Why Do Social Freedoms Become Forgotten Freedoms?

This paper engages in a comparative examination on tendencies of constitutional law in several Western liberal democratic states to render social freedoms into forgotten freedoms. These constitutional orders contain textual protections of social freedoms (including assembly, association, and other similar freedoms), but this text tends to receive less attention over extended periods of jurisprudential and scholarly development. The paper builds on some scholarly work on forgotten freedoms, including Inazu’s work on assembly in the United States and a forthcoming collection in Canada (which the author co-edited), but it adds a new dimension in seeking to use several key examples to highlight reasons behind the phenomenon of social freedoms becoming forgotten.

The Power and Potential of Freedom of Association

This paper traces the right to freedom of association in comparative perspective, with a view to understanding and evaluating how effectively it protects the rights of social groups to pursue their own lawful purposes. Since comparative research on the contours of the right to freedom of association is very thin on the ground, the paper provides some original insights at that level. However, at a deeper level, the paper also aims to explore the tension between, on the one hand, freedom of association understood qua liberal right and therefore essentially aimed at protecting the individual in her sociality and, on the other hand, freedom of association understood with a greater feminist sensibility which is aimed at protecting and promoting relationships of care which provide social capital.

Social Groups and the European Court of Human Rights

The European Convention on Human Rights is built on individual rights, but that does not mean that these rights exist in a vacuum. This paper examines the collective dimension of cases brought before the European Court of Human Rights in the context of non-discrimination. According to Article 14 of the Convention, discrimination based on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status is prohibited. These grounds refer to characteristics shared by social groups. The way in which the Court deals with them (or not) can provide insights into the perception of social groups and their positioning within the juridical field of the Court. Based on the notion of group empowerment, the paper reviews the impact of the Court’s approach towards social groups on their ability to engage in social change.

Social groups: Constitutional Law’s Missing Link

The International Society of Public Law (ICON) was founded, as Armin von Bogdandy would later summarize it, to promote more comparative, interdisciplinary, and theoretical approaches to constitutional law. Nearly twenty years later, it seems safe to conclude that it has realized this goal to a large extent. The recent volume on Constitutional Democracy in Crisis? is convincing proof of this development. However, as the same volume demonstrates, something is still missing, that was not explicitly part of the founding ideals of ICON. In the proposed paper, I will argue that the latter ‘something’ is the academic pursuit of what the Tradition calls the Good, the True, and the Beautiful. It is obviously beyond the scope of this paper to define what the Good, the True, and the Beautiful in constitutional law could stand for in 2020. It will, however, be argued that somehow social groups form part of that definition.