Book contents
- Frontmatter
- Contents
- Foreword – Philip Alston
- Preface
- PART ONE OVERVIEW
- 1 The Justiciability of Social Rights: From Practice to Theory
- 2 The Challenges of Crafting Remedies for Violations of Socio-Economic Rights
- 3 The Right to Legal Aid in Social Rights Litigation
- PART TWO SELECT NATIONAL JURISDICTIONS
- PART THREE REGIONAL PROCEDURES AND JURISPRUDENCE
- PART FOUR INTERNATIONAL HUMAN RIGHTS PROCEDURES AND JURISPRUDENCE
- PART FIVE SPECIAL TOPICS
- Notes on Contributors
- Table of Authorities
- Index
- References
1 - The Justiciability of Social Rights: From Practice to Theory
Published online by Cambridge University Press: 05 June 2012
Edited by
Book contents
- Frontmatter
- Contents
- Foreword – Philip Alston
- Preface
- PART ONE OVERVIEW
- 1 The Justiciability of Social Rights: From Practice to Theory
- 2 The Challenges of Crafting Remedies for Violations of Socio-Economic Rights
- 3 The Right to Legal Aid in Social Rights Litigation
- PART TWO SELECT NATIONAL JURISDICTIONS
- PART THREE REGIONAL PROCEDURES AND JURISPRUDENCE
- PART FOUR INTERNATIONAL HUMAN RIGHTS PROCEDURES AND JURISPRUDENCE
- PART FIVE SPECIAL TOPICS
- Notes on Contributors
- Table of Authorities
- Index
- References
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.
- Type
- Chapter
- Information
- Social Rights JurisprudenceEmerging Trends in International and Comparative Law, pp. 3 - 45Publisher: Cambridge University PressPrint publication year: 2009
References
(ed.), Justiciability of Economic and Social Rights: Experiences from Domestic Systems (Antwerpen: Intersentia and Maastrict Centre for Human Rights, 2006)
, and (eds.); Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Aldershot/Burlington: Ashgate, 2006)
, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 2002)CrossRefGoogle Scholar
and , ‘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. 156–229CrossRefGoogle Scholar
, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Oxford University Press, 1995)Google Scholar
, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerpen: Intersentia, 2002)Google Scholar
, and (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)
, ‘Litigation and Housing Rights in Kenya’, in , , and (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
, ‘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. 1–19CrossRefGoogle Scholar
, Bougainville and the Right to Self-Determination (Unpublished Bachelor of Laws Thesis, University of New South Wales, 1995)Google Scholar
, Two Concepts of Liberty: Inaugural Lecture as Chichele Professor of Social and Political Theory (Oxford: Clarendon Press, 1958)Google Scholar
, ‘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
, ‘The Committee on Economic, Social and Cultural Rights’ in (ed.), The United Nations and Human Rights (Oxford: Oxford University Press, 1992), pp. 473–508Google Scholar
, ‘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 103CrossRefGoogle Scholar
, ‘The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views’, in and (eds.), The Right to Food (The Hague, Martinnus Nijhoff, 1984), pp. 97–100, at 99Google Scholar
, ‘Critical Appraisal of the UN Human Rights Regime, in (ed.) The United Nations and Human Rights: A Critical Appraisal (Oxford: Clarendon Press, 1992), pp. 1–21, at p. 2Google Scholar
, and (eds.), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Aldershot: Ashgate, 2006), p. 255
, Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies (Geneva: Centre on Housing Rights & Evictions, 2003), pp. 60–65Google Scholar
and . (ed.). Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008)CrossRef
, 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 constitution of the UK as of 1 January 2007, printed in (ed.), Towards a new constitutional settlement (London: Smith Institute, 2007)Google Scholar
, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2007), p. 9Google Scholar
and , ‘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. 206–268CrossRefGoogle Scholar
, ‘A Typology of Transjudicial Communication’, University of Richmond Law Review, Vol. 29, No. 1 (1994–5), pp. 99–137Google Scholar
, ‘Dichotomies, Trichotomies or Waves of Duties?’, Human Rights Law Review, Vol. 5, (2005), pp. 81–103CrossRefGoogle Scholar
and , Litigating Economic, Social and Cultural Rights: Legal Practitioners Dossier (Geneva: COHRE, 2006)Google Scholar
, ‘The Right to an Adequate Standard of Living Including the Right to Food’ in , , (eds.), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff, 1995), pp. 89–105Google Scholar
, ‘International Law and the Human Right to Food’ in and (eds.), The Right to Food (The Hague, Martinus Nijhoff, 1984), pp. 9–68Google Scholar
