The Canons of Social and Economic Rights

Abstract

Abstract Social and economic rights remain central to debates on constitutional democracy and human rights, but their foundations are contestable. Indeed, it is worth nominating not only recognizable “canons,” but also “proto-canons” and “counter-canons” for such rights. The 2000 South African case of Republic of South Africa v. Grootboom is exemplary as a “canon.” Three features of Grootboom—its reasoning, provenance, and visibility—give it a canonical status, which include the case’s apparent resolution of the challenge of justiciability, its proximity to South Africa’s post-apartheid Constitution and Constitutional Court, and the case’s ambivalent legacy for housing rights. Yet Grootboom is not a singular source for establishing and renewing the boundaries of a global canon. The chapter draws on constitutional theory to debate the status of the “proto-canons” and “counter-canons” of socioeconomic rights. It therefore nominates the 1948 Universal Declaration of Human Rights as a proto-canon for social and economic rights, as crystallizing incipient ideas of freedom from want, and an institutionally broad (and non-court-centric) vision of realization. The chapter also nominates the 1973 U.S. case of San Antonia School District v. Rodriguez as a counter-canon, as that case marks the interpretive closure, by the Supreme Court of the United States, of available arguments for constitutional social and economic rights, and the devolution of the right to education to the states in that country. These proto- and counter-canons help us reflect on the highly unsettled constitutional and democratic norms of the present.