Participatory Justice in Social Rights Adjudication

Abstract

Ranging from individual procedural fairness rights to collective citizenship-based models, participatory justice plays a significant role in social rights adjudication under both international human rights and domestic constitutional law jurisdictions. The historic coming into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights invites renewed attention to the role of participatory justice in social rights adjudication. Drawing on diverse bodies of literature pertaining to procedural fairness in public decision-making, democratic experimentalism and law and social change, this article considers the value-based and instrumental justifications for participation in social rights adjudication. Thereafter the application of different kinds of participatory rights in social rights jurisprudence is examined. Two primary types of cases are examined—those involving a potential deprivation of social rights, and those in which it is alleged that there has been a breach of the positive duties to fulfil these rights. Ultimately, the article seeks to demonstrate the value that participatory justice brings to social rights adjudication, its different functions, as well as its integral connections to the substantive dimensions of these rights.