The Case for a Judicially Enforceable Right to Housing

• Date: 01 January 2017
• Author: Caoimhe Stafford

42

e Case for a Judicially Enforceable Right to

Housing

CAOIMHE STAFFORD

Introduction

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

Background

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 restraint8—preserving freedom in the classical

1 Mark Tushnet, “Social Welfare Rights and the Forms of Judicial Review” (2004) 82 Tex.L.Rev.,

p.1896

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

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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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