This chapter examines the evolution of Association Agreements after the Single European Act and before the failed Constitutional Treaty. It begins by analysing the case-law on Association Agreements and it shows how the Court shaped an extensive system of rights for migrants in light of the role they played in the EU project of growth. This approach of the Court was not well received. Rather, Member States tried to restrict rights of migrant workers in Association Agreements concluded during this period precisely with the purpose of avoiding the transposition of the relevant case-law. The chapter also examines the clauses in enlargement and association with European developed countries, where the extension of rights to migrants was easily accepted.

This chapter analyses the current framework regulating migration from third countries. It is only in this period that the relevant secondary law was fully formed. The analysis reveals the extensive attribution of rights to those TCN migrants the EU most needs, that is, those who are considered crucial for the EU development project. In parallel, economic safeguards of different kind appear in the system to ensure that TCN migration can in no way pose risks to the EU project. Next to the legislative framework, the examination of the case-law of the Court highlights the consolidation of social objectives by an emphasis on Charter rights in review of national measures transposing secondary law. In this chapter, the investigation further shows the complete elimination of migrants’ rights from agreements concluded by the EU with third countries.

This concluding chapter first summarizes the findings of the main investigation and suggests that the problem behind the new objective of sustainable migration lies not so much in the effort to align migration with economic and social demands. This has after all been a constant feature of EU law as distilled from the historical investigation. Rather, the problem lies in the way the economic and social objectives of the EU are perceived by different actors. The chapter analyses the limitations that exist in the way EU law has historically aligned migrants’ rights to the economic and social objectives of primary law and reflects on what an EU sustainable migration can and cannot mean for the rights of migrants. Essentially, the analysis highlights that structural features of the EU legal order set very clear limits in attempts to envision an EU sustainable migration law. Finally, the chapter also presents a realistic vision of what an EU sustainable migration law could mean if the way economic and social objectives are considered was redirected and grounded on the current acquis.

This chapter addresses the special arrangements made to regulate migration from specific third countries in the period before the Single European Act. First, it will be shown how social and economic objectives, paired with favourable economic circumstances, laid the foundation for the extensive protection of Turkish workers under the EEC–Turkey Association Agreement. Following this, the analysis shows how economic cooperation with specific countries that were crucial for supplying migrant labour led to the attribution of rights to third-country nationals despite their exclusion from primary and secondary law. Finally, the chapter discusses enlargement processes and investigates how accession treaties concluded during this period were framed in light of ensuring the promotion of economic objectives, while limiting migration rights for nationals of acceding states. The analysis reveals the constant attempts by EU institutions to ensure that migration policy is aligned with the objectives of growth and progress, and thereby with the economic and social pillars of sustainability.

Corporatism refers to the tradition of constitutional theories that argue that self-organized bodies, such as universities, churches, or labour unions, are independent and important components of a constitutional order. While in the twentieth-century corporatism became associated primarily with economic actors, a central question in corporatist theory was the broader constitutional status of non-state associations and organizations that had their own political powers to govern their members and engage in quasi-legislative activity. In arguing for the independent legitimacy of such diverse corporate actors, proponents of corporatism were united in criticizing more liberal visions of constitutionalism for its abstraction and formalism. Many corporatist theorists thus advocated a sort of societal constitutionalism, where constitutional norms are embodied in diverse institutions that are more proximate to individuals than the state – ranging from major professional and economic associations to a variety of civil society groups. This chapter analyses corporatism both as a tradition in constitutional theory and as an empirical phenomenon that arose in the interwar and post-war periods. It argues that corporatist ideas can contribute to a theory of democratic constitutionalism that emphasizes the importance of organized collective power, and not just the problem of regulating state coercion or distributing formal rights.

Constitutions are, above all, a compact among equals: they represent a contract that aims to include everyone, on an equal footing. This fact is explicitly reflected in a majority of constitutions, which appear openly committed to a principle of legal equality. The problem is that, from its very origins, this egalitarian constitutional ideal encountered enormous difficulties that prevented it from becoming ae reality in practice. Almost every area covered by the equality principle - whether we refer to the rights of racial, sexual or ethnic minorities, or to the workers’ rights – was transformed into a space for legal and political dispute. This chapter explores a few of those “disputed territories”, including conflicts around social rights; gender inequality; and indigenous rights. In this way, this text pays attention to the continuous, unfinished battle between the constitutional ideal of equality and a political practice systematically oriented to defy it.

