A Role for the Courts in Ensuring the Enforcement of the Socio-Economic Rights of the Child: Overcoming the 'Counter-Majoritarian Objection'
THE UN CHILDREN'S RIGHTS CONVENTION: THEORY MEETS PRACTICE, A. Alen, ed, pp. 233-258, Intersentia, 2007
Posted: 29 Jul 2009 Last revised: 6 Jan 2010
Date Written: 2007
This paper defends a role for the courts in ensuring the vindication of children’s socio-economic rights where the elected branches of government have not done so. In it, I argue that it is legitimate for the courts to act assertively in order to ensure that children’s socio-economic rights are implemented. Such judicial activity may extend to the courts prescribing steps that the state must take in order to fulfil the positive obligations imposed by children’s socio-economic rights. In doing so, the courts exercise control over the discretion of the other organs of government with regard to law- or policy-making. The paper focuses on the positivistic legal legitimacy within a constitutional liberal democracy of the courts acting assertively in order to guarantee children’s socio-economic rights. In particular, I argue that the courts may behave in this way even where such judicial behaviour appears prima facie to be undemocratic or counter-majoritarian.
Keywords: Children's Rights, Economic & Social Rights, Human Rights, Judicial Review, Judicial Activism, Positive Obligations
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