Judging Social Rights

400 Pages·2012·2.33 MB·English

by  Dr Jeff King

Judging Social RightS
countries that now contemplate constitutional reform often grapple
with the question of whether to constitutionalise 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 incremental-
ist approach to adjudication. The book combines theoretical, doctrinal,
empirical, and comparative analysis, and is written to be accessible to law-
yers, social scientists, political theorists, and human rights advocates.
jeff king is a senior lecturer at the Faculty of laws, university college
london, where he teaches public law, human rights, and legal theory.
Cambridge Studies in Constitutional Law
The aim of this series is to produce leading monographs in constitutional
law. all areas of constitutional law and public law fall within the ambit of
the series, including human rights and civil liberties law, administrative
law, as well as constitutional theory and the history of constitutional law.
a wide variety of scholarly approaches is encouraged, with the governing
criterion being simply that the work is of interest to an international audi-
ence. Thus, works concerned with only one jurisdiction will be included
in the series as appropriate, while, at the same time, the series will include
works which are explicitly comparative or theoretical – or both. The
series editors likewise welcome proposals that work at the intersection
of constitutional and international law, or that seek to bridge the gaps
between civil law systems, the uSa, and the common law jurisdictions of
the commonwealth.
Series Editors
david dyzenhaus
Professor of law and Philosophy,
university of toronto, canada
adam tomkins
John Millar Professor of Public law,
university of glasgow, uK
Editorial Advisory Board
t. R. S. allan, cambridge, uK
damian chalmers, lSE, uK
Sujit choudhry, toronto, canada
Monica claes, Maastricht, netherlands
david cole, georgetown, uSa
K. d. Ewing, King’s college london, uK
david Feldman, cambridge, uK
cora hoexter, Witwatersrand, South africa
christoph Moellers, goettingen, germany
adrienne Stone, Melbourne, australia
adrian Vermeule, harvard, uSa
Judging Social RightS

JEFF King
University College London
CAMBRIDGE UNIVERSITY PRESS
cambridge, new York, Melbourne, Madrid, cape town,
Singapore, São Paulo, delhi, Mexico city
cambridge university Press
The Edinburgh Building, cambridge cB2 8Ru, uK
Published in the united States of america by cambridge university Press, new York
www.cambridge.org
information on this title: www.cambridge.org/9781107008021
© Jeff King 2012
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of cambridge university Press.
First published 2012
Printed in the united Kingdom at the university Press, cambridge
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing in Publication data
King, Jeff, 1973–
Judging social rights / Jeff King, university college london.
pages cm. – (cambridge studies in constitutional law)
includes bibliographical references and index.
iSBn 978-1-107-00802-1 (hardback) – iSBn 978-1-107-40032-0 (paperback)
1. Social rights–united States. 2. Judicial power–Social aspects–united
States. 3. constitutional law–united States. 4. Political questions
and judicial power–united States. 5. Social justice–united States.
6. Social rights–Philosophy. i. title.
KF4749.K557 2012
342.08′5–dc23
2012002123
iSBn 978-1-107-00802-1 hardback
iSBn 978-1-107-40032-0 Paperback
cambridge university Press has no responsibility for the persistence or
accuracy of uRls for external or third-party internet websites referred to in
this publication, and does not guarantee that any content on such websites is,
or will remain, accurate or appropriate.
contEntS
Detailed table of contents page vii
Acknowledgments xiii
Table of cases xvi
Table of legislation xxiv
1 introduction: aims and methods 1
Part I The case for constitutional
social rights 15
2 The case for social rights 17
3 The value of courts in light of the alternatives 59
4 a basic interpretive approach 97
Part II A theory of judicial restraint 119
5 institutional approaches to judicial restraint 121
6 democratic legitimacy 152
7 Polycentricity 189
8 Expertise 211
9 Flexibility 250
Part III Incrementalism 287
10 incrementalism as a general theme 289
Appendix 1: The scope of economic and social rights
under international law 326
Bibliography 328
Index 356
v

dEtailEd taBlE oF cont EntS
1 Introduction: aims and methods 1
i introduction 1
ii Why does it matter? 2
iii arguments against constitutional social rights 3
a The bad arguments 4
B The good arguments 5
c The best argument – the risky enterprise 7
iV The case for incrementalism in a nutshell 8
V Background political conditions – when the argument
applies 10
a The background political conditions 10
B When the conditions do not apply 12
Vi conclusion 13
Part I The case for constitutional
social rights 15
2 The case for social rights 17
i introduction 17
ii different senses of ‘social rights’ 18
iii Social rights, human rights, and the welfare state 20
a Social rights as human rights: form and justification 20
B The basic content of social human rights 28
1 The social minimum 29
2 The basic duties in respect of the social minimum 35
c State responsibility and the welfare state 39
iV Multi-institutional protection of social rights 41
a legislative 41
B Executive/administrative 44
c adjudicative 48
d constitutional 51
V conclusion 57
vii
viii detailed table of CONTENTS
3 The value of courts in light of the alternatives 59
i introduction 59
ii The prima facie benefits of legal accountability 60
iii The courts and social change 63
a Significant social change 63
B impact and administrative justice 70
c a pathology of legalism? 76
d a hollow hope for the poor? 79
iV alternatives to courts: partner or substitute? 85
a Specialised adjudication – tribunals 86
B ombudsmen 90
c alternative dispute resolution (adR) 93
V conclusion: the role of law in an incrementalist
approach 95
4 A basic interpretive approach 97
i introduction 97
ii constitutional social rights: a basic interpretive
approach 97
a The structure of rights: scope of interest and nature of
obligation 98
B constitutional text: absolute and qualified
obligations 100
c Judicial interpretation: the inescapability of
vagueness 105
iii The need for an approach to judicial
restraint 108
a Social rights in the shadow of Lochner and dicey 108
B The allure and limits of existing interpretive
approaches 111
1 interpretivism 111
2 Principles, balancing, and proportionality 112
3 deliberative democracy 113
4 The minimum-core approach 114
5 institutional reform approach 116
6 South african reasonableness 116
iV conclusion 117
Part II A theory of judicial restraint 119
5 Institutional approaches to judicial restraint 121
i introduction 121
ii Formalist approaches 122