ARENA Working Papers
WP 02/32


New Foundations for Social Rights

A deliberative democratic approach



Agust�n Jos� Men�ndez

Senior Researcher, ARENA

University of Oslo


Social Rights and the Constitution is a timely and very necessary contribution to legal theory. Its author, C�cile 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 aium 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.

I. Introduction

Social Rights and the Constitution is a timely and very necessary contribution to legal and constitutional theory. Its author, C�cile 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 of the rights to a minimum income, housing, health care and education. The main implication of the argument is that social rights should be out of the reach of Parliament. However, the argument is not that the last word on the protection of such rights should be given to courts. The remedy to the infringement of social rights should be providedby more openly political institutions, such as Human Rights Commissions. Social Rights under the Constitution is thus a plea for constitutionalising social rights, but not for a full subjection of legislation on social rights to judicial review.

I will proceed to present the reader with the main elements of the book in Section 2. Next, an attempt will be made at exploring further some of the main themes of the book, with a view to consider whether social rights should not be ground on deliberative democratic theory; three will be the main objectives, namely (1) to determine whether the case for social rights 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) to distinguish 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.


2. The Argument


A) The case for social rights

The main argument in favour of social rights is the need to protect individual autonomy and well-being. The author claims that only if basic social rights are protected in the same terms as civic and political ones the society in question can claim to be seriously concerned with individual autonomy. This boils down to arguing that the same reasons that justify the protection of civic and political rights apply to social rights.

Fabre defines autonomy as "the personal capacities, opportunities to choose from and access to those opportunities, so as to frame, revise, pursue a conception of the good life as something which contributes to forming one's identity over some period of time". [1] The argument goes that unless individuals are guaranteed access to the resources necessary for them to lead a decent life, the society in question cannot claim to be "seriously concerned about individual autonomy". [2]

The social claims that are so essential to guarantee the legitimacy of the political order and must therefore be enshrined in the constitution are four: minimum income, housing, education and medical care. [3]


This positive defence of social rights is coupled with counterarguments against two of the most frequents lines of criticism against them, namely that the protection of social rights puts into risk both the solid protection of civic and political rights, and also the basis of a free economy.

����������� Starting with the last argument, it is not infrequent to hear that social rights imply a rather vague and undefined claim upon economic resources. According to such line of reasoning, the acknowledgement of social rights would push society into a slippery slope: beneficiaries could always claim more, so the recognition of social rights will end up subverting the free market socio-economic structure, as property owners will be taxed and later on expropriated to meet the financial costs of social rights. This is one of the main arguments of The Road to Serfdom, [4] where Hayek argues that once you start meddling with the free market, you will go all the way down to a planned economy. If society avoids falling into the slope, the institutions of the free market will be safe, but social rights will remain a nice but empty political formula.

Fabre argues that this line of criticism can be handled by associating social rights to an inter-subjective conception of basic human needs. Social rights do not give their right-holders the right to claim unlimited resources, but only a restricted amount of them. More specifically, social rights should guarantee access to the set of resources needed to fulfil basic needs. They should not guarantee access to the whole set of resources needed to implement our personal conception of the good life. Basic needs are to be determined by reference to an abstract conception of the individual and of her social relationships. This move is not very different from that of many liberal authors, such as Rawls in the Theory of Justice, [5] and allows to discriminate between different economic claims. This is further specified by means of distinguishing two subsets of basic needs: (1) those objective in a proper sense, that, justified by reference to the human condition, so to say; and (2) those are relative to the well-being of the society that one belongs to; Fabre refers to the latter as needs relative to membership in a polity. [6]

Social rights are also criticised on the ground that they do not constitute a proper object for legal protection. This is said to be so because they require the state to do things, that is, they commit the state to a positive course of action. This is supposed to distinguish social from civic and political rights, which would be mere negative rights, as they only restrain the action of the state, but do not mandate any specific course of action. Positive rights are dangerous for individual freedom to the extent that they extend the scope of state interference, and thus, increase the risk that such interference curtails personal liberties.

Fabre claims that there is indeed a difference between negative and positive rights, namely, between those rights that impose on others a restrain from action or demand a positive course of action. Having granted that, she contests the validity of such a distinction for the purpose of distinguishing civic and political rights from social ones. Her argument goes that most rights, be they civic, political or social, refer in reality to a cluster of more specific claims, some of which are positive, others negative. [7] To show that this is the case, Fabre "deconstructs" the right to freedom of speech. She argues that it can be split in at least seven claims, some entitling us not to be interfered with our course of action, others imposing positive obligations on the side of others. [8] If that is so, then one cannot affirm that being "positive" is a feature that characterises social rights in a distinctive way. Moreover, negative and positive rights should not be seen mainly in a relationship of conflict, but of complementarity. [9]


B) How to protect social rights

Social rights are said to be essential for the protection of individual autonomy and well-being. However, one thing is saying this, another is defending the case for their constitutional enactment; a third different claim is to argue that social rights should be grounds of judicial review of legislation. [10]

Fabre�s argument can divided in these three steps. First, the case for a formal document called the constitution which contains the supreme and binding norms of the legal system. Second, the justification of the inclusion of social rights among the provisions of the constitution. Third, the determination of the institutional mechanisms that can be activated in case of infringement of constitutional rights.


