The Justiciability of Social Rights and its Methods

This essay exemplifies ten legal methods which can be used, and have indeed been used, worldwide by various courts of law in order to actualize the normative content of social rights. Three of these, namely the (relative) standstill-effect of existing social legislation, the restriction of administrative discretion and the obligation to abstain from undoing certain de facto situations corresponding to social rights, are of a prohibitive nature. Another four methods of scrutiny are of enabling nature, i.e. they enable branches of government to ‘do things’ such as the direct application of social rights by the public administration, the legislative limitation of civil rights, the (judicial) interpretation of constitutional norms in the light of social rights, and the constitutionally conforming interpretation of ordinary laws. Moreover, individual compensation for a violation of a social right is a scrutiny method of an awarding nature. The last two methods of scrutiny, namely a declaration of incompatibility of government action or inaction with a social right and the issuing of specific orders by the courts, are of a commanding nature. The point to be made is that social rights are justiciable in a variety of forms. More than that, judicial involvement in their implementation might, to a degree, help to redress the steep inequalities that persist in contemporary reality and to promote the cause of constitutionalism worldwide.