A customary view amongst legal scholars and human rights practitioners holds that a just society ought to guarantee social and economic rights in recognition of its commitment to social equality (Bilchitz 2008).Footnote 1 Human rights law plays a key role in identifying central concepts that guide the determination of what social rights, presumed to be applicable to all states, precisely entail.Footnote 2 This determination includes deciding which social or economic goods are given (Hohfeldian) rights status,Footnote 3 and setting the precise level of the obligations states have to respect or promote these goods.Footnote 4 To assist this endeavour, the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) and subsequent documents from the United Nations Committee on Economic and Social Rights proposed the notion of a ‘minimum core’ as a way to establish the minimal legal content of social rights, as well as the related notions of ‘progressive realization’ and ‘non-regression’ to guide determining the correlated state obligations (ICESCR, Art. 2).

The minimum core conception of social rights serves as a response to the pervasive objection that the content of socio-economic claims remains indeterminate. Indeterminacy is a general term used in philosophical and legal literature to capture three different issues in law: ambiguity, vagueness and contestability (Waldron 1994, p. 509). Ambiguity refers to the fact of a word or expression having more than one possible meaning because it applies to different sets of objects. Vagueness refers to the lack of precision in the meaning or reference of a term or phrase. In the context of social rights, vagueness appears where even in cases of agreement on the notion of basic needs as the criterion for the minimum content of social rights, a particular theory nevertheless has a problem in determining clear criteria for what counts or does not count as a basic need. Contestability, finally, refers to a value judgement where ‘different users disagree about the detailed contents of that normative standard’ (Waldron 1994, p. 526). For instance, disagreements about what counts as a just society may shape the meaning of the concept of justice. In what follows, the problem of indeterminacy refers primarily to the problems of vagueness and contestability.

Critics of social rights vehemently oppose the use of rights language to various goals society has set itself (Sumner 1987, pp. 16–17; Cross 2000). In addition, critics customarily insist that the proper determination of those social goals (even when granted rights status) depends on courts balancing competing legitimate claims on public or even private resources (Contiades and Fotiadou 2012). Against this two-pronged attack, minimum core adherents maintain that social rights are fundamental rights, not merely social goals or policies, while (partially) accommodating the concerns of the critics by instituting the idea of progressive realization. Progressive realization of social rights requires ‘continual progress on the status of these rights’ and, in turn, states are expected to ‘take deliberate steps immediately and in the future towards the full realization of ESCR’ (Felner 2009, p. 403). Progressive realization acknowledges that states may be unable to fulfil their obligations regarding the minimum core at the moment—for instance, because of severe resource constraints—but nevertheless states must take immediate steps within their means towards the fulfilment of these rights in the near future. Similar arguments underlie the correlative notion of ‘non-regression’, according to which reducing the minimum core of social rights constitutes a violation of these rights unless they have been carefully weighted against the enjoyment of other social rights.

Although playing a central role in the international development and recognition of social rights, the notions of a minimum core and its progressive realization remain vague and highly controversial.Footnote 5 It is interesting to note, for starters, a serious tension hampering the smooth interaction between core content and its progressive realization. On one interpretation, the minimum core is a constant, and progressive realization merely serves to excuse states who are not able to satisfactorily secure the proscribed rights. However, we could also envision the minimum core itself shifting upwards as society develops economically. Asbjørn Eide, for instance, suggests that ‘the immediate obligations of states under Article 2 [of the ICESCR] imply that countries with more resources have a higher level of core content or immediate duties than those with more limited resources’ (Eide 2001, p. 27). This could be interpreted as holding that the core content of social rights is more demanding in wealthier societies, not just because they have the resources to actually realize their obligations but because the demands themselves have increased. The latter option seems to proscribe a social rights content that is subject to constant revision.Footnote 6

Apart from these conceptual complications, it is not sufficient to affirm that each of the rights that fall into the category of social rights are pressing and urgent matters to firmly establish a minimum core, for ‘even if one can defend the claim that socioeconomic rights are important, the nature of their priority over other concerns is not self-evident’ (Waldron 2011, p. 776). This suggests the specification of social rights becomes an integral part of a broader theory of social justice. At this point we run into another form of the indeterminacy problem complicating the determination of social rights. Theories of social justice and the principles they proscribe are subject to persistent disagreement amongst the citizens of a modern democracy, resulting in considerable uncertainty whether imputing such social rights is legitimate (Waldron 1999).Footnote 7 Different theories propose different reasons why social rights matter, and consequently hold distinct views on what sort of goods, resources, capabilities or interests form part of the minimum core of social rights. The fact that reasonable persons disagree on what basic needs require is less a matter of vagueness than a question of contestability (Waldron 1994).Footnote 8 At any rate, the indeterminacy charge against social rights now resurfaces farther downstream.

