INTRODUCTION

Domestic and international human rights documents and discourses are

characterized by conceptual and normative links between the aims of
human rights and social justice. As James Griffin observes,
disapprovingly, the foundational document of the modern human rights
movement, the Universal Declaration of Human Rights (UDHR), is
characterized by a “whole scale inclusion of justice among human rights
. . . (and) includes not only procedural justice, but also distributive
justice and fairness” (Griffin 2008, p. 186). The UDHR’s preamble
indeed states that human rights are the ‘foundation’ of justice ‘in the
world’, and many of its articles include egalitarian aspirations across the
full institutional range of modern political societies (UN General
Assembly 1948). For example, in addition to articles covering
procedural justice (e.g., article 10), UDHR article 7 establishes the
human right to equal public protection against discrimination; article
21.2 states the right to ‘equal access to public service’; article 21.3
includes broad entitlements to democratic rights; article 23.2 contains
the right to ‘equal pay for equal work’, with 23.3 adding the ‘right to just
and favourable remuneration’; and, article 26 develops a range of
educational and opportunity rights. The UDHR’s invocation of these
aims is widely re-iterated in subsequent international and domestic
human rights documents (e.g., the International Covenant on Civil and
Political Rights, the International Covenant on Economic, Social and
Cultural Rights, and the Convention on the Rights of Persons with
Disabilities) as well as by a diverse range of actors in human rights
advocacy groups and networks (Clapham 2007, pp. 160–62; Garcea and
Hibbert 2011, pp. 53–56; Hucker 1997; Jetsckhe 1999, pp. 144–46). In
quite a strong contrast, what can be considered the dominant
philosophical view in contemporary liberal political philosophy is that
human rights and social justice occupy largely distinct normative
domains (Beitz 2009; Cohen 2010; Jones 2010; Nickel 2007; Rawls
1999b; Raz 2010; Risse 2012). On the dominant philosophical view,
while overlapping in cases of constitutionally essential equal civil and
political rights, social justice is theorized as requiring significantly
greater distributive equality across a range of political and
socioeconomic institutions than human rights
The dominant view can therefore be understood as presenting a
‘discontinuous’ conception of the normative relationship between social
justice and human rights. As Charles Jones frames it, while different
conceptions of human rights will vary as to the “extent of justice
commitments” they cover, the requirements of social justice include
“further specifications on the range of legitimate inequality of basic
goods (that) are compatible with universal rights protections” (Jones
2010, p. 133). The dominant philosophical view thus presents a type of
human rights-plus conception of social justice: social justice includes
human rights but contains a further conception of equality rights that are
not human rights. The aim of this paper is to push back against the
dominant, discontinuous, view of the relationship between the normative
domains of human rights and social justice, and to outline a normative
model of human rights that overlaps more fully with an egalitarian
conception of social justice. This reformed normative model of human
rights is ‘political’ in the sense of being based on a reflection on current
human rights practice, understood to consist of both institutional and
discursive elements (Beitz 2009, p. 8). The purpose of a normative
model is to provide a ‘reconstructive account’ of the “norms and ideals
that are implicit and play a structuring role in our practices” (Heath
2011, p. 28). Reflecting on current global and domestic human rights
institutions and discourses suggests an ‘emergent’ and contested
practice, marked by disagreement over the basic norms and values that
ground the practice (Beitz 2009, pp. 8–9). Nevertheless, there is reason
to hold that the normative dimensions of the development of human
rights practice reflects a growing convergence on the dominant,
egalitarian, philosophical understanding of the normativity of social
justice. To account for this convergence, the goal of this paper is to
outline an account of how social justice and human rights increasingly
share normative space based on their grounding in the ideal of
‘membership’ in a political society, and both function at different levels
of abstraction from political practice to protect against exclusions from
that status. The discussion proceeds as follows: the first section presents
a synthesized version of the dominant discontinuous philosophical view,
which grounds human rights and social justice on distinct justificatory
interests—the interest in common protections against standard
associative threats and the interest in fair terms of inclusion in a
relational status of political membership respectively. The next section
presents the idea that reflection on the current human rights practice
suggests that membership interests are a more appropriate justificatory
grounds for capturing existing and deepening egalitarian elements of
human rights, bringing them closer to the normativity of social justice.
The third and fourth sections develop the idea of human rights and social
justice as nested membership norms by exploring their respective roles
in establishing and satisfying the conditions of political legitimacy. The
final section defends this view against the objection that the distinctive
aspect of human rights as international concern marks them off from
many of the demands of social justice that are not coherently matters of
international concern.
 SOCIAL JUSTICE
The constitution of India was adopted on November 26, 1949. Some
provision of the constitution came into force on same day but the
remaining provisions of the constitution came into force on January 26,
1950. This day is referred to the constitution as the “date of its
commencement”, and celebrated as the Republic Day. The Indian
Constitution is unique in its contents and spirit. Through borrowed from
almost every constitution of the world, the constitution of India has
several salient features that distinguish it from the constitutions of other
countries.
Bharat Ratna Babasaheb Dr. B.R. Ambedkar, the Chief Architect of
Constitution of India, is the man of millennium for social justice, in the
sense that he became the deliverer of or the Messiah of the Dalits, the
erstwhile untouchables, Other Backward Classes (OBCs), and women,
constituting 95% of Hindu population. That big segment of population
had been forced to live at a sub-human level from time immemorial,
under caste system, sanctioned by Hindu scriptures. He was the man of
millennium for social justice, since he was the first man in history to
successfully lead a tirade of securing social justice to the vast sections of
Indian humanity, with the help of a law, which practically repealed the
concerned portions of Hindu scriptures.
 Social justice denotes the equal treatment of all citizens without any
social distinction based on caste, colour, race, religion, sex and so on. It
means absence of privileges being extended to any particular section of
the society, and improvement in the conditions of backward classes
(SCs, STs, and OBCs) and women. Social Justice is the foundation stone
of Indian Constitution. Indian Constitution makers were well known to
the use and minimality of various principles of justice. They wanted to
search such form of justice which could fulfill the expectations of whole
revolution. Pt. Jawahar Lal Nehru put an idea before the Constituent
Assembly “First work of this assembly is to make India independent by
a new constitution through which starving people will get complete meal
and cloths, and each Indian will get best option that he can progress
himself.”
Social justice found useful for everyone in its kind and flexible form.
Although social justice is not defined anywhere in the constitution but it
is an ideal element of feeling which is a goal of constitution. Feeling of
social justice is a form of relative concept which is changeable by the
time, circumstances, culture and ambitions of the people. Social
inequalities of India expect solution equally. Under Indian Constitution
the use of social justice is accepted in wider sense which includes social
and economical justice both. According to Chief Justice
Gajendragadkar.
“In this sense social justice holds the aims of equal opportunity to every
citizen in the matter of social & economical activities and to prevent
inequalities”. The Constitution of India has solemnly promised to all its
citizens justices-social, economic and political; liberty of thought
expression, belief, faith and worship; equality of status and of
opportunity; and to promote among the all fraternity assuring the dignity
of the individual and the unity of the nation. The Constitution has
attempted to attune the apparently conflicting claims of socio-economic
justice and of individual liberty and fundamental rights by putting some
relevant provisions.
Article 19 enshrines the fundamental rights of the citizens of this
country. The seven sub-clauses of Article 19(1) guarantee the citizens
seven different kinds of freedom and recognize them as their
fundamental rights. Article 19 considered as a whole furnishes a very
satisfactory and rational basis for adjusting the claims of individual
rights of freedom and the claims of public good.
Articles 23 and 24 provide for fundamental rights against exploitation.
Article 24, in particular, prohibits an employer from employing a child
below the age of 14 years in any factory or mine or in any other
hazardous employment. Article 31 makes a specific provision in regard
to the fundamental right to property and deals with the vexed problem of
compulsory acquisition of property.
Article 38 requires that the state should make an effort to promote the
welfare of the people by securing and protecting as effectively as it may
a social order in which justice social, economic and political shall
inform all the institutions of national life. Article 39 clause (a) says that
the State shall secure that the operation of the legal system promotes
justice, on a basis of equal opportunity, and shall, in particular provide
free legal aid, by suitable legislation or schemes, or in any other way, to
ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities.
Article 41 recognizes every citizen’s right to work, to education and to
public assistance in cases of unemployment, old age, sickness &
disablement and in other cases of undeserved want. Article 42 stresses
the importance of securing just and humane conditions of work and for
maternity relief. Article 43 holds before the working population the ideal
of the living wage and Article 46 emphasizes the importance of the
promotion of educational and economic interests of schedule castes,
schedule tribes and other weaker sections.
The social problem presented by the existence of a very large number of
citizens who are treated as untouchables has received the special
attention of the Constitution as Article 15 (1) prohibits discrimination on
the grounds of religion, race, caste, sex, or place of birth. The state
would be entitled to make special provisions for women and children,
and for advancement of any social and educationally backward classes
of citizens, or for the SC/STs. A similar exception is provided to the
principle of equality of opportunity prescribed by Article 16 (1) in as
much as Article 16(4) allows the state to make provision for the
resolution of appointments or posts in favour of any backward class of
citizens which, in the opinion of the state, is not adequately represented
in the services under the state. Article 17 proclaims that untouchability
has been abolished & forbids its practice in any form & it provides that
the enforcement of untouchability shall be an offence punishable in
accordance with law. This is the code of provisions dealing with the
problem of achieving the ideal of socio- economic justice in this country
which has been prescribed by the Constitution of India.
The social justice scenario is to be investigated in the context of two
streams of entitlements: (a) sustainable livelihood, which means access
to adequate means of living, such as shelter, clothing, food, access to
developmental means, employment; education, health, and resources; (b)
social and political participation (enabling or empowering means),
which is built on the guarantee of fundamental rights, and promotion and
empowerment of the right to participation in the government, and access
to all available means of justice, and on the basis of which “justice as a
political programme” becomes a viable reality. We require therefore a
study based on select illustrations of various issues relating to
government policies on topics such as: (a) the right to food and water;
(b) housing, which includes resettlement and rehabilitation; (c) access to
education, (d) access to provisions of health and healthcare, (e) right to
work, and (f) access to information and the right to communication. In
short, one of the important ways in which the inquiry will proceed will
be through taking stock of various forms that have occasioned the
articulation of ideas of social justice. Governmental justice consists of
various welfare schemes, law, legal literacy, administrative forms of
arbitration such as tribunals, boards, courts, public interest litigation,
new legal education, plus the constitutional idea of protection of weaker
sections of the society and introduction of positive discrimination.
 Challenges in social justice
After 40 years of independence, 8 Five Year Plans, hundreds of laws
leading to a veritable forest of rules offering a variety of special facilities
to the underprivileged ranging from scheduled castes and tribes to
women, in matters of education, employment, housing, etc. social justice
is far from a reality. 53% of over 965 million people are under the
poverty line i.e. unable to spend even a dollar a day on bare necessities.
