Intensive Course: The Constitutional Protection of Social Rights (LAW705H1S)

Note: Thursday January 10, 12:30 - 2:00 is an International Human Rights Workshop which be form part of the course, therefore, attendance is mandatory at the workshop.   AND

Additional time slot on Friday January 11, 2:10 - 4:00

Although once the poor cousins of civil and political rights, social welfare rights are now broadly recognized in international law and are found in a surprisingly large number of national constitutions. This course will examine the experience of adjudicating such rights in a few representative countries, and concentrate on responding to the key objections to constitutionalising social rights. We will examine the following subjects in some detail: (a) excerpts from leading social rights cases in jurisdictions such as Brazil, Britain, Canada, the European Court of Human Rights, Germany, South Africa, and the United States; (b) the empirical record of judicial impact in the field of administrative justice; (c) the democratic legitimacy of social rights adjudication; (d) the claim that courts lack the institutional competence to adjudicate social rights claims; and (e) thorny issues in adjudication, such as the use of social science evidence, structural injunctions/mandatory relief, procedural remedies, and the ideal form of any constitutional text. Throughout, we will consider how social rights adjudication relates to some central concepts in constitutional theory, such as the separation of powers, the rule of law, judicial restraint, and the judicial balancing of competing rights. Although it will not be a central text for the course, students can consult the course instructor’s book Judging Social Rights (Cambridge University Press, 2012) for an idea of the arguments and sources that will be discussed.