The social rights debate has grappled with the indeterminacy problem for quite some time (Liebenberg 2005; Bilchitz 2008, 2014; Young 2012; King 2012; Contiades and Fotiadou 2012), and in doing so several proposals to fix the content of these rights have emerged. In what follows I examine three distinct approaches to fleshing out the idea of a minimum threshold: social rights as the fulfilment of basic needs, social rights as the securing of a minimally decent life and social rights as a requirement of active citizenship. Each of these proposals progressively expands on what the minimum threshold of social rights requires and, conversely, what obligations they generate on the part of the state. While there exist no doubt many other accounts, I believe that the discussion below illustrates the sort of difficulties that attempts to determine the content of social rights all grapple with. In what follows I show that none of these leading approaches is entirely satisfactory, and suggest that the socio-economic rights debate looks elsewhere for a perspective to settle its content. In the last section I provide a brief account of what I believe is the most plausible approach.Footnote 9

Social Rights as the Fulfilment of Basic Needs

The idea that the importance of social rights is grounded in the satisfaction of basic needs takes pride of place amongst social rights advocates (Stewart 1989).Footnote 10 The needs-based rights perspective is grounded in the intuition that all individuals have certain existential needs whose fulfilment translates into moral obligations for the collective. Legal social rights, on this reading, follow directly from appreciating the needs of individuals and the state’s moral obligation to use its public resources to address these needs.

Human rights theory and human rights law have built on this approach by proposing an ‘essential content’ of social rights (Eide 1989; Drover 1992; Bilchitz 2008, 2014; Young 2012). The essential content approach holds that reference to basic needs allows us to identify an objective core of social rights, which in turn determines its scope in a precise, accessible and relatively incontrovertible manner. Unfortunately, the notion of basic needs that is central to this approach is not without its problems, as I will argue in this section.

The notion of basic needs presumes the existence of human needs: a set of needs shared by all human beings, whose urgency triggers a strong moral obligation to promote its satisfaction (Scanlon 1975; Schuppert 2013). Reader and Brock (2004, p. 252) characterize these as ‘non-contingent needs’, taken to be ‘necessary conditions for non-contingent aims that the needing being could not but have’, such as subsistence, minimum agency or the avoidance of harm (Doyal and Gough 1991, pp. 50–55; Wiggins 1998, p. 35). To distinguish basic needs from mere wants, preferences or desires, needs are customarily qualified as objective (in the sense of ‘external to the subject’) and measurable.

The definition of basic needs as an objectively necessary condition for the endurance of material life or minimum agency reinforces its normativity, but at the same time also displays its conceptual and practical limits. The requirements of minimal agency and continued existence (including the avoidance of serious harm) comprise ‘the mental capacity to identify oneself, to form intentions, to consider reasons, the physical security to act purposefully, and the fulfilment of all relevant needs for securing one’s (prolonged) survival’ (Schuppert 2013, pp. 30–31). Basic needs defined along these lines may justify secure access to nutrition and clean water, basic health care, clothes and protective shelter and basic physical security (Shue 1980; Beetham 1995; Hertel and Minkler 2007; Bilchitz 2008). However, basic needs characterized this way are often expressly limited to the survival context, which many social rights theorists will find unacceptably restrictive (Drover 1992; Fabre 2000; Liebenberg 2005; Osiatyński 2007; Bilchitz 2008; Fredman 2008). Jeremy Waldron, for instance, argues that although the notion of existential basic needs is usually associated with the idea of survival, this is an impoverished idea of biological need when what it is really at stake is a (broader) human need (Waldron 2000, pp. 120–121).