The first question boils down to whether democracy requires a constitution, or even more, whether it is fully compatible with it. In a modest sense, all legal systems have a constitution. Even in those legal systems where it is customary (even if controversial) to affirm that there is no constitution, [11] we find what Kelsen labelled as the material constitution. That is, a set of rules which regulate the creation of general legal norms, in particular of statutes. [12] As all modern legal systems have a material constitution, Fabre does not need to make a case for it. The real issue that we have to consider is whether it is a good idea to have a formal document, called the constitution, which typically contains the basic design of the political institutions, a catalogue of the basic principles and values which should underpin the whole legal system and a bill of rights, or series of fundamental rights. In particular, the latter disables "citizens and members of the legislature from enacting laws which violate those moral rights, that is, from changing people's legal situation by forbidding them by law to do certain things, or by not giving them certain things by law". [13] ��������

Fabre argues that the case for a constitution which includes a bill of rights can only be properly made on substantive, not procedural terms. The point of departure is that the fundamental law should protect all the values deemed essential to the political community. Democracy is one among such values, and at the same time, it can be a means to safeguard other substantive values. But this is not always the case. It is true that in some instances, democracy and rights can be seen as mutually constituting each other. This applies to rights that are qualified as �essential features of democracy�. However, in other cases, a tension is unavoidable. Some rights, the author argues, constrain democracy in the name of something else than democracy. To the extent that the constitutional some of them cannot be justified in procedural terms, the complete case for a constitution must be substantive. Procedural arguments are either too thin (that is, they would require excluding certain contents from the constitutional safe harbour) or they end up relying on substantive arguments to explain the limiting of legitimate democratic outcomes in the name of something else than mere procedural conditions. The substantive argument is then to be found in the objective importance of the values protected by the constitution. The fundamental law should contain protection for all the values deemed essential [14] .


The case for writing social rights into the constitution is implicit in the general case for a bill of rights. Fabre claims that all social rights, with the exception of the right to education, are undemocratic, or what is the same, that by enforcing then, we curtail democracy in the name of something else than democracy itself [15] . This moves her to the weighting and balancing of democracy as a means to further certain values against social rights as the direct institutionalisation of such values. The contribution of social rights to individual autonomy and dignity is so high that we have a good case to curtail democracy, as we should not trust it to produce the right balance and protect individual autonomy. [16]

However, saying that the constitution rules out certain legislative outcomes is not much. What is more relevant and controversial is the third of the questions that Fabre sets out, namely, spelling out the implications of an eventual infringement of the fundamental law. Or what is the same, to render specific the institutional mechanisms available in case that citizens or associations of them consider that constitutional rights have been actually infringed. Neither constitutional theorists nor "really existing" constitutions seem to favour one single solution. It is here that the authors characterisation of democracy as procedural and social rights as substantive proves essential in order to give a very concrete twist to her constitutional theory.

On the one hand, it is quite clear that individuals would be able to stand on fundamental social rights in case that the process of implementation of legislation goes wrong. Judicial review of administrative action is something implicit in the idea of the separation of powers, and its corollary of the subjection of the administration to the judiciary. On the other hand, the key question remains whether individuals could file complaints before courts on the basis that a certain right has been infringed by a given legislative act. This boils down to establishing whether social rights can be grounds of judicial review of legislation, whether they can be invoked to set aside democratically enacted legislation. [17]

Fabre offers a rather split argument. Full judicial review should be available on what regard the right to education. Her argument goes that without ensuring that citizens are exposed to a certain degree of education, they could not even grasp which issues are on the political agenda. The right to education is an essential ingredient of democracy. Therefore, setting aside a statute in breach of the right to education cannot be regarded as undemocratic, even if it curtails the legislative power of democratic institutions, precisely because only by respecting the right to education can political institution raise a claim to be called democratic.

There should be no full judicial review of the remaining fundamental social rights. The argument is based on their undemocratic character. If courts will be allowed to set aside legislation on such grounds, they will end up emptying the power of representative institutions. The concrete contours of social rights is a proper object of democratic deliberation. Hence judicial review would be "undemocratic" in procedural terms. However, disregarding judicial review in its more characteristic format does not necessarily mean that constitutional rights must be regarded as merely programatic, as guidelines that have to be given legal bite by the democratic legislator. As the author claims, "constitutional judicial review of individual cases is (...) not to be all end all of rights protection" [18] .

