratic society of equals. A political order which did not protect those rights failed to meet the requirements of natural jurisprudence. Cardinal among them was the right to vote. But it would be a mistake to read this, as I suspect TH Marshall did, as the demand for some kind of pure political right to electoral participation. Part and parcel of this demand was the idea that participation in political power required and would entail a means of common livelihood, which did not compel members of society to subject themselves to the tyrannical power of those who controlled the means by which labor could earn a decent living. The litany of social and economic grievances of a generation who had been exposed to the first industrial revolution, who were overworked, or unemployed, ill paid, badly housed, deskilled, exploited and suffering from what was seen as the effects of the wig class legislation of the 1830s was claimed to be the result of an unnatural monopoly of political power, which enabled the unnatural concentration of economic means, depriving labor of its natural right to the fruits of its work. On this narrative, the political despotism of the property in class s led directly to an economic despotism that destroyed the livelihoods of working people and rendered them unable to exercise the self propriety necessary for natural liberty. Political tity reproduced economic tity. The correction of political inequality demanded and was expected to result in the correction of economic inequality on behalf of the social whole. Thus, the editor of the poor man's guardian, an underground paper which sold around 16,000 copies a week at its peak, declared in 18 35, Names will tell you that it is because you have no property that you are unrepresented. I tell you on the contrary, it is because you are unrepresented that you have no property. Universal Suffrage, what Marshall would have called the second phase of political right after civil right, but before social right, was, in fact, linked from the outset to a demand for a fair share of the political and social hole. To end the possessing classes monopoly on legislation was to turn legislation into a means of restoring to the unfranchised what was due to them as a matter of justice. Not just fair wages, but also as set out in the Charter of London Democratic Association in 18 37, abridgement of the hours of labor in factories and workshops, the total abolition of labor, and the destruction of inequality. At the 18 38 Cs More meeting, which reportedly attracted around 100,000 people in support of the chartists. Popular Northern Minister JR Stevens declared the right to vote to be a knife and fork question after all. He said, this question of universal suffrage was a knife and fork question after all. This question was a bread and cheese question. And if any man were to ask him, Stevens what he meant by universal suffrage, what he meant by universal suffrage, he would answer that every working man in the land had a right to have a good coat to his back, a comfortable abode in which to shelter himself and his family, a good dinner upon his table, and no more work than was necessary for keeping him in health, and as much wages for that work as would keep him in plenty and afford him the enjoyment of all the blessings of life, which a reasonable man could desire. Now, what's interesting for our purposes is the framing of a critique of the social and economic consequences of capitalism within a language of natural right that can be understood as collective and constitutional and which imperatively unites the achievement of democratic egalitarian citizenship and the protection of natural liberty with the taming of monopolies of political and economic power. Particular kinds of entitlements and demands, food, housing, education, a certain level of comfort or leisure, are expressions in this register of a natural social law that must be guaranteed and reproduced through the conscious political and economic decisions of an authorized collective agent, the state, to deliver justice in respect of the social harms flowing from the concentration of money and property in the hands of a few implied a reorganization of economic authority and a redistribution of the fruits of labor. The resulting rand of social right is a natural jurisprudence for the dispossessed and non possessing classes, which demanded both liberty in the sense of self propriety and justice in the sense of giving each their due as a part of the whole. A right to one's own Became a right to a fair share, in order to protect against the real risk in market society, that one's own became so disproportionately engrossed, and Anos became so drastically diminished, that public power ceases to be so and becomes the arbitrary private will of individuals, the classical definition of corruption itself. In France, after 17 99, the grammar of social rights as collective natural rights would have an enduring influence in Republican and proto socialist responses to the so called social question and to the liberal concern with limiting universal suffrage. This influence would not be in the form of a direct enumeration of rights as legal entitlements. Instead and more powerfully, a renewed appropriation of Jacob rhetoric of natural social right and Republicanism combined with a critique of the observed dynamics of market society to outline a concept of the Democratic social state as governor and regulator of private property and private economic rights. The Society of the Rights of Mn, a Parisian political