A more expansive notion of basic needs may be grounded in the value of ethical agency (Pogge 2008, pp. 50–56) or even in ‘duties to shield [people] from harms for which we would be actively responsible’ (Pogge 2009, p. 312), as opposed to mere survival. But here the account of basic needs rapidly becomes indistinguishable from the principles of justice embodied in a full-fledged theory of social justice. Fabian Schuppert (2013) suggests that basic needs theorists face a dilemma: either they support a minimal but highly intuitive notion of basic needs with a scope limited to survival, which entails sacrificing moral entitlements for realizing a broader set of universally valuable ends; or they go beyond the mere-survival context and ground needs robustly in individual autonomy, well-being or ethical agency, along the way giving up on the strong intuitive appeal of the basic needs framework.

[M]ost need-based theories try to have their cake and eat it, too, as they on the one hand believe that need-based claims are of special moral urgency and intuitive appeal, and on the other hand they try to justify on the basis of this claim a rather substantive set of basic rights and principles of social justice. However, in so doing, the concept of need becomes blurred. (Schuppert 2013, p. 32)

Those who propose to determine the content of social rights by referring to basic needs seem to have quite a problem on their hands. They may have access to a shared understanding of what is urgent and pressing for individuals to subsist, but such a shared content is too minimal and for that reason hardly appealing for social rights advocates. This is not to deny that the minimal approach—given the existence of billions of human beings who are deprived of access to the most crucial goods for survival—could play an important role. However, the provision of a bare survival minimum, albeit urgent and crucial, is not where the debate about the content of social rights is facing its main challenges; difficulties arise when we attempt to expand the content of social rights beyond mere survival while still remaining wedded to the notion of basic needs (as, for instance, Fredman 2008). In a nutshell, the version of the basic needs approach that combines general agreement with overly minimal content barely warrants the effort social rights proponents typically expend on making their case in favour.

Unfortunately, any attempt at going beyond the minimal boundary immediately runs into a second, pressing problem. For once relieved from its minimalist straitjacket, the basic needs approach seems unable to tell us where to stop the expansion of claims.Footnote 11

This is a serious problem for proponents of social rights because positive claims are potentially insatiable, to use a term introduced by Joseph Raz (1986). In the case of satiable principles, Raz (1986, p. 235) writes, ‘the demands the principle impose can be completely met’. By contrast, an insatiable principle ‘is one which it is always possible in principle to satisfy to a higher degree’ (Raz 1986, p. 236).Footnote 12 The problem with the alleged insatiability of positive claims is that it entails a tendency to infinite expansion in a way that negative claims (so-called claims to respect or not interfere) do not.

To illustrate, consider the right to health, stipulated by the UN Committee of ESCR as ‘the right to the highest attainable standard of health’.Footnote 13 A strict interpretation of this standard suggests society should spend unlimited resources to ensure an ever-increasing standard of health for its members, possibly to the detriment of furthering non-health goals. Furthermore, this standard does not merely focus on health care but addresses the much broader category of health (Yamin 2005), suggesting the right to health employs a vast range of social determinants of health to obtaining the highest possible standard of health. Insatiable rights like health rapidly end up devouring the whole social product like a black hole, and consequently the challenge of setting fair limits to health claims is a major concern for those endorsing health rights (Sreenivasan 2012, pp. 63–64).

Considerations of insatiability reveal that, as we start expanding the content of basic needs, we are in need of an independent criterion to tell us where basic needs end (or become ‘less basic’, as it were). Predictably, people will have different views about which criteria are most salient and, as a consequence, the initial agreement around basic needs evaporates. The two difficulties outlined in this section—the minimalism of bare-survival basic needs and the insatiability of expanded basic needs—suggest that a basic needs approach is insufficiently robust in determining the content of social rights. No matter how intuitive and plausible the notion of basic needs, once applied to social rights this perspective rapidly unravels. The concept of basic needs seems to be unable to do the required conceptual and normative work in determining the ‘essential’ content and scope of social rights.

Social Rights as Securing a Minimally Decent Life

A more expansive justification of the minimum core of social rights refers to the concept of a decent life. Like basic needs, the idea of a decent life is a notion that has a firm place in human rights discourse (Miller 2007).

