New Foundations for Social Rights: A deliberative democratic approach
This paper takes as point of departure the argued case for a European constitution implementing social as well as fundamental human rights. It discusses further what effects could and should follow from a formalization of social rights in the EU.
ARENA Working Paper 32/2002 (html)
Agustín José Menéndez
Social Rights and the Constitution is a timely and very necessary contribution to legal theory. Its author, Cécile Fabre, makes a bold and well-argued case for both a written political constitution and for the inclusion of social rights among the set of fundamental rights. In this review, the aim is to push further Fabre’s argument, by means of doing three things, namely (1) determining whether her case could not be reinforced by considering the normative foundations of the market economy [section 3.A] and the budgetary implications of rights protection [section 3.C]; (2) distinguishing two main types of social rights on the basis of the level of generality at which they can be formulated [section 3.B]; this would allow a more nuanced analysis of the role of courts in reviewing the compatibility of ordinary legislation with social rights [section 3.D]; (3) considering the level(s) of government which should be in charge of social rights protection, with special attention being paid to the European Union.