Ferraz, O.L.M.; (2006) An insurance model for the justiciability of social and economic rights. Doctoral thesis , University of London.

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Abstract

The topic of this study is the judicial enforcement of so-called social and economic rights, in particular the right to health care, education, housing, food etc, expressly recognised in international treaties and in many domestic constitutions (often referred to as social rights' justiciability). Many believe that courts should refrain from enforcing those rights because they are neither legitimised nor institutionally competent to deal with the issues involved (i.e. matters of policy and resource allocation). Partisans of social rights' justiciability, on the other hand, insist that it is within the appropriate role of courts to adjudicate social rights and that no special expertise is required in that task that courts do not have or cannot develop. I review this debate and conclude that neither side is correct. The main problem, I submit, is that both sides of the debate have been taking for granted a conception of social rights that I argue is flawed. Indeed, it is commonly thought that social rights are entitlements to a certain basic level of social goods (e.g. health care, food, housing), which are necessary for the individual to lead a decent life. I call this the "basic needs conception". I claim, however, that social rights are in fact entitlements to a fair share of society's resources not necessarily related to the capacity for the enjoyment of basic needs. I propose, then, that the debate on legitimacy and competence has to be recast in the following terms: are courts legitimised or competent to deal with the intractable question of distributive justice posed by social rights I claim that they are and propose an insurance model, inspired by the work of Ronald Dworkin, which they could follow to reach an acceptable answer to that question.

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