Socio-Economic Rights, Economic Crisis, and Legal Doctrine: A Reply to David Bilchitz

Abstract

In his interesting criticism of our article, “Social Rights in the Age of Proportionality,” David Bilchitz rejects the potential of proportionality to give content to social rights. Proportionality is perceived as a “formal test ... that helps decision-makers reach determinations as to the circumstances in which it is permissible to limit rights,” which “only works if we have a pre-existing understanding of the content of particular rights and the weights to be accorded to them.” This preexisting content idea is central to the author’s argumentation, being considered a precondition for the examination of necessity and stricto sensu proportionality as well as for the dialogical approach, which he thus also rejects as a content-creating device. His criticism will be addressed at two interrelated levels. First, we will examine whether the conceptualization of proportionality and its relation to the content of rights employed by Bilchitz is theoretically sound; and, second, we will check whether the financial crisis experience so far offers arguments for or against his position. We shall argue that the author, embracing an outdated understanding of both proportionality and rights, agonizes to find ways of protecting social rights in the context of the current financial crisis in a manner quite detached from the emerging legislative and jurisprudential reality. Failure to take into account recent narratives of proportionality and ignoring the new facets of the doctrine explains his objections.