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Countries that now contemplate constitutional reform often grapple with the question of whether to constitutionalize social rights. This book presents an argument for why, under the right conditions, doing so can be a good way to advance social justice. In making such a case, the author considers the nature of the social minimum, the role of courts among other institutions, the empirical record of judicial impact, and the role of constitutional text. He argues, however, that when enforcing such rights, judges ought to adopt a theory of judicial restraint structured around four principles: democratic legitimacy, polycentricity, expertise and flexibility. These four principles, when taken collectively, commend an incrementalist approach to adjudication. The book combines theoretical, doctrinal, empirical and comparative analysis, and is written to be accessible to lawyers, social scientists, political theorists and human rights advocates.Read more
- Provides a clear and accessible account of constitutional social rights
- Accommodates the objections that courts lack the legitimacy and expertise for enforcing social rights
- Ranges broadly over comparative doctrinal analysis of judicial decisions and constitutional provisions, empirical legal studies, administrative justice, and legal and political theory
- Winner of the 2014 Peter Birks Prize for Outstanding Legal Scholarship
Reviews & endorsements
"… [a] stimulating and comprehensive [addition] to the burgeoning case for enforceable economic and social rights, specifically health care, housing, social security and education (social rights) … The book sets out a relentlessly coherent and impressive argument as to why incorporating social rights should be seen as an incremental step in the right direction."
Jamie Burton, Public LawSee more reviews
"There is no doubt that King has written a deeply impressive book that will be of great interest to social rights scholars and indeed anyone interested in public law. It is highly recommended."
Murray Wesson, University of Western Sydney Law Review
"[In] Judging Social Rights … we are presented with new perspectives for analyzing the relationship between social rights and constitutionalism. [King argues] that it is important to constitutionalize these rights, and … then engage[s] in sophisticated analyses about how to implement these rights in the context of a complex set of government and nongovernment institutions, practices and actors, all within the context of comparative and global frames."
Eileen McDonagh, Tulsa Law Review
"In Judging Social Rights, Jeff King makes a powerful case for a limited, incrementalist, judicial approach to social rights adjudication … King has made a significant contribution to the transformation of the terms of the debate: the most pertinent question now, he has shown to us, is not whether, but when and how, judges should protect social rights."
Farrah Ahmed, Oxford Journal of Legal Studies
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- Date Published: June 2012
- format: Paperback
- isbn: 9781107400320
- length: 400 pages
- dimensions: 229 x 152 x 21 mm
- weight: 0.53kg
- contains: 1 b/w illus. 2 tables
- availability: Available
Table of Contents
1. Aims and methods
Part I. The Case for Constitutional Social Rights:
2. The case for social rights
3. The value of courts in light of the alternatives
4. A basic interpretive approach
Part II. A Theory of Judicial Restraint:
5. Institutional approaches to judicial restraint
6. Democratic legitimacy
Part III. Incrementalism:
10. Incrementalism as a general theme.
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