Review Essay: Jeff King, Judging Social Rights, Cambridge University Press, 2012, ISBN 9781107 400 320, 370 pp.

Abstract

Decades after social rights were recognized as international human rights (IHR) under the International Covenant on Economic, Social and Cultural Rights (ICESCR), constitutional social rights are increasingly common but remain part of the avant-garde of contemporary constitutionalism.1 Recent works examine best practices for implementing social rights.2 Some explore the record of constitutionalization as a mode of implementation by highlighting social rights’ legislative recognition in new constitutions3 and judicial recognition in established orders.4 Yet social rights are not a necessary part of the modern liberal democratic constitutions5 and theorists still contest the status of social rights. Practical and theoretical work remains before social rights are firmly established in contemporary constitutionalism’s mainstream. Jeff King’s Judging Social Rights (JSR) purports to explain why nations with background conditions mirroring ‘the social and political conditions presently obtaining in the United Kingdom’6 ought to constitutionalize social rights and how they can do so without falling into familiar pitfalls with social rights adjudication. King argues that (i) certain nations ought to recognize constitutional social rights (CSR) to protect social human rights (SHR) and (ii) incrementalism, a method of judicial interpretation, minimizes potential problems with this constitutionalization process. This argument requires proof of the existence of SHR, the ability of CSR to protect SHR, and the ability of incrementalism to avoid the negative effects of such constitutionalization. King has mixed success developing such proofs. His argument for the constitutionalization of social rights is incomplete, but his argument for incrementalism ably blends legal theory, international law, and comparative constitutional law. The following defends an interpretation of JSR that maximizes its strengths. Issues with King’s argument for the constitutionalization of social rights do not affect his argument that incrementalism can minimize problems with constitutionalizing social rights. I thus recommend reading JSR as a conditional argument: if one wants to constitutionalize social rights, then incrementalism helps avoid the negative consequences thereof. My interpretative argument consists of two substantive parts. After a brief synopsis of JSR,