Children's Socio-Economic Rights, Democracy And The Courts

by Aoife Nolan, Colin Harvey (Editor)

Overview

Aoife Nolan's important book uses constitutional and democratic theory, human rights, and case law from a variety of jurisdictions to show how the courts can and should give effect to children's socio-economic rights. Constituting a major contribution to scholarship, it is the first book to examine together children's socio-economic rights; children as democratic citizens; the implications of children's rights for democratic constitutional theory; the role of courts in ensuring the enforcement of children's rights and the debates surrounding the litigation and adjudication of socio-economic rights.

'Children's rights were often thought to be synonymous with economic and social welfare prior to the adoption of the Convention on the Rights of the Child in 1989. Ironically, since that time, remarkably little scholarship has been devoted to the vitally important economic and social rights dimensions of children's rights. Nolan's book singlehandedly remedies that neglect and does so in a sophisticated, nuanced and balanced way. It provides a superb account of the pros and cons of judicial activism in promoting these rights.'

Philip Alston, John Norton Pomeroy Professor, NYU Law School

Winner of the Kevin Boyle Book Prize 2012 for Outstanding Legal Scholarship

Product Details

ISBN-13:	9781849467278
Publisher:	Bloomsbury Academic
Publication date:	06/19/2014
Series:	Human Rights Law in Perspective , #16
Edition description:	Reprint
Pages:	338
Product dimensions:	6.14(w) x 9.21(h) x 0.72(d)

About the Author

Aoife Nolan is Professor of International Human Rights Law at the School of Law, Nottingham University and was previously a Senior Lecturer at Durham Law School.

Table of Contents

Series Editor's Preface vii

Preface viii

Acknowledgements xi

List of Abbreviations xvi

Table of Cases xvii

Table of Legislation xxiii

Introduction xxix

1 Children and Socio-economic Rights 1

Introduction 1

Of Definitions and Other Things 1

The Emergence and Reframing of Children as Socio-economic Rights-Holders 7

Children: A Special Case? 13

Socio-economic Rights: A Question of Definition and the Challenge of 'Nature' 21

Children's Socio-economic Rights: The Role of International Law 32

Turning to the 'Least Powerful Branch': Points of Entry and the Scope of Judicial Activity 38

Conclusion 42

2 Children and Democracy 43

Introduction 43

Democracy: A Term in Search of a Definition 44

Setting the Scene: The Child as "Democratic Citizen" 46

Representation of Children in Democracy 49

Representation of Children by Elected Representatives 50

Representation of Children by Parents 56

Parents Representing Their Own Children's Interests 56

Parents Representing Children's Interests Generally 61

Representation of Children by Adults Generally 64

Ensuring Virtual Representation Through Sympathy or Empathy 69

Other Means of Bringing Children's Interests to Bear in Democracy 71

Child Lobby Groups 73

Ombudspersons 75

The Role of Children's Participation Rights 77

Other Reasons for Children's Inability to Exert Indirect Influence on Democratic Decision-making Processes 83

A Brief Note on Failure of Representation 88

Conclusion 92

3 Exploring the Counter-Majoritarian Objection' 93

Introduction 93

The Counter-Majoritarian Difficulty: A Brief Account 94

Children's Socio-economic Rights, the Majoritarian Premise and the Desirability that the Legislature Should Have the Final Word 98

Children, Democracy and 'The Core of the Case Against Judicial Review' 101

Disagreement, Majority Voting, Equal Respect and Children's Socio-economic Rights 103

Where Representatives Fail to Represent 112

Children and the 'Tyranny of the Majority' 118

Enter Ely 120

Ely's Theory of Representation Reinforcing Judicial Review and Children: A Step Too Far? 125

Conclusion 131

4 A Question of Balance? The Separation of Powers, Constitutional Supremacy and children's Socio-economic Rights 134

Introduction 134

The Separation of Powers Doctrine and the Judicial Enforcement of Children's Socio-economic Rights: Some Initial Observations 136

The Separation of Powers and the Judicial Function under the Irish and South African Constitutions 140

The Context for Judicial Action: The TD and TAG Cases 153

Giving Effect to Children's Socio-economic Rights: Part of the Traditional Judicial Function? 155

The Nature of Socio-economic Rights: Alleged Implications for the Separation of Powers 156

The Challenge of Remedies? 160

Ensuring the Vindication of Children's Socio-economic Rights: Justifying an Infringement of the Separation of Powers? 162

Ireland, South Africa and Children's Socio-economic Rights: A Study in Contrasts? 163

Ireland, South Africa: A Tale of Two Approaches to Remedies 172

The Irish and the South African Courts: Striking a Different Balance? 176

Enforcing Children's Socio-economic Rights: Part of the Courts' Duty under the Separation of Powers? 180

