The Minimum Core of Economic and Social Rights: A Concept in Search of Content (abstract)

Within the catalogue of rights—whether conceived in constitutional or international terms—economic and social rights are said to be especially indeterminate. This Article inquires into the conceptual foundations of a minimum core of economic and social rights. This concept of the minimum core has been applied to provide determinacy and even justiciability to the rights to food, health, housing, and education, and also (most ambitiously) to give substance to minimum legal obligations in both national and global distributive justice debates. This Article brings together the methodological insights of comparative constitutional law and international human rights, and traces the ways in which concepts are borrowed from each field. By doing so, this Article disaggregates three contrasting approaches to giving content to the minimum core—that of a normative essence, minimum consensus or minimum obligation. This Article further demonstrates how each approach is ultimately insufficient as a conceptualization of social and economic rights and their enforcement. It ends by gesturing towards a new way of approaching a universalized discourse of minimums in economic and social rights.



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