Constitutional Social Rights and Democracy

Abstract

AbstractI 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.