A mere16% of households enjoy the ‘luxury’ of electricity, drinking
water and toilet facilities. This percentage is 3.9% if only rural
households are taken into consideration. 71% of our women are
illiterate. Barring a few states like Kerala and Tamil Nadu, rural health
care is a sham and almost non-existent. Then there is the problem of the
millions of the educated unemployed. Though in any society some form
of inequality is unavoidable, the persistence of
large-scale economic disparities and the undignified living conditions of
millions of Indians is a reality that cannot be overlooked. The
satisfaction of a set of basic needs must have the highest priority, for,
without food, shelter, clothing, health care and primary education a
person does not become a human being. The widespread caste prejudices
and the continuing discrimination against the lower castes are a threat to
social stability and peace. The social and educational backwardness of a
vast section of the population inhibits its participation in the process of
social and economic development, not to mention human development.
Hence, the reduction of discriminatory social practices is an important
part of the movement for social justice. Women suffer from historical,
social and economic disadvantages. Even among the other categories of
deprived communities, they are the most deprived group. A liberal
society must attend to demands of gender justice seriously.
The conception of social justice also encompasses firm commitment to
the protection of human rights and civil liberties. Disabilities and
problems of other groups like the physically disabled, child labour,
tribals and those affected by environmental pollution also form the
agenda of social justice. And these are India’s most critical problems.
These are at the root of much of the political unrest, social and ethnic
conflicts, and the growth of collective violence and the weakness of
democratic structures in our country.
The caste institution in our society is very effective which is not the
phenomenon in western countries. In such circumstances, can we reap
the fruits of the system which we adopted? The main objectives of social
justice are compulsory and equal education, casteless society and
employment to each. Economic exploitation is also a big factor and all
these do not allow the true realization of democracy. When India is
passing through social and caste discrimination, economic crisis,
unemployment, communalism and lack of basic needs, a party of
substance and difference is needed which acknowledges and addresses
the problems of social and economic deprivation.
Meaning of ‘Justice’ doesn’t need to be further defined and it is
committed to give justice to all those who have been or being denied.
Social policy: Politics is reflection of the society. If casteism,
regionalism and communalism are part of society, they will go in to
politics also. Those who are born and die in discriminatory environment,
how is it possible for them to have different mindset? During elections,
this mindset takes precedence over development, science, honesty,
integrity etc. Though political parties aim to capture political power but
they are equally responsible to fight out social discrimination while
making it important agenda. Till ideal situation is attained, it will not be
possible to capture political power through agenda like development,
education, health etc. Recently French Government banned students
from wearing religious symbols in schools and similarly we also have to
take hard decisions to do away with vestigial institutions like caste. Due
to increasing consciousness among dalits and backwards, they are also
striving to have participation in political power and it is leading to a
situation where elections are being fought more between the castes than
parties. Earlier, dominant castes used to fight elections mainly and now
backwards have also started contesting and a day will come erstwhile
dominant castes will be out of power owing to their smaller number. For
all of us it is essential to remove rotten values and social system.
Economic policy: The distribution of income among individuals or
households at the local or national level, based on classifications such as
socio-economic status, profession, gender, location, and income
percentiles, is the most widely used measure of the degree of equality or
inequality existing in a society. For most contemporary societies, income
distribution remains the most legitimate indicator of the overall levels of
equality and inequality. Gap between rich and poor is wider in our
country. Besides historical reason, there are many reasons which are
producing poverty. Governments are morally bound to provide
education, health, employment and other basic needs. Due to
globalization and privatization, it is now being debated that the
Governments are not suppose to do business and provide employment
but are for maintenance of law and order and foreign policy etc.
Dalits: Dalits have been exploited for millennia. No society or country
can make the requisite progress while depriving such large number of
people of dignity and respect. A country is an extended version of a
family, if a family member is half fed or sick, peace and happiness will
not come to it and similarly deprivation of dalits has cost and is costing
India dear. Dr. Ambedkar was for nationalization of land but Dalits have
forgotten this economic agenda. Dalits have made a little progress in
government jobs and politics due to reservation but in other fields like
industry, market, profession, media, hi-tech, art & culture, stock
exchange, they are yet to begin. Dr. Ambedkar’s plank to establish
casteless society through Buddhism was implemented in 2001 when
lacks of dalits embraced buddhism.
Tribals: Tribals have escaped from caste discrimination but are the worst
victims of economic poverty. They have been traditionally fed on the
roots and shoots and other available natural resources but this also has
declined. With increasing pace of industrialization and urbanization
there is no alternative left except to integrate them into the main stream
of the nation. Though they had been provided reservation but most
backward tribal have been hardly benefited.
Minorities: Being in minority should not be a curse in democracy, yet in
a country like ours, majority pocket the main benefits. Christians have
introduced and cultivated science, engineering and modern education but
are becoming subject to persecution on day to day basis in the name of
conversion. Jains, Sikhs and Buddhists have not been given status of
being separate religious groups, this shows the plight of minorities.
Muslims and Dalit Christians are worst sufferers and hence priority
should be given to ensure health, education and jobs to them. Muslims
are very small in Government jobs and police and they should be
ensured participation according to their population in such areas. During
communal riots, they do not face the wrath of majority only but also of
police and paramilitary forces; therefore it is must to ensure reservation
in police and paramilitary forces.
Backward Castes: Backward castes population is more than any other
group but they are a most divided lot. The recommendations of Mandal
Commission were implemented because of Dalit struggle but divided
and unaware backwards could not even use the benefits. Thus the saga
of most backwards castes is really deplorable. A fresh look is needed to
ensure the benefits to them of reservation and other safeguards.
Women: Women are the worst sufferers in this social economicsetup.
Even able women are not in a position to get the returns they deserve.
Since childhood, they are taught that they belong to their in-laws’ house
and their salvation lies in surrendering to their husbands. This generates
that mindset, consciously or subconsciously, that women are meant for
enjoyment and progeny. This must be attacked otherwise even women
will not come forward to ask for their rights. Dowry, rape and torture are
the by product of this mentality. In present times, Muslim women are the
worst sufferers due to increasing fundamental tendency. Where progress
has become possible, participation of women in various fields was and is
higher. Not only for the sake of humanity but also for overall growth of
the nation, women will have to be integrated into social, educational and
political system. Through various cultural fora like cinema etc. women
are projected as beautiful objects and epitomes of purity but not certainly
meant to compete with men. This complex problem is not going to be
tackled merely by governmental efforts; therefore political parties also
share the great social responsibilities.
Farmers: Farmers and peasants do not get the return of what they toil far.
The prices of their produce like wheat, paddy, vegetables etc. have not
increased to the extent of commodities like soap, cosmetics, steel and
other articles manufactured in industries. In places like Mumbai and
Delhi, small shops can have turn over of millions and billions but farmer
owning hundred acres of land can not afford to lead the life a small
businessman and government servant can do. World Bank and
developed countries are exerting continuous pressure on our
Governments that they should reduce the subsidies on fertilizers,
pesticides and seeds etc. whereas they pamper their farmers like
anything, i.e., a farmer is given Rs. 400 per day to maintain a cow in
England. Switch on the television or open pages of news papers, you
will find news about stock exchange but what about farmers and crops.
Equity and shares do not have more than 10% value of country’s assets.
Good rain has helped farmers to grow more crops. When there is
drought, sensex at stock exchange falls. Justice has not come to the
farmers and to secure it, agricultural products must get their due price
and subsidies, if required, be increased. Computerization, mobile
revolution, hi-tech have benefited a few living in urban cities and this
can not be yardstick to measure the progress of farmers and labourers.
We should modernize rural India as well so that the children of rural
areas also avail the same opportunities. Till this is done, we will not
concede the so called achievements in computerization and hi-tech etc.
Labourers: Whatever production was done by thousands of labourers in
the past, now it is being done by few labourers so that the profits of
businessman go up. We should not oppose hi-tech and mechanization
but is in favour of those industries and services who absorb more people.
These days businessmen are employing labourers on contract basis and
this has unleashed more exploitation. Recently, Supreme Court
pronounced a judgment which curtails the freedom of agitation and
struggle of employees and labourers. The higher judiciary is favouring
disinvestment and privatization which is precipitating further
exploitation of workers. We feel that exploitation by industrialists and
businessman should be curbed.
Landless People: About 65% population living in rural India is landless
and Dalits’ ratio is even higher. In developed countries like Japan and
Europe about 40 % rural population does not depend on agriculture but
derive their subsistence from agro based industries, cottage industries
and soil conservation activities etc. We have ample opportunities to go
for mass scale agro based industries which will not only provide
employment but also stop migration to urban areas.
 Where Does The Solution Lie?
The solution to social injustice lies within us only. We should be aware
of the expressions the poor, the backwards, social justice which are
being used to undermine standards, to flout norms and to put institutions
to work. Despite the well intentioned commitment of ensuring social
justice through equalization or protective discrimination policy, the
governmental efforts have caused some tension in the society. In the
name of social justice even such activities are performed which have
nothing to do with social justice. The need of hour is to ensure the
proper and balanced implementation of policies so as to make social
justice an effective vehicle of social progress. While Liberalism puts
freedom first it is conscious of the fact that such freedom is hollow
unless it is accompanied by a sense of security and equality. A liberal
social policy should aim at providing the most disadvantaged with
access to opportunities and, at the same time create a social net that
strengthens their ability to cope with crises. Successive governments
have attempted to meet the basic needs of people by spending large
sums of money on various subsidies, a variety of employment generation
and poverty alleviation schemes. While these schemes have created a
huge distributive bureaucracy only a small percentage of the sums
sanctioned actually reach the intended recipient groups. They have bred
corruption on a massive scale. A phenomenal amount of resources are
wasted, destabilising public finances, harming economic development
and burdening future generations. Alongside of measures to liberalise
the economy which would create new employment opportunities, there
is need to encourage entrepreneurship and self-employment particularly
in the light of fast developing technology. This would spur an upward
movement of people and each entrepreneur can provide work for one or
more persons. Jobs and self employment opportunities have to be
encouraged in sectors like agriculture, plantations, and in a variety of
infrastructural activities, etc. Employing techniques that involve a
judicial mix of machines and manual labour, the country’s enormous
economic potential can be exploited to the benefit of the less fortunate
sections of the population. Without administrative and political
decentralisation the goals of social justice may not be accomplished.
Letting people decide what their development needs are will not only
generate social and political awareness among them but also instill a
sense of self-respect and build strong leadership at the local and
community levels.
 The Dominant Philosophical
View of Human Rights and
Social Justice

