Enforcing human rights incrementally: review of Jeff King, judging social rights (Cambridge University Press, 2012).

Author:Wesson, Murray

In Australia, discussion of Bills of Rights has tended to focus on the human rights statutes adopted in Victoria and the Australian Capital Territory, and the broader question of whether Australia should adopt a national Bill of Rights. However, it is well-known that Australia is unusual amongst liberal democracies in lacking a Bill of Rights. In other democracies, the principle of judicial protection of constitutional rights is now widely accepted. And in many of these jurisdictions, debate has moved onto a further question, which is whether constitutional rights protection should be extended beyond civil and political rights to social rights, or rights to housing, healthcare, food, water, social security and education. A related question is the role of the courts in giving effect to these obligations. In South Africa, for example, the post-apartheid Constitution protects social rights and the Constitutional Court has produced an influential body of social rights jurisprudence. (1) Social rights are likewise constitutionally protected in many jurisdictions in Central and Eastern Europe and Latin America. The United Kingdom has for several years been debating whether to replace the Human Rights Act 1998--which incorporates the European Convention on Human Rights--with a British Bill of Rights and there too a key question for the Joint Committee on Human Rights, the previous Labour government and the Commission on a Bill of Rights established by the current coalition government has been a possible role for social rights. (2) These developments have been accompanied by an extraordinary proliferation of academic commentary on the subject, which has been characterised by increasing depth and sophistication. It is therefore no exaggeration to say, as Philip Alston does, that 'the debate about the justiciability of social rights has come of age.' (3)

From one perspective, the idea of social rights as human rights might seem uncontroversial. After all, as Jeff King notes in his important new book Judging Social Rights, different theories of human rights--dignity, freedom, utilitarianism and social citizenship--all converge in supporting the idea of social rights. (4) As well as this, the welfare state is now a settled feature of most liberal democracies. Even so, and even for readers unfamiliar with the literature on social rights, it should also be apparent that there are reasons to doubt whether social rights truly belong in Bills of Rights and specifically whether they should be subject to judicial enforcement. Some of these objections are more easily disposed of than others. For example, it might seem that social rights impose positive obligations on the state--in the sense that the state is required to provide goods such as healthcare--whereas the obligations imposed by civil and political rights such as freedom of expression are essentially negative in nature. It might also seem that social rights are resource intensive whereas civil and political rights are relatively cost-free, meaning that the latter are more readily subject to judicial enforcement. However, these dichotomies should not be overstated. Many quintessential civil and political rights--such as the right to a fair trial and the right to vote--require state action and expenditure. (5) Furthermore, to the extent that social rights are more expensive than civil and political rights, this is recognised in the fact that social rights are typically framed so that they are made subject to progressive realisation and the available resources of the state. (6) There are, however, far more formidable objections to constitutional social rights, which are outlined by King in the first chapter of Judging Social Rights. Firstly, judicially enforced social rights might seem to lack democratic legitimacy. As King notes, nearly all of us pay into and take out of the public system. There could therefore hardly be a better scenario in which the voice of each should count equally which would suggest that the appropriate forum for resolving disputes involving resource allocation is the legislature, not the courtroom. To this we might add that even if the welfare state is a settled feature of most liberal democracies, it remains the case that reasonable disagreement about the nature and extent of the state's welfare obligations constitutes a key political fault line. Constitutional social rights might therefore threaten to remove important and contested issues from the political process to the hands of unelected judges. Secondly, the legal philosopher Lon Fuller coined the term 'polycentricity'...

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