Who is more protective of individual rights

From the perspective of neoliberal theory, we are all equal: neoliberal society does not contain legal or political inequality and does not divide citizens into those who are superior and those who are inferior. To be at the disposal of someone else who can do whatever they please and to whom one owes unrestricted obedience entails neither that one has an inferior legal status nor that the political relationship at stake is one of a superior to an inferior.

Persons have the same legal constitutional status they all are seen as equally free , and all are equally entitled to pursue their private interests. Even if people sell themselves, this concerns the private restriction of liberty from the perspective of neoliberalism and does not conflict with the conditions required for the proper functioning of the spontaneous order, i. Besides entailing what is known in political philosophy as the liberty of slaves, i.

Thus, even if in neoliberal spontaneous societies people are not assigned explicitly different political statuses, which entail different political rights and duties, neoliberal political society does not prevent people from becoming servile or, correlatively, from becoming despotic. This fact reveals the extent to which neoliberalism entails a dangerous process of what some authors have called refeudalization Supiot, ; Szalai, , full analysis of which deserves examination of its own.

Nevertheless, when obeying without liberty , if citizens fail to acquire their rights they risk becoming something less than a free serf, i.

A free excluded citizen is a citizen who lives in a free society without having the personal, social or institutional resources to make use of their own liberty. In this case, voiceless and invisible citizens can only enjoy purely negative liberty, in the absence of the personal, social and institutional resources with which they might otherwise achieve well-being.

Neoliberalism also entails the continuous risk of passing from servile or docile citizenship into lawless personhood. Neoliberalism does not reduce to fostering the entrenchment of political inequality: the division of citizens into those who obey and those who command. It also does not merely imply a situation in which some are protected by the state while others are not, where private interests have a monopoly on legal protection and rights while others are denied political protection and only have duties on work precariousness see Gill and Pratt, Ultimately, neoliberalism risks leading to the total exclusion of some citizens under the veil of full liberty.

The vanishing of the will of the people results in the invisibility of certain kinds of people, who are then forced to live in the spontaneous society as if they were stateless or lawless persons.

Neoliberalism has retained some of the elements of that state such as the protection of the rights of the most vulnerable , although these elements have been reshaped by the market approach to social welfare Hartman, ; MacLeavy, On this basis, neoliberal officials have assigned public goods and services to private market providers, redesigning social programs to address the needs of neoliberal labor markets rather than personal wellbeing and establishing partnerships between the state and the private sector Brodie, For example, economic internationalization has affected the competitive viability of the welfare state Boyer and Drache, ; Rhodes, Also, the expansion of the state weakened intermediate groups and jeopardized individual liberties, subjecting citizens to increasing bureaucratic controls Alber, We shall not dwell on a full analysis of these developments.

The neoliberal market approach is, however, incompatible with the very idea of a welfare state. Moreover, the functioning of the welfare state requires the contribution of fellow citizens Marshall, ; Esping-Andersen, By contrast, the market approach rejects in principle all social rights, such as the right to education and health, and requires that individual welfare be an exclusively private enterprise Brodie, ; MacLeavy, Instead of being provided, such services ought to be purchased Brodie, ; MacLeavy, Moreover, if the economic market only identifies solvable needs, and if individuals cannot signal their lack of resources, the neoliberal welfare state cannot prevent individuals who have been deprived of their rights from becoming invisible, along with the resulting institutionalized insecurity Brodie, , intensified poverty and inequality, and diminishing of security of employment and income for many wage earners Clayton and Pontusson, ; Stiglitz, If the spontaneous society and its governments do not provide any rights, and if individuals do not acquire them in the economic market, there is no reason to claim such rights including social rights.

In this case, neoliberal social welfare reduces to charity Clayton and Pontusson, ; Raddon, ; Mendes, The neoliberal conception of welfare also shows how neoliberal theory and practice do not prevent the subordination of certain individuals to non-consensual external mastery. Neoliberalism is equally committed to state retrenchment or permanent austerity Whiteside, By requiring fiscal consolidation, cuts to social security, the privatization of public property, the liberalization of collective bargaining, and the shrinking of pensions Barro, , austerity not only undermines all attempts to establish social security but also challenges the liberal and democratic basis of society.

A Portuguese neo-liberal politician declared in that even if under austerity measures the well-being of the people had worsened, the country was better off Footnote 1. The fact that neo-liberal policies have improved the state market is more relevant than the fact that the Portuguese people have been neglected and severely harmed Legido-Quigley et al.

Second, neoliberalism excludes in principle the will of the people, i. Following the political referendum of , for example, where the people voted against neoliberal politics of austerity Footnote 2 , the Greek government nonetheless imposed a third harsh and austere economic program Footnote 3. Accordingly, neoliberal political principles, embedded in austerity policies, cannot prevent certain citizens from becoming invisible and voiceless citizens, i.

