A Defence of Welfare Rights

Abstract

It is frequently argued that social and economic rights, which in this chapter I shall collectively call Welfare rights, are not genuine rights because they are neither enforceable nor justiciable. In this they are thought to contrast sharply with civil and political rights. Civil and political rights are regarded as justiciable at least in principle, whereas welfare rights are not and this is so, the critic argues, because there are logical or categorical differences between the two sorts of rights which in fact account for their different legal standing. In this chapter I shall argue that the claim that there are these categorical differences between the rights is in fact ill founded. If this is so, then it will follow that the question of justiciability cannot turn on these alleged logical differences. On the view I advance here if civil and political rights are regarded as justiciable, then there is no reason of principle for regarding welfare rights as not being so. However, I shall not address the question of whether civil and political rights are justiciable. I shall take the liberal view that they are for granted and then argue that there is no sufficient logical difference between the two sorts of rights which could account for different attitudes to justiciability.