The Justiciability of Social Rights: From Practice to Theory

doi:10.1017/CBO9780511815485.003

1 - The Justiciability of Social Rights: From Practice to Theory

Published online by Cambridge University Press: 05 June 2012

Malcolm Langford

Edited by

Malcolm Langford

Show author details

Malcolm Langford: Affiliation:
Norwegian Centre for Human Rights, University of Oslo

Book contents

Get access

Summary

INTRODUCTION

In the space of two decades, social rights have emerged from the shadows and margins of human rights discourse and jurisprudence to claim an increasingly central place. In a significant number of jurisdictions, adjudicatory bodies have intervened to protect a wide range of social rights from intrusion and inaction by the State, and increasingly by non-State actors. The breadth of the decisions is vast. Courts have ordered the reconnection of water supplies, the halting of forced evictions, the provision of medical treatments, the reinstatement of social security benefits, the enrolment of poor children and minorities in schools, and the development and improvement of State programmes to address homelessness, endemic diseases and starvation. These are just a few examples of the almost two thousand judicial and quasi-judicial decisions from twenty-nine national and international jurisdictions which are described and critically analysed in this book.

What is novel is not the adjudication of social interests. Domestic legislation in many countries provides a measure of judicially enforceable labour and social rights. What is significant is that the more durable human rights dimensions of these social values or interests, whether captured in constitutions or international law, are being adjudicated. This is not to downplay the role of legislation from either a principled or pragmatic perspective. It is often more precise and contextualised and has the direct authoritative and democratic imprimatur of the legislature.

Information

Type: Chapter
Information: Social Rights Jurisprudence
Emerging Trends in International and Comparative Law
, pp. 3 - 45

DOI: https://doi.org/10.1017/CBO9780511815485.003 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2009

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Book purchase

Temporarily unavailable

References

Coomans, F. (ed.), Justiciability of Economic and Social Rights: Experiences from Domestic Systems (Antwerpen: Intersentia and Maastrict Centre for Human Rights, 2006)

Gargarella, R., Domingo, P. and Roux, T. (eds.); Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Aldershot/Burlington: Ashgate, 2006)

Jayawickrama, N., The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 2002)CrossRef Google Scholar

Alston, P. and Quinn, G., ‘The Nature and Scope of State Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights', Human Rights Quarterly, Vol. 9 (1987), pp. 156–229CrossRef Google Scholar

Craven, M., The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Oxford University Press, 1995)Google Scholar

Sepúlveda, M., The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerpen: Intersentia, 2002)Google Scholar

Eide, A., Krause, C. and Rosas, A. (eds.), Economic, Social and Cultural Rights: A Textbook (The Hague, Martinus Nijhoff, 1995)

Human Rights Litigation and the Domestication of Human Rights Standards in Sub Saharan Africa, Vol. 1 (Nairobi: AHRAJ Case Book Series, 2007)

Odindo, O., ‘Litigation and Housing Rights in Kenya’, in Squires, J., Langford, M., and Thiele, B. (eds.), Road to a Remedy: Current Issues in Litigation of Economic, Social and Cultural Rights (Sydney, Australian Human Rights Centre and University of NSW Press, 2005), pp. 155–166Google Scholar

Mubangizi, J., ‘The Constitutional Protection of Socio-Economic Rights in Selected African Countries: A Comparative Evaluation’, African Journal of Legal Studies, Vol. 2, No. 1 (2006), pp. 1–19CrossRef Google Scholar

Langford, M., Bougainville and the Right to Self-Determination (Unpublished Bachelor of Laws Thesis, University of New South Wales, 1995)Google Scholar

Berlin, I., Two Concepts of Liberty: Inaugural Lecture as Chichele Professor of Social and Political Theory (Oxford: Clarendon Press, 1958)Google Scholar

Schwarz, H., ‘Do Economic and Social Rights Belong in a Constitution?’ American University Journal of International Law and Policy, Vol. 10, Summer (1995) pp. 1233–1244, at 1233Google Scholar

Alston, P., ‘The Committee on Economic, Social and Cultural Rights’ in Alston, P. (ed.), The United Nations and Human Rights (Oxford: Oxford University Press, 1992), pp. 473–508Google Scholar

Vierdag, E.W., ‘The legal nature of the rights granted by the international Covenant on Economic, Social and Cultural Rights’, Netherlands Yearbook of International Law, Vol. IX (1978), pp. 69–105, at 103CrossRef Google Scholar

Hoof, G.J.H., ‘The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views’, in Alston, P. and Tomasevski, K. (eds.), The Right to Food (The Hague, Martinnus Nijhoff, 1984), pp. 97–100, at 99Google Scholar

Alston, P., ‘Critical Appraisal of the UN Human Rights Regime, in Alston, P. (ed.) The United Nations and Human Rights: A Critical Appraisal (Oxford: Clarendon Press, 1992), pp. 1–21, at p. 2Google Scholar

Gargarella, R., Domingo, P. and Roux, T. (eds.), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Aldershot: Ashgate, 2006), p. 255