As voiceless citizens, their preferences can only be registered through illiberal and antidemocratic channels, such as populism. Only following the election of US President Trump did the deteriorating life conditions of American citizens living in the rust belt states of Michigan, Pennsylvania and Wisconsin become widely known Walley, Treated as nothing, and having becoming Nobodies, these citizens face the oppressive and violent institutional neoliberal Nobody, with its no less violent and oppressive political body.

There is a lack of consensus on the definition of populism Collier, It can, however, be described as an organizational or a strategic approach Weyland, and ideology Freeden, ; MacRae, ; Mudde, ; Mudde and Kaltwasser, The organizational perspective of populism stresses the importance of the personal leader, who bases his or her power on direct, unmediated, and institutionalized relationships with unorganized followers Weyland, In turn, as an ideology, i. Although the relationship between neoliberalism and populism deserves its own examination, the exclusion of the people, along with the right to reciprocal coercion, is a point of tacit agreement between neoliberalism and anti-liberal, anti-democratic political forces Weyland, Populist leaders have employed modern, rational models of economic liberalism—such as fiscal consolidation, cuts to social security, the privatization of public property, the liberalization of collective bargaining, and the shrinking of pensions to undermine intermediary associations, entrenched bureaucrats and rival politicians who seek to restrict their personal latitude, to attack influential interest groups, politicians, and bureaucrats, and to combat the serious crises in Latin America and Eastern Europe in the s Weyland, In turn, neoliberal experts use populist attacks on special interests to combat state interventionism and view the rise of new political forces, including populists, as crucial for determined market reform Weyland, Indeed, those who do so may take pleasure in seeing the blame for authoritarianism fall exclusively on the shoulders of neoliberal theory and practice, even though they too endorse a form of governance and the administration of the state apparatus that does away with the people.

As Locke, : II, p. Great mistakes in the ruling part, many wrong and inconvenient Laws, and all the slip s of human frailty will be born by the People, without mutiny or murmur.

Under the neoliberal transformation of private rules into public rules, citizens are witnessing a continuous disregard for their collective well-being see the relationship between the election of Donald Trump and the deteriorating life conditions of American citizens living in the rust belt states of Michigan, Pennsylvania and Wisconsin; Walley, A call for the establishment and protection of public law is a call for personal and institutional liberal and democratic sovereignty , which differs fundamentally from populism and the neoliberal model of sovereignty Dean, ; Foucault, This claim also rejects the political and nightmarish choice between neoliberalism and populism.

Indeed, even if the relationship between liberal democracy and populism deserves investigation of its own, liberal and democratic sovereignty does away with the distinction between the pure and homogenous people against corrupt and homogenous elites. Far from referring to an undifferentiated and homogeneous corpus , the people is a heterogeneous political body, which includes gender, racial, and economic differences along with disagreement about personal and collective ends , and which ultimately entails non-alienable individual rights and duties Locke, ; Kant, ; Sieyes, Second, the solution to this gap is not its elimination through the immediate relationship between the leader and the pure, homogeneous people.

In the liberal political tradition, there is no immediate political power. A charter of rights or constitutional principles always binds the will of the people Locke, ; Kant, In the absence of such restrictions, the people can itself become a despot, a danger which has been acknowledged since at least the time of Aristotle, ; see also Cicero ; Locke, ; Rawls, , If, when protecting the homogenous people against corrupt elites, populists endorse the first alternative, and if the neoliberal exclusion of the people corresponds to the second, both approaches remain blind to the political responsibility of free persons.

For these reasons, personal and institutional liberal and democratic sovereignty is more than a childish claim to state protection against political irresponsibility and blindness to public contributions to individual private well-being. They also speak against the state authoritarianism that neoliberalism engenders Brown, ; Bruff, ; Kreuder—Sonnen and Zangl, ; Orphanides, ; Schmidt and Thatcher, Nevertheless, these weaknesses challenge neither individual liberty, nor the people, nor the inter-protective role of the people and public law.

Despite their strong commitment to the protective role of the people, along with their awareness of our political responsibility for the fairness of the public rules that affect us all , Locke and Kant do not fully explain the necessity of the notion of the people when it comes to producing a social safety net created by the will of the sovereign people.

They also do not consider democratic procedures for arriving at collective support for a social safety net. Following our premises, and acknowledging the various ways in which globalization impacts states and people, democratic governments should establish democratic procedures at the national and international level to secure collective support for the political and social safety net.

These include public laws based on the will of the people that provide each person with a unique set of liberties with regard to the use of material goods which impose on each a unique set of restrictions. These liberties and restrictions will ensure that individuals have an equal coercive power to prevent their becoming servile persons and, correlatively, to prevent any one of them from becoming a despotic lord.

They also require the assumption of the cooperative nature of individual well-being, and therefore the pursuit of social justice with regards to the fruits of that cooperation.

The political translation of the common right to the results of social cooperation through public policies that protect social rights, such as the right to education and health, is also desirable. Again, it is necessary to recast the political principle of provided not purchased services as a norm of public and social welfare.

