2008] The Minimum Core of Economic and Social Rights 141 jurisprudence” 156 as founding the core cont ent of each right. Although unacknowledged in their pract ice, this approach is adopted by many activists when they assert that consensus on the key components of the core is a way of overcoming questions about content. 157 Similarly, it is adopted by the detractors of economic and so cial rights when they cl aim that an absence of consensus is the reason to delay the elaboration of a core.158 Applying this consensual scale to economic and social rights has advantages in ascertaining the settl ed meaning of each ri ght’s core, while allowing pluralist disagreement at its fringes. In this way, it is akin to H.L.A. Hart’s famous distinction between “a core of certainty and a penumbra of doubt,” 159 which accompanies the applicatio n of general rules to particular situations. It has much in common with the Essence Approach in that it tends to prefer the most persuasive norma tive articulations of the mini mum core. This is because moral argum ent may actually take its shape from the need to persuade.160 Yet the Consensus Approach also explicitly addresses two central challenges to the Essen ce Approach: that resolving disagreement by an abstract, overlapping consensus of re asonable political theories does not resolve the problems of representation and voice, and that even broad ethical agreements may not resona te enough with social facts to constitute law. 161 It does this by focusing on an observed empirical agreement. A consensus on the minimum—or at least, some approximation thereof—may serve the normative goals of sovereign equality in i nternational law and self-government in constitutional law, or following an alternative normative register, the translation of r eason through the “modern ius gent ium.” 162 The Consensus Approach thus renders politically legitimate—and “valid”—the universal application of the minimum core. 156. Scott Leckie, The Human Right to Adequate Housing , in ECONOMIC, SOCIAL AND CULTURAL RIGHTS, supra note 4, at 149, 155 (arguing that “[a] synthesis of the jurisprudence of the UN Committee on Economic, Social, and Cultural R ights, the European Commission and Court of Hum an Rights and the form er European Commission on Hum an Rights, the European Committee of Social Rights supervising the ESC and the contents of UN resolutions and legal texts addressing housing rights issues . . . reveals much of the substance and core content of this right”). 157. Ligia Bolivar & Enrique Gonzalez, Defining the Content of ESC Rights—Problems and Prospects, in CIRCLE OF RIGHTS: ECONOMIC, SOCIAL & CULTURAL RIGHTS ACTIVISM: A TRAINING RESOURCE 151, 156 (Int’l Human Rights Internship Program & Asian Forum for Hum an Rights and Dev., 2000). 158. E.g., Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Co mplaints Mechanism to Adjudicate the R ights to Food, Water, Housing, and Health? , 98 A M. J. INT'L L. 462, 475 (2004) (noting the “widespread differences in dom estic approaches to th e treatment of econom ic, social, a nd cultural rights” and dismissing the “‘build it and they w ill come’ attitude” that seeks to generate consensus rather than be grounded on present consensus). 159. H.L.A. HART, THE CONCEPT OF LAW 123 (2d ed. 1994). 160. MICHAEL WALZER, INTERPRETATION AND SOCIAL CRITICISM 47-48 (1987) (contending that moral views which are likely to gain wide acceptance for a significant length of time are more likely to satisfy the requirements of normative justification); see also HART, supra note 159, at 193-200 (applying a similar claim to the “minimum content of natural law”). 161. HART, supra note 159; see also Frederick Schauer, (Re)taking Hart, 119 H ARV. L. REV. 852 (2006) (book review) (drawing attention to Hart’s insights into the systematic features of law). 162. Jeremy Waldron, Foreign Law and the Modern Ius Gentium, 119 H ARV. L. REV. 128 (2006) [hereinafter Waldron, Foreign Law and the Modern Ius Gentium].