Fabre follows here the steps of some authors who have tried to preserve the idea of "constitutional review of legislation" with the value of "procedural democracy" [19] . The trick is said to be made by either limiting the "legislation" aspects of judicial review. For example, the power to decide what consequences should be derived from the actual judgment of unconstitutionality should be withdrawn from judges, and assigned to either the legislature or to some special �politically-controlled� body [20] . Similarly, the power to review the constitutionality of statutes on social grounds might be trusted to a more "democratic institution", as in the model of the referee legislatif, which seems to underlie Habermas' argument on judicial review; Fabre refers to Human Rights Commission [21] . Fabre also considers as an alternative the a priori control of constitutionality, in which the court decides the constitutionality of statutes in abstract, not casuistic, terms. [22] The Court acts as a negative legislator, as its power is confined to decide whether or not a given statute should be declared void on account of its inconstitutionality.

Her own selection of case studies (India, Belgium, South Africa and France) seems to reveal his preferences for a more �political� interpretation and institutionalisation of judicial review [23] . Moreover, she seems to be assuming that as a matter of fact, only in those cases we can really find "substantive" constitutional review on the basis of an infringement of social rights. Apparently, the constitutional systems in which judicial review is fully trusted to courts would be characterised by the exclusion of social rights as a ground of setting apart statutes. Social rights and principles would be second class rights, merely "guiding principles" with no substantive bite. So, in a way political review is not only more justified, but a more effective alternative to actually existing schemes of judicial review.


3. Critical Analysis

Social rights under the Constitution is to be welcomed as a bold statement of a relevant issue. In this section, I will try to engage critically with the essay. By means of reviewing five of the main issues within Fabre�s argument, an attempt will be made to strengthen the main insights of the book, and to argue that they support a new way of understanding social rights, which in the conclusion I will refer as discoursive or deliberative.

�������� More specifically, in this section we will focus on: A) the priority of politics and the concepts of the state and of the free market economy; B) the procedural character of democracy and the substantive characterisation of social rights; C) the extent to which social rights can be regarded as essentially different from civic and political ones; D) the extent to which judges could invoke social rights in order to quash democratic statutes; E) the breadth and scope of the communities of risk and risk-sharing.


A) The Priority of Politics

��������� A core element of the author�s argument is that social rights are to be grounded on individual autonomy. Only if we have guaranteed access to a bare minimum income, housing, education and health care we could make meaningful use of our freedom. This implies the priority of politics. Instead of assuming the existence of the basic market structure as a given point of departure, liberals move from individual autonomy to concrete institutional arrangements (including socio-economic arrangements) that will satisfy it. [24] However, Fabre does not fully explore either the priority of politics or the public dimension of autonomy. This is not so much a defect of the book, but a conscious choice to focus the argument. However, it seems to me that just assuming the central value of individual autonomy and at the same time the existence of the state and the free market reduces the critical scope and breadth of her argument. In a way, this assumption leads to the underproblematisation both of the state and of the market.

a) The state: agency or alien other?

Social rights are defined as claims against the state to have certain basic economic needs satisfied, either through the provision of public goods or the transfer of money. This implies assuming that the basic type of relationship associated to these rights is bilateral (between the rightholder and the state) and vertical (to the extent that one of the parties, the state, is equipped with resources and coercion). However, this is a problematic assumption that leads Fabre into some trouble. Democratic theory needs to stress that its normative ideal (not its description of reality) is that of the state as an agency of citizens, through which they find better ways of avoiding conflict and coordinating their action. The state is not to be assumed as an external reality, but the case for the state is to be based on argument not dissimilar for the ones that justify law as such [25] . Of course, we know that the ideal does not correspond to the practice, but normative theory is not intended to rubber stamp existing institutional realities; it aims at providing a critical standpoint from which to check the legitimacy credentials of actually existing institutions, and to conceive changes that might improve them. In that sense, the critical standard that portrays the state as agency of individuals allows us to �deconstruct� social rights beyond the vertical bilateral relationship which derives from positive, legalised social rights. Under such a light, social rights are to be considered as the institutional translation of the claims that members of a given political community can make on each other. To put it in different terms, the institutional product �social rights� is to be anchored and justified by reference to the manifold horizontal, multilateral relationships that accrue among those who share common action-norms. [26] Thus, in the context of justification, the question is not so much what I owe the state or what the state owes me, but what do we owe to each other. The constituency of �us� is defined by reference to the breadth and scope of those who are affected by the common action-norms of the given political community. In the next section, we will see why rendering legitimate the whole set of common legal norms requires the mutual recognition of certain social rights. The point here is just to stress that the key relationships in normative terms are not those between the state and the right holder, but between the members of the political community. Social rights come into the picture because social interdependence and complexity require institutionalisation of diffuse social duties. Such mediation does not make of the state an alien body. If that is so, it would be the result of the wrong practices and patterns of activity of the state, not due to the necessary wicked and heteronomous character of political institutions as such. [27]


