This chapter begins an analysis of why some constitutional systems have begun again to show militaristic emphases. It argues that in some cases this is to due to the fact that, since the 1980s, one part of the system of world law constructed after 1945 – namely the internal welfare dimension – has been weakened. This is assessed as part of the global background in constitution-making processes that commenced in the 1980s. The chapter considers a range of cases where constitutions have begun to malfunction with military consequences. It divides these cases into constitutions marked by vertical militarization (Russia, Brazil) and constitutions marked by lateral militarization. It links these developments to weakness in social integration processes under different constitutions.

This chapter explains different definitions of citizenship including citizenship as status, as rights, as participation, and as identity. It highlights key immigration laws and periods of immigrant inclusion and exclusion. The chapter also presents basic data on demographic change through American political history.

This chapter seeks to illustrate from the bottom up the role that social justice played in establishing and maintaining authoritarian rule in Czechoslovakia under National Socialism and state socialism. The author investigates how notions of social justice were included in the social practice of both regimes and how the working population responded to these policies. By analysing legal disputes, this chapter explores the critical space between rulers and ruled to assess when and how notions of social justice were articulated in Czechoslovakia. In their opposition to the ‘injustices’ of past governments, such as those wrought by social inequality and economic suffering, both National Socialists and Communists drew on a language of social justice to articulate their own visions of a new order. However, their respective notions of social justice differed radically: from social justice defined in racial terms, typical for New Order movements, to social justice delimited by social class and attained for all members of the ‘socialist working society’. The main difference that emerged from the transition from the Nazi to the post-war Communist regime was a shift from the language of individual rights to a language related to the collective, to society, and to the state.

This chapter addresses, as a first component of the proposed framework, the first constituent expectation of trust in the citizen-government relationship: goodwill. It defines the expectation as consisting of two sub-expectations: an expectation of procedural fairness – which includes elements of transparency, citizen participation and respect for citizens’ right to equality – and an ‘expectation of good intentions’, which translates into an expectation that the elected branches’ staff will not act intransigently in exercising their control over social goods and services. The chapter also details how the courts can enforce the expectation. It explains that for this component, the courts, first, demand a fair decision-making procedure from the elected branches, and, secondly, respond to government intransigence by escalating to progressively less trusting judicial interventions. The chapter uses cases from various jurisdictions, including Canada, Colombia, Germany, Kenya, South Africa and the UK, to illustrate.

This chapter lays further conceptual foundation for the book’s proposed trust-based framework. It applies to the citizen-government relationship what I call the ‘network conception of trust’ from the social science scholarship. In doing so, it makes a claim of how trust functions in the social rights context. According to this conception, trust arises in, and depends on, complex structures or networks of relationships. Applying this conception to the citizen-government relationship, the chapter argues that in contemporary democracies, the citizen-government relationship arises in a network of relationships and that trust in the citizen-government relationship depends on the relationships that constitute the network – including, importantly, the relationship between citizens and the courts that arises out of the adjudication of social rights by courts. This argument adds nuance to our understanding of trust and lays foundation for my contention in Chapter 4 that the courts, via their enforcement of social rights, can foster citizens’ trust in the elected branches.

In preparation for Chapters 5–7 – which detail the three components of the proposed trust-based framework – this chapter addresses three issues. With reference to the social rights literature, it first substantiates the conclusion that social rights are justiciable, justifying the need for an enforcement framework to be used by the courts. Secondly, the chapter describes how the courts can use the concept of political trust as the basis for a social rights enforcement framework. It explains that under the trust-based framework, the courts promote the elected branches’ trustworthiness with respect to social rights. The courts specifically hold the elected branches to a ‘standard of trustworthiness’, effectively enforcing the three constituent expectations of trust in the citizen-government relationship – goodwill, competence and fiduciary responsibility. Lastly, the chapter outlines four justifications – theoretical, instrumental, practical and democratic – for why political trust should provide the basis for a social rights enforcement framework.

This chapter addresses, as a third component of the proposed framework, the third constituent expectation of trust in the citizen-government relationship: fiduciary responsibility. Employing scholarship on both private fiduciary law and fiduciary political theory, it defines the expectation as an expectation that the elected branches will fulfil their fiduciary duty of loyalty to citizens. This duty translates, the chapter argues, into an expectation of non-corruption from the elected branches’ staff. The chapter also details how the courts can enforce the expectation. It explains that for this component, the courts aim to curb corrupt practices from the elected branches’ staff, and it identifies steps the courts can take to do so: greater probing into the state’s financial resources; strictly enforcing public procurement law; holding non-state actors accountable to the public; involving specialised anti-corruption agencies; and imposing financial sanctions on government actors. The chapter illustrates these steps using cases from various jurisdictions, including South Africa, Uganda and the UK.

This chapter lays the necessary conceptual foundation for the book’s proposed trust-based framework. It draws on theoretical and empirical scholarship on trust to offer a conceptualisation of trust in the social rights context. It first envisages trust as relational, meaning that trust may only arise in a relationship that contains three elements: control, discretion/uncertainty and vulnerability (a ‘trust relationship’). Secondly, it defines trust in a trust relationship as a set of three expectations held by a truster about a trustee: an expectation that the trustee will exercise goodwill towards the truster (‘expectation of goodwill’); an expectation that the trustee will exercise competence towards the truster (‘expectation of competence’); and an expectation that the trustee will fulfil her fiduciary responsibility (if any) to the truster (‘expectation of fiduciary responsibility’). The chapter then applies this conceptualisation to the relationship between citizens and the elected branches of government with respect to social rights (the ‘citizen-government relationship’), characterising it as a trust relationship and defining trust in it.

