Dynamic Regulatory Constitutionalism: Taking Legislation Seriously in the Judicial Enforcement of Economic and Social Rights

The international human rights revolution in the decades after the Second World War recognized economic and social rights alongside civil and political rights. The Universal Declaration of Human Rights in 1949, the International Covenant on Economic, Social, and Cultural Rights in 1966, regional treaties, and subject-specific treaties variously describe rights to food, shelter, health, and education, and set out state obligations for the treatment of children. When they first appeared, these international, economic, and social rights instruments raised questions about whether economic and social rights are justiciable in domestic legal contexts and whether they can be meaningfully enforced by courts in the same way as civil and political rights.1 Today, however, constitutions all over the world place economic and social rights alongside civil and political rights in their bills of rights.2 The ‘first wave’ debate about justiciability has been replaced by pragmatic considerations of how economic and social rights can or should be enforced, and what role courts, legislatures, and the executive and administrative branches should play in achieving them.3 My objective here is to point out that much of this second wave of economic and social rights jurisprudence suffers from a lack of attention to the normative content of the ‘social legislation’ enacted to give effect to economic and social rights. I argue that scholars and courts have in the first place ignored how social legislation encodes the commitments a legal community makes to social justice in constitutionalized economic and social rights. In the second place, scholars and courts have paid insufficient attention to the role that social legislation plays in communicating constitutional norms of social justice to the government officials responsible for the administration of the state