Against market constitutionalism: a needs-based approach to rights and the case for a socialist constitutionalism

In this paper I explore the hypothesis that a conception of right(s) that draws from the notion of needs is crucial for a critique of market constitutionalism. To this end, I review different theories of need, revisit the ‘needs versus rights’ debate and set it in the context of the Marxist critique of rights. Market rationality pits ‘needs’ against ‘rights’ (in the legal field) and favours a narrow conception of ‘need’ (in the field of normative theory). In contrast to this, I propose a rich conception of ‘need’ based on Marx’s critique of capitalism and explore its potential for a materialist conception of right(s). I conclude with a tentative exploration of the constitutional implications of adopting a needs-based approach to rights, in terms of both judicial and political decision-making forms. To develop the above argument, I focus on labour rights - especially the ways in which market rationality has affected the conception and application of labour rights in the European Union and the United Kingdom.