Social Rights Under the Constitution: Government and the Decent Life

Sampul Depan
OUP Oxford, 2 Mar 2000 - 214 halaman
The desirability, or lack thereof, of bills of rights has been the focus of some of the most enduring political debates over the last two centuries. Unlike civil and political rights, social rights to the meeting of needs, standardly rights to adequate minimum income, education, housing, and health care are not usually given constitutional protection. This book argues that social rights should be constitutionalized and protected by the courts, and examines when such constitutionalization conflicts with democracy. It is thus located at the crossroads of two major issues of contemporary political philosophy, to wit, the issue of democracy and the issue of distributie justice. Interestingly and surprisingly enough, philosophers who engage in penetrating discussions on distributive justice do not usually reflect on the implications of their argument for democracy; they are met with equal indifference on the part of theorists of democracy. This book stems from the perception that there may be conflicts between the demands of democracy and the demands of distributive justice, both of which are crucially important, and from the resulting recognition that the question of the relationship between these two values cannot be ignored.

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Isi

322 Rights against Private Individuals and Rights against the State
90
323 From Moral Rights to Constitutional Rights
98
324 A RightsBased Objection against Constitutional Rights
105
Conclusion
106
Constitutional Social Rights and Democracy
110
41 A Procedural Conception of Democracy
111
42 Political Citizenship and Constitutional Social Rights
119
421 Constitutional Social Rights and the Capacity to Participate Politically
120

14 From Needs to Social Rights
21
141 Reasons for Assigning Rights
22
142 RightHolders
26
143 Content of Social Rights
33
Conclusion
39
Negative and Positive Rights
40
21 Two Often Conflated Distinctions
43
22 The Complementarity Thesis
45
23 Objectives against the Complementarity Thesis
49
232 Shues Argument
51
whose Duties?
53
Conclusion
65
Constitutional Social Rights
67
311 The Formal Characteristics of the Modern Constitution
68
312 Deciding on the Content of the Constitution
72
313 What Should Be Entrenched in the Constitution and Why?
79
32 Bills of Rights
86
321 Hohfelds Typology and InterestBased Theories of Rights
88
422 Constitutional Social Rights and the Willingness to Participate Politically
126
43 Objections against Bills of Rights as Undemocratic
128
44 Democratic DecisionMaking and Constitutional Social Rights
145
Conclusion
151
The Implementation of Constitutional Social Rights
152
51 The Vagueness of Constitutional Social Rights
154
511 Levels of Provision
158
512 The States Resources
166
573 The States Duty to Take Appropriate Steps
167
52 Assessing Constitutional Judicial Review of Constitutional Social Rights
168
522 Constitutional Judicial Review versus Constitutional Judicial Preview
173
523 Individual Petition versus Collective Complaints and Class Action
175
Conclusion
182
Conclusion
183
Bibliography
188
Index
199
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Halaman 68 - A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence ; and wherever it cannot be produced in a visible form, there is none.
Halaman 47 - ... b that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; c that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment...
Halaman 163 - Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education...
Halaman 163 - Secondary education in its different forms, including technical and vocational secondary education, should be made generally available and accessible to all by every appropriate means, and in particular, by the progressive introduction of free education; c.
Halaman 23 - MICHAEL SANDEL: Liberalism and the Limits of Justice, Cambridge (Cambridge University Press) 1982.
Halaman 77 - From the standpoint of justice as fairness, a fundamental natural duty is the duty of justice. This duty requires us to support and to comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established, at least when this can be done without too much cost to ourselves.
Halaman 30 - if and only if X can have rights, and other things being equal, an aspect of X's well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty".
Halaman 174 - The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.
Halaman 51 - A demand for physical security is not normally a demand simply to be left alone, but a demand to be protected against harm. 10 It is a demand for positive action, or, in the words of our initial account of a right, a demand for social guarantees against at least the standard threats.
Halaman 40 - Positive rights are inevitably asserted to scarce goods, and consequently scarcity implies a limit to the claim. Negative rights, however, the rights not to be interfered with in forbidden ways, do not appear to have such natural, such inevitable limitations. If I am left alone, the commodity I obtain does not appear of its nature to be a scarce or limited one. How can we run out of people not harming each other, not lying to each other, leaving each other alone?

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CÚcile Fabre is a Prize Research Fellow, Nuffield College, University of Oxford

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