Judicial review of limitations to Social Rights

Abstract

Social rights in their defensive or negative dimension are increasingly brought within the framework of the (continental) model of judicial review of limitations to basic liberties. The same is not true of the positive or performance claim dimension of such rights. The most compelling traditional arguments to that effect point to structural differences between negative and positive rights, differences enhanced when the latter concern the provision of social goods. This essay purports to show that, in a wide range of cases, there is no structural hurdle or of any other nature) in the way of subjecting legislative interference with social rights to the proportionality analysis characteristic of the model of judicial review of limitations to basic liberties.