Le Droit Social Et Les Droits Sociaux: Des Outils Dissonants Pour La Régulation Sociale Dans Le Contexte Du Néolibéralisme (Social Rights and Social Law: Human Rights Collision and Neoliberal Damages in Need of Repairs)

Abstract

The re-regulation of the Welfare State is not a new concept. Many pretended it was broken and in need of being fixed in order to include the excluded as much as possible. Other advocated for a cheaper Social State. That being said, the notion of social re-regulation means more that fixing an unresponsive social protection (including social insurance and social assistance) system. It carries with it many ideological as well as economic assumptions: individualization of social risks; labour market oriented policies and so on. Such functions are often described as elements of the signature of the neoliberal state.

With the wave of re-regulation came the fading out of social law, understood as a legislative model that determines the benefit, the beneficiary and that provides as well for legal recourses in case of denial of such benefits. Social law was never totally inclusive, especially if one considers the phenomena of intersectorial grounds of discrimination and exclusion in the land of social protection.

The fading out of Welfare State gave way to claims based on social rights: in a first time, this article explores how and why. It also highlights the risk of expecting the courts, through social rights claims, to redesign social law, or maybe, a new form of social law.

The paper then moves on assessing if the equality and security standard as human rights norms can replace the benefits that used to be provided for by social law; and concludes, based on the Canadian experience, by the negative.

Finally, the paper proposes a more inclusive understanding of social rights in an era where a growing proportion of populations (especially in well developed countries – as many poor countries never experienced a fully functional Welfare State model) is victim of social, democratic and economic exclusion. In conclusion, we submit that social rights shall not be seen and understood as lex specialis in the scenery of human rights in order for them not to serve the same neoliberal agenda, even by accident if not by design.

Note: Downloadable document is in French.

Keywords: social rights, social law, poverty, justiciability, public policies, assistance policies, precariat, categories of social protection, equality, exclusion