Langford, M., Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies (Geneva: Centre on Housing Rights & Evictions, 2003), pp. 60–65Google Scholar

Gauri, V. and Brinks, D.. (ed.). Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008)CrossRef

Sunstein, C., The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever (New York, Basic Books, 2004), pp. 127–138Google Scholar

,The Smith Institute, The constitution of the UK as of 1 January 2007, printed in Bryant, C. (ed.), Towards a new constitutional settlement (London: Smith Institute, 2007)Google Scholar

Tushnet, M., Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2007), p. 9Google Scholar

Scott, C. and Alston, P., ‘Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom's Promise', South African Journal on Human Rights, Vol. 16 (2000), pp. 206–268CrossRef Google Scholar

Slaughter, A. M., ‘A Typology of Transjudicial Communication’, University of Richmond Law Review, Vol. 29, No. 1 (1994–5), pp. 99–137Google Scholar

Koch, I.E., ‘Dichotomies, Trichotomies or Waves of Duties?’, Human Rights Law Review, Vol. 5, (2005), pp. 81–103CrossRef Google Scholar

Langford, M. and Nolan, A., Litigating Economic, Social and Cultural Rights: Legal Practitioners Dossier (Geneva: COHRE, 2006)Google Scholar

Eide, A., ‘The Right to an Adequate Standard of Living Including the Right to Food’ in Eide, A., Krause, C., Rosas, A. (eds.), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff, 1995), pp. 89–105Google Scholar

Alston, P., ‘International Law and the Human Right to Food’ in Alston, P. and Tomaševski, K. (eds.), The Right to Food (The Hague, Martinus Nijhoff, 1984), pp. 9–68Google Scholar

Müller, Katharina, Privatising Old-Age Security: Latin America and Eastern Europe Compared (Edward Elgar Publishing, 2003)Google Scholar

,ILO, Report of the Committee set up to examine the representation submitted by the National Trade Union Co-ordinating Council (CNS) of Chile under Article 24 of the ILO Constitution, alleging non-observance by Chile of International Labour Conventions Nos. 1, 2, 24, 29, 30, 35, 37, 38 and 111 (Geneva: ILO, 1988)Google Scholar

Clapham, A., Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006)CrossRef Google Scholar

Porter, B., “Homelessness, Human Rights, Litigation and Law Reform: A View from Canada”, in Lynch, P. and Otto, D. (eds.), Homelessness and Human Rights, Australian Journal for Human Rights, Vol. 10, No. 2 (2004)CrossRef Google Scholar

‘Constitutional Rights and Social Welfare: A Comment on the Canadian Chaoulli Health Care Decision’, Modern Law Review Vol. 69 (2006), pp. 631–643CrossRef

Sunstein, C., ‘Against Positive Rights: Why social and economic rights don't belong in the new constitutions of post-communist Europe’, East European Constitutional Review, Vol. 2, Winter (1993), pp. 35–38Google Scholar

Sunstein, C., ‘Social and economic rights? Lessons from South Africa’, Public Law and Legal Theory Working Paper No. 12, University of Chicago, later published in Designing Democracy. What Constitutions Do (Oxford: Oxford University Press, 2001), pp. 221–37Google Scholar

Dennis, M. and Stewart, D., ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’, American Journal of International Law, Vol. 98, (2004), pp. 462–515, at 515CrossRef Google Scholar

Holdsworth, W., Some Makers of English Law (Cambridge: Cambridge University Press, 1938), p.173Google Scholar

Waldron, J., ‘The core of the Case Against Judicial Review’, The Yale Law Journal, Vol. 115 (2006), pp. 1346–1406CrossRef Google Scholar

Kyritsis, D., ‘Representation and Waldron's Objection to Judicial Review’, Oxford Journal of Legal Studies, Vol. 26, No. 4 (2006), pp. 733–751CrossRef Google Scholar

Kavanagh, A., ‘Participation and Judicial Review: A Reply To Jeremy Waldron’, Law and Philosophy, Vol. 22, No. 5, September (2003), pp. 451–486Google Scholar

Nolan, A., Porter, B. and Langford, M., The Justiciability of Social and Economic Rights: An Updated Appraisal, published by Center for Human Rights and Global Justice Working Paper Series, New York University, No. 14, 2007 and the Committee on the Administration of Justice, Northern Ireland, 2007, p. 11Google Scholar

Liebenberg, S., ‘The International Covenant on Economic, Social and Cultural Rights and its Implications for South Africa’, South African Journal of Human Rights, Vol. 11 (1995), pp. 359–378, at 362CrossRef Google Scholar

Eide, A., ‘State obligations revisited’ in Eide, W.B. and Kracht, U. (eds.) Food and Human Rights in Development, Vol. II: Evolving issues and emerging applications (Antwerp: Intersentia, forthcoming) pp.137–160

Menéndez, A., New Foundations for Social Rights: A deliberative democratic approach, ARENA Working Papers WP 02/32, University of Oslo, 2005, p. 10Google Scholar

