Chapter

Constitutional Social Rights and Democracy

Cécile Fabre

in Social Rights Under the Constitution

Published in print March 2000 | ISBN: 9780198296751
Published online November 2003 | e-ISBN: 9780191599200 | DOI: http://dx.doi.org/10.1093/0198296754.003.0005
 Constitutional Social Rights and Democracy

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I reject the claim that bills of social rights are undemocratic and therefore unacceptable. I argue that they are indeed undemocratic in some cases, but that this is not a good reason for rejecting them. In the course of defending this claim, I distinguish between democratic rights, namely, those rights the respect of which is necessary for a regime to count and function as a democracy, and undemocratic rights, namely, those rights the respect of which is not necessary for a regime to count and function as a democracy. I also look at different ways in which the judiciary could protect constitutional social rights; I claim that the constitutional court should tell the government when it has breached a right and should set a deadline for the provision of remedies, but should not tell the government which remedies to provide, and how it should provide them. I thus delineate the scope for democratic decision‐making when constitutional social rights are at issue.

Keywords: constitution; courts; decision‐making; democracy; government; judiciary; rights; social rights

Chapter.  21110 words. 

Subjects: Political Theory

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