This chapter begins an analysis of why some constitutional systems have begun again to show militaristic emphases. It argues that in some cases this is to due to the fact that, since the 1980s, one part of the system of world law constructed after 1945 – namely the internal welfare dimension – has been weakened. This is assessed as part of the global background in constitution-making processes that commenced in the 1980s. The chapter considers a range of cases where constitutions have begun to malfunction with military consequences. It divides these cases into constitutions marked by vertical militarization (Russia, Brazil) and constitutions marked by lateral militarization. It links these developments to weakness in social integration processes under different constitutions.

This chapter dismantles the long-standing narrative that social rights only emerged after civil and political rights, as a response to socialist critiques of liberalism. The foundations for such rights extend back to medieval Christian laws governing charity. It was the economic theories of the eighteenth century that secularized justifications for the “rights” of the neediest. French revolutionaries adopted these arguments, linking social rights to principles of reciprocity and duties, but they fought over who had the duty to finance them: the state (through taxes) or civil society (through markets and charity). As a result of these struggles, social rights became associated with “terror” and were abandoned. Meanwhile, the Catholic Church advanced its own understanding of social rights, grounded in the mutual obligations of humans in society (as opposed to the perceived individualism of the revolutionary declarations). These religious doctrines, together with certain strands of liberalism and socialism, informed conversations around social rights throughout the nineteenth century.

This chapter explains different definitions of citizenship including citizenship as status, as rights, as participation, and as identity. It highlights key immigration laws and periods of immigrant inclusion and exclusion. The chapter also presents basic data on demographic change through American political history.

This chapter seeks to illustrate from the bottom up the role that social justice played in establishing and maintaining authoritarian rule in Czechoslovakia under National Socialism and state socialism. The author investigates how notions of social justice were included in the social practice of both regimes and how the working population responded to these policies. By analysing legal disputes, this chapter explores the critical space between rulers and ruled to assess when and how notions of social justice were articulated in Czechoslovakia. In their opposition to the ‘injustices’ of past governments, such as those wrought by social inequality and economic suffering, both National Socialists and Communists drew on a language of social justice to articulate their own visions of a new order. However, their respective notions of social justice differed radically: from social justice defined in racial terms, typical for New Order movements, to social justice delimited by social class and attained for all members of the ‘socialist working society’. The main difference that emerged from the transition from the Nazi to the post-war Communist regime was a shift from the language of individual rights to a language related to the collective, to society, and to the state.

This chapter addresses, as a first component of the proposed framework, the first constituent expectation of trust in the citizen-government relationship: goodwill. It defines the expectation as consisting of two sub-expectations: an expectation of procedural fairness – which includes elements of transparency, citizen participation and respect for citizens’ right to equality – and an ‘expectation of good intentions’, which translates into an expectation that the elected branches’ staff will not act intransigently in exercising their control over social goods and services. The chapter also details how the courts can enforce the expectation. It explains that for this component, the courts, first, demand a fair decision-making procedure from the elected branches, and, secondly, respond to government intransigence by escalating to progressively less trusting judicial interventions. The chapter uses cases from various jurisdictions, including Canada, Colombia, Germany, Kenya, South Africa and the UK, to illustrate.

This chapter lays further conceptual foundation for the book’s proposed trust-based framework. It applies to the citizen-government relationship what I call the ‘network conception of trust’ from the social science scholarship. In doing so, it makes a claim of how trust functions in the social rights context. According to this conception, trust arises in, and depends on, complex structures or networks of relationships. Applying this conception to the citizen-government relationship, the chapter argues that in contemporary democracies, the citizen-government relationship arises in a network of relationships and that trust in the citizen-government relationship depends on the relationships that constitute the network – including, importantly, the relationship between citizens and the courts that arises out of the adjudication of social rights by courts. This argument adds nuance to our understanding of trust and lays foundation for my contention in Chapter 4 that the courts, via their enforcement of social rights, can foster citizens’ trust in the elected branches.