b) The market economy

As has already been said, social rights talk presupposes the existence of socio-economic arrangements of the market type. However, to presuppose is not the same as to assume. It is not completely clear to me whether the result of Fabre�s bracketing of the issue of the legitimacy of market relationships is one or the other. Given the list of social rights argued for by the author, one could conclude that a certain degree of uncritical assumption filters back. However, she seems also to be aware of the issue when she claims that �equality of opportunity cannot do the job�. [28] As we will see in the next section, a full-fledged argument for social rights must problematise market arrangements and derive from that a basis to argue for a certain pattern of redistribution of economic resources beyond the bare minimum income that Fabre argues for.


B) The procedural character of democracy and the substantive characterisation of social rights

A second argument that seems to me open to question is the characterisation of democracy and social rights. Fabre argues that democracy is mainly a matter of procedure and social rights a matter of substance, with the exception of the right to education. As a general insight, this seems rather correct. However, the implications that she derives from such characterisation are rather problematic. It seems to me that the case for social rights can be rendered more robust if we fine-tune this insight.

��������� As has just been said, democracy is rightly defined as mainly a matter of procedure. Defined as the right to participate in the deliberation and decision-making over common action-norms, democracy is basically a matter of meaningful access to such procedures.

However, three qualifications must be made. Firstly, one can always question why democracy, or to put it in different words, why procedure. Deliberative democracy tries to reply this question with a thin substantive argument [29] . There are different strategies to justify such argument. They are to be interpreted as providing different but mutually supporting, not contradictory, reasons. In my view, the strongest set of arguments is based on specifying the pragmatic assumptions that we make each and every time that we enter into a discourse with other individuals. [30] The social practice of moral deliberation and our endorsement of it imply adherence to a thin set of substantive values, which basically correspond to the core concept of individual autonomy. In its turn, thin substance implies a thin conception of the person and abstract assumptions about society and societal relationships. Rawls� characterisation of individuals as rational and reasonable beings is certainly of guidance in this respect. [31]

Secondly, we should take seriously the fact that the legitimacy that can be derived from participation is not unlimited. For facts which in part might be unavoidable, but in part might be avoidable only in the long run, not everybody is going to have her right to participation in deliberation and decision-making of common action norms fully respected. Some citizens suffer permanent handicaps that render participation impossible; others have not been provided with sufficient resources as to meaningfully participate in the democratic process. If that is so, a second, supplementary legitimation pillar can be built around the concept of substantive correctness. It must be stressed that substantive correctness it is not to be seen as alien and isolated from procedural legitimacy, but in a way anchored to it. How this is to be done can be further spelt out in respect of its two main ingredients. First, fundamental rights are a core component of substantive correctness strategies. However, instead of defending them in a straight fashion, that is, deductively from a substantive theory, we could argue for them by spelling out which rights individuals should recognise each other, or what is the same, we could try to determine what the acknowledgment of public autonomy entails. Second, the fair play principle is the other limb of substantive correctness. As such, it can only be spelt out if fed with a factual description of the basic socioeconomic structure of the concrete society and also with the actual pattern of distribution of opportunities and resources within it. That can only be figured out by means of testing preferences and enlightening interests in a deliberative process.

����� Thirdly, common action norms are not intended merely as theoretical standards, but as rules to guide action. In the process of doing so, interpretation of the rules becomes unavoidable. In most cases, the process is smooth either because the rules are clear or because individuals find common grounds for interpretation. However, conflicts take place. The complexity that is characteristic of human societies justifies introducing specialised institutions in charge of providing authoritative solution to such conflicts (namely, courts). However, to the extent that interpretation implies a certain degree of creativity, we are bound to run into a legitimacy gap. In modern societies, the legitimacy gap is partially bridged through institutional design. Each judge is not alone, but it is part and parcel of a hierarchy of courts, tied together by organisational rules and by one interpretation or another of the judicial precedent. However, a legitimacy deficit might remain. This cannot be filled by an appeal to procedure, because the definition of the judicial procedure limits the extent to which that avenue is available (although procedural rights concerning judicial and administrative procedures are of help). [32] The deficit is thus to be mainly overcome by an appeal to substantive correctness. Whether the claim is redeemed or not is something that remains to be checked by other courts, by the debates among legal scholars and hopefully by public opinion. If courts get clearly out of track, the primacy of the law as the main encapsulation of political participation can be used to overturn their decisions.

After this long excursus, the reader is entitled to ask what the implications are for social rights. My point is that by focusing on the complex character of democracy, and on the procedural arguments in favour of substantive correctness standards, the tension between democracy and rights is eased. On the one hand, we can anchor democracy to standards of substantive correctness, among which equality. On the other hand, the second pillar of the legitimacy argument points to the intimate correlation between procedure and substance.

