Book Chapter Details
Mandatory Fields
Conor O'Mahony
2012 April
Yeni Anayasa Için Yol Haritasi (A Route Map of a New Constitution for Turkey)
Sosyal Yardim Haklarinin Anayasal Korunumu (Constitutional Protection of Social Welfare Rights)
Adalet ve Hukuk Denegi
Optional Fields

In most Western liberal democracies, the provisions of a country’s constitution provide protection for a wide range of fundamental human rights. However, this protection tends to be focused on civil and political rights; that is, freedoms from state interference. The major focus of provisions protecting constitutional rights tends to be on limiting State power, since the State protects civil and political rights largely by refraining from taking any action. It is far less common for liberal democratic constitutions to provide protection for social welfare rights – that is, rights which are entitlements to be provided with economic and social services by the State, and which require the State to take positive action. Economic and social matters have traditionally been left to the discretion of the political organs of state, and are usually not the subject of enforceable constitutional provisions. The remedy for those who are left without basic services lies in the political route rather than in the courts. However, there has long been a debate over whether this is the correct approach, and there are some countries that are exceptions to the rule. The Irish Constitution of 1937 includes an enforceable right to education, and the new South African Constitution of 1996 broke with tradition by providing a wide range of enforceable social welfare rights, including the rights to food, water, healthcare and housing. In both countries, the courts have enforced these rights, but have placed severe restrictions on the circumstances in which such enforcement will occur. The purpose of this paper is to consider the advantages and disadvantages of protecting social welfare rights in enforceable constitutional provisions in light of the lessons that can be learned from the case law of the Irish and South African courts.

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