The Case for a Judicially Enforceable Right to Housing

Date01 January 2017
AuthorCaoimhe Stafford
e Case for a Judicially Enforceable Right to
e subject of this article—socio-economic rights (“SER”)—has sparked much
academic discussion. Aer the recent nancial crisis, the clarion call for justiciable
SER reached a crescendo, one that would seem to be falling on deaf ears. e rst
section of this article will consider why SER have been rejected at home and abroad.
e second section will outline arguments in their favour, before considering the
particular need for a right to housing in Irish law. e third section will evaluate
potential strategies for the implementation, adjudication and enforcement of such
a right.
e Prevailing Approach to SER
Historically, “second-generation”1 SER have had, at best, minimal substantive
legal status in domestic law.2 Meanwhile, their rst-generation siblings—civil and
political rights—have been viewed as crucial to democracy.3 is dierentiation can
be attributed to SER’s association with socialist states during the Cold War Years,4
and their supercially competing ideological foundations—which characteristics
have been highlighted by detractors of SER in order to distract from their similar
moral bases.5
As Fredman6 and Fabre7 observe, civil and political rights were perceived as
imposing only negative duties of restraint8preserving freedom in the classical
1 Mark Tushnet, “Social Welfare Rights and the Forms of Judicial Review” (2004) 82 Tex.L.Rev.,
2 Colm O’Cinnéide, “e Constitutionalization of Social and Economic Rights” in Social and
Economic Rights in eory and Practice: Critical Inquiries (London: Routledge, 2015), p. 258
3 J. King, Judging Social Rights (Cambridge: Cambridge University Press, 2012), p. 1
4 S. Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford
University Press, 2008), p. 1
5 E. Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Oxford: Hart, 2009),
p. 15
6 Fredman, supra note 4, p. 1
7 Cécile Fabre, “Constitutionalising Social Rights” (1998) 6 J. Political Philos. 263, pp. 263–264
8 Herman Schwartz, “Do Economic and Social Rights Belong in a Constitution?” (1994–1995) 10
Am.U.J.Int’l L. & Pol’y 1233, pp. 1233–1235
03 Stafford.indd 42 30/05/2017 16:32
e Case for a Judicially Enforceable Right to Housing 43
liberal tradition,9 while SER were deemed to incur positive duties—pursuing
equality at the expense of freedom. is dichotomy arises from the neoliberal view
that characterises the state as a potential threat to individual liberty.10
It would be foolish, however, to believe that hostility towards SER is purely rooted
in their political origins—many governments are reasonably concerned about the
attendant resource implications.11 Resource scarcity intuitively appeals to the belief
that SER could never be fully realised,12 compounding their “second-class”13 status
as “aspirational goals”14—“rhetorically useful but having few practical implications
for government policy.15 Indeed, it should be remembered that even in wealthier
times, opposition to SER has remained steadfast.16
Speaking recently at Trinity College Dublin, Lord Homann verbalised the
greatest issue with justiciable SER—admonishing the government for economic
failures is an inappropriate and “uncomfortable” role for the judiciary, who are
usually restricted to deciding between the parties before them without having to
evaluate the economy’s workings. He dismissed the contention that the judiciary
could raise standards where the government had failed to do so.17 is pressing
concern about the role of the judiciary is twofold, relating to both competence and
legitimacy,18 and each should be considered in turn.
First, it is commonly argued that judges lack the necessary expertise and are
institutionally unsuited19 to judge disputes that are likely to have vast economic
and social policy ramications.20 Judges are not adequately equipped or trained and
they do not have the means to gather crucial information.21 A stronger criticism
concerns the indisputable polycentricity of SER decisions and the resultant
need for exibility.22 Polycentricity implies that certain matters mandate the
9 Cass R Sunstein, “Why Does the American Constitution Lack Social and Economic Guarantees”
(2003) University of Chicago Public Law and Legal eory Working Paper No. 36, p. 4
10 Palmer, supra note 5, p. 15
11 Margot Young, “Introduction” in Poverty: Rights, Social Citizenship and Legal Activism (Vancouver:
UBC Press, 2007), pp. 4–5
12 D. Bilchitz, Poerty and Fundamental Rights: e Justication and Enforcement of Socio-Economic
Rights (Oxford: Oxford University Press, 2007), p. 84
13 P. O’Connell, Vindicating Socio-Economic Rights: International Standards and Comparative
Experiences (London: Routledge, 2012), pp. 1–2
14 O’Connell, supra note 13, p. 10
15 Bilchitz, supra note 12, p. 1
16 O’Connell, supra note 13, p. ix
17 William Binchy, Ann Power-Forde and Lord Homann, “e Universality of Human Rights”
(Trinity College Law Review Distinguished Speaker Series, Dublin, 24 November 2015)
18 Fabre, supra note 7, p. 263
19 Gráinne McKeever and Fionnuala Ní Aoláin, “Enforcing Social and Economic Rights at the
Domestic Level: A Proposal” in Poerty: Rights, Social Citizenship and Legal Activism (Vancouver:
UBC Press, 2007), pp. 222–223
20 O’Connell, supra note 13, p. 9
21 Fabre, supra note 7, p. 281
22 King, supra note 3, p. 6
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