2008]
The Minimum Core of Economic and Social Rights
139
example, the value of equality rivals di gnity as a guide to the Basic Law’s
protection of an “exist ential minimum.” Some German commentators argue
that, in measuring the standard of living of right s-claimants in relation to tha t
of others, an equality norm is more reliable than investigations into dignity.144
Thus, from survival, life, dignity, equality, and free dom, we can find
many different cores for eac h economic and social right. 145 The problem with
the competing values is endemic, even be fore parsing out the different weight
given to particular values for each righ t. An interpretation of the right to
education, for example, draws more heavily on freedom, while an
interpretation of the right to health relies more on th e value of dignity. The
problem is also present before we recognize the highly contingent r esonance
of each val ue in diff erent constitutional systems. There is no escape from
disagreement, which I argue suggests th at the enterprise of setting up an
essential core through normative argument—rather than an i nterpretation of
the rights themselves—is the wrong
approach. While the normative
compulsion behind economic and soci al rights should be the subject of
dialogue and contestation, the resulting legal standard shoul d retain a more
open, contestable, or fluid formulation.
Perhaps the greatest problem for the Essence Approach is that it relies
on a fixed and stable version of norm ative argument. Even an “overlapping
consensus” on the essential core, on
the basis of what all reasonable
146
conceptions might be, cannot assist. As well as leading to the thinnest and
most abstract formulation—a formula more suited to a lexical ordering than a
definitive core 147 —the formula for a reasonable overlap fails to invite the
voice necessary for an inquiry into t he evolving moral la nguage of rights. 148
Advocates often disagree over what is ba sic to rights, even as t hey agree with
the general attempt to deliberate. In order to respond to this disagreement,
many endorse an “ethic of fallibility,” which requires all who engage in the
deliberation to recognize the po ssibility that they are mistaken. 149 Such an
ethic would assign a differe nt type of focal point—an institutionally revisable
one—for the interpretation of rights.
An intuition of this incompatibility is perceptible in the South African
Constitutional Court’s re luctance to give meani ng to the minimum core
through a simple articulation of values. Despite its singular engagement with
the underlying normati ve values of the South African Constitution—using a
144. ALEXY, supra note 118, at 284 (emphasizing the assessment of “factual” equality).
145. E.g., Rosalind Dixon, Creating Dialogue About Socio-Economic Rights: Strong-Form
Versus Weak-Form Judicial Review Revisited , 5 I NT’L J. CONST. L. 391, 400-01 (2007) (exploring the
likely disagreement with the value-based core for right s to housing and health case in the South African
context).
146. RAWLS, supra note 138, 133-34 (1993) (advancing a
resolution to reasonable
disagreement, by appeal to what each person (or state) ought to agree on); see Dixon, supra note 145, at
400 (suggesting this version of consen sus would be likely for the m ost minimalist formulations, such as
temporary shelter over adequate housing).
147. Rawls relied on m ore general organizing prin ciples for society—the difference principle
being one—rather than a narrowed version of wh at was m eant by each socioeconom ic entitlement,
whether health, education, food, or shelter. E.g., RAWLS, supra note 74, at 65-68.
148. E.g., Frank I. Michelm an, Law’s Republic, 97 Y ALE L.J. 1493, 1511 (1988) (condoning
Rawls’s experiment while drawing attention to its problems for the norm of self-government).
149. E.g., Waldron, A Right-Based Critique, supra note 71.
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