Cécile Fabre is one of the leading advocates for social rights within this approach. In Social rights under the Constitution, she argues for a robust justification of social rights by appealing to the special moral consideration for people to lead a decent life. ‘[It] is my contention that rights are justified on the grounds that the kind of person who leads a decent life has special moral value’ (Fabre 2000, p. 17). A decent life, according to Fabre, entails both a capacity for autonomy—i.e. the ability to thoughtfully decide what to do with our lives—as well as well-being, embodied in the requirement that we should relieve people from suffering and we should not cause deliberate suffering to individuals (Fabre 2000, pp. 9–13). Recognition of the moral worth of human beings entails assigning rights to people, demanding others respect these two privileged conditions for leading a decent life.

In addition to the familiar civil and political rights, Fabre insists, concern with a decent life also entails the requirement to provide individuals with adequate resources to further their autonomy and well-being. This access to adequate resources takes the form of rights to a minimum income, housing, adequate education and health care (Fabre 2000, pp. 7, 33–39). Individuals are entitled to the adequate resources required to lead a decent life, but people have very different views about what makes for a decent life (Dorsey 2012, p. 18).Footnote 14 Thus, it appears that the amount of resources at stake might again vary dramatically depending on the precise notion of a decent life adopted. Fabre is aware of this problem, and in several passages restricts the notion of decency at play by suggesting adequate resources are those necessary to conduct ‘a minimally decent life’ (Fabre 2000, p. 23). How are we to understand the notion of minimal decency?

One possibility would be to argue that minimal decency is satisfied with the provision for subsistence, which would revert us to something akin to basic needs and immediately run into the difficulties identified in the previous section. Fabre too explicitly rejects the view that the threshold for leading a minimally decent life can be identified through appealing to basic needs (Fabre 2000, pp. 35–36, 124–125). Securing the autonomy and well-being necessary for leading a minimally decent life requires a considerably larger portion of resources. While some needs are universal because they can be ‘defined in the same way for everybody’, others are socially defined ‘and the needs they give rise to are correspondingly socially determined’ (Fabre 2000, p. 18). It is the fact that adequate resources must include socially determined needs—needs that people have in virtue of the particular society they live in—which explains why Fabre’s approach to social rights expands well beyond basic needs minimalism, and is therefore more appealing to social rights advocates.Footnote 15

Fabre’s notion of socially determined needs accommodates for variation in economic and social development between jurisdictions, as adequacy means ‘adequate according to the level of economic development that obtains in society’ (Fabre 2000, p. 124). Contextualizing the understanding of the minimally decent life this way initially appears very attractive, seemingly offering a criterion—level of economic development—that guides the determination of the content of social rights.Footnote 16 However, further reflection reveals a nagging problem at the core of Fabre’s solution, for we need to have a better understanding of which contextual factors are legitimate reasons for discounting individuals’ claims to social rights under a particular understanding of leading a minimally decent life. If the level of adequate resources depends on a notion of minimal decency that varies with the economic and social development of a society, are we not confusing the state’s obligation to fulfil certain social rights with its ability to do so? One question is whether we can discern sufficient reasons for the recognition of social rights and their associated obligations; a different concern is whether there exists a further set of reasons that legitimately excuse the state not meeting its obligations. A poor state may be excused in failing to meet certain resource-intensive social rights, but does this mean that the obligation itself does not exist (Sumner 1987, pp. 16–17) or rather that, in this case, a failure to meet the obligations should not count as an infringement?Footnote 17

The distinction between ability and obligation is important for at least three reasons. First, recognition of social rights entails a burden of proof to (publicly) explain why a state is failing to meet its obligations. The process of accountability involved allows society—notably those whose rights are infringed upon—to evaluate exculpatory reasons, and to distinguish between acceptable and non-acceptable reasons. Second, if the distinction between capacity and obligation holds, this implies that when the economic situation improves and more public resources become available, they should be targeted at meeting the social rights obligations as a matter of priority. Recognizing social claims as fundamental social rights plays a key role in future resource prioritization. Third, even when the state is presently legitimately excused in meeting its social rights obligations, it nevertheless continues to hold a second-order obligation to take the necessary steps to urgently improve its economic situation. Once a social right is established, there are actions even resource-deprived states ought to undertake (or refrain from undertaking) now.