Today, social justice in political philosophy is characterized as a

strongly egalitarian norm. In Ronald Dworkin’s view, all plausible
political philosophy is now, in an abstract moral way, egalitarian, such
that theories of social justice rest on, and are evaluated by their
correspondence to, the fundamental moral idea that people are equals,
and as members of a political society are entitled to equal respect and
consideration in the “design and administration of the political
institutions that govern them” (Dworkin 1978, p. 189); see also
Kymlicka on the idea that contemporary political philosophy has
reached an ‘egalitarian plateau’ (Kymlicka 2002, p. 4). This, in turn,
grounds significant requirements of distributive equality in egalitarian
theories of social justice, such as, for example, John Rawls’ requirement
of equal distributions of primary goods. In contrast, human rights, on the
dominant view, while also resting on an abstract principle of equality,
when worked out institutionally, are thought to be consistent with
greater levels of inequality than social justice in the distribution of
benefits and burdens in a political society. Instead of requiring
interpersonal comparisons of relative Laws 2017, 6, 7 3 of 16 standing
between members, human rights are theorized as establishing non-
comparative baselines of entitlements and protections. This distinction
between the normative domains of social justice and human rights
differs somewhat from another prominent grounds for the discontinuous
view. Often, social justice is distinguished from human rights along the
lines of the distinction between political and civil rights, on the one
hand, and socioeconomic rights on the other, whereby social justice
includes the latter while human rights do not (O’Neill 2005). The
understanding of the discontinuous view as presented in this paper,
however, proceeds in a somewhat different direction. Under the
dominant philosophical view, social justice and human rights both cover
the full range of benefits and burdens that are involved in modern
political societies, and so the distinction between civil/political and
socioeconomic entitlements and exclusions is not the key dimension of
the distinction. The discontinuity, rather, concerns the underpinning
justifications, and their distributive requirements, of human rights and
social justice across these areas of political practice. While covering the
same areas of political and socioeconomic life, human rights, on the
dominant philosophical view, require much less by way of an egalitarian
distribution to be satisfied, than do standard theories of distributive
justice. A prominent theoretical ground for the dominant, discontinuous
view of human rights and social justice is a distinction between their
underpinning justificatory interests, or what Charles Beitz calls their
“justifying purposes” (Beitz 2009, pp. 128–29). Human rights and the
further rights of social justice, he argues, “are grounded in interests of
different degrees of urgency and therefore exert different weights” on
the distributive requirements of political and socioeconomic institutions
(Beitz 2009, p. 142). What types of justificatory interests, then, does the
dominant philosophical view respectively rest human rights and social
justice upon? One notable feature of the dominant philosophical view of
human rights is that it treats human rights as distinctly political, which
stands in contrast to a previous wave of theorizing in which human
rights were treated as a euphemism for the older idea of natural rights
(Cranston 1973; Finnis 2011). Natural rights are rights that are held by
persons in all times and places, and concern basic interests of
personhood that are stable across different political contexts. A political
conception of human rights, in contrast, is context-dependent, and
presumes specific interests that are only intelligible with reference to
particular institutional practices (Buchanan 2005, pp. 73–74). While a
theory of rights grounded in nothing but our humanity is undoubtedly an
important element of theorizing rights, the problem of reducing a
conception of human rights to such a conception is that it is, as Joseph
Raz puts it, “so removed from the practice of human rights as to be
irrelevant to it” (Raz 2010, p. 322). A principal evaluative component of
a political conception of human rights is therefore that it captures
important elements of current human rights practice in an institutional
context that approximates current modes of political organization. On
the dominant philosophical view, the most important element of the
context of current human rights practice is the fact that states are the
primary institutional arrangement for governing people; as Beitz puts it,
the “practice of human rights as it has developed so far can only be
understood as a revisionist appurtenance of a world of independent,
territorial states” (Jones 2010, p. 128). Human rights are, on this
conception, general norms for regulating the functioning of states as it
concerns the general associative interests of those subjected to them. A
further element of practice that limits the content of human rights, in the
dominant view, is that, while standards for domestic states, human rights
are also matters of international concern. This has the effect of
universalizing the content of human rights across a diverse range of
domestic societies organized by states by setting up shared standards for
the international community for concern and action regarding a state’s
treatment of its own members, and imposing common constraints on
“the permissible exercise of the prerogatives traditionally associated
with the norm of sovereignty” (Jones 2010, p. 133). The ‘justifying
purpose’ in the dominant philosophical approach to human rights is,
then, establishing common protections against standard and predictable
associative threats created by states. These include a range of protections
against the vulnerabilities created by exposure to the coercive capacities
of states Laws 2017, 6, 7 4 of 16 and egregious forms of socioeconomic
vulnerability the state can generate or neglect. The dominant view of
human rights is sensitive to the current context of political practice,
while maintaining the normative dimension of universality inherited
from the natural rights tradition, by linking the content of human rights
to the shared interests of persons subjected to states in common
protections against standard and predictable associative threats. As
mentioned, the standard view of social justice, in contrast, is grounded in
the interest of equal respect and consideration of all interests relevant to
living in a political society that fall under the purview of governing
institutions, extending well beyond the interest in protections against
general associative threats that grounds human rights. Treating persons
with equal respect will involve making inter-personal comparisons
between them to assess relative levels of advantage and disadvantage.
This sort of justificatory interest can be understood as a membership
interest, which is a deeper and more inclusive norm than that of common
protections against predictable associative threats. As Joshua Cohen
characterizes the idea of membership, “to be treated as a member is to
have one’s interests given due consideration, both in the processes of
authoritative decision-making, and in the content of those decisions”
(Cohen 2010, p. 328). The idea of membership helps distinguish a
voluntaristic associative system of legitimate cooperation from one of
imposed domination, including a range of potential scenarios which may
have sufficient protections against associative vulnerabilities to satisfy
the dominant view of human rights. The ideal of membership, for
example, is at the core of John Rawls’ distinction between domination as
“merely socially coordinated activity . . . by orders issued by some
central authority” and a genuinely legitimate system of social
cooperation that is “guided by publicly recognized rules and procedures
that those cooperating accept and regard as properly regulating their
conduct” (Rawls 1993, p. 16). Because membership is inclusive, rather
than a common baseline standard of treatment, it involves comparative
assessments with the condition of other members and leads to egalitarian
changes to barriers of exclusion. It permits variation in the demands of
social justice across political societies based on different patterns of
social exclusion that constitute membership interests in particular
societies. A conception of social justice grounded on membership
interests is therefore relational and dynamic in its content and
institutional requirements. This stands in contrast to an absolute and
universal conception of human rights that rests on the common
justificatory interest in protections against standard associative threats.
 Human Rights as Membership
Norms
Are common protections against standard associative threats the most
appropriate justificatory interest on which to ground a political
conception of human rights? There is reason to think not. Reflecting on
current human rights practice reveals important egalitarian normative
elements that suggest that interests related to inclusion in the status of
membership, and the goal of legitimate social cooperation, better
captures these dimensions. If so, this brings human rights much closer to
the normative domain of social justice than under the dominant
philosophical view. Of course the relevant point of evaluation for all
theories of human rights is not necessarily providing an adequate
“critical reconstruction of human rights as they are in the legal doctrine
and practice of human rights” (Buchanan 2010, p. 680). This is,
however, a crucial consideration in the case of political conceptions, to
which the dominant philosophical view belongs, that presume existing
institutional arrangements as the context of human rights, and aim to
reconstruct a normative model of current human rights practice.
Reflecting on current human rights practices to make salient their
underlying normative logic reveals significant, and deepening, levels of
egalitarianism that stretch beyond the conception of human rights as
common protections against standard associative threats. These include,
but are not limited to, formal equality before the law, participation
rights, opportunity-oriented socioeconomic entitlements and anti-
discrimination and employment equity rights (Rawls 1993; Garcea and
Hibbert 2011; Hucker 1997). These kinds of human rights protections
are comparative and relational, suggesting an inclusionary standard of
membership, rather than a baseline standard of common protections.
Laws 2017, 6, 7 5 of 16 If this is so, how might the egalitarian and
relational elements of current human rights practice be normatively
accounted for? One possibility is Allen Buchanan’s compelling
egalitarian theory of human rights that departs from the non-egalitarian
nature of the dominant model. Buchanan argues that there are seven
distinct egalitarian elements of current human rights practice that are
inconsistent with the standard protections against associative threats
normative model (the ‘inclusive assumption’, ‘robust equality before the
law’, ‘positive rights’, ‘equal political participation rights’, ‘anti-
discrimination rights’, comparative assessments of an ‘adequate standard
of living’ and the ‘right to work’) (Buchanan 2010, p. 683). On
Buchanan’s view the institutional and discursive practice of human
rights have evolved away from standard protections against predictable
associative threats and towards an inclusive and relational idea of
equality. He argues that the “most secure and straightforward
grounding” for the egalitarian elements of human rights “is the idea of
equal status” (Buchanan 2010, p. 687). Buchanan’s idea of status
equality is conceptually similar to the justificatory idea of membership
discussed above, given the central ideas of inclusion, comparative
assessments of well-being and relative assessments of rights protection.
The justificatory ground of equal status reflects the idea that human
rights involve interests related to protections against exclusion from a
social notion of status that is intelligible as being recognized and treated
as a full member of a political society, rather than a subject. While
developing in the direction of membership norms, Buchanan goes on to
argue, however, that human rights remain normatively distinct from
social justice because status equality, while extending beyond common
protections against standard threats, does not presuppose “an egalitarian
distributive principle,” as is the case with social justice. The status
equality of human rights is distinct from the distributive equality
required by egalitarian theories of social justice, and securing status
equality through human rights is “compatible with a wide range of
differences and with their social recognition in the form of material
inequalities” (Buchanan 2010, p. 685). Equal status, on this conception,
“constrains” material inequality without requiring the extent of
distributive equality entailed by egalitarian theories of social justice.
Buchanan holds that “a principle of equal distribution of resources or of
well-being” ‘exceeds’ the protections needed for securing equal status
through human rights (Buchanan 2010, p. 684). Buchanan therefore
maintains the discontinuousness of the dominant philosophical view
while incorporating egalitarian principles into his normative model of
human rights based on the justificatory interest of status equality and its
requirements of social inclusion and socially comparative assessments of
‘standards of living’. There is reason, however, to question the stability
of this space between the status and distributive elements in an
egalitarian concept of human rights. Equality of relational status entails
fair terms of inclusion in both the material and socio-cultural life of a
political association. As Will Kymlicka puts it, “one way to ensure that
social relationships are egalitarian is to ensure that individuals have
roughly equal shares of social resources” (Kymlicka 2002, p. 196). A
similar connection between distributive and status equality is
interestingly found in Rawls’ theory of justice. He argues that “perhaps
the most important primary good is that of self-respect” (Rawls 1999a,
p. 386). This entails elimination of barriers of exclusion to status
equality, and is cashed out distributively as fair access to the “social
bases of self-respect;” thus, a theory of justice that “gives more support
to self-esteem than other principles is a strong reason . . . to adopt it”
(Rawls 1999a, p. 386). Like in Kymlicka’s account, this links into robust
distributive requirements of social justice because, according to Rawls,
“our self-respect normally depends on the respect of others” and
extending fair terms of inclusion to shared institutions is an expression
of persons’ “respect for one another” (Rawls 1993, pp. 155–56). These
at least plausible connections between status and distributive equality
evoke Nancy Fraser’s notion of a “false antithesis” between material
inequalities and “recognitional” structures of “cultural domination . . .
(and) social patterns of misrepresentation, interpretation and
communication.” Much of social inequality, she argues, is “bivalent”
and consists of complex intersections of “economic differentials and
culturally constructed distinctions” (Fraser 1996, p. 7). While the notion
of status is an abstract, recognitional, standing, it conditionally grounds
concrete egalitarian distributive requirements. Indeed, if as Rawls Laws
2017, 6, 7 6 of 16 contends, the self-respect that comes from one’s status
as a full member in a political community is “the most important
primary good,” much of the materialist distributive requirements of
social justice can be understood as grounded in that interest. The
connections between status and distributive equality stabilize a
conception of an overlapping normative domain of human rights and
social justice as nested regulative principles for associative practices and
