ABSTRACT
The moralization and, more specifically, the moral naturalization of the private law of the market as a result of “everyday libertarianism” and the related individualistic naturalism has recently been denounced by private law theorists. Interestingly, the same development may now be observed in the field of international human rights law. One may coin it the moral naturalization of individual economic rights (ER) qua human rights. The difficulty is greater in this context, however, to the extent that human rights are usually held to be the epitome of genuine or “natural” moral rights. This makes the combination of both kinds of naturalistic readings even more irresistible. In response, this chapter starts by unpacking and criticizing the naturalistic reading of ER. It identifies a third way for human rights theorists interested in supporting a reading of ER that can promote social justice. The choice is not, indeed, unlike what the few human rights theorists discussing ER to date have argued, between considering ER as natural or genuine moral rights and human rights, and hence recognizing individual market rights as human rights and entrenching some form of economic libertarianism into IHRL, on the one hand, and approaching them instead as mere moral goals and not as proper human rights, and hence condemning the remaining social rights (SR) to the passive and individualized role of “subsistence” or “anti-poverty” rights they have been assigned since the 1960s, on the other. Human rights may also be considered to recognize and/or specify universal moral rights that are not natural or genuine moral rights, but conventional moral rights whose justification is instrumental to the value of the social practice and normative order they constitute. The proposed conventional reading of ER has important repercussions, the chapter argues, for human rights theory, as it provides a normatively more nuanced understanding of the relations between moral and legal rights in international human rights law. It also bears on the future practice of ER in domestic and international human rights law, by re-uniting ER and SR and reviving the 1930s socio-economic rights project and thereby giving rise to States’ duties to regulate the global market in such a way as to promote social justice.