, Privatising Old-Age Security: Latin America and Eastern Europe Compared (Edward Elgar Publishing, 2003)Google Scholar
, 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
, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006)CrossRefGoogle Scholar
, “Homelessness, Human Rights, Litigation and Law Reform: A View from Canada”, in and (eds.), Homelessness and Human Rights, Australian Journal for Human Rights, Vol. 10, No. 2 (2004)CrossRefGoogle Scholar
‘Constitutional Rights and Social Welfare: A Comment on the Canadian Chaoulli Health Care Decision’, Modern Law Review Vol. 69 (2006), pp. 631–643CrossRef
, ‘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
, ‘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
and , ‘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 515CrossRefGoogle Scholar
, ‘The core of the Case Against Judicial Review’, The Yale Law Journal, Vol. 115 (2006), pp. 1346–1406CrossRefGoogle Scholar
, ‘Representation and Waldron's Objection to Judicial Review’, Oxford Journal of Legal Studies, Vol. 26, No. 4 (2006), pp. 733–751CrossRefGoogle Scholar
, ‘Participation and Judicial Review: A Reply To Jeremy Waldron’, Law and Philosophy, Vol. 22, No. 5, September (2003), pp. 451–486Google Scholar
, and , 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
, ‘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 362CrossRefGoogle Scholar
, ‘State obligations revisited’ in and (eds.) Food and Human Rights in Development, Vol. II: Evolving issues and emerging applications (Antwerp: Intersentia, forthcoming) pp.137–160
, New Foundations for Social Rights: A deliberative democratic approach, ARENA Working Papers WP 02/32, University of Oslo, 2005, p. 10Google Scholar
, 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
, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton: Princeton University Press, 2005)Google Scholar
, ‘The Role of the Judge in Public Law Litigation’, Harvard Law Review, Vol. 89 (1976), pp. 1281–1316CrossRefGoogle Scholar
, Social Rights under the Constitution (Oxford: Oxford University Press, 200), p. 123
‘Should Deliberative Democrats Defend the Judicial Enforcement of Social Rights?’, in , and , Deliberative Democracy and Its Discontents (Aldershot: Ashgate, 2006), pp. 233–252Google Scholar
, ‘Social Rights: Towards a Principled, Pragmatic Judicial Role’, SER Review, Vol. 1, No. 4 (1999)Google Scholar
, The Least Dangerous Branch (Indianapolis: Bobbs-Merrill)
and , ‘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
and , ‘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.1–148CrossRefGoogle Scholar
, The Courts and Social Policy (Washington, DC: The Brookings Institution, 1977) at p.3Google Scholar
, ‘The Forms and Limits of Adjudication’, Harvard Law Review Vol. 92 (1978–1979), pp. 353–409CrossRefGoogle Scholar
, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991)Google Scholar
, ‘Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited,’ Human Rights Quarterly, Vol. 29, No. 3 (2007), pp. 796–822CrossRefGoogle Scholar
, The Politics of Rights: Lawyers, Public Policy and Social Change (Ann Arbor: the University of Michigan Press, 1974)Google Scholar
, Rights at Work: Pay Equity Reform and the Politics of Mobilization (Chicago: University of Chicago Press, 1994)Google Scholar
, ‘Shaping, making and breaking the law in the campaign for a national HIV/Treatment Plan’, in and (eds.), Democratising Development: The Politics of Socio-Economic Rights in South Africa (Leiden: Martinus Nijhoff Publishers, 2005), pp. 181–212Google Scholar
, Understanding Grootboom: A Response to Cass R. Sunstein, 12(2) Constitutional Forum, Vol. 12, No. 2 (2002), pp. 41–51Google Scholar
, Left Out in the Cold? Crafting Constitutional Remedies for the Poorest of the Poor, South African Journal of Human Rights, Vol. 21, (2005), pp. 215CrossRefGoogle Scholar
, Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited, Human Rights Quarterly, Vol. 29, No. 3 (2007), pp. 796–822CrossRefGoogle Scholar
, ‘Implementation of Grootboom: Implications for the enforcement of socio-economic rights’, Law Democracy and Development, Vol. 6 (2002), pp. 255–277Google Scholar
, ‘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 751CrossRefGoogle Scholar
, The Politics of Rights: Lawyers, Public Policy and Social Change (Ann Arbor: the University of Michigan Press, 2004)CrossRefGoogle Scholar
, ‘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 751CrossRefGoogle Scholar
, ‘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. 436–472CrossRefGoogle Scholar
, Social and Economic Rights: Can they be Made Justiciable? (Southern Methodist University School Of Law, 1999) p. 18Google Scholar
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