The Canons of Social and Economic Rights

Abstract

Social and economic rights occupy an unsettled place in any global canon of constitutional democracy and human rights. This Article, appearing in a collection of Global Canons in an Age of Uncertainty (S. Choudhry, M. Hailbronner & M. Kumm, eds., OUP) recommends a contender for canonical status, at the same time as it problematizes the search. Insofar as the search for a canon reveals the boundaries of what may be considered exemplary claims of constitutional and democratic practice, the 2000 South African case of Republic of South Africa v. Grootboom is canonical for its treatment of social and economic rights. This Article explores and problematizes the three features of Grootboom – its reasoning, pedigree and visibility – that it argues give it a canonical status, which include the case’s apparent resolution of justiciability, its proximity to South Africa’s post-apartheid Constitution and Constitutional Court, and its ambivalent legacy for housing rights. Yet Grootboom is not a singular source for establishing and renewing the boundaries of the global canon. Moreover, its legacy is not completely secure. The Article introduces the idea of proto-canons and counter-canons as adding to what should be a worldwide debate about foundational texts, for constitutional democracy and human rights. Indeed, proto- and counter-canons are especially useful categories for charting both the ambitions and marginality of social and economic rights, as well as the hegemony of distinctive visions of constitutional democracy. The Article therefore nominates the Universal Declaration of Human Rights in 1948 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. It also nominates the 1973 US case of San Antonia School District v. Rodriguez as a counter-canon, as that case marks the interpretive closure, by the Supreme Court, of available arguments for constitutional social and economic rights, and the devolution of the right to education to the states. These proto- and counter-canons help us reflect on the highly unsettled constitutional and democratic norms of the present.