����� Mutual recognition of citizens implies the acknowledgement of civic and political rights, but also of those social rights that are the flip side of individual autonomy. Some social rights (among which most of those entitlements referred by the author) can be justified at exactly the same level of abstraction that civic and political rights. To the extent that they are needed to constitute a democratic political community, they are anchored to procedure. Other social rights can be justified only by reference to the second limb of substantive correctness, namely, to the principle of fair play. This implies taking on board as an input the basic defining features of the socio-economic structure, and balancing their legitimacy deficits with countervailing measures that will not erode the normatively justified features of the socio-economic structure. To use a metaphor, they can be characterised as legitimacy supplements that reinforce the legitimacy of the whole legal order. They allow the given society to give due attention both to considerations of fairness and efficiency.

If this is true, the foundation of social rights must proceed on two different levels. On the hand, a basic package (oriented towards keeping the individual afloat) can be affirmed in quite abstract terms, the same as those proper of civic and political rights. Those rights are characterised by their absolute character, or what is the same, by the fact that they can be formulated without taking into account the concrete economic position of the other members of the political community (e.g. the fact that some others are also starving does not qualify my claim to avoid starvation, unless there are not sufficient economic resources to feed all of us). On the other hand, a more thorough package, based on the need to ensure legitimacy for the socio-economic structure (which we are assuming is the market economy). This is based on the entitlement to redistributive shares. Their case is necessarily based on the relative position of other individuals. This implies that the case for those rights necessarily combines normative insights and factual information.

����� This is not intended to deny Fabre�s argument that even the less well-off can engage into political action [33] . But it is aimed at showing that arguing that some individuals are able to overcome major difficulties is not enough to prove the legitimacy of the legal and socioeconomic orders. Legitimacy is something for the man and the woman in the Claphman omnibus, not for heroes.


C) The characterisation of social rights

The third line of reflection inspired by the book concerns the question whether there are substantive differences between on the one hand civic and political rights and on the other hand social ones. The author�s argument, which has already been considered, is essentially correct. However, it seems to me possible to reinforce and supplement it.

The argument can be reinforced by further arguing that the positive/negative distinction has rather limited normative implications. When liberists claim that social rights are positive ones, and therefore imply a further risk for freedom, they are assuming a neat distinction between the implications of action and omission. That kind of clear-cut differentiation also underlies a key concept for liberists, namely coercion. The whole case for limited government relies on the idea that only physical, positive interference with the other is to be regarded as coercion. Liberists seem to have common sense on their side. However, once one considers the question in detail, one comes to the conclusion that neither a sharp distinction between action and omission nor their consideration as equivalents do justice to the terms of the problem. The key question is what we should consider as the cause of a given state of affairs. If we go through different examples, we will realise that the ascription of causal effects is not based on a simplistic action/omission line, but depends on a certain idea of what factors trigger a certain outcome. This means that in reality the judgment of causality is of a normative nature, and that the omission of certain acts can be qualified as the cause of a given state of affairs. [34] This is the case in most criminal legal systems with the concept of �duty to help�. The criminal event is the omission of help when that was urgently needed and could be provided. At this point, it becomes clear that whether there should be negative duties of omission or positive duties of action is dependent on the underlying normative theory of causation.

If that is so, then coercion can be exerted not only by acting, but also by omitting to act. Thus, we could found on individual autonomy not only negative obligations to omit certain kinds of behaviour (thou shall not kill) but also positive duties (thou shall help your co-citizens). Individual autonomy is not something pre-given, but something built upon restrictions of autonomy of others.

As Fabre argues very convincingly, both social and civic and political rights imply positive and negative entitlements. Moreover, there is not a clear ontological difference between those negative and positive entitlements.

But her argument can be strengthened by considering the budgetary costs of rights. In a way, the argument is quite old in the liberal tradition, but the recent book The costs of rights is a well-argued restatement of the case. Its authors, Stephen Holmes and Cass Sunstein, argue that liberists cling to a cost-blind approach to the protection of rights of property and contract. However, also those rights, and not only social rights, are costly [35] . This conclusion has two further implications. First, that social institutions (one of which is government) are necessary and if adequately established and programmed by law, they can enhance and not undermine individual autonomy [36] . All rights, and not only social rights, are public goods rendered possible by public institutions [37] . Second, that all rights, and not only social rights, are to be weighted and balanced when they enter into conflict with each other. The question is not so much whether the market (which liberists associated with contractual freedom) or the state, but what kind of market and what kind of state [38] . If that is so, it is clear that the distinction between civic and political rights on the one side and social rights on the other on the basis of their cost is as bogus as the one established along the negative/positive line.

