public against government policy. All these are rights taken for granted in a
liberal democracy.
Naturally these two categories overlap considerably, and it is increasingly
argued that they should be extended to cover more ‘substantive’ rights.
Substantive rights—the right to work, for example, or to minimum welfare
and education provision—differ from procedural rights (which only guarantee
equal treatment) in that they commit society to an absolute standard of
provision. It is clearly a breach of a civil right if state education is given to
white children and not to black children, or if welfare provisions are given
differentially according to the sex of the recipient. In the past it has been
considered less obviously a denial of civil rights if no one is provided with free
university education, or if unemployment pay is below subsistence level for
everyone. However, the development of civil rights theories and of actual civil
rights provision has tended to involve a steady extension from procedural
equality to guarantees of minimum standards. Some constitutions, for example
the Basic Law (Grundgesetz) of Germany, actually list as basic rights things like
minimum, or even higher, educational provision rather than restricting the
guarantee to fair or unbiased provision of whatever the government decides to
make available. This is yet more common in the new democracies of Eastern
Europe, where a tradition of extensive welfare provision was built up during
the communist years.
Another tendency has been to increase the number of criteria which are not
regarded as fair bases for differential treatment. There has, for example, been
steady pressure on the US Supreme Court since the 1960s to rule that no
policy which distinguishes between people on the basis of sex is constitutional,
by analogy with the ruling that anydiscriminationon the basis of race is a
denial of civil rights. This is sometimes extended to a ban on discrimination
according to sexual orientation, leading, for example, to removal of restrictions
on the rights of same sex partners, or the possibility of adoption of children by,
or even a form of marriage between, homosexual couples (seehomosexu-
ality). Another recent development has been the effort to stop private agents,
whether corporations or individuals, from acting in a discriminatory manner.
In Britain the Race Relations Acts prohibit the private exercise of racial
discrimination, for example by a shopkeeper, and in the USA similar measures
have been taken in areas such as access to private housing markets. One of the
major theoretical problems of civil rights in jurisprudence is the extent to
which legal enforcement mechanisms should or can apply only to the State. It
is still unclear, for example, whether the United Kingdom’sHuman Rights
Actwill apply to private organizations as well as to the ‘public authorities’ it
expressly covers. Thus, for example, while the US Supreme Court insisted on
police warning arrested persons of their constitutional rights to remain silent
and to have a lawyer (known as the Miranda warning, deriving from the
Civil Rights