In the discourse of rights and the practice of making rights-claims, formal rights (civil and political) and substantive rights (social, economic, and cultural) have been distinguished from each other, with formal rights often taking precedence. In what ways are these two kinds of rights in conflict with each other? Is there a framework by which they could be shown to be compatible? What is the significance of their incompatibility or their compatibility, and how should a system of justice be organized in a way that is responsive to their relative significance?
Réal Fillion’s paper was primarily an exposition of Hegel’s concept of right. For Hegel, when a person “externalizes her will” by taking possession of something in a way that others recognize as taking possession, we have the beginnings of “primary right.” The foundations of “right” (or law, or social normativity in general) does not end there, as there are contractual relations, recognitions of right and wrong, up through the institutions of morality and beyond. In discussion, some argued that for Hegel all rights turn out to be substantive, thus the distinction between formal and substantive rights falls away if one accepts his system. Yet it was not clear to others whether this would really help resolve the conflicts between formal and substantive rights, but would simply shift the debate to which “substantive” rights had priority in a given situation.
Bruce Porter’s paper focused on his work as a social rights practitioner. Porter began by noting the roots of the conception of “substantive rights” in the U.N. Declaration, but primarily discussed his own work as a practitioner and advocate in particular situations. What came out in various situations in the U.N., Canadian, and other international contexts is that, while textual interpretations of political documents is important, Porter has come to believe that the social rights movement should move away from an emphasis on duties, entitlement, and “mere universality” to a pragmatic response to what should be done in a particular situation. This might make things more difficult from a conceptual standpoint, but from a practical standpoint, it might have other benefits, as noted in discussion. For example, by looking at problems with how entitlements systems work and fixing them to better address the needs of the systematically impoverished, courts can become more of a last resort, thus avoiding the impression of “going over the public’s heads.”
John Russon’s paper on “The Right to Become an Individual” was a philosophical reflection on the ambiguities of the concept of rights. Rights are supposed to be something inherent in the very nature of being human. The modern individual is to be the site for the appearance of “ultimate value.” Yet we now realize that such a “context-free” individual is a fiction, given the dependency of the individual on her or his context. The fiction of the “context-free” individual leads to the incoherence of debates about formal rights (conceived as universal) and substantive rights (conceived as being relevant in a particular situation). The ensuing discussion revolved around whether Russon had really done justice to the modern conception of rights, and also pointed to similarities between Russon’s theoretical and Porter’s practical move away from “mere universality.”
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