institutions which function to protect against exclusions from status
equality. The notion of nested principles here accounts for the fact that
social justice and human rights function at different levels of abstraction
from institutions. Social justice consists of structural principles that
apply to the cumulative functioning of a political society over time as it
affects the membership interests of those involved in it (Rawls 1999a, p.
6). Human rights, in contrast, function less deep in the structural
background of a political society and apply more concretely in specific
institutional settings. Take for example the idea of fair ‘equality of
opportunity’ as a widely endorsed principle of social justice (Rawls
1999a, pp. 73–77). It is clearly linked to the idea of inclusion in the
status of membership and is used to evaluate the way in which the
institutions of a political society interactively function to shape persons’
prospects over time. A society is more or less just depending on how it
structures the opportunities for political and socioeconomic participation
held by its members. The principle of equality opportunity can be seen
to ‘nest’ a host of subsequent human rights requirements as they pertain
to the functioning of specific institutional settings as they feed back into
the overall structure of opportunities, including: human rights in
educational institutions (Ray and Tarrow 2014), societal and workplace
discrimination oriented human rights (Gravel and Delpech 2008), human
rights concerns regarding poverty alleviation (Vizard 2006), and ability
and mobility oriented human rights. Human rights of these kinds work to
address barriers of exclusion in particular institutional settings, while
affecting the general condition of opportunity in a society. Generated
human rights will be grounded in more concrete social identities and
interests than the deeper, and necessarily more general, principles of
social justice. By applying to more specified practices, they are also
more easily, though not necessarily, translated into formal juridical and
legislative entitlements. One notable example of this dynamic is the
development in human rights protections of disabled persons as the
primary mechanism of addressing unfair opportunity inequality based in
disability. The development of human rights for disabled persons
illustrates how the general concerns of social justice as regulative
principles for a society’s major socioeconomic and political institutions
ground more specified, though still rather abstract human rights
conventions, which are subsequently incorporated at various levels of
governance into legislative and legal reform. At the level of an
egalitarian conception of social justice, mental and physical disabilities
would be treated as unjust (i.e., morally arbitrary) barriers of
exclusion—or denial of equal opportunities for inclusion—into the
status of membership across a wide range of societal institutions.
Corresponding to the normative relationship between human rights and
social justice suggested in this discussion, increasingly human rights are
treated as the primary political mechanism for addressing this general
instance of injustice in the distribution of opportunities for disable
persons to be full members of a political society. As in the case of
previous iterations of the emergence of human rights practices, the
human rights of disabled persons begins at the level of international
conventions, with the Convention on the Rights of Persons with
Disabilities (CRPD) coming into force into 2008 (Weller 2009).
Reflecting the idea of membership protections, the CRPD adopts a
‘social model of disability’ that brings together at a high level the
interconnected sources of the social exclusion and marginalization of
persons with disabilities, articulating broad categories of rights,
including non-discrimination equality, equality rights and rights
associated with social participation. The articles of the CRPD begin by
establishing disabled persons as appropriate subjects of rights, moves to
addressing barriers of exclusion and ends with positive entitlement
claims to aspects of active social participation. Following the enactment
of the CRPD, and following the broad trend of twenty-first century
human rights practice, instances of “translating abstract principles of
human rights into the content of domestic law” began to occur (Weller
2009, p. 7). Thus, the CPRD is an effective example of the nested nature
of the normativity Laws 2017, 6, 7 7 of 16 of social justice and human.
Human rights are nested in general principles of social justice, like fair
equality of opportunity, that are designed to regulate the overall
institutional structure of a political society. Such principles are used to
evaluate specific kinds of unjust opportunity inequality and generate
human rights mechanisms that identify subjects of rights, and particular
sources of exclusion. Moving from international convention to domestic
legislation and jurisdiction, human rights norms are applied to concrete
institutional dynamics and interactions. In the case of CPRD, we see
abstract rights claims in international conventions eventually filter down
to re-evaluations of legislative entitlements, including as fine-grained
applications as reforming empowerments of health care providers and
patients at the level of treatment delivery (Weller 2009). To wrap up this
section, theorizing human rights as mechanism for protections against
exclusion from political membership has two primary implications for
their normative structure that bring them closer to the idea of social
justice. The first is that human rights, conceptualized as membership
norms, are comparative, rather than baseline standards of protection and
inclusion. This is so because one’s status as a member depends on
relational aspects of one’s relative standing to the procedural and
substantive conditions of a political society that form the general
expectations of membership in that society. The second implication is
that human rights as membership norms are dynamic, and not
necessarily standardized across societies because, as the general
conditions of society evolve, the requirements of inclusion in that
society similarly change. This stands in contrast to the less dynamic
nature of common protections against standard associative threats that
ground human rights in the dominant philosophical view. The following
section considers how a normative model of human rights that is
continuous with the egalitarianism of social justice fits in with what is
widely seen as the principal political function of human rights as
establishing and satisfying the conditions of political legitimacy. In so
doing, it addresses a central claim of the discontinuous view that an
egalitarian conception of human rights is incompatible with at basic
aspect of human rights practice of establishing the normative
requirements of the legitimacy of states.
 Membership and Political
Legitimacy
The status of membership distinguishes between subjection to imposed
political coordination and an ideal of voluntary social cooperation.
While different kinds of systems of subjection can remain stable through
the effective exercise of domination, without respect for membership,
such societies can be said to lack normative political legitimacy.
Developing the idea of membership, this section aims to show that an
egalitarian normative model of human rights that shares normative space
with social justice does not require abandoning the primary aspect of
current human rights practice of establishing political legitimacy, though
it does entail a particular conception of legitimacy. The function of
securing political legitimacy is central to the ‘justifying purpose’ of
human rights in the dominant approach, and a primary ground for
discontinuity between the normative domains of human rights and social
justice. The focus, however, is principally placed on international,
recognitional, legitimacy. As Raz puts it, “while human rights are
invoked in various contexts, and for a variety for purposes, the dominant
trend in human rights practice is to take the fact that a right is a human
right as a defeasibly sufficient ground for taking action against violators
in the international arena, that is to take its violation as a reason for such
action” (Raz 2010, p. 9; see also Rawls 1999b and Beitz 2009). This
conception of the role of human rights in political legitimacy ties into
other features of the dominant normative view. One is the universalism
of the content of human rights required to establish a shared
international standard for the “limits to state sovereignty” (Raz 2010).
Another is the relative minimalism of the concept of human rights as
common protections against standard associative threats, needed for both
respecting the value of sovereignty itself and for respecting the value of
toleration of diverse, though recognizably legitimate, forms of political
arrangements. The final section of this paper will return to the issue of
how the status of human rights Laws 2017, 6, 7 8 of 16 as matters of
international concern may limit their egalitarianism; however, the focus
for now will be on establishing the role of human rights in domestic
processes of political legitimacy. All violations of legitimacy need not
be understood as mapping onto the “limits to state sovereignty,” and as
the trigger of interventionist action. International, recognitional,
legitimacy therefore does not exhaust the role of human rights in
political legitimacy, as it has internal dimensions that apply in the first
instance to the interests, attitudes and behaviours of persons with respect
to the institutional arrangements that govern them. Given this, the
dominant philosophical view of human rights is not a satisfactory
conception of the constraints and requirements on institutions that would
constitute the interests of those governed by them, if they are to have
their membership interests respected. Because of the possibility of
different ways of organizing governing institutions, persons can
reasonably expect terms of justification and forms of inclusion that go
beyond maintaining common protections against standard threats created
by political power, as conditions to accept as legitimate ‘the disciplines
and burdens’ of membership. In current political practice, these deeper
justificatory claims are increasingly made in the language of human
rights, building up their egalitarian standing, and bringing them closer to
the normativity of justice. It may be objected that the cost of a more
egalitarian conception of human rights, nested in the requirements of
social justice, is that it becomes an inappropriate standard of internal
legitimacy as it will be too demanding to be a realistically achievable
condition of political legitimacy. This concern informs, for instance,
Cohen’s distinction between human rights as baseline membership
norms of political legitimacy and social justice as a more maximalist
ideal for social cooperation—“the rights that are required if individuals
are to treated as members would be identical to the right that are
required if the requirements imposed by law and other regulations are to
genuine obligations . . . (and treating these rights as human rights is) . . .
certainly more plausible than a theory of obligation that ties political
obligation to justice” (Cohen 2010, p. 329). Thus, if human rights are to
function as the condition of domestic legitimacy, their content needs to
be limited to a feasible point for persons to accept and act on the types of
obligations necessary for political stability. Against this ground for
distinguishing between human rights and social justice is the possibility
of a conception of legitimacy as principled support and stability that
does not appeal to correlative moral obligations of compliance (Green
1988; Parekh 1993). Rather than producing stability through acquired
obligations, an alternative, non-obligatory, conception of legitimacy
includes a more diffuse range of attitudes and behaviours. On Charles
Taylor’s view, “a society has legitimacy when members so understand
and value it that they are willing to assume the disciplines and burdens
which membership entails” (Taylor 1993, pp. 64–65). Political stability
based on normative legitimacy is, then, “distinguishable from purely
self-interest or instrumental behavior on the one hand, and from
straightforward imposed or coerced rule on the other” (Hurrell 2005, p.
16). Legitimacy, on such a view, is not an ‘either-or’ scenario, but is an
ongoing dynamic of contestation and the formation of pluralistic beliefs
and commitments that signify acceptance or rejection of institutional
arrangements and their regulative principles. Rawls presents a similar
rendering of the concept in suggesting that legitimacy amounts to
political stability “for the right reasons” (Rawls 1993, p. 391); that is,
when members accept its proffered terms of justification, and support its
institutions based on perceptions of generally sufficient satisfaction of
these terms in its functioning. Human rights and social justice, operating
at different levels of abstraction from political practice, can be seen to
establish what Rawls calls a ‘range of legitimacy’ (Rawls 1993, p. 428).
Certain types of inequalities and exclusions are necessarily ruled out of
this range as baseline conditions of legitimation; it should not, however,
be treated as static and leaves significant space for democratic
deliberation and social choice as to the cooperative ends to be pursued
and the appropriate regulative principles for the distribution of relevant
cooperative burdens and benefits. Political legitimacy, of course, is a
deeply contested concept, and this paper does not seek to argue in favour
of a particular conception. The aim here is instead to consider how a
particular, non-obligatory, conception of legitimacy creates theoretical
space for an egalitarian normative model Laws 2017, 6, 7 9 of 16 of
human rights. Thinking of legitimacy as a dynamic range of institutional
requirements for the justified exercise of authority establishes political
openings for deepened practices of human rights and social justice.
Through contestation and demands for reform, previously tolerated
forms of exclusionary barriers to membership can be ruled out of
subsequent demarcations of the range of legitimacy. Human rights
activism, iteration of human rights norms and consolidation of deepened
institutionalized human rights protections have the effect of altering
standards of legitimacy by, as Seyla Benhabib puts it, raising “the
threshold of justification to which formerly exclusionary practices are
now submitted” (Benhabib 2006, p. 60). Normative standards of
legitimacy should therefore not be treated as fixed, as in the case that
ties it to a conception of human rights as common protections against
standard associative threats. The requirements of legitimacy are, rather,
responsive to institutional formation and changing forms of political
discourse and activism, and so, as Jeffrey Reiman argues, “we cannot
take for granted that any existing formulation of (legitimacy’s)
conditions is complete . . . a government must do more than merely keep
within some identified set of conditions . . . (it) must be continually
monitoring the conditions of its legitimacy and effectively correcting
existing formulations of these conditions” (Reiman 1997, p. 127). With
this dynamic understanding of political legitimacy, a key way in which
equality emerges in the world is when the legitimacy of the exercise of
political power is challenged by those subjected to it who oppose
barriers of exclusion it establishes and perpetuates (Nagel 2005, pp.
146–47). Such demands are increasingly made in the language of human
rights. In this sense, human rights are not merely a given set of
formalized protections and immunities, but also function as the language
of contestation and aspiration for deepened practices of inclusionary
membership in the institutional arrangements that govern people.
 Human Rights as Aspirational

