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  • Philip Jessup proposed the idea of a transnational law course. His vision of the subject was broad, including public and private international law; state and non-state actors; business, administrative, and political affairs; as well as negotiation and litigation. Inspired by his idea, TLB is only constrained by its pursuit to address all law transcending national frontiers.

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March 25, 2007

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Patrick S. O'Donnell

The difference between 'liberty' and 'welfare' rights receives a nice analytic treatment in Onora O'Neill's book, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (1996). There she notes the true asymmetry between these two kinds of rights, the former matched by universal obligations or duties that all can discharge. Positive rights to goods or services can be institutionalized as a set of special obligations: 'Since distributively universal rights presuppose instititutional arrangements, it is hardly surprising that they are typically established in restricted forms, for example, for the citizens of certain states, or within a certain community.' O'Neill elaborates:
'Defenders of welfare rights are often eager to claim a closer analogy between liberty and welfare rights. Liberty rights too, they point out, need effective institutionalization, whereby ostensibly universal obligations are in fact assigned to specific agents and agencies. The most impeccable liberty rights, such as a right not to be tortured, cannot be implemented without a legal system and institutional structures of supervising police, courts and penal institutions. They conclude that the obligations that correspond to all universal rights require allocation if the rights are to be effective. [....] However, universal rights to goods and services, such as welfare rights, are in fact unlike liberty rights. It is true that rights of both sorts need institutional structures for their enforcement, but liberty rights do not need institutional structures to be claimable and waivable. By contrast rights to goods and services can be claimed or waived only if a system of assigning agents to recipients has already been established, by which the counterpart obligations are "distributed."

Unfortunately much writing and rhetoric on rights heedlessly proclaims universal rights to goods or services, and in particular "welfare rights," as well as to other social, economic and cultural rights that are prominent in international Charters and Declarations, without showing what connects each presumed right-holder to some specified obligation bearer(s), which leaves the content of these rights wholly obscure. This obcurity has been a scene and source of vast political and theoretical wrangling. Some advocates of universal economic, and social cultural rights go no further than to emphasize that they *can* be institutionalized, which is true. But the point of difference is that they *must* be institutionalized: if they are not there is no right. And the political rub is that there are huge practical problems in establishing any rights to goods and services for all, even in limited domains or jurisdictions, because scarce resources and political conflict make it hard to gain effective support for any of the many distributions of counterpart obligations that would make a reality of the rights.

The supposed disanalogy between universal liberty and welfare rights is not then bogus: the two are genuinely asymmetric. For example, when a liberty right is violated, then, whether or not specific institutions have been established, there are determinate others to whom the violation might be imputed (no doubt, perpetrators are often unknown and can't be brought to book when institutions are inadequate). But when supposed universal rights to good, serivices or welfare are not met, and no institutions for distributing or allocationg special obligations have (yet) been established, there is systematic unclarity about whether one can speak of violators, and not just contingent uncertainty about who they might be. [....]

Proclamations of universal "rights" to goods or services without attention to the need to justify and establish institutions that identify corresponding obligation-bearers may seem bitter mockery to the poor and needy, for whom these rights matter most. When advocates of Human Rights proclaim universal rights to food or to work or to welfare, yet fail to show who has corresponding obligations, or where claims of right or redress may be lodged, they hurl a weapon that may boomerang. *At best,* a premature rhetoric of rights *may* have political point and impact. An appeal to the "manifesto rights" of the sort promulgated in Charters and Declarations invokes and highlights ideals that *may* guide agitation, politics and legislation in a quest for institutionalized, claimable rights. The resonating ideal of Human Rights, as formerly of the Rights of Man, *may* galvinize people who once conceived of themselves as mere subjects, entitled only to petition the powers that be for relief from their miseries. They *may* come to conceive of themselves as citizens, or as citizens-to-be, who can insist that justice is violated and claim what is owed to them. But *at worst* a premature rhetoric of rights can inflate expectations while masking a lack of claimable entitlements.'

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