club founded in 18 33 to revive Jacoban political ideas, Dreing Sanimonians, and Fuists, early socialists, but also a new generation of radicals for whom the labor question was the political question of the Epoch. The demand to regulate and govern the destructive competition of market society and assure to labor a just share of the value of the product of labor was articulated by Neo Jacobin writers, such as Bloc and God, in terms of a right to work. This was not a positive legal right claimed against the state. It was an idea of right, which expressed an order of political, social and economic relations that amended or replaced the ruthless dynamics of competition in a market society. In Considers articulation, the right to work was a natural right preserved within society that reflected the right of man to benefit from the common pool of wealth made possible by the creation of society and produced through labor. The right to work both entailed both a right to subsistence by restraining the ruthless competition and profiteering considered responsible for the admisration of labor, and the right to adjust share of the whole by regulating the conditions under which labor was performed and rewarded, including by reorganizing the structure of production into labor associations and cooperatives under the supervision of the state. The Nir Jacobin went on to have a decisive influence on the political discourses surrounding the 18 48 revolutions in France and beyond. Their ideas retain the fundamental structure of what I have called collective natural rights thinking. In so far as they anticipated the realization of natural rights within society through the creation and intervention of a unified public power. The fundamental purpose and nature of this power was reflected in its Democratic constitution as a Republic, through universal suffrage. The Democratic Constitution of the Republican state, within this collective natural rights grammar, entailed the rights and need to organize or rather reorganize social and economic relations through legislative power in order to end the exploitation of labor and prevent the destruction of social solidarity through the excessive accumulation of wealth. A Blanc, for example, argued that men could have no other goal in forming societies to mutually protect themselves against the undertakings of the most cunning, the most audacious, and the strongest. In this way, the idea of the state is born precisely from the need to protect against tyrany, But included in Blondes typology of tyrany was the tyrany of property over non proprietors, which is worse than that of the Anson Regime despots. Since it is polymorphous, and invisible, holds no one to account, evolves in a framework of legal equality and dons the mask of liberty, allowing each of society's members to enjoy what he or she has required. The Democratic state, that's the end of the quote. The Democratic state must be placed above such individual tyranies, in order to constitute the real path to liberty. Its social power being necessary for the development of an authentic individualism, one that enables each person to design and shape his or her own existence without succumbing to the will of others. The demand for a right to work in this period, in this context, was framed in the vernacular of a natural constitutional right. But it's better grasped as a cynic doh for the construction and authorization of a collective agent in the form of a democratic social state, which would solve the social question through a wide range of interventions and management of economic and social relationships. In 18 43, Long blos the right to work as a collection of correlative duties to the healthy citizen, the state owed work. To the old and infirm, it owed aid and protection. To the young, it owed free and obligatory education. This is all the natural extension in his view of the concept of the right to work as a means of organizing a political economy. Feminist, Jean Dar oi, argued in the short lived pine, which was a magazine that existed between January and August 18 49, that the basic right to life entailed the right to develop one's capacities through equal education for all, the right to work, access to all social functions. Society itself was based on three principles, the right to consume, through the redistribution of the fruits of labor of all, according to the needs of each and the necessities of his trade. The right to work through the distribution of the instruments of labor needed to produce to each according to his trade in proportion to the means of consumption, and the right to make sovereign decisions through the equal contribution of all without sex distinctions regarding the means and fruits of labor. Even as French, German, Hungarian and Austrian revolutions of 18 48, tragically, all ended in failure, marginalization, exile, imprisonment, even death, for many of those protagonists, so Bog, for example, went into exile here in the United Kingdom, and his papers are still held in the British library. The historian Christopher Clark reminds us that the political and ideological consequences of these political and social revolutions were felt, like a seismic wave through European administrations, changing structures and ideas, bringing new priorities into government or reorganizing old ones, reframing political debates. Many radicals and conservatives moved inwards from the fringes to affiliate with centrist groups close to state authority, bringing with them new ideas about what the state was