Social Rights Protection in Common Law Systems: the Need to Take Judicial Culture Seriously

My paper considers how to make social rights protection within common law systems a practical reality. The inclusion of social rights within textual Bills of Rights is increasingly common. However, these rights are more likely to be judicially overlooked or under-theorised than to develop into practically enforceable legal guarantees. Thus, rights-bearers within these constitutional orders are often not able to litigate to adequately protect the interest (in housing, education, etc.) which the inclusion of the right within the constitution was meant to ensure.
My paper looks at the protection of these rights in the common law world. It looks at two jurisdictions with express social rights but divergent regimes of social rights protection – Ireland and South Africa – and develops a compelling thesis based on a study of judicial cultures to explain what led the judiciary in the latter order to develop robust social rights protection, in contrast to the judicial aversion of the former.