D) Judicial Review

According to the author, social rights should not be included among the grounds judges could invoke in order to set aside democratically enacted legislation. As has been indicated, she proposes alternative forms of ensuring compliance with social rights, namely negative judicial review and political watchdogs of the kind of Human Rights Commissions. [39] She seems to invoke two different arguments to sustain such a conclusion. First, that social rights being undemocratic, a countermajoritarian institution such as constitutional courts should not be left to decide whether democratic statutes do or do not comply with such constitutional standards. Second, that courts, faced with concrete, one-shot cases, are likely to be unable to assess the distributional impact of their measures, which are massive in the case of social rights. An institution oriented towards the resolution of concrete cases is ill-equipped to undertake the judicial review of legislation.

On the basis of my previous argument, it can be said that the �democracy� argument is rather weak. On the one hand, it does not apply at all to those social rights that are the flip side of civic and political rights. To the extent that they are just the other side of rights that are seen as constitutive of democracy, they must be regarded under the same light. On the other hand, the case is more mixed on what regards redistributive social rights. That is not so because they are undemocratic, but because they imply a previous account of relevant social and economic data, which the democratic process is better equipped to produce. Constitutional courts are to be careful in this area to the extent that democratic processes have a clear epistemic or epistemological privilege. [40]

This last argument shows the extent to which the two tenets of Fabre against judicial review of social rights are closely interrelated. But it is still worth analysing on its own the question of the competence of courts. Firstly, on what concerns the more general set of social rights, they presuppose rather abstract claims, which do not require considering too much of the factual background to which they should apply. If they social rights can be defined at the same level of abstraction than civic and political rights, coherence mandates that we accept judicial review of legislation in all three cases. Second, there is a good case to argue that judicial review of legislation on the ground of infringement of social rights might end up being a remedy worse than the ill. That is so precisely because the concrete level at which they are provided requires a full consideration of the relative position of all citizens, both in their condition as taxpayers and beneficiaries of public services. Courts are rather ill equipped in that sense. Having said that, we must also remember that judicial review is not aimed at determining whether the best normative standards are implemented through legislation, but whether the latter complies with minimum legitimacy normative standards. In that latter sense, there might still be a role to be played by judicial review, specially in those jurisdictions where judicial review is entrusted to a court which derives some indirect legitimacy from the political process (such as it is the case in Germany, Italy, Spain or France).

Fabre�s assessment of judicial review is in a way not sufficiently sensitive to the implicit distinction between different types of social rights that can be found in the working of some constitutional systems where the specific constitutional social rights provisions are not covered by the judicial review system, but where courts have reviewed the implications for social rights of general rights such as that of equality. Having said that, her argument for political watchdogs and less intrusive forms of judicial review are of great relevance when dealing with specifically redistributive social rights (which as such seem to be beyond the scope of her book).


E) The constituency of social rights: European social rights?

Finally, it was said in the first section of this note that the book is timely engaged with two present debates. On the one hand, the general argument whether social rights should be legally entrenched or not, and more specifically, whether they should be given the ultimate form of legal protection, namely, constitutionalisation. On the other hand, the more specific discussion surrounding the incorporation of the European Convention of Human Rights into British law, which relates to the very relationship between democracy and rights. Fabre�s arguments are without doubt a major contribution to both of them. Having said that, it seems to me that there is a third ongoing dispute that is closely connected to the legal and constitutional standing of social rights, namely that of which level of government (if any) should protect social rights. The process of European integration and the strengthening of economic interdependence is said to have reduced the control that nation-states have over their economies, and at the same time, to have created opportunities for supra-national regulation or taming of the market. This third debate is closely interconnected with the first one, to the extent that arguments against social rights tend to combine normative and prudential considerations, among them, the feasibility of protection rights.

����� The starting point should be the priority of politics, that is, the argument that social norms make markets and not the reverse (see section 3.A). If we have this in mind when analysing the European Single Market, we will come to the conclusion that the very clear cut distinction between negative and positive integration is rather unconvincing. Both the positive regulation of the economy and the removal of market distortions are rendered possible by positive legal norms. To the extent that markets are not part of nature, market-making is not negative, but clearly positive. Moreover, the project launched in the 1951 and 1957 Treaties is characterised by the transcendence of the Ricardian pattern of international trade (based on the legal and economic isolation of national units) towards a common economic area created with the help of common action-norms. What some economists claims is a matter of deregulation or negative integration is in reality a common normative enterprise.

If that is so, a new normative space has been created, within which the claim to legitimacy of legal norms should be redeemed vis-�-vis all those affected, which we could argue are all permanent residents. This leads to a dynamic that has already been considered in section 3.B. The process of mutual recognition should lead to the granting of certain fundamental rights, among which those social rights which are the flip side of civic and political rights. At the same time, further claims are to follow, of a more redistributive character, based on the combination of normative and factual criteria. As it has been argued, social rights are to be seen as necessary to balance the legitimacy deficit of the market institutions. Moreover, this process should put into motion a new series of claims to justice based on the progressive erosion of the legitimacy of limiting access to natural resources based on boundary arguments.