Building on the link between human rights as membership norms and

iterative processes of the development of the standards of political
legitimacy, this section further develops overlapping points of
normativity between human rights and social justice in their functioning
as principles of social aspiration in the contestation of power by
individuals and groups. In this respect, human rights are not only
existing protections against exclusions from the status of membership,
but are also, in part, constitutive of expectations for further inclusion
held in its name. It is suggested that human rights increasingly overlap
with the language of citizenship rights in grounding inclusionary claims
of justice in particular institutional settings. The discursive elements of
human rights practice in which novel demands for social inclusion are
made through the language of human rights, human rights function not
just to meet the requirements of legitimacy, but also to define and
reconfigure them moving forward. The aspirational quality of principles
of social justice is relatively straightforward given their status as general
principles (e.g., fair equality of opportunity) that function in the deep
background of the institutional structure of a political society. Human
rights, on the other hand, operating, as has been suggested, as specific
manifestations of principles of social justice in particular settings as
concrete claim rights are often theorized as ‘mandatory norms’ limited
by the identification of specific duty-bearers, which often has the effect
of limiting equality rights in socioeconomic areas (Nickel 2007, pp. 31–
35). Though it is the case that human rights are often operationalized as
formal juridical and legislative entitlements imposing correlative duties
on domestic and international institutional agents, it is important to
recognize that an equally significant, and perhaps prior, aspect of human
rights practice is that of framing aspirations for reforming exclusionary
barriers to a dynamic ideal of membership that can give rise to juridical
and legislative change. Theorizing this dimension of the concept of
human rights, while deepening their egalitarianism, also addresses the
standard concerns of egalitarian conceptions of human rights of
inflationary infeasibility and democratic acceptability within political
pluralism. Amartya Sen’s theory of human rights exhibits this dualistic
political role for human rights. Like principles of social justice, human
rights do frequently function as “inspiration for legislation” and help
Laws 2017, 6, 7 10 of 16 to illuminate the “legislative route” towards
greater inclusion (Sen 2009, pp. 363–64). However, in many cases, the
legislative route is not always open, or the most appropriate path, for
human rights, but, as Sen puts it, “(b)ecause of the importance of
communication, advocacy, exposure and informed public discussion,
human rights can have influence without necessarily depending on
coercive legislation” (Sen 2009, p. 365). Informal routes of the influence
of human rights work by altering, institutionally and discursively, the
general conditions of political legitimacy and the ‘threshold of
exclusion’ in subsequent law and legislation. Human rights are, in this
functioning, closer to Joel Feinberg’s idea of socioeconomic rights as
‘manifesto rights’—broad and dynamic expectations and aspirations for
entitlement that condition institutional formation—than a conception of
rights as mandatory norms consisting of claims against concrete duty-
bearers. As aspirational norms, human rights operate to establish general
expectations with respect to the functioning of institutional systems, and
function politically “as determinants of present aspirations and guides to
present policy” (Feinberg 1973, p. 67). Understanding human rights in
this way suggests compelling similarities in their functioning to
citizenship rights as a core mechanism of deepened practices of social
justice. In T.H. Marshall’s foundational view of the egalitarianism of
citizenship, the primary function of citizenship rights, rather than setting
formal entitlement, is to condition the salient social ideas, experiences
and expectations that condition the legitimacy requirements of states.
Citizenship right, he argues, represents a “principle of equality” that
functions ideally against “structural inequality.” Juridical and legislative
entitlement embodying citizenship’s principle of equality, “instead of
being the decisive step that puts policy into immediate effect, acquires
more and more the character of a declaration of policy that it is hoped to
put into effect some day” (Marshall 1964, p. 104). Institutional treatment
and entitlement reflecting the equality of citizenship affects the
“superstructure of legitimate expectations” held by members and
functions as a normative standard of inclusion that “is perpetually
moving forward” (Marshall 1964, p. 115). Thus, according to Marshall,
“societies in which citizenship is a developing institution create an
image of an ideal citizenship against which achievement can be
measured and which aspiration can be directed” (Marshall 1964, p. 84).
An aspirational view of human rights understands their political
functioning as an additional normative layer to the equality of
citizenship that can further condition the legitimacy requirements of
institutional development towards egalitarian justice. Reflection on
current human rights practice suggests a primary function of human
rights is to work as critical taming norms for the status of citizenship in
particular societies by providing external egalitarian grounds to contest
different features of its condition. As Jeremy Waldron notes, there is
increasingly an “interesting duplication of the subject matter between
cosmopolitan norms and rules of municipal law,” such that human rights
function as critical “ideas about how municipal law should be changed”
(Waldron 2006, pp. 85–86). Kymlicka develops a similar claim about
the relationship between human rights and citizenship, whereby the
former works as ‘inspiration’ for the inclusionary tendencies of states’
treatment of historically excluded groups in traditional practices of
citizenship. He argues that, “the trend towards liberal multiculturalism
can only be understood as a new stage in the gradual working out of the
logic of human rights, and in particular the logic of the idea of the
inherent equality of human beings” (Kymlicka 2007, p. 89). While
inspiring new multicultural forms of treatment of minority groups within
states, Kymlicka makes the further claim that human rights also function
to ‘constrain’ contestation of citizenship, as with the ascendancy of the
language of human rights, “there is no legal space for minorities to set
aside human rights norms in the name of multiculturalism, and, in the
case of most minorities, there is no wish to do so” (Kymlicka 2007, p.
93). The addition of human rights as a further layer of regulative
principles for the development of institutions may be seen as a welcome
development from the liberal perspective because of the more explicit
disconnection of aspirational ideas of equality from historically
exclusionary bases of citizenship, such as nationality and ethnicity,
which limited its capacity as a mechanism of justice. Incorporation of
human rights into the ideational character of membership in political
associations helps to ‘loosen’ the connections between more or less
closed identities and citizenship solidarity and, Laws 2017, 6, 7 11 of 16
as Spinner-Halev suggests, allows states to more easily “turn to the
needs of their minority groups” (Spinner-Halev 2008, p. 615). A
common criticism of an aspirational and informal understanding of the
egalitarian dimensions of human rights (and indeed of citizenship rights)
is that it potentially weakens the practice by diminishing the key
conceptual dimension of a right as a claim against specific, capable,
duty-bearers (Kymlicka 2002; Spinner-Halev 2008). According to
Nickel, the structure of human rights as ‘mandatory norms’ in political
development includes both entitlement claims and obligations as “modes
of directing the behavior of the addressees” (Nickel 2007, pp. 30–31).
The requirement of concrete duty-bearers, with sufficient capacities, he
argues, protects against expansion of entitlement beyond present
material and motivational capacities which weakens the political
practice of human rights. Under the concept of human rights as
membership norms that function in processes of political legitimacy,
however, the inflationary possibility that attends human rights as
aspirational norms is less of a concern, and is indeed a welcomed source
of dynamism. Human rights should be sensitive to changing conditions
of membership and be adaptable to the kinds of exclusions that prevent
persons from achieving membership status. While there are general
kinds of membership interests that transcend context, many are dynamic,
subsequent ideas that cannot be easily understood when abstracted from
the relevant political association’s unique patterns of producing and
distributing burdens and benefits. What membership requires in one time
and place may be substantially different than in others. In this respect,
dynamism and inflation are necessary components of a theory of human
rights as membership norms. While endorsing a dynamic conception of
the content of human rights, grounding them in the interests of
membership does impose limits on inflation beyond existent institutional
and resource capacities. Though membership is an ideal and aspirational
status of inclusion, it is based in the actual range of burdens and benefits
that constitute the reasonable expectations of membership in particular
political societies. In making inclusionary claims, a responsibility of
membership is formulating them in line with the reasonable expectations
of membership and present resource availability (Buchanan 2010, p.
187). This can largely be expected to be the standard case with human
rights claims as they tend to be directed towards forms of exclusion to
institutional opportunities that shape the expectations of most members.
They will be generally feasible since to be reasonable expectations of
membership, they will already be secured for most persons. Theorizing
human rights as aspirational norms of membership also addresses the
common criticism that holds that an egalitarian and expansive
conception of human rights undercuts the idea of universality and
introduces a justificatory concern of parochialism. On this objection, in
light of the deep diversity across and within political societies, human
rights, as standards of legitimate exercise of political authority, should
be relatively minimal and uncontroversial across a wide range of ethical
and moral doctrines. Expanding the sites of exclusion that are concerns
of human rights, and expanding the kinds of human rights instruments
that are available to address them, it is argued, can introduce tensions
between human rights as acceptable standards of legitmacy and ideals of
toleration and self-determination of reasonably diverse societal cultures
(Cohen 2010, pp. 343–47). However, theorizing human rights as
aspirational norms of inclusion into the constitutive institutions and
practices of membership in a particular society, rather than as formally
required universal standards for all societies, helps to reconcile an
egalitarian conception of human rights with the values of self-
determination and endogenous emergence of regulative norms. As
aspirational standards of inclusion, human rights are available to a wide
range of interests that stem from the material and cultural particulars of
different forms of political association. Contextualized human rights
claims can be seen in this sense as re-iterations of universal ideals of
inclusion that are appropriately sensitive to the condition of membership
in specific settings. As Benhabib characterizes the iterative dynamic of
the universal idea of human rights in ways that reconcile it with the self-
determination of particular value structures, the “iteration and
interpretation of norms . . . is never merely an act of repetition. Every
iteration involves making sense of an authoritative original in a new and
different context” Laws 2017, 6, 7 12 of 16 (Benhabib 2006, pp. 46–50).
This view of the role of universal human rights norms in shaping the
conditions of legitimacy in particular political societies, moves the
concept of legitimacy away from a formal conception of standardized
protections and entitlements towards an ongoing deliberative conception
“creative appropriation” of human rights in particular sites of political
membership. Theorizing human rights in this way has the effect, as
Jeremy Waldron suggest, of “shifting out attention away from formal
democratic legitimacy to the more demotic legitimacy of ordinary
iteration . . . (and so) we need not be as pre-occupied as we are . . . with
borders and the scope of norms. Norms emerge in the world in the
circumstances of dense interactions that occur all over the place (and
are) democratic simply in the demotic dailiness of (their) use” (Waldron
2006, pp. 97–98). As aspirational norms for inclusion as a member of a
political society, human rights emerge and exist in the world as
universally available grounds for principled criticism, contestation and
reform that can be adopted and applied to conditions of membership as
they are found and understood.
 International Concern
The discussion of the egalitarian nature of social justice and human
rights as nested membership norms in processes of establishing and
satisfying the conditions of political legitimacy has thus far been
domestic in its orientation. As mentioned, however, the primary
approach to theorizing human rights as conditions of legitimacy
concerns the terms of international recognitional legitimacy. The idea of
human rights as international concern is widely thought to be a critical
piece of an adequate conception of human rights, and one that marks it
off from the normative domain of social justice (see, for example, (Beitz
2009; Rawls 1999b; Raz 2010; Risse 2012)). Human rights, on this
view, while applying to the relationship between the institutions of
political association and its members, are marked off from other political
norms for association by being, further, standards of justification the
violation of which imposes obligations of assistance on non-members.
They are not, then, purely membership norms but are matters of
international concern that make claims on the resources and capacities of
non-members in ways that social justice does not. As Raz formulates the
distinction, what makes a right a human right is that it is a right against
one’s government that is “assertible in the international arena” and that
its violation is “a (defeasible) reason for taking action against violators
in the international arena . . . (such that) . . . (d)isabling the defence
‘none of your business’, is definitive of the political conception of
human rights” (Raz 2010, pp. 328–32). With this distinctive function,
human rights will fall short of the rights of social justice, as not all
violations of social justice trigger international concern. Charles Beitz
has fully developed this ground for distinguishing between the
normativity of human rights and social justice, and this section responds
to two of his arguments for this position. Beitz’s theory of human rights
identifies the idea of international concern as a constitutive element of
its normative structure that marks it off from social justice. He presents a
three-part conception of human rights: human rights protect interests that
are sufficiently important to make their protection a ‘political priority’;
they apply to states as duties and it is advantageous for persons that
states work to protect the underlying interests; and, the failure to protect
the relevant interests in a ‘range of cases’ is a ‘suitable object of
international concern’ (Beitz 2009, p. 136). Human rights, in this view,
while applying to the relationship between the institutions of political
association and its members, are marked off from other political norms
for association by being, further, standards of justification the violation
of which imposes obligations of assistance on non-members. They are
not, then, purely membership norms but are matters of international
concern that make claims on the resources and capacities of non-
members in ways that social justice does not. International concern, it is
important to note, includes a range of non-coercive ‘paradigms of
implementation’, such as, ‘accountability’, ‘inducement’, ‘assistance’,
‘domestic contestation and engagement’, ‘compulsion’, and ‘external
adaptation’ (Beitz 2009, pp. 33–40). This leads to a conception of
human rights that is not ‘minimalist’ (because of the expansive non-
coercive view of concern and intervention), but is not Laws 2017, 6, 7
13 of 16 ‘maximalist’ in the sense of overlapping with the full domain of
social justice due to other limiting considerations of international
concern. The constitutive idea of international concern in a concept of
human rights, according to Beitz, marks it off from social justice for two
related reasons, both of which address different issues of the capacity of
international actors and the concern that “some requirements of justice
may not be achievable by means of any permissible form of action
available to outside agents” (Beitz 2009, p. 143). The first reason
addresses limited material capacity, since “the international resources
available for advancing human rights are scarce.” Given the limited
resources behind international concern for human rights, it is important,
Beitz argues, to distinguish and prioritize the interests underpinning
human rights and social justice. Human rights, he holds, are underpinned
by the more urgent non-relational interest in having a “standard of living
adequate for a decent life” whereas social justice is underpinned by the
comparative “interest in not feeling ashamed or humiliated by one’s
material situation considered in relation to those of others” (Beitz 2009,
pp. 142–43). Because there is a significant material distinction between
“assisting a society to develop its economy sufficiently to eliminate the
worst forms of poverty and causing it to attain an income distribution
that satisfies some more ambitious standard of distributive justice”
human rights should be limited to the more minimal, and apparently
cheaper, aim of satisfying the requirements of a decent life (Beitz 2009,
p. 143). It is not clear, however, that this objection’s framing of social
justice as the stronger relationally egalitarian, and therefore more
expensive, norm necessarily holds. As discussed, social justice primarily
functions as regulative principles for existing political practice, and
provides general standards for fair terms of inclusion into the material
and cultural life of a political society. Social justice itself, in other
words, does not tend to motivate social cooperation, but comes in as
conditions of its normative legitimacy through processes of contestation.
Actualized requirements of justice are, then, as Sangiovanni puts it,
‘practice dependent’ (Sangiovanni 2008). That is, while relational,
requirements of social justice come in subsequently to institutionalized
cooperation to regulate the broad distributive patterns of cooperative
benefits, and to compel redistribution in cases where inequality excludes
groups of persons from the status of political membership. A concept of
justice as regulative principles for social cooperation will take the kinds
of benefit production and development levels as found and primarily
concerns interpersonal comparisons in the distribution of whatever kinds
and levels of benefits are being produced. For example, in a three-person
micro-case, all things being equal, a (1-1-1) distribution is just even if
resource level (1) is meager and falls short of “a standard of living
adequate for a decent life” (the interest Beitz identifies underpinning
human rights). In this respect, human rights, as concerned with objective
thresholds of well-being, not social justice, requires increasing (1) to,
say, (2), which is, perhaps, more materially demanding than
redistributing at the level of existing resources. One question of justice is
whether the move from (1-1-1) to (8-4-2) is just, in addition to being an
efficient move from the status quo. The second argument to distinguish
the respective domains of human rights and social justice that Beitz
makes from the “practical role of human rights as sources of reasons for
transnational political action” concerns the epistemological capacity of
international actors. He argues that the laws, institutions and policies of
social justice can be expected to “vary across societies in ways that
respond to differences in the economic, social and cultural background”
and that “judgments about the requirements of justice at this level
sometimes turn on complex assessments of the significance of the
pertinent background facts . . . that outsiders are at a disadvantage in
making” (Beitz 2009, p. 143). The membership concept of human rights
suggests against this reason to distinguish it from social justice. It has
been suggested that human rights and social justice are nested egalitarian
norms, operating at different levels of abstraction from institutions, in
establishing and satisfying the normative conditions of legitimacy in a
political association. Social justice operates at a deeper level of
abstraction from institutions than human rights and concerns the
working of institutions together as it bears on general principles of
justice, such as equal opportunity. Human rights function at more
concrete levels of institutions and entitlements as mechanisms for more
realizing general principles of Laws 2017, 6, 7 14 of 16 social justice.
Given the function of human rights in delivering general principles of
social justice in specific institutional areas, it is human rights that would
seem to be necessarily more sensitive to the particularities of context,
and the importance of entitlement levels in a specific area for the general
structure of membership. Human rights as membership norms can be
expected to display significant variation at the level of implementation
based on differences across associations in the institutional and policy
areas to which they apply. This should not, however, suggest against the
status of human rights (or social justice) as matters of international
concern, but that external forms of what Sen calls ‘social help’ (Sen
2004, p. 329) should be part of consultative processes in which relevant
capacities and insights are brought to bear on the process by different
domestic and international agents. Reflecting on these two arguments,
the idea of non-coercive international concern does not seem decisive in
setting a firm distinction between human rights and social justice,
whereby human rights are the more minimalist, less egalitarian norm. A
political conception of justice as subsequent regulative principles for the
distribution of cooperative benefits and burdens need not require greater
material or epistemological capacities on the part of international actors
than a similar concept of human rights. It is also plausible that
conventional concerns of comparative inequality in a theory of social
justice above the threshold of decent levels of well-being can be
properly seen as matters of international concern, such as in the case of
significant relative inequality between a structurally advantaged majority
and disadvantaged minority (or vice versa), even when the shares of the
worse off is above, even well above, the preferred conception of decent
or minimal levels of well-being
 Equality