for. Perhaps one of the most powerful new ideas brought to the center of politics by the mid century Unrest was one indebted to the collective natural rights idea described above. Both English Chartim and Neo Jacoban Republican socialism invoked a notion of collective right as an expression of an imminent order of justice to be imperatively realized within society and at the same time as a principle subtending the authority and legitimacy of the collective agent duty bound to realize that order, the state or government. Common remote languages was another critical implication. That democratic political equality required the rigorous restraint of economic inequality, entailing the suppression of the frontier between the political as the reign of the collective will and the economic, as the realm of the uncoordinated pursuit of individual interests. This logic of social rights paved the way for a new conceptualization of what the state was for and how it could be made to be that way in reality. A conceptualization that would ultimately shape the theory and practice of the state and its economic and social functions for the next hundred years. A influential early formulation of the idea of the social state was provided by German law professor and state theorist, Lorenz Stein. Later Lorenz onstin, that he was ennobled by the Austrian Emperor. Stein had closely followed the writings of Blanc and the Neo Jacobin in France and indeed befriended some of them during his stay in Paris in 18 41 and 18 42. Writing in the immediate aftermath of the 18 48 revolutions, Stein argued that the Neo acaban demand for social rights, like the right to work required the creation of social democracy. If I'm not mistaken, I think he might have coined the term social democracy, in which the social dependence of the working class was overcome through the role of the state in advancing social equality. Starin grasped that the realization of social rights required more than assistance to the need. It entailed the state becoming a powerful agent of economic organization by managing class conflict, distributing a share of economic prosperity and providing what we would now call public and social goods. In order to realize the right to work, he concluded, the state would have to become, not only the highest administrative power, but also the greatest capitalist. D. Stein would go on to become the most influential figure in public law, administrative law, and state economic law in 19th century Europe. His work inspired the creation of the field of social policy and social economics through the formation of the Vera Foti, whose academic members would in turn go on to train the first generation of American economists, most of whom did their PhDs in Heidelberg. These economists, the Americans, in turn, advanced theories and arguments about the necessity of a positive state as economic regulator, redistributor, and planner, in the US context, and trained the generation of economists who would then shape the new deal. Stein also directly influenced Bismarck's famous program to create the state provided sickness Insurance and old age pension. In his speech to the DT introducing legislation, Bismarck explained the legitimacy of such provisions by invoking them as the realization of the right to work. I have elaborated in this lecture on one of the ways in which we used to think about and use the concept of social right, and pointed to some evidence concerning the ways in which these concepts of social right, in fact, helped us conceive of and imagine the social state. What I have called collective natural rights endowed us with a claim structure for a fair share of political and economic order. Specific rights claimed in this register included the right to work, the right to subsistence, and the right to the product of one's labor. Once graded with an analysis of capitalism and the nature of social conflict between classes, this claim structure engendered a variety of possible answers. One such possibility was brilliantly articulated in the form of a state theory and state concept, an Spontin. This state theory would have a global impact, shaping the first constitutionalizations of social rights in the Mexican and ima Constitutions in 1917 and 1919, the world's first social Democratic constitutional charters. What is noticeable about the place of social rights in these constitutions is that they have functioned as axios of political and legal order that articulated fundamental theorems about what the state was for and how it ought to be made that way in reality by the political and social movements of the time. Such a state was a public power representing the whole of society, which submits economic rationality and the market to a different order of values by organizing it. Inherent in these rights, inherent in these rights claims was also a notion of what the nature of social freedom within the state amounted to. Positive equality enabling the development of the human personality in solidarity with others as political and social equals. The challenge for our time is whether this profoundly political ethical ideal can be recovered and renovated as the animating principle of a social state which realizes social rights. Thank you very much. Feb 19 2025 14.41 - 14.41 Professor Nehal Bhuta's Inaugural Lecture Edinburgh Law School presents: The Inaugural Lecture of Professor Nehal Bhuta
Feb 19 2025 14.41 - 14.41 Professor Nehal Bhuta's Inaugural Lecture Edinburgh Law School presents: The Inaugural Lecture of Professor Nehal Bhuta