Finally, it requires awareness of the fact that in the absence of a political body to protect and enforce individual liberties, individuals will lack the personal, social and institutional resources to make use of their own liberty. More specifically, we have shown that forbidding the public restriction of liberty which is inherent in the concept of the people while exclusively defending private restrictions of liberty a deprives the majority of citizens of the equal right of coercion, and therefore of equal liberty, and b promotes the rise of different political statuses, a division between those who obey and those who command.

We have also shown that neoliberalism lacks the resources to prevent the total alienation of liberty. Since it requires an equal right of coercion, it allows for the protection of individual liberty. We have also shown that this is not an exclusively collective task. It also depends on each citizen. We also pointed out that unless there is a political turn toward the acknowledgement of the people or peoples, along with recognition of the significance of their political deliberation, neo-liberalism cannot be separated from illiberal and antidemocratic political choices.

Future research should also continue to evaluate the dangerous process of what many are calling refeudalization under neoliberalism Supiot, ; Szalai, It is worth comparing the feudal alienation of political liberty, for example the different perspectives on vassalage Bloch, , with contemporary forms of inferior political status.

Eur Sociol Rev 4 3 — Article Google Scholar. Aristotle The Politics trans. Carnes Lord. University of Chicago Press, Chicago. In: Allen A ed What is a People. New directions in Critical Theory. Columbia University Press, New York, pp 21— Barro R Government spending is no free lunch: how Democrats are peddling voodoo economics.

Wall Street Journal. Beck U Power in the global age. Polity, Cambridge, Malden. Google Scholar. Berlin I [] Two concepts of liberty. Thus, the losers in one election can use their political rights to gain public support and win the next election.

In addition to political rights, the constitutions of democracies throughout the world protect the rights of people accused of crimes from arbitrary or abusive treatment by the government.

Individuals are guaranteed due process of law in their dealings with the government. Today, constitutional democracies protect the personal and private rights of all individuals under their authority. These rights include:. The judicial branch of the new government was different from the legislative and executive branches in one very important respect: the courts did not have the power to initiate action by themselves.

Congress could pass laws and the President could issue executive orders, but courts could not review these actions on their own initiative. Courts had to wait until a dispute - a "case or controversy" - broke out between real people who had something to gain or lose by the outcome. And as it turned out, the people whose rights were most vulnerable to governmental abuse had least capacity to sue. Thus, although the power of judicial review was established in , more than a century would pass before the Supreme Court even had many opportunities to protect individual rights.

For years after ratification, the most notable thing about the Bill of Rights was its almost total lack of implementation by the courts. By the beginning of the 20th century, racial segregation was legal and pervaded all aspects of American society.

Sex discrimination was firmly institutionalized and workers were arrested for labor union activities. Legal immigrants were deported for their political views, the police used physical coercion to extract confessions from criminal suspects, and members of minority religions were victims of persecution. As late as , the U. Supreme Court had never once struck down any law or governmental action on First Amendment grounds. The most common constitutional violations went unchallenged because the people whose rights were most often denied were precisely those members of society who were least aware of their rights and least able to afford a lawyer.

They had no access to those impenetrable bulwarks of liberty - the courts. The Bill of Rights was like an engine no one knew how to start. In , a small group of visionaries came together to discuss how to start the engine.

The ACLU, the NAACP, founded in , and labor unions, whose very right to exist had not yet been recognized by the courts, began to challenge constitutional violations in court on behalf of those who had been previously shut out. This was the beginning of what has come to be known as public interest law. They provided the missing ingredient that made our constitutional system and Bill of Rights finally work. Although they had few early victories, these organizations began to create a body of law that made First Amendment freedoms, privacy rights, and the principles of equality and fundamental fairness come alive.

Gradually, the Bill of Rights was transformed from a "parchment barrier" to a protective wall that increasingly shielded each individual's unalienable rights from the reach of government. Enormous progress was made between and , when many rights long dormant became enforceable. It also prohibits a person from being tried twice for the same crime double jeopardy or from being forced to be a witness against himself self-incrimination.

It protects against deprivation of life liberty or property without due process of law due process clause. It also prohibits the taking of private property without just compensation. The Sixth Amendment provides important rights for criminal defendants, including the right to a speedy and public trial, to a trial by an impartial and local jury, to be informed of the charges against him, to be confronted by witnesses against him, to compulsory process for obtaining witnesses, and to have a lawyer.

The Seventh Amendment preserves the right to a trial by jury in most civil cases. The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments. The Ninth Amendment makes clear that the enumeration of some rights shall not be interpreted to deny other rights retained by the people although it does not indicate what those rights may be. The Tenth Amendment reserves all powers not given to the federal government, or prohibited to the states by the Constitution, to the states or to the people.

Application of the Bill of Rights. The rights contained in the Bill of Rights were originally construed to apply only against the federal government and not against state or local governments. The rights of individuals were protected from state intrusion only by the state constitutions themselves.

This changed after the American Civil War, with the passage of three amendments intended to protect the rights of the newly feed slaves. The Thirteenth Amendment prohibited slavery, and the Fifteenth Amendment protected the right to vote from discrimination based on race.

The Fourteenth Amendment contained a number of important provisions.