In preparation for Chapters 5–7 – which detail the three components of the proposed trust-based framework – this chapter addresses three issues. With reference to the social rights literature, it first substantiates the conclusion that social rights are justiciable, justifying the need for an enforcement framework to be used by the courts. Secondly, the chapter describes how the courts can use the concept of political trust as the basis for a social rights enforcement framework. It explains that under the trust-based framework, the courts promote the elected branches’ trustworthiness with respect to social rights. The courts specifically hold the elected branches to a ‘standard of trustworthiness’, effectively enforcing the three constituent expectations of trust in the citizen-government relationship – goodwill, competence and fiduciary responsibility. Lastly, the chapter outlines four justifications – theoretical, instrumental, practical and democratic – for why political trust should provide the basis for a social rights enforcement framework.

This chapter addresses, as a third component of the proposed framework, the third constituent expectation of trust in the citizen-government relationship: fiduciary responsibility. Employing scholarship on both private fiduciary law and fiduciary political theory, it defines the expectation as an expectation that the elected branches will fulfil their fiduciary duty of loyalty to citizens. This duty translates, the chapter argues, into an expectation of non-corruption from the elected branches’ staff. The chapter also details how the courts can enforce the expectation. It explains that for this component, the courts aim to curb corrupt practices from the elected branches’ staff, and it identifies steps the courts can take to do so: greater probing into the state’s financial resources; strictly enforcing public procurement law; holding non-state actors accountable to the public; involving specialised anti-corruption agencies; and imposing financial sanctions on government actors. The chapter illustrates these steps using cases from various jurisdictions, including South Africa, Uganda and the UK.

This chapter lays the necessary conceptual foundation for the book’s proposed trust-based framework. It draws on theoretical and empirical scholarship on trust to offer a conceptualisation of trust in the social rights context. It first envisages trust as relational, meaning that trust may only arise in a relationship that contains three elements: control, discretion/uncertainty and vulnerability (a ‘trust relationship’). Secondly, it defines trust in a trust relationship as a set of three expectations held by a truster about a trustee: an expectation that the trustee will exercise goodwill towards the truster (‘expectation of goodwill’); an expectation that the trustee will exercise competence towards the truster (‘expectation of competence’); and an expectation that the trustee will fulfil her fiduciary responsibility (if any) to the truster (‘expectation of fiduciary responsibility’). The chapter then applies this conceptualisation to the relationship between citizens and the elected branches of government with respect to social rights (the ‘citizen-government relationship’), characterising it as a trust relationship and defining trust in it.

This chapter introduces the book. It expresses as the book’s principal objective the advancement of a normative argument regarding the judicial enforcement of constitutional social rights. This argument is that the courts, when enforcing these rights against government actors, should focus their analysis on public trust in government or ‘political trust’ – with the book’s proposed trust-based framework following on from this argument. As a starting point for this normative argument, and to address the broader question of why we should examine social rights law from the perspective of political trust, the chapter considers the relationship between political trust and public cooperation. Additionally, the chapter covers preliminary matters, defining the book’s scope, delineating the applicability of the trust-based framework, situating the framework in existing frameworks for social rights enforcement and outlining the book’s structure.

This chapter concludes the book. It stresses that with the global rise of constitutionalised and justiciable social rights, and the corresponding proliferation of social rights litigation, courts require guidance on how to enforce these rights. It summarises the proposed trust-based framework and how it addresses the drawbacks of existing frameworks for social rights enforcement. The chapter also discusses the framework’s implications, noting that the framework is not limited per se to social rights enforcement but may be applied, with appropriate modifications, to other areas of human rights law.

This chapter addresses, as a second component of the proposed framework, the second constituent expectation of trust in the citizen-government relationship: competence. It defines the expectation as an expectation of evidence-based policy-making (EBPM) from the elected branches in their exercise of control over social goods and services. Drawing on scholarship on EBPM, it argues that EBPM consists of three forms of knowledge: knowledge from scientific research, ‘political knowledge’ and ‘practical implementation knowledge’. The chapter also details how the courts can enforce the expectation. It explains that for this component, the courts incorporate EBPM into social rights enforcement. More specifically, the courts require the elected branches to provide evidence demonstrating that their decision-making vis-a-vis social goods and services is evidence based. The chapter offers illustrations from various jurisdictions, including Germany, South Africa, the UK and Latvia.