Abstract
Judging Social Rights by Jeff King, the winner of the 2014 Birks book prize awarded by the UK’s Society for Legal Scholars, has essentially two goals: (1) to make an argument for the constitutionalization of social rights and (2) to suggest what approach the courts should take when dealing with social rights issues, by providing them with a sort of compass to navigate the perilous waters of social rights enforcement, inspired by principles of judicial restraint. One of the most striking characteristics of the book resides in its methodological stance. For King, drawing on a range of fields, such as political and legal theory, sociology and legal doctrine, manages to combine them into a convincing and compelling defence of why and how we should protect social rights on constitutional grounds.
The study is carried out at a highly theoretical level and, in principle, does not refer to any particular jurisdiction. Yet, at the same time, it has a clear normative commitment that, according to King, only countries that have a certain political–institutional background should be capable of undertaking. The first feature of such a background is that courts operate on a model of common law, to which King adds the following: the legislature is democratic, effective and rights-respecting; there are nonjudicial adjudicative mechanisms; ‘there is a good faith commitment to protecting social rights …’; wealthy groups hold a disproportionate part of political and economic power; the Executive functions well and is not corrupt; and the branches of government respect the ‘principle of inter-institutional collaboration’ (p. 11).
The United Kingdom is considered the benchmark regarding the existence of such conditions. One wonders how many other countries around the world possess such features and to what extent. We may also be puzzled by the fact that the first feature seems to cut out most of them. To be fair, King adds that courts that operate according to civil law models, provided they have institutional modes of adjudication resembling the common law model, could employ the mentioned compass.
This leaves room to speculate what institutional modes can make civil law courts similar to common law courts. I shall suggest something on this after sketching the main themes of the book.
As to the first goal, in King’s view, constitutional social rights are an institutional tool for protecting our social human rights and those social citizenship rights that a community may include among its constitutional commitments. There are many arguments in the book regarding the meaning and scope of social rights, both in moral and legal discourse. In a nutshell, the overarching idea is that their constitutionalization makes a difference in so far as such rights become justiciable at a level (the constitution) that can guarantee the basic state duties in respect of a social minimum. The latter, in turn, is defined as a bundle of resources to guarantee healthy subsistence, social participation and agency.
King elaborates his concept of these rights in pure moral terms as a proper (universal) social right. The constitutionalization is something that can be added to already well-structured and complex welfare legislation, which can develop independently from a formal constitutional mandate. In other words, the state, responsible for securing our social rights, has to be a welfare state because of a sort of moral imperative and not because of a legal constitutional mandate. This can be traced back to the peculiarities of the doctrine of Parliamentary Sovereignty, where the relationship between the constitution and the will of Parliament is certainly more complex than one of primacy of the former over the latter. In fact, from the book’s perspective, adjudication includes the entire complex system of redress represented by Tribunals, Ombudsmen, and so on, as well as the courts. The protection of social rights is a multi-institutional endeavour, where a predominant role has to be played by the legislative and executive branches of the State, according to King. Courts are, indeed, just a port of last resort and rightly so. This is, of course, how the English model works. If it must also be a feature of the model proposed by King, then it becomes remarkably selective and hardly applicable to most of the European states.
As to the actual meaning and scope of such a constitutionalization, King endorses a model of articulated provisions regarding a set of social needs expressed as much as possible in a qualified (not absolute, not conceived as rules of conduct) fashion and so structurally open-textured. This is slippery and difficult terrain, and there is insufficient space to linger on it, unfortunately. Suffice it to say, that, in King’s view, vagueness is a constitutive and inescapable feature of constitutional norms regarding social rights and so the only way of securing democratic values – and the multi-institutional effort essential to manage welfare commitments – is by exercising judicial restraint.
Thus, we come to the second, more important, goal of the book, where King blends two apparently diverging paths: the need for judicial intervention and the need to shield social rights from too much adjudication in court. All the existing interpretive approaches to constitutional review, briefly analysed by the author, encounter limits that prompt King to search for a more nuanced theory based on judicial restraint. The building of such a theory represents the heart of the book, which King takes on starting from the assumption that both non-doctrinal and formalistic stances are unfit for the purpose. One has to embrace instead an institutional approach to judicial restraint.
An institutional approach is one that accepts that courts are fallible and that their rulings can be affected by uncertain outcomes. The remedy to such drawbacks is to carefully take into account the likely consequences and systemic effects of judicial decisions. This is why, in an institutional approach, rights are just prima facie claims, subject to balancing with a number of other factors. There are two versions of such an institutionalist approach that are remarkably different from each other, respectively called in the book ‘restrictive’ and ‘contextual’ (p. 141). We could express the same dualism in terms of universalism versus particularism. In fact, whilst the latter relies on an overall evaluation of any cognizable element of the one-off context at stake to reach a right (or good or just) solution, the former is fundamentally sceptical about such a possibility and wary of judicial discretion. So universalists seek to set-up bright-line rules as much as possible and conceive a democratic institutional environment less open to interactive cooperation and more led by the legislature and government. Here the eclectic methodological stance favoured by King leads him to recommend a way between these two, even though he relies more on the contextual (particularistic) approach. Hence, he accepts that the entrenchment of social rights in a counter majoritarian instrument, which necessarily leaves room to disagreements as regards the limits that states can pose to their enjoyment, does not deprive politics of the power to make the relevant choices. At the same time, though, one has to acknowledge that courts are sometimes best placed to deal with such disagreements using ‘multifactorial’ weighing, so long, King stresses, they apply a set of principles and factors to be used as mechanisms of restraint. These are the four interpretive techniques that King extensively addresses and develops in the central part of the book: (1) democratic legitimacy, (2) polycentricity, (3) expertise and (4) flexibility. Taken together, these constitute what he defines as an ‘incrementalist’ theory of adjudication.
One can see how brilliant this idea is, a sort of Columbus’ egg, by noting that King reframes the epistemic and capability limitations that affect court adjudication – elements that normally constitute counterarguments to the desirableness of constitutionalizing social rights – as prudential principles. Incrementalism in a nutshell is a sort of ‘rule of thumb’ according to which: judges can adjudicate social rights disputes if the range of considerations, affected parties and judicial control more generally, are ordinarily limited to a relatively localized set of issues or, if addressing more macro-level issues, only impose finality upon the resolution of the issue to a limited degree. (p. 9)
From another perspective, it is relevant to see whether one can use the model set up by King, not as a recipe but as a conceptual tool to assess the outcome of case law. As a matter of fact, there are several examples of such a use in the book. This might sound paradoxical, implying that courts can do the right (or wrong) thing without us being capable of knowing whether they act deliberately or not. However, it seems plausible to suggest that doctrinal critique of case law conducted using King’s incrementalist model might be normatively effective to increase courts’ awareness regarding their role in an inter-institutional enterprise, even in an environment less prepared to use principles of judicial restraint.
These observations are evidently not a criticism to the book’s main arguments and tenets. They reflect instead just a few of the many reflections that the work of Jeff King has suggested to the author of this review. Only very good books do such things.