����� However, because the attempt to reconfigurate the action-norms regulating economic activity are a means to an end, and moreover, because the European polity is anchored to a federal model, it seems correct to say that the degree and intensity of sharing of common action norms is not the same all across the board. Factors such as the actual sharing of a common physical space (cities, countries, etc...), sharing a certain way of life associated to material conditions (mountain areas, for example) justify a graduation of the intensity of the claims to redistribution depending on the level we are considering the issue. At the same time, we can set some further grades based on the need to preserve at each level of government sufficient capacity to decide. [41] My point is that the question whether social rights should be acknowledged at the European level is not to be seen as a matter of all or nothing. There is no need to concentrate the protection of all social rights in just one single level of governance.

The legitimacy of the Single Market endeavour is problematic if considered in isolation from economic rights, as only they can provide side legitimacy with which to redeem the claim to justification of such socioeconomic structure. The Single Market is only under certain characterisations a negative enterprise. In terms of its social construction, it is based on the existence of a whole set of positive action norms. To that extent, the community which is relevant for the justification of the Single Market is the whole European Union. The level at which side legitimacy is to obtained must be the same. Therefore, there should Europe-wide collected resources to finance the costs of European social rights. If the community of risk is European, the pool of sharing should also be so. This does not mean the end of national welfare states, but of course it implies the need of adding an additional level, which basically means adding a substantive social dimension to the existing European level of governance.




��������� Social Rights and the Constitution is a timely and very necessary contribution to legal theory. C�cile 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. This paper has tried 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.

��������� Social rights should stop being considered the �poor member� of the rights family. They must be considered on a par with civil and political rights for the very simple reason that the rationale for protecting all types of rights is the same, namely, the protection of individual autonomy, in both its public and private dimensions. Some social rights should be considered as the flip side of civic and political rights; to the extent that they can be formulated in rather abstract terms, their implementation does not require extensive information on the socio-economic conditions under which they are being applied. However, most social rights are normatively anchored to the principle of fair play; this implies that their implementation presupposes rather extensive knowledge about the socio-economic circumstances accruing in the relevant political community. This reason, and no other, explains the constrains under which constitutional judges should act when dealing with social rights. It also explains why only more political alternatives to judicial review could play a role in double-checking the constitutional soundness of the outcomes of the legislative process.


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[1] ���������� Fabre (2000a, 12).

[2] ���������� Fabre (2000a, 17, 22). The full argument is, of course, more sophisticated. The author offers interesting remarks on some of the main issues in the rights debate which has engaged several liberal authors in the last decade. For example, he considers that we need a sharper distinction between autonomy and well-being. Raz�s and Sen�s conceptualisation of well-being are deemed to conflate too many issues under one label. Concerning rights themselves, he takes sides with the interest theory, although he recognises some fruitful insights coming from choice theory.

[3] ���������� The complete set of rights is specified in Fabre (2000a, 107-8).

���������� (1) ������� (i) A right that the state give us a minimum income calculated by taking into account the cost of what is minimally required for us to live in our society.

����������������������� (ii) A right that the state does not deprive us of that minimum income once it has been in place.

����������������������� (iii) A right that the state pass laws laying down a minimum wage if it has decided to entrust employers with securing us with a minimum income

����������� (2)�������� (i) A right that the state give us the kind of housing that is necessary for us to enjoy a decent range of opportunities within society. The content of such a right ought to be arrived at by taking into account the kind of society we live in, the number of people concerned within a single family unit, and so on.

����������������������� (ii) A right that the state do not evict us from such housing.

����������������������� (iii) A right that the state control rents if it decides not to help us pay rents in the private sector.

����������� (3) ������� (i) A right that the state give us the educational resources necessary for us to reach the functional literacy.

����������������������� (ii) A right that the state do not conduct policies that would suddenly deprive us of the possibility to reach such a standard.

����������������������� (iii) A right that the state control the education provided by the private sector, if it decides to allow such a sector to operate.

����������� (4) ������� (i) A right that the state give us access to a doctor if we are sick, as well as a right that we be treated for free if paying for our medical treatment would bring us below the poverty threshold.

����������������������� (ii) A right that the state does not deprive us of these resources.

����������������������� (iii) A right that the state control the standard of care provided by the private medical sector if it decides to allow such a sector to operate�

����������� (5) A right against the state that, if it cannot yet give us the resources minimally necessary for us to lead a decent life, it conduct policies making it possible for it to fulfil its duties.

[4] ��������� Hayek (1994).

[5] ���������� Rawls, 1971, 62 and Rawls, 1999, 54: "things that every rational main is presumed to want".

