Constituting Economic and Social Rights

Food, water, health, housing, and education are as fundamental to human freedom and dignity as privacy, religion, or speech. Yet only recently have legal systems begun to secure these fundamental individual interests as rights. This book looks at the dynamic processes that render economic and social rights in legal form. It argues that processes of interpretation, enforcement, and contestation each reveal how economic and social interests can be protected as human and constitutional rights, and how their protection changes public law. Drawing on constitutional examples from South Africa, Colombia, Ghana, India, the United Kingdom, the United States and elsewhere, the book examines innovations in the design and role of institutions such as courts, legislatures, executives, and agencies in the organization of social movements and in the links established with market actors. This comparative study shows how legal systems protect economic and social rights by shifting the focus from minimum bundles of commodities or entitlements to processes of value-based, deliberative problem solving. Theories of constitutionalism and governance inform the potential of this approach to reconcile economic and social rights with both democratic and market principles, while addressing the material inequality, poverty and social conflict caused, in part, by law itself. Social and economic rights are growing apace throughout the world. Anyone seeking a thoughtful and comprehensive overview of the different ways in which courts throughout the world are enforcing them could do no better than read this sharp-eyed and fluent book. Albie Sachs Katharine Young proposes an original theory about the development of economic and social rights, linking such development to their philosophical foundations, to their institutionalization in binding legal norms, and to their impacts in real life. It is an illuminating and well-informed account of how rights evolve, as a result of the tensions between these poles. This book is a breakthrough in scholarship on economic and social rights. Olivier De Schutter, Former UN Special Rapporteur on the right to food (2008-2014), Member of the Committee on Economic, Social and Cultural Rights (2015-2018) Young's work comes from a deeper sense of injustice with current world affairs and offers an imaginative and thought provoking account of the potential merits, and pitfalls, of rights based constitutionalism. Jamie Burton, Public Law A brilliant discussion of an extremely difficult subject of great importance to policy making and practical reasoning. Katharine Young's lucidity is exemplary, and so is the originality of her approach to human rights. Amartya Sen, Nobel Prize winner in Economics and Thomas W. Lamont University Professor, and Professor of Economics and Philosophy, at Harvard University Katharine Young's book is both an ideal introduction to the discourse of social and economic rights and an important advance of the field. She offers a spirited defense of the possibility of a human rights practice that is both grounded and emancipatory. Skeptics will find that their reservations are extensively and fairly considered. Activists will find many provocative challenges to their conventional wisdom. All readers will be grateful for her lucid and lively exposition. William H. Simon, Arthur Levitt Professor of Law, Columbia Law School1. Introduction: The Path to Transformation ; PART I: CONSTITUTING RIGHTS BY INTERPRETATION ; 2. Interpretative Standpoints ; 3. Interpreting the Minimum ; 4. Interpreting Limits ; PART II: CONSTITUTING RIGHTS BY ENFORCEMENT ; 5. A Typology of Judicial Review ; 6. The Catalytic Court ; 7. A Comparative Typology of Courts ; PART III: CONSTITUTING RIGHTS BY CONTESTATION ; 8. Social Movements and Economic and Social Rights ; 9. The Governance Function of Economic and Social Rights ; 10. Conclusion: Economic and Social Rights as Human Rights and Constitutional Rights