'E v E R Y man to count for one and no one to count for more than one.'
This formula, much used by utilitarian philosophers, seems to me to
form the heart of the doctrine of equality or of equal rights, and has
coloured much liberal and democratic thought. Like many familiar
phrases of political philosophy it is vague, ambiguous, and has changed
in connotation from one thinker and society to another. Nevertheless it
appears, more than any other formula, to constitute the irreducible
minimum of the ideal of equality. Moreover it is not self-evident in the
sense in which many simple empirical propositions seem so; it has not
been universally believed; and it is not uniquely connected with any one
philosophical system. The notion of each man counting for one and only
one does not depend on belief in rights, either natural or positive, either
divinely bestowed or adopted by convention. The statement that each
man is to count for one may, of course, be conceived as flowing from
the recognition of natural rights possessed by all men as such - rights
'inherent' in being a man at all - whether innate, or conferred at birth by a
divine act - and so an 'inalienable' element in the 'ultimate structure' of
reality. But equally it can be held without any metaphysical views of this
kind. Again, it may be regarded as a rule, whether universal or confined
to certain defined classes of persons, deriving its validity from a system
of rights based on specific legal enactments, or custom, or some other
identifiable source of human authority. But again, it need not depend on
this. One can perfectly well conceive of a society organised on
Benthamite or Hobbesian lines, in which rights did not exist, or played a
small part, and in which the principle of 'every man to count for one' was
rigorously applied for utilitarian reasons, or because such was the will of
the despot, or of the majority, or of the legislator or whoever held
sovereignty in a given society. It is doubtless true that the most ardent
champions of equality were, in fact, believers in human rights in some
sense. Some were theists who believed that all men had immortal souls
every one of which possessed infinite value and had claims which
consequently must not be set aside in favour of objectives of lower
value; some of these in addition believed in absolute.
the principle in this way leaves open crucial issues; thus it may be justly
objected that unless some specific sense is given to 'sufficient reason',
the principle can be reduced to a trivial tautology (it is reasonable to act
in manner X save in circumstances y, in which it is not rational, and any
circumstances may bey); furthermore that since all entities are members
of more than one class - indeed of a theoretically limitless number of
classes - any kind of behaviour can be safely subsumed under the
general rule enjoining equal treatment - since unequal treatment of
variousmembersof class A can always be represented as equal treatment
of them viewed as members of some other class B, which in extreme
circumstances can be so constructed as to contain no more than one
actual member; which can reduce this rule to vacuity. There obviously
can exist no formal method of avoiding such reductions to absurdity;
they can be rebutted only by making clear what reasons are sufficient
and why; and which attributes are alone relevant and why; and this will
depend on the outlooks and scales of value of different persons, and the
purposes of a given association or enterprise, in terms of which alone
general principles can retain any degree of significance - whether in
theory or practice. In concrete cases we distinguish good reasons from
bad, central characteristics from irrelevant ones. Some inequalities (say,
those based on birth) are condemned as arbitrary and irrational, others
(say, those based on efficiency) are not, which seems to indicate that
values other than equality for its own sake affect the ideals even of
passionate egalitarians. A part of what we mean by rationality is the art
of applying, and combining, reconciling, choosing among general
principles in a manner for which complete theoretical explanation (or
justification) can never, in principle, be given. To return to the principle
in the form in which it is normally applied: if I have a voice in settling
the destinies of my society I think it unfair that all other members of it
should not also have a similar voice; if I own property, it is unfair that
others (situated in relevant respects as I am) should not do so too, and if
I am allowed to leave it to my children in my will it is unfair that others
should not have a similar opportunity; if I am permitted to read or write
or express my opinion freely it is wrong, unjust, unfair etc. that others
should not be permitted to do so too. If someone is not to be allowed to
do these things, or have these advantages, then sufficient reasons must
be given; but no reason need be given for not withholding them, i.e. for
an equal distribution of benefits - for that is 'natural', self-evidently right
and just, and needs no justification, since it is in some sense conceived
as being self-justified.
natural social hierarchy, like Burke, and demand full equality of
treatment upon each rung of the ladder - the only 'true' equality - but
bitterly oppose as being contrary to the natural order any attempt to deny
the existence or relevance of such rungs or hierarchies, with its
accompaniment of demands for equal treatment for all.1 Consequently
when, as often happens, a man admits that a law is administered fairly -
that is to say with due regard to the principle of equality- but complains
that the law itself is bad or iniquitous, we cannot always be clear about
what is meant. The critic may wish to say that the more fairly the law in
question is administered, the more this frustrates a principle of wider
equality in which he himself believes, as when a law based upon the
principle of discrimination between coloured and white men is
administered fairly, i.e. with scrupulous regard to equal treatment within
each category, but is thereby itself the cause of inequality between
coloured and white men. But the critic may have other reasons for
complaint. He may attack this law because it offends against some value
other than equality- because it promotes misery, beca~se it frustrates
talent, because it makes for social instability, because it insists upon
equality in what the attacker thinks unimportant matters, but ignores
equality in what he regards as more important aspects of human life (the
scale of importance being decided in terms of values other than equality
itself); because it ignores the claims of a religion; because it fulfils the
claims of religion; because it is obscure or vague or too difficult to obey;
and for an infinity of other possible reasons - very commonly because,
as in the instance given above, it permits one kind of equality at the
expense of another, which can be a matter of fine nuance. In Wollheim's
very ingenious example, where all the members of a community have
equal rights and one vote per head, and each votes for some end
different from those of the others, but two members by constantly voting
in the same way are enabled theoretically to overrule all the others, what
we object to is not the inequality of such a system, for in legal and even
in political terms complete equality is clearly ensured. The unfairness of
which Wollheim speaks is caused by our recognition that in this
situation too great a majority of the voters find themselvespermanently
frustrated; we desire to see some degree of equality not only of choices
but of satisfactions,
What are Equality and Democracy?
We live in India, the largest democracy in the world. This means that in
India, there is a rule of the people, by the people and for the people. There
are many important requirements for a country to truly be democratic and
the most important is Equality for its citizens. This means that everybody
is equal in the eyes of law, without any discrimination on grounds of race,
religion, gender, caste, class or birth. Equality is so important because it
preserves the “dignity” of an individual. Dignity means self-respect and
the respect an individual deserves from others for being a fellow human
being. It is an essential and basic human right. However, this ideal case
doesn’t exist. Even today, many forms of inequality exist in India.
 Types of Inequality in India:
Casteism

The caste system is an ancient, age-old belief system that plagues India till
today. It is a system that has divides Hindus into rigid, hierarchical
occupational groups called “varna“. It considers some groups “pure” and
some “impure”. This Varna system includes four Varnas- Bhramin,
Kshatriya, Vaishya, and Shudra, in descending order of purity. Today
also, discrimination against people of various caste groups is common in
rural areas, but surprisingly, even among educated urban dwellers

Untouchability
equality and democracy Due to the above Varna system, one of the most
negative, yet unique features of India is the untouchability system. This
system wrongly looks at the people from the lower castes as “impure”.
Other people of higher castes used to refrain from touching them, thus
calling them “untouchables“. When such cruel incidents are still seen in
the news, it is an embarrassment to our country and us.

Gender Discrimination

equality and democracy In India, traditionally, females and males were

given rigid roles that they had to follow. For example, in villages, women
are expected to cook, clean, bear children and raise them and men are the
ones who work and earn money. The law does not allow such kind gender
discrimination. Males and females are equal in the eyes of law and they
must be given equal dignity and opportunities.

Class Inequality

When we look around, we can see that everyone doesn’t have equal
amounts of money or resources. We hear news of a billionaire whose
house costs a billion dollars, but at the same time see beggars on the roads
with no food or shelter. This called Class Inequality, where people of a
high class have excess resources, while the majority live in poverty with
no basic food, water, clothes or shelter. There is no equal distribution of
resources.

Religious Discrimination

equality and democracy It is sad to see that in some places, people who
follow a different religion than most people often face discrimination.
They are looked down upon, often with suspicion. India is a secular
country and these practices are not allowed by law. We are all free to
peacefully practise any religion we want to.

Racism
India is a diverse country with people belonging to different places.
People have different cultures, food, clothes and also look different but it
doesn’t mean they should be discriminated against. We need to know that
Equality is a basic human right and every human being on Earth deserves
fair treatment and access to opportunities.
Eight Ways To Reduce Global
Inequality
Extreme economic inequality is corrosive to our societies. It makes
poverty reduction harder, hurts our economies, and drives conflict and
violence. Reversing this trend presents a significant challenge, but one
where we’ve seen some progress. Below we offer eight ways to move the
world forward in reducing global inequality.

1. Stop Illicit Outflows

In developing countries, inadequate resourcing for health, education,

sanitation, and investment in the poorest citizens drives extreme
inequality. One reason is tax avoidance and other illicit outflows of
cash. According to Global Financial Integrity, developing countries
lost $6.6 trillionin illicit financial flows from 2003 through 2012,
with illicit outflows increasing at an average rate of 9.4 percent per
year. That’s $6.6 trillion that could reduce poverty and inequality
through investments in human capital, infrastructure, and economic
growth.