[6] ���������� Fabre (2000a, 35).

[7] ��������� Alexy (1993, 47) distinguishes between rights positions and rights statements; the latter could make contain one or more rights positions. This seems to be essentially the same as claiming that fundamental rights statements do in fact refer to a bundle of rights, or rights positions.

[8] ���������� This argument is not dissimilar from the classic analysis of the right to private property by Tony Honor�. Cf. Honor� (1987).

[9] ���������� Fabre (2000a, 47).

[10] ��������� Against judicial review of social rights, see Finnis (1985), Tushnet (1998), Gargarella (1998).

[11] ���������� That is the case in the United Kingdom and Israel. However, on the United Kingdom, see MacCormick (1978).

[12] ���������� Kelsen, (1945, 124).

[13] ���������� Fabre (2000a, 102).

[14] ��������� Fabre (2000a, 79ff). See also Fabre (2000b).

[15] ��������� Fabre (2000a, 125): �[A]ny attempt to entrench these social rights in the constitution in the name of the capacity to participate politically will fail. Furthermore, social rights to adequate minimum income, health care, and housing can be regarded as undemocratic rights, since it is not necessary to respect them in order for people to be able to participate in the public forum, in order therefore for democracy to exist. As a result, their constitutional entrenchment can be regarded as undemocratic�.

[16] ��������� Fabre (2000a, 86ff).

[17] ��������� As it is well known, there are two main models of judicial review. In the Austrian tradition, the power is be it in the hands of one specialised court. In the American tradition, it is available to all courts, subject to the overruling of superior instances.

[18] ���������� Fabre (2000, 152).

[19] ���������� Fabre makes clear that diffused judicial review is an extreme example of a model of judicial review, but there are other ways of institutionalising the principle of "constitutional review". See pages Fabre (2000, 138, 148).

[20] ���������� See Fabre (2000, 150): "[T]he Courts should simply remind the government of what its duties are, should tell them to fulfill these duties by a certain date as deemed reasonable, but should forbear from spelling out in any details how they should fulfill them".

[21] ���������� See Fabre (2000, 169ff). The Commission, which should be composed of members independent from government, elected from different "backgrounds" and with solid authority (its conclusions will be legally binding and it would have the capacity to force government to render more detailed precisions on the relevant subjects), is said to be modelled on the "Committee of Independent Experts which deals with the European Social Charter" (p. 172).

[22] ��������� This corresponds to the European model of constitutional review. In such a model, The Constitutional Court is a specialised body, the members of which tend to be directly appointed by representative institutions, such as Parliament. A limited number of institutional actors can submit statutes to the consideration of the Court, which decides on the abstract compatibility between the said statute and the Constitution. This prevents the Constitutional Court from reviewing the concrete constitutional problems posed by the statutes once they are implemented, and also prevents citizens from addressing the Court directly.

[23] ���������� But see Ackerman (1998), praising Germany, Italy and Spain.

[24] ��������� Recently, Murphy and Nagel (2002).

[25] ��������� This is a reference to the theory of the obligation to obey the law. According to deliberative or discoursive theory, law is to be seen as a complement of morality (Habermas, 1988), which plays a major role in discharging basic social roles of conflict solving and coordination achievement. Alexy�s special case thesis is perhaps the most refined statement of this argument (Alexy 1989 and 1999).

[26] ��������� This is argued in detail in Men�ndez (2001a, 138ff).

[27] ��������� Castoriadis (1997).

[28] ��������� Fabre (2000, 186).

[29] ��������� Estlund, (1997).

[30] ��������� Alexy (1996).

[31] ��������� Pavlakos (1999).

[32] ��������� Alexy (1998).

[33] ��������� Fabre (2000, 124).

[34] ��������� Nino (1989a and1989b).

[35] ��������� Holmes and Sunstein (1999).

[36] ��������� Holmes and Sunstein (1999, 31): �Public policy decisions should not be made on the basis of some imaginary hostility between freedom and the tax collector, for if these were genuinely at odds, all of our basic liberties would be candidates for abolition�.

[37] ��������� Holmes and Sunstein, (1999, 48).

[38] ��������� Holmes and Sunstein (1999, 117): �Those who acclaim rights as trumps sometimes also construe them as barriers defending the most cherished individual interests against a repressive or middlesome community. Individuals invoke their rights to fend off the majority. Rights protect individuals from mob rule (...) But are rights adequately described as claims that the solitary individual raises against the community in which she or he was born and bred? (...) By recognising, protecting and financing rights, the collectivity fosters what are widely constructed to be the deepest interests of their members�.

[39] ��������� See the recent Sunstein (2001).

[40] ��������� Cohen (1986) and Nino (1996).

[41] ��������� This is the argument of normative theories of fiscal federalism. Musgrave (1959) is the leading author.