Children in Democracy, the Court's Role as Guardian of the Constitution and its Approach to the Separation of Powers 182

Conclusion 185

5 The Issue of Efficacy 187

Introduction 187

Evaluating Efficacy 188

Courts and Socio-economic Rights: A Case of Institutional Incapacity? 191

An Information Deficit? 193

A Lack of Expertise, Qualifications or Experience? 197

The Issue of Polycentricity 200

Socio-economic Rights and 'Limited' Judicial Remedies 204

The Challenge of Implementation 207

Ensuring Enforcement: Other Key Factors 212

The Role of Social Movements 213

The Role of 'Popular Legitimacy' 215

Conclusion 218

6 Using the Courts to Advance Children's Socio-economic Rights: Proceed with Caution? 220

Introduction 220

Employing the Law to Bring About the Enforcement of Children's Socio-economic Rights: The Drawbacks 221

Representation and Agenda-Setting 221

The Partial Nature of Legal Solutions 232

Courts: Part of the Problem? 234

Of Straitjackets and Obligation Limitations: Judicial Enforcement as 'Blocking' the Vindication of Children's Socio-economic Rights? 241

Judicial Enforcement of Children's Socio-economic Rights: Serving Some Children While Disadvantaging Others? 244

Conclusion 255

7 Conclusions 257

Select Bibliograpy 260

Index 285

Editorial Reviews

Nolan's book is based on extensive, wide-ranging research and is very skilfully argued. Add to that the novelty of taking a child-centred approach to socio-economic rights and the book looks set to become the 'go to' source on the adjudication of children's socio-economic rights for human rights scholars and practitioners.” —Anashri Pillay, LSE Review of Books

“...both a welcome and necessary development and stands as a timely contribution to the existing literature.
Nolan's work would provide a useful insight to researchers with an interest in constitutional law and theory, democratic theory, judicial theory, children's rights and human rights. Throughout the text, her arguments are accompanied by well-supported examples of litigation from a variety of jurisdictions. The detailed account of litigation included would be of use to practitioners, especially to those from the jurisdictions named within the text (UK, South Africa, India, Argentina, Brazil, Columbia and the USA). Policy-makers and judges would also be well informed by the text. Indeed, it appears the author would hope that the judiciary or policy-makers would benefit from an awareness of the arguments put forward by the book and would be encouraged to be mindful of the benefits of a proactive approach to enforcing children's socio-economic rights when engaging in their respective functions.” —Emma Nottingham, Child and Family Law Quarterly, Volume 25, Number 1

“Despite the burgeoning literature on both children's rights and economic and social rights, it seems strange that it has taken until 2011 to have the two areas of research combined in a single book. Aoife Nolan's research is an important contribution to both these areas of literature...Her work engages a wide range of international case law on children's economic and social rights not often readily available in the English language and demonstrates a deep understanding of how the law can be best used to promote the rights of the most disadvantaged in society, without overlooking its institutional limitations. This book is a must-have for all economic and social rights and children's rights scholars.” —Claire McCann, Human Rights Law Review, Volume 12

“Nolan leaves no challenge untreated...in dismantling virtually every objection to judicial action on children's socio-economic rights, her argument emerges fully intact...The book will be welcomed by scholars specializing in children's rights, as well as scholars interested in the literature on judicial capacity.” —Alice Hearst, Law and Politics Book Review, Volume 22, Number 1

“Aoife Nolan addresses a crucial and underdeveloped topic in the literature of human rights law: the socio-economic rights of children.

In order to support the claim that the courts are not only able but obligated to enforce child socio-economic rights, Nolan provides a thorough analysis of liberal democratic theory, the role of children in democracy, the judiciary's role as guardian of rights, the institutional capacity of the courts to enforce the socio-economic rights, and the implementation of rights-related court decisions. The book is a necessary analysis of the efficacy and legitimacy of judicial action in favour of child rights. Nolan advocates for the implementation of a rights-based response to child poverty, a crucial driver of poor overall health, and in doing so provides a powerful contribution to health and human rights scholarship.” —Judith Fitzpatrick, Health and Human Rights, Volume 13, No. 2

“... carefully crafted and compelling ... Professor Nolan has produced a superbly written and researched book that draws together a wealth of related material from the realms of children's rights and constitutional law and theory. She is equally comfortable with either vein of material, and has joined the dots between the two to great effect, leaving virtually no stone unturbaned in the presentation and defence of her argument. In the process, she has made a contribution to the study of both children's rights and socio-economic rights that will shape discussion of these questions for years to come.” —Conor O'Mahony, Modern Law Review, Volume 77, Number 3

“This is without a question one of the very best books on a major aspect of children's rights yet written...This book should be in every international law and every children's/human rights library.” —Michael Freeman, International Jourbanal of Children's Rights, 2015

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