None of these three points follow if we instead take the view that the content of social rights is directly determined by the level of economic development of a society.Footnote 18

I believe Fabre’s emphasis on the provision of adequate resources to lead a minimally decent life unduly ties the content of social rights to the ability of each society to meet socio-economic demands, and most worryingly with the level of economic growth a society has obtained. Fabre illustrates her approach with the example of decent housing. She argues that what counts as decent housing is partly common to all societies and does not vary, but ‘part of what counts as decent housing, and in particular the notion of decent size, does vary with the level of social and economic development’ (Fabre 2000, p. 36). Her point is that when we reflect on what counts as a decent size of dwelling, we should expect different answers in India or in the United Kingdom. Taking into account weather conditions, we can appreciate that a British citizen spends a large part of their life indoors. And UK culture has strong views on, say, the importance of children having their own space to do their homework, or a private space for parents within the dwelling. These are considerations that apparently do not apply (to the same extent) to housing requirements in India (Fabre 2000, p. 36).

Obviously, needs vary across different contexts. That said, with respect to Fabre’s housing example several points are worth keeping in mind. First, even where regional climate variation should be regarded as a relevant contextual difference, that particular concern has little to do with the level of economic development that features prominently in Fabre’s perspective of adequate resources as pertaining to a decent life. Fabre seems to conflate a variation in our understanding of minimal decency pertaining to the climate, cultural, social or historical context of each society with its economic development.

Moreover, to argue that the threshold of minimal decency and, consequently, the content of social rights depends on the wealth or poverty of a society is problematic in its own right. Economic development is relevantly different from the other contextual variables listed above. Consider a variation of Fabre’s housing case. The weather in Ireland and the UK is equally cold and wet, suggesting both populations have roughly similar housing needs. But for a large part of its history Ireland had a much lower level of economic development than the UK. While this translates into less resources being available for meeting the right to housing, would we really want to insist that Irish families have not the same right to decent housing as their British neighbours and should contend themselves with a lower standard of housing? A more plausible view, it seems to me, is to insist that the content of the right to housing for British and Irish citizens is similar, but that Ireland was perhaps justified in not meeting its social rights obligations to the same extent as the UK.

A further problem arises as soon as we appreciate that what counts as decent housing in the UK and India, respectively, is explained by a complex set of reasons, of which climate difference is but one. Part of the story is based on the norms and expectations that have historically emerged to inform what is regarded as ‘decent’ in a particular social context. For example, distinct cultural notions of privacy within the household or extended family in part explains difference in space requirements embedded in our understanding of minimally decent housing. But a difference in social context does not always justify a distinctive treatment. From the fact that, historically, certain individuals have adapted to a particular lifestyle (e.g. sharing dwellings with extended families), it does not necessarily follow that they are not entitled to a level of adequate resources suitable to a less cramped lifestyle. The concept of adaptive preferences applies to a large set of cases that explain contextual inequalities (Nussbaum 2001).

In sum, Fabre’s account of social rights as access to adequate resources for leading a minimally decent life moves beyond the basic needs approach but nevertheless fails to convincingly specify the content of social rights. A contextual approach to determining the content of social rights fails when uncertainty and disagreement about which contextual factors appropriately influence our understanding of minimal decency persist. Economic development in particular appears a poor criterion for restricting the content of social rights. These considerations suggest we need to look elsewhere for a guideline on how to fix the content of social rights.

Social Rights as a Civic Minimum

In this section, I examine a distinctive political approach to determining the content of social rights. This approach is spearheaded by John Rawls’s (1971, 1993, 2001) discussion of social rights as a social minimum. The Rawlsian notion of a social minimum must be understood as a political ideal, referring, as it does, to the resources that individuals need to be free and equal members of a political society. We can regard social rights as requirements of citizenship, or what Stuart White (2003) has called a civic minimum.

Rawls refers to the requirement of a social minimum in various passages throughout the development of his theory of justice as fairness; however, its precise place remains a matter of considerable controversy.Footnote 19 Of particular interest to this article, commentators have interpreted the social minimum in Rawls by focusing on its connection with basic needs as well as the difference principle. Samuel Freeman (2003, p. 9) takes the latter approach by arguing explicitly that justice as fairness ‘defines the social minimum in terms of the difference principle’. Jeremy Waldron instead proposes amending Rawls’ theory by replacing the difference principle with a ‘social minimum principle’, defined as a ‘principle of average utility subject to a constraint that a certain social minimum of well-being be maintained for every individual’ (Waldron 1993b, p. 252).Footnote 20 In other words, Waldron believes that a needs-based justification of the social minimum constitutes a more promising alternative to Rawls’s approach (Waldron 1993b, pp. 256–257).