2. Progressive Income Tax

After falling for much of the 20th century, inequality is worsening in

rich countries today. The top one percent is not only capturing larger
shares of national income, but tax rates on the highest incomes have
also dropped. How much should the highest income earners be
taxed? This is obviously a question to be decided domestically by
citizens, and opinions differ. For instance, economist Tony Addison
suggests a top rate of 65 percent rate on the top 1 percent of
incomes.
3. A Global Wealth Tax?

In Capital in the Twenty-first Century , Thomas Piketty recommends

an international agreement establishing a wealth tax. Under his plan,
countries would agree to tax personal assets of all kinds at graduated
rates. The skeptics do have a point about whether this particular plan
is practical, but we shouldn’t give up on the idea. Because wealth
tends to accumulate over generations, fair and well-designed wealth
taxes would go a long way towards combating extreme inequality.

4. Enforce a Living Wage

Governments should establish and enforce a national living wage,

and corporations should also prioritize a living wage for their
workers and with the suppliers, buyers, and others with whom they
do business. Low and unlivable wages are a result of worker
disempowerment and concentration of wealth at the top—hallmarks
of unequal societies. As human beings with basic needs, all workers
should earn enough to support themselves and their families.
Governments and corporations should be responsible for protecting
the right to a living wage, corporations should commit to responsible
behavior that respects the dignity of all workers.

5. Workers’ Right to Organize

The right of workers to organize has always been a cornerstone of

more equal societies, and should be prioritized and protected
wherever this basic right is violated. Extreme inequality requires the
disempowerment of workers. Therefore, the right of workers to
organize and bargain collectively for better pay and conditions is a
global human rights priority. Despite Article 23 of the Universal
Declaration of Human Rights— which declares the right to organize
as a fundamental human right—workers worldwide, including in the
United States, still face intimidation, fear, and retribution for
 attempting to organize collectively. Where unions are strong, wages
are higher and inequality is lower.

6. Stop Other Labor Abuses

Companies worldwide are also replacing what was once permanent

and stable employment with temporary and contingent labor. Often
called “contingent” or “precarious” workers, these workers fill a
labor need that is permanent while being denied the status of
employment. In the United States, this trend is called
“misclassification,” in which employers misclassify workers as
“independent contractors” when they are actually employees.
Contingent labor also occurs through outsourcing, subcontracting,
and use of employment agencies.

7. Open and Democratic Trade Policy

Negotiating international trade agreements behind closed doors with

only bureaucrats and corporate lobbyists present has to end. These
old-style trade agreements are fundamentally undemocratic and put
corporate profits above workers, the environment, health, and the
public interest. We need a new, transparent trade policy that is open,
transparent, and accountable to the people.

8. A New Economics?

Economists are often imagined as stuffy academics who value

arcane economic theory above humanitarian values. The field’s
clinging to parsimonious theories gave us such winners as the
Washington Consensus and a global financial system that imploded
in 2008. Thankfully, there’s a movement among economics grad
students and scholars to reimagine the discipline. As they
acknowledge, we clearly need a new economics that works to
improve the lives of everyone, not just those already well off. For
instance, what could be more radical than a Buddhist economics?
This is the path promoted by economist and Rhodes Scholar E .F.
Schumacher, who says humanity needs an economics that creates
wealth for all people, just not money for privileged people and
corporations. Economics should take into account ethics and the
environment, and treat its claims less like invariable truths.
Equality and human rights:
new grounds for concern

1. Introduction
One might assume when considering equality and human rights
together that these two concepts would work cumulatively to
create a whole that is greater than the sum of the two parts.
However, at times, as the work of Titia Loenen1 has
demonstrated, these two concepts can end up in conflict, with a
resulting reduction in each. The reasons for this conflict are
numerous, and this paper does not claim to address them all.
Instead its focus is on two possible reasons. First, I consider the
difficulty that the law in Europe has had in dealing with the
increase in the number of grounds on which equality can be
claimed. Second, and related to the first, I assess the extent to
which the new grounds raise questions about the meaning of
the terms ‘equality’ and ‘human rights’. Finally, I suggest that
a renewed understanding of the meaning of these terms may
help to resolve the supposed conflict between them and lead to
ways forward in which these two notions could more positively
interact.

2. Commonalities between equality and

human rights
Of course the notions of human rights and equality are
intimately related. At one level, it might be said that they are
two sides of the same coin. Human rights and equality rights
can be seen to be founded on the same moral first principles.
The Kantian idea that humans should be treated as ends rather
than means, with the same essential dignity and unique value,
underpins most modern human rights thinking.2 The idea that
human beings canexpect others to respect the dignity inherent
in their humanity is one that has been agreed virtually
universally, perhaps most famously in the Universal
Declaration of Human Rights: ‘All human beings are born free
and equal in dignity and rights’.3 Here we immediately see a
fundamental link between human rights and equality. The
concept of human dignity, a foundational concept in human
rights theory, does seem to be intimately linked to the idea of
equality: humans may not be equal in their abilities and
attributes, but they are equal in their humanity and moral
worth. There is thus an objective good in upholding their
equality, and in attempting to create a society in which all can
flourish. Thought of in this way, equality and human rights
should not be in conflict at all. Equality is thus understood as a
fundamental human right: indeed many human rights
documents include a right to equality, and most equality
advocates would see their quest as governed by human rights
principles. Moreover, it is also assumed in most human rights
documents that human rights should be enjoyed equally by all,
again showing the intimate links between the two concepts. To
an extent the overlapping nature of the interests in human
rights and equality have had a positive influence on the
development of the first grounds of equality. When considering
gender and race equality, for example, it seems to be helpful to
consider these in terms of equality as well as human rights.
Human rights protection came first, with the realisation that
talk of the Rights of Man meant the rights of white men
coming only later, a few vital participants having been left out
of the debate. Eva Brems4 outlines clearly the development of
human rights to become more inclusive, with its extension to
race, gender and disability. In these contexts, the use of the
language of equality has led to the improvement of human
rights protection, and, in turn, equality claims have been
bolstered by the recognition that they are based on fundamental
 human rights claims. This improved understanding of equality
as a part of human rights protection has also led more recently
to an increase in the grounds on which equality is protected, to
cover age, religion and sexual orientation. This virtuous circle
of protection can be seen reflected in the strict scrutiny with
which equality interests have been treated in the courts. In the
case of gender and race equality, direct discrimination cannot
be justified, and even in the case of indirect discrimination any
exception to the norm of equality has to be justified very
strictly.5 This means that even if there is a ‘cost’ to compliance
with the equality norm, courts will nonetheless order
compliance. For example, if an employer has to pay more to
employ a woman who goes on maternity leave, or loses custom
because its clients do not like to be served by a black member
of staff, courts will uphold the right to equality of the worker
rather than allow discrimination to be justified on the basis of
the ‘needs of the business’. Indeed, the fact that these examples
perhaps seem somewhat shocking shows the extent to which
these norms of equality have been generally accepted.

3. Conflicts between human rights and

equality
Nonetheless, despite the close connections between equality
and human rights, it seems that the concepts may also conflict
at times. This can be seen perhaps most clearly in relation to
the new grounds of equality, particularly the grounds of age
and religion. This may be because the protection has been more
recently introduced and in addition, the underlying interests at
stake have not been generally agreed. For example, the
question of whether discrimination on grounds of age and
religion should be treated similarly to other grounds is still live
in the academic literature,6 a question that is rarely seen in the
case of race or sex. The acceptance of the equality claim is not
so well established in relation to age and religion, and so there
is perhaps less willingness to accept any ‘cost’ involved in
compliance.
The example of age equality may illustrate the issue. In EU
law, age equality can more readily be justified than other
grounds of discrimination with justified direct discrimination
potentially lawful. Moreover, retirement ages are reasonably
easy to justify and remain common across Europe. Applied to
other grounds of discrimination such an approach would not be
allowed. The arguments about the rights of younger workers
and their need for work, which are accepted in relation to
debates surrounding retirement,7 would be very unlikely to be
accepted if applied to gender. For example, when in 2011 the
UK’s Universities Minister David Willets blamed educated
working women for the lack of jobs available to aspiring
working class men – he said that feminism was the ‘single
biggest factor’ in a lack of social mobility8 – he was roundly
criticised. One certainly cannot imagine such an argument
gaining the support of the CJEU as a justification for gender
discrimination. Yet the argument that older people must be
treated unfavourably in order to protect younger people has
been accepted in the context of age discrimination. A second
area in which conflicts between rights have arisen in relation to
the new equality grounds relates to religion, and this will be the
focus of what follows. The conflict can be summarised with a
few examples from the case law which illustrate the potential
clashes between equality law and human rights.
The first example involves the wearing of the hijab or
headscarf, and can be illustrated by Şahin v Turkey9 in which a
university student objected to the prohibition of religious attire
being worn in her university as a breach of her freedom to
manifest her religion and belief. The ECtHR accepted that the
ban on the headscarf could be justified, and referred in its
reasoning to the view that the headscarf is ‘hard to square with
the principle of gender equality.’10 A second example of the
potential clash between human rights and equality can be seen
 in the cases involving Christian marriage registrars. In the case
of Ladele, heard with Eweida v. United Kingdom11 the claim
that dismissal for a religiously motivated refusal to conduct
civil partnerships was a breach of the right to freedom of
religion was rejected. Instead the equality rights of gay couples
justified the limitation on religious freedom represented by the
dismissal. A third example involves employment by religious
organisations. Although freedom of religion will justify some
exceptions to equality, the extent of those exceptions is
unclear. Thus, the fact that the Catholic Church requires that
priests be Catholic is uncontroversial, despite its overt
discrimination against non-Catholics. But other equality
exceptions are more contested, such as requirements for priests
to be male; and it is not clear how widely the exceptions should
apply, for example whether churches could require staff to be
heterosexual.
These examples demonstrate some of the tensions and
conflicts that can arise between the human right to religious
freedom, and equality. These issues are all ones in which we
may identify ‘trouble’ coming from the interaction of equality
and human rights, issues which have been contested in a
burgeoning literature. The conclusions of this literature are not
rehearsed in full here, but are considered in summary form.

4. Debating human rights and equality

One major issue which arises within the debate between human
rights and equality is whether, and if so how, they might be
reconciled.12 However, some have criticised the polarity of
this debate, counselling particularly against essentialising
religion in general, and Islam in particular, as ‘anti-equality’.
As Maleiha Malik has said: ‘The exaggeration of the problem
of ‘conflict’ between different groups – and especially races,
cultures and religions – gives rise to an assumption that there is
a radical difference of values between different social groups in
 society.’13 This concern is important. It can be all too easy to
assume that religion is antithetical to equality, an assumption
that itself can lead to hostility to religion, which in turn could
lead to less favourable treatment against religious adherents.
Even if we avoid this danger, however, we are still left with
some ‘clashes’ in practice, as illustrated by the scenarios
mentioned above. Suggested approaches, including the
approach of Malik herself, are to ensure appropriately nuanced
balancing of the different interests, with appropriately drawn
boundaries around any areas in which religion may be allowed
to ‘trump’ equality interests. For example, in the case of
employment by religious bodies, EU Directive 2000/78 allows
for limited occupational requirement exceptions to the non-
discrimination principle, thus allowing limited discrimination
on grounds of religion where necessary to maintain the
religious ethos of an organisation. However discrimination on
other grounds is unlawful. Thus requiring an employee in a
religious organisation to share its religion would be lawful if it
was proportionate as a means of maintaining the religious
ethos, but it would not be lawful to require such staff to be
heterosexual, as this would discriminate unacceptably on other
grounds.

