Critical perspectives on social and economic rights, democracy and separation of powers

Abstract

This chapter explores a perceived tension in constitutional and human rights discourses between property rights, regarded as classic civil and political rights, and social and economic rights (SER) such as the right to food, housing, health, social security and education. Constitutional law scholars and human rights practitioners have argued that a tension between property rights and SER arises because judicial enforcement of property rights may and ordinarily does impose severe restrictions on the fulfilment of social and economic needs of the poor. The recognition of SER in the Universal Declaration of Human Rights (UDHR) encouraged adoption of non-justiciable SER in several post-war constitutions. Broad generalizations about the differences and conflicts between property rights and social and economic rights are overstated and tend to come apart in light of historical experience. Ultimately, it is the practices of individual judiciaries in particular periods of time and in particular social, political and economic contexts, both nationally and internationally.