For Waldron, it is obvious that when participants select the principles of justice they will gravitate towards a principle that guarantees the satisfaction of basic needs, even at the risk of condoning immense inequality (Waldron 1993a, pp. 225–249).Footnote 21 In fact, the Waldronian principle of a social minimum ends up disregarding ‘equality as a substantive concern altogether’, replacing the relevant threshold with a minimum level of material well-being that assures each citizen against abject deprivation (Waldron 1993b, p. 267). However, near the end of his article Waldron offers an intriguing addendum by insisting that the amount of material resources that the state must provide should not merely be sufficient to obtain the consent of the disadvantaged members of society, but in addition produce ‘enough active support to constitute an entire social structure and sustained through the ordinary vicissitudes of political life’ (Waldron 1993b, p. 270).

This later addition to his original publicationFootnote 22 extends the earlier basic needs interpretation to promoting a robust sense of citizenship and social membership. Waldron’s novel interpretation brings out the distinctive political element in Rawls’s account, which leads us towards a civic minimum interpretation of the content of social rights.

If people’s circumstances are such that they are unable to sustain a sense of themselves as active citizens of this society—charter members, so to speak—or if they lack a sense that this society is theirs too, organized in their name to respect and promote their interests, then the threshold of social concern is set too low. My appeal to the notion of a minimum, rather than to Rawls’s difference principle, expresses the idea of a determinate level at which this sense of constitutive membership kicks in. (Waldron 1993b, p. 270, emphasis added)

It is hard to see how the requirement of a citizenship status with a sense of ‘constitutive belonging’ would follow from a needs-based characterization of the social minimum. A sense of active citizenship requires more than bare subsistence, and Waldron must have a different justification in mind.

It is tempting to revert back to Rawls’s own justification of the social minimum through the difference principle (Rawls 1971, pp. 252–253, 303–304; 1993, pp. 141–142), but this move is not without its difficulties. One problem is that Rawls specifies ‘a social minimum covering citizens’ basic needs’ as a constitutional essential, while the difference principle is meant to operate at the legislative stage (Rawls 1993, p. 230; for critical comments see Van Parijs 2003; Pogge 2004). In the four-stage institutional structure proposed by Rawls, the constitutional stage safeguards the fundamental freedoms, the political process as a fair procedure, and the social minimum, whereas the legislative stage is meant to enact socio-economic policies in accordance with the difference principle (Rawls 1993, p. 230). The different institutional locus of the social minimum and the difference principle—both aimed at securing access to social goods in a Rawlsian well-ordered society—suggests we should perhaps regard the social minimum as a compound notion.

Rawls engages with the first sense of the social minimum when he outlines the difference principle as a constraint on socio-economic inequality. ‘The sum of transfers and benefits from essential public goods should be arranged so as to enhance the expectations of the least favoured consistent with the required savings and the maintenance of equal liberties’, which Rawls explicitly designates as ‘a criterion for adjusting the level of the social minimum’ (Rawls 1971, pp. 303–304). The resulting priority given to the worst off renders the social minimum potentially quite demanding and subject to continuous adjustment, within the constraints imposed by the basic liberties and the principle of fair opportunity.

A second sense within the compound notion relates the social minimum directly with the exercise of political liberties. In Political liberalism Rawls argues that ‘freedom of movement and free choice of occupation and a social minimum covering citizens’ basic needs count as constitutional essentials while the principle of fair opportunity and the difference principle do not’ (1993, p. 230, emphasis added; also Rawls 2001, pp. 47–48). This interpretation contrasts markedly with the first sense outlined in the previous paragraph. A critical aspect of Rawls’s view is that it effectively ‘politicizes’ the social minimum in a way that expands both the basic needs and the minimal decency approaches discussed earlier by directly tying it in with the idea of social citizenship (Marshall 1950; King and Waldron 1988; Waldron 1993a).