5. ‘Lost in translation’
In some senses, both the ‘human rights’ perspective and the
‘equality’ perspective can be seen to use similar methodologies
when dealing with difficult cases involving religious rights.
Both ultimately rely on a balancing approach, with both the
ECHR and the Equality Directive providing limits on their
protection. With regard to human rights claims, this is reflected
in the fact that although religion, belief and conscience are
protected absolutely, manifestation of religion and belief can
be limited where justified. With regard to discrimination claims
this is seen in the fact that while direct discrimination cannot
 be justified, exceptions are allowed where religious employers
impose genuine occupational requirements which are justified
and proportionate; and indirect discrimination can be justified
where proportionate. Thus, beyond the right to believe at all,
both systems allow some balancing of competing interests. To
an extent then, there is a commonality of approach between the
two frameworks.16 This can be seen in the ready translation of
four religious equality cases brought from the UK to the
ECtHR in January 2013.17 At the domestic level, these case
were brought under the Directive derived UK Equality Act
2010, as claims of indirect discrimination (the application of a
neutral rule, not to wear a visible cross or not to refuse services
to gay clients, put the Christian claimants at a particular
disadvantage compared to other staff, and the rules could not
be justified). After their rejection by the domestic courts, an
application was made to the ECtHR for their consideration
under Article 9 cases, on the basis that the claimants’ freedom
to manifest religion had been interfered with. The question for
the court was then whether this failure could be justified.18
However, the human rights jurisprudence brings some
approaches to the balancing exercise which do not translate
readily between the two perspectives. Indeed, care is needed to
avoid the danger that matters are ‘lost in translation’, if
concepts developed in the human rights context are used
without further reflection in the equality context.
5.1. The specific situation rule
5.2. The value of communal interests
5.3. The margin of appreciation

6. Seeking a solution
These various challenges and conflicts may lead one to
suppose that equality and human rights are destined to be
forever in some sort of circle of contradiction: they are at once
two sides of the same coin, and yet potentially in conflict.
Moreover, it seems that it is the new grounds of equality that
have given rise to much of the conflict.
How then, might one go about moving towards a resolution of
this conflict? The suggestion here is that things could improve
if ‘equality’ is viewed less as a unitary concept, and more as a
concept with a plurality of meanings. This involves not only
the recognition of a range of meanings of equality, but also an
acceptance that equality grounds are not all the same.28 If it is
accepted that ‘equality’ is a multi-faceted concept, and that not
all grounds of equality are equal, this may enable a better
reconciliation of the conflicts identified above.
There has been extensive academic debate about the meaning
and purposes of equality29 which will not be expanded upon
here. Suffice to say that a number of meanings exist beyond the
most obvious meaning of formal or symmetrical equality;
meanings that seek to meet the basic difficulty in equalities
thinking about identifying which categories are sufficiently
alike to warrant like treatment.30 More substantive conceptions
of equality focus on the link between equality and individual
dignity and identity; on the use of equality to address
disadvantage and redistribution;31 and on equality as a means
of addressing social exclusion and promoting participation.32
It is arguable that these different understandings of equality
may match better with some grounds than others. For example,
it has been suggested that sexual orientation equality ties in
more fully with ideas of equality based on dignity and identity,
than with ideas about redistribution and economic
disadvantage. Conversely, it may be that the issue of age
discrimination has more resonance with an understanding of
equality based on redressing economic disadvantage rather
than confirming identity
A more varied understanding of the meaning of equality may
help to meet some of the difficulties identified above: if age
equality is founded on a concept of disadvantage, this may help
us to balance the interests of the older worker against younger
workers better than if we see the issue as one relating to
individual dignity. For example, viewed as a matter of
redistribution, age equality protection may allow the
justification of retirement; viewed as a matter of identity, this
would be very difficult to justify.
Not only is it worth considering that equality is not a unitary
concept, it may also be helpful to accept that different grounds
of equality may not need to be treated the same, even though
this goes against the current rhetoric from the CJEU which
suggests that there should be no hierarchy as between the
various equality provisions across the EU.34 A number of
suggestions have been made in the literature about ways in
which the grounds of discrimination are inherently different,
which may justify the development of a degree of hierarchy as
between them. For example, it has been suggested that some
grounds (gender, race, sexual orientation) are truly irrelevant to
a person’s ability to undertake work, while other grounds are
relevant some of the time, because they may either limit
availability to do a job (pregnancy, religion) or may limit
ability to perform a job (disability, age). Thus treating different
strands differently may be an acceptable way forward.35 Other
differences identified include differences between the grounds
in terms of whether the characteristics are biological
differences (sex, age), ascriptive differences (ethnicity), or
chosen characteristics (sexual orientation, religion).36 The
question of whether these latter characteristics are chosen is
clearly contentious, but the fact that distinctions can be drawn
between the different grounds does suggest that discrimination
is not all equal, and that hierarchies may not only be inevitable
but may also be useful tools to help us find a way around the
contradictions that have been identified above, when we try to
reconcile the two goods of equality and human rights.
7. Conclusion
The pursuit of the twin goals of the protection of human rights
and of equality at times lead to some difficulty. As explored
above, they work both in ways that are complementary and in
ways that can conflict. This can cause particular difficulties
when the same factual scenario, such as how to deal with
religious symbols at work, raise both human rights and equality
concerns. Moreover, there is a danger that approaches which
add clarity to the debate in relation to human rights thinking
can be ‘lost in translation’ and can cause difficulties in the
treatment of equality. It has been suggested that recognition of
a range of meanings for equality may allow for some creative
and flexible responses to these tensions.
However in the shorter term, these tensions are bound to
continue. This is largely due to the social and political
environment in which the issues are played out, one in which
support for the protection of human rights and equality seems
to be diminishing. In a world in which protection for equality
and human rights can feel under attack it is attractive to join
forces and use the additional power which the linking of the
two concepts offers: the rhetoric is much stronger if human
rights and equality are seen as two sides of the same coin.
There is a real danger that if the different grounds of equality
part company in terms of their application, so that different
justifications are allowed for different grounds of equality, this
could lead to a dilution of protection for all grounds. This is
because the language of parity of grounds can then be
reintroduced in order to level down, rather than level up, the
protection. This can be seen in the context of the Netherlands,
in the discussions on the accommodation of religious
manifestations in the public sphere.37 Thus, it may well be that
politically it is important for the two concepts to remain linked
for the time being. However, where tensions between the
concepts arise, consideration of varied meanings of equality
may help courts to feel a way towards a reasoned resolution.
LANDMARK JUDGEMENTS ON
HUMAN RIGHTS,SOCIAL JUSTICE
AND EQUALITY BY SUPREME
COURT OF INDIA

D.K Basu v. State Of West Bengal And Others

Facts: – DK Basu, The Executive Chairman, Legal Aid Services,
West Bengal, a non- Political organisation on 26.08.1986 addressed a
letter to the Chief Justice of India drawing his attention to certain
news items published in the Telegraph Newspaper regarding deaths in
police lock up and custody. He requested that the letter be treated as a
Writ Petition within the “Public Interest Litigation” Category.
Considering the importance of the issues raised in the letter, it was
treated as a Writ Petition and notice was served to the Respondents.
While the Writ Petition was under consideration, one Mr. Ashok
Kumar Johri addressed a letter to the Chief Justice drawing his
attention to the death of one Mahesh Bihari of Pilkhana, Aligarh in
Police Custody. The same letter was also treated as a Writ Petition
and was listed along with the Writ Petition of D.K.Basu. On
14.08.1987, the Court made the Order issuing notices to all the State
Governments and notice was also issued to the Law Commission of
India requesting suitable suggestions within a period of two months.
In response to the notice, affidavits were filed by several states
including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana,
Tamil Nadu, Meghalaya, Maharashtra and Manipur. Further, Dr.
A.M.Singhvi, Senior Advocate was appointed as Amicus Curiae to
assist the Court. All the Advocates appearing rendered useful
assistance to the Court

The Supreme Court has expanded the envelope of

Social Justice by adjudicating on diverse social matters
concerning education, livelihood, gender and
environment.
In Mohini Jain v. State of Karnataka as well as Unnikrishnan v.
State of A.P., the Supreme Court observed that a ‘man without
education was no better than an animal’, and held that the right to
education was an essential ingredient for a dignified and
meaningful life.

In Rural Litigation Entitlement Kendra v. State of U.P, as well

as M.C. Mehta v. Union of India the Court held that, right to life
includes right to live in a clean and healthy environment.

In Bandhua Mukti Morcha v. Union of India, the Court, while

decrying the practice of bonded labour, held that Right to life,
under Article 21, means right to live with dignity.

In Vishakha v. State of Rajasthan, it held that sexual harassment of

a woman at workplace, is a denial of both her right to life and
personal liberty under Article-21, as well as amounted to
discrimination on the basis of sex, and violated the right to equality
guaranteed under Articles 14 and 15.

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal,

the Court deemed the failure on the part of the Government
hospital to provide timely medical treatment to a person in need of
such treatment a violation of his right under Article-21.

New Concept Of Equality For The Protection Of People Of

India
In the case of the Air India v. Nargesh Meerza Regulation 46 of
Indian Airlines regulations provides an air Hostess will be retire
from the service upon attaining the age of 35 years or on marriage
within 4 years of Service or on first pregnancy, whoever found
earlier but regulation 47 of the regulation act the managing director
had the discretion extend the age of retirement one year at a time
beyond the age of retirement up to the age of 45 years at his option
if an air hostess was found medically fit .it was held by the court
that an air hostess on the ground of pregency was unreasonable and
arbitrary, it was the violation of article 14 under constitution law of
India. The regulation did not restrict marriage after four years and
if an air hostess after having fulfilled the condition became
pregnant, there was no ground why first pregnancy should stand in
the way of her running service. of the court said that the
termination of service on pregnancy was manifestly unreasonable
and arbitrary on the basis of this it was violation of article 14 of
Indian constitution.

In John Vallamattom v. union of India, section 118 of the Indian

succession Act, 1925 court invalidated which prohibited the right
of a Christian to make valid will for a religious or charitable
purpose only if he made it at least 12 months before his death. The
court occurred the prescription of time and the application of the
provision only to Christian artificial having no nexus with the
object of law. In P. Rajendan v. state of Madras, court said that
there was district wise distribution of seats in state medical
colleges on the ground of proportion of population of a district to
the total population of the state. classification will be valid under
article 14, there must be a relation between the classification and
the object sought to be achieved. Any one scheme of admission
rules should be devised so as to select the best available talent for
admission to medical college in the state. in reality discriminatory
as a high qualified candidate from one district may be rejected
while a less qualified candidate from another district may be
admitted.

In D.S Nakara v. union of India, in this case supreme court said

that Rule 34 of the central services( pension) rules, 1972 as
unconstitutional on the ground that the classification made by it
between pensioners retiring before a certain date and retiring after
that date was not depend upon the any rational principal it was
arbitrary and the infringement of article of article 14 of Indian
constitution law.
 Conclusions
Human rights practices have become a remarkably significant political
force in a relatively short period of time (Raz 2010, p. 321).
Increasingly, it is the dominant language of contestation of political
structures and of formulating entitlement claims to different forms of
institutional treatment. In this respect, human rights have not necessarily
given rise to new kinds of political concerns than those addressed by
claims of citizenship rights, but work to more explicitly link
conventional kinds of normative claims and expectations in political
associations to the universal language of the equal moral standing of
humanity. Human rights connect membership claims within a political
association to an external egalitarian status that bears on its legitimacy.
A notable development in the continuing emergence of human rights
norms is the expansion of the kinds of inequality and exclusion they
cover, including both the relevant sites and identities of exclusive
practices. This ongoing development increasingly brings human rights
practice closer in line with forms of membership-oriented comparative
evaluations that characterize a political concept of social justice than
with a general idea of a socially situated minimally decent level of well-
being. The basic suggestion of this paper is that the upward tendencies in
the development of human rights practice need not be theoretically
capped short of the principles of social justice. It aimed to show that an
expansive, egalitarian, conception of human rights can be reconciled
with them functioning as the basic mechanism of (a specific conception
of) political legitimacy. The discursive and institutional elements of this
dynamic also address concerns of inflationary concerns that attend to
resource availability, as well as worries about problematic justificatory
parochialism in an egalitarian normative model. It was further argued
that the status of human rights, as matters of international concern, needs
to be seen as decisive in ruling out an egalitarian conception of their
demands
 BIBLIOGRAPHY

1.http://www.legalservicesindia.com/article/1688/Right-To-
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2. file:///C:/Users/varun/Downloads/laws-06-00007.pdf
3.https://www.toppr.com/guides/civics/on-
equality/equality-in-indian-democracy/
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ution-of-india-and-social-justice-shashikant/