Mowbray, A., The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004)Google Scholar

Rubin, E., Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton: Princeton University Press, 2005)Google Scholar

Chayes, A., ‘The Role of the Judge in Public Law Litigation’, Harvard Law Review, Vol. 89 (1976), pp. 1281–1316CrossRef Google Scholar

Miller, D., Market, State and Community (Oxford: Clarendon Press, 1989), p. 249Google Scholar

Fabre, C., Social Rights under the Constitution (Oxford: Oxford University Press, 200), p. 123

Gargarella, R ‘Should Deliberative Democrats Defend the Judicial Enforcement of Social Rights?’, in Besson, S., Marti, J. L. and Seiler, V., Deliberative Democracy and Its Discontents (Aldershot: Ashgate, 2006), pp. 233–252Google Scholar

Scott, C., ‘Social Rights: Towards a Principled, Pragmatic Judicial Role’, SER Review, Vol. 1, No. 4 (1999)Google Scholar

Bickel, Alexander, The Least Dangerous Branch (Indianapolis: Bobbs-Merrill)

Roach, K. and Budlender, G., ‘Mandatory Relief and Supervisory Jurisdiction: When is it Appropriate, Just and Equitable’, South African Law Journal, Vol. 122 (2005), pp. 325–351Google Scholar

‘The Rational Versus the Reasonable’, The Philosophical Review, Vol. 62, No. 4 (Oct. 1953), pp. 554–560CrossRef

Horowitz, D., The Courts and Social Policy (Washington, DC: The Brookings Institution, 1977)Google Scholar

Scott, C. and Macklem, P., ‘Constitutional Ropes of Sand or Justiciable Guarantees: Social Rights in a New South African Constitution’, University of Pennsylvania Law Review, Vol. 141, No. 1 (1992), pp.1–148CrossRef Google Scholar

Horowitz, D., The Courts and Social Policy (Washington, DC: The Brookings Institution, 1977) at p.3Google Scholar

Horowitz, D., The Courts and Social Policy (The Brookings Institution, 1977)Google Scholar

Fuller, L., ‘The Forms and Limits of Adjudication’, Harvard Law Review Vol. 92 (1978–1979), pp. 353–409CrossRef Google Scholar

Rosenberg, G., The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991)Google Scholar

Pieterse, M., ‘Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited,’ Human Rights Quarterly, Vol. 29, No. 3 (2007), pp. 796–822CrossRef Google Scholar

Horowitz, D., Courts and Social Policy (Washington D.C.: The Brookings Institution, 1977)Google Scholar

Scheingold, S., The Politics of Rights: Lawyers, Public Policy and Social Change (Ann Arbor: the University of Michigan Press, 1974)Google Scholar

Handler, J., Social movements and the Legal system (New York: Academic Press, 1978)Google Scholar

McCann, M., Rights at Work: Pay Equity Reform and the Politics of Mobilization (Chicago: University of Chicago Press, 1994)Google Scholar

Heywood, M., ‘Shaping, making and breaking the law in the campaign for a national HIV/Treatment Plan’, in Jones, P. and Stokke, K. (eds.), Democratising Development: The Politics of Socio-Economic Rights in South Africa (Leiden: Martinus Nijhoff Publishers, 2005), pp. 181–212Google Scholar

Roux, T., Understanding Grootboom: A Response to Cass R. Sunstein, 12(2) Constitutional Forum, Vol. 12, No. 2 (2002), pp. 41–51Google Scholar

Swart, M., Left Out in the Cold? Crafting Constitutional Remedies for the Poorest of the Poor, South African Journal of Human Rights, Vol. 21, (2005), pp. 215CrossRef Google Scholar

Pieterse, M., Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited, Human Rights Quarterly, Vol. 29, No. 3 (2007), pp. 796–822CrossRef Google Scholar

Pillay, K., ‘Implementation of Grootboom: Implications for the enforcement of socio-economic rights’, Law Democracy and Development, Vol. 6 (2002), pp. 255–277Google Scholar

Feeley, M., ‘Hollow Hopes, Flypaper, and Metaphors, Review of ‘The Hollow Hope: Can Courts Bring About Social Change? by Gerald N. Rosenberg’, Law & Social Inquiry, Vol. 17, No. 4 (Autumn, 1992), pp. 745–760, particularly at 751CrossRef Google Scholar

Scheingold, S., The Politics of Rights: Lawyers, Public Policy and Social Change (Ann Arbor: the University of Michigan Press, 2004)CrossRef Google Scholar

Williams, L., ‘Issues and Challenges in Addressing Poverty and Legal Rights’: A Comparative United States/South African Analysis', South African Journal of Human Rights, Vol. 21 (2005), pp. 436–472CrossRef Google Scholar

Sachs, Albie, Social and Economic Rights: Can they be Made Justiciable? (Southern Methodist University School Of Law, 1999) p. 18Google Scholar

Accessibility standard: Unknown

Accessibility compliance for the PDF of this book is currently unknown and may be updated in the future.