The ‘political turn’ of determining the content of social rights through the idea of a civic minimum is an interesting move, and one I support. The question remains, however, whether this politicized approach allows us to resolve the indeterminacy problem that plagues social rights. Leaving the content of basic social needs as a requirement of the exercise of the political liberties underspecified fails as a starting point for establishing the content of social rights. For starters, it does not allow us to distinguish between the ‘sufficientarian’ interpretation of Waldron and the potentially more demanding Rawlsian version in which active citizenship perhaps requires a more egalitarian distribution of resources (Daniels 2003).

While the indeterminacy of the compound notion of the social minimum, as discussed in this section, is a problem internal to the Rawlsian perspective, in my view it illustrates a concern that generalizes across theories of justice. Those interested in determining the content of a politicized conception of the social minimum need to come up with a set of widely accepted (or acceptable) criteria that demarcate the necessary conditions for being enabled as a citizen in a modern society. No doubt competing theories of justice will have their own preferred precepts, but as the Rawls–Waldron debate illustrates, indeterminacy resurfaces easily. Moreover, achieving determinacy within a particular theory of justice comes at a cost in terms of disagreement on whether to accept this theory in the first place. The latter reason, in particular, suggests a better strategy might be to try locating the political conditions of citizenship firmly outside theories of justice. In the remainder of this section I briefly suggest what such a ‘thin’ account of determining the content of social rights might look like.

In my view, both Rawls’s and Waldron’s discussions of the important relation between a social minimum and citizenship moves in the right direction by adopting the politicized idea that citizenship requires social rights (White 2003). But where both go wrong is in failing to specify clearly a route by which to determine the ‘civic minimum’. The solution, I suggest, is to adopt an approach grounded in the practice of political participation. A pluralistic democracy that takes seriously the idea of persistent disagreement about social justice must ensure that all citizens are given both the formal right and the effective capacity to participate in the political deliberation and decision-making that allows a polity to pragmatically govern its disagreements (Knight and Johnson 2011).

Social rights come into this framework at the point when we consider that effective (not merely formal) participation is hampered by a broad range of social and economic conditions. A political perspective on social rights acknowledges that social rights are indeed part of what it means to be a democratic citizen, a point clearly acknowledged by Rawls and Waldron (and many others), but it furthermore insists that an analysis of political participation itself can generate an account of which and at what level social rights ought to be secured. To briefly illustrate, consider the right to education, which can be justified from a political perspective in various ways (Newman 2012). Most obviously, illiteracy quite literally prevents individuals in a modern democratic system participating in politics. More contentiously, studies showing that differential educational attainment is associated with variation in political participation again justify the state seeking to ensure quality education grounded in the notion of equal citizenship (Bruch et al. 2010). Similar types of arguments, I believe, can be made with respect to other social rights, although I cannot develop these points in detail here.Footnote 23

Needless to say, the proposed approach implies that we must engage in often controversial empirical debates about the social determinants of political participation and influence, and at times the resulting proposals may reflect contingent compromise rather than epistemic certainty. But empirical difficulties aside, the approach is firmly grounded in an account of the role that social rights play in the political system in operation at a particular point in place and time. I believe this approach provides a robust and plausible account of how a pragmatic political approach that eschews external criteria can simultaneously arrive at a justification for, and a determination of the scope and content of, social rights.

Conclusion

The starting point of this article is that the determination of a core content of social rights is in a state of perpetual discontent. Legal categories such as the minimal core notion developed in international human rights discourse offer little real guidance in telling us what precise social or economic claims should be granted rights protection. In this article I examined three leading approaches to filling in the content of social rights: social rights as the fulfilment of basic needs, social rights as the securing of a minimally decent life and social rights as a requirement of citizenship (a civic minimum). Each of these approaches, I argued, was ultimately unsuccessful in robustly mitigating the indeterminacy charge against social rights. The main aim of this article was to critically explore the indeterminacy problem as it pertains to the content of social rights, and the failure of competing approaches to address this concern satisfactorily. In addition, I briefly argued that the ‘political turn’ inherent in the civic minimum perspective offers the most promising account, especially when combined with a pragmatic approach to demarcating the content of social rights in light of their role in securing that all citizens can effectively participate in the political system that governs their lives.