This chapter introduces the book. It expresses as the book’s principal objective the advancement of a normative argument regarding the judicial enforcement of constitutional social rights. This argument is that the courts, when enforcing these rights against government actors, should focus their analysis on public trust in government or ‘political trust’ – with the book’s proposed trust-based framework following on from this argument. As a starting point for this normative argument, and to address the broader question of why we should examine social rights law from the perspective of political trust, the chapter considers the relationship between political trust and public cooperation. Additionally, the chapter covers preliminary matters, defining the book’s scope, delineating the applicability of the trust-based framework, situating the framework in existing frameworks for social rights enforcement and outlining the book’s structure.

This chapter concludes the book. It stresses that with the global rise of constitutionalised and justiciable social rights, and the corresponding proliferation of social rights litigation, courts require guidance on how to enforce these rights. It summarises the proposed trust-based framework and how it addresses the drawbacks of existing frameworks for social rights enforcement. The chapter also discusses the framework’s implications, noting that the framework is not limited per se to social rights enforcement but may be applied, with appropriate modifications, to other areas of human rights law.

This chapter addresses, as a second component of the proposed framework, the second constituent expectation of trust in the citizen-government relationship: competence. It defines the expectation as an expectation of evidence-based policy-making (EBPM) from the elected branches in their exercise of control over social goods and services. Drawing on scholarship on EBPM, it argues that EBPM consists of three forms of knowledge: knowledge from scientific research, ‘political knowledge’ and ‘practical implementation knowledge’. The chapter also details how the courts can enforce the expectation. It explains that for this component, the courts incorporate EBPM into social rights enforcement. More specifically, the courts require the elected branches to provide evidence demonstrating that their decision-making vis-a-vis social goods and services is evidence based. The chapter offers illustrations from various jurisdictions, including Germany, South Africa, the UK and Latvia.

Chapter 1 provides an overview of the core argument and empirical approach of the book. It also situates social constitutionalism with respect to other visions of constitutional law (including liberal and illiberal constitutionalism), describes how social constitutionalism rose in prominence alongside the emergence of neoliberalism, and details what is at stake with the embedding (or lack of embedding) of social constitutions.

This chapter explores the legality of unions between racially heterodox people. It asks readers to consider miscegenation suits decided in the 1860s and 1870s solely in the context of Reconstruction-era efforts to achieve abolition. Observing the suits from this perspective reveals an important moment of flux in the history of American abolition and reveals the central arguments that would be used to undermine equal citizenship.

This chapter examines a collection of suits decided by the U.S. Supreme Court that together privileged antebellum interpretations of doctrine over the promise of the Reconstruction Amendments, standardized the responses to post-emancipation litigation across state lines, and, ultimately, prevented abolition. The Court adopted the majority views developed at the state level as a blueprint for the edifice of Jim Crow.

The chapter provides an analysis of the concept of rights. It clarifies the precise object of inquiry of the book. A particular focus is repesented by claim rights or subjective rights. Mayor elements of the analysis of subjective rights are recalled, including historical contributions from Natural Law thinkers, comments by legal positivists, the Hohfeldian framework and the rules and principles approach. The question as to whether it is conceptually impossible to regard social rights as proper rights is addressed. Central elements of a concept of rights are discussed, including the addressees of rights, the holders of rights and the problem of group rights. The relation of legal and moral rights is a further object of inquiry, as are the basic contents of human rights, the copossibility and limitations of rights, the nature of obligations, the peremptory nature of rights and questions of the interpretation of rights.

The chapter draws a comparison between the recent doctrine of the Inter-American Court of Human Rights on the duty of progressive realization, nonretrogression and use of the maximum of available resources and that of the United Nations Committee of Economic, Social and Cultural Rights in the cases decided from 2013 through individual communications. The Optional Protocol introduces the standard of reasonableness in the examination of the measures adopted by states to comply with its obligations, but whenever the satisfaction of the right’s minimum core, or the position of vulnerable groups is at stake, the Committee applies a sort of “strict scrutiny.” In these cases, a presumption of invalidity applies, the burden of justification shifts, and the state must demonstrate the unavailability of less restrictive measures. Reasoning about necessity and alternatives is often relevant also for the Inter-American Court, but this court does not adopt a structured proportionality analysis and develops the relevant notions and state obligations along formally different lines. The chapter analyzes commonalities and differences between the two approaches, signaling lines of evolution that emerge when placed in dialogue with one another.

The Colombian Constitutional Court has decisively undertaken the role of guaranteeing the normative force of economic and social rights. It has devised several tools to that effect, among them a test to evaluate regressive measures. This chapter examines rulings that review statutory norms in the abstract, before arguments that denounce them as illegitimate retrogressions in the enjoyment of social and economic rights. These claims are assessed by applying what we call the “integrated regression test.” The chapter establishes the meaning, structure, operation and efficacy of this test, which uses proportionality analysis as an allocation method. It dissects how it operates to safeguard rights when their minimum core or preexisting associated benefits are withdrawn. The integrated regression test proves to be a strong and complex scrutiny, even if not completely unified in its use, with a wide range of singularities and a tendency to be more protective of social rather than economic rights.