Social rights (social contract theory)

Social rights are those rights arising from the social contract, in contrast to natural rights which arise from the natural law, but before the establishment of legal rights by positive law. For example, James Madison advocated that a right such as trial by jury arose neither from nature nor from a constitution of government, but from reified implications of the social contract.^[1]

Cecile Fabre argues that "it is legitimate to constrain democratic majorities, by way of the constitution, to respect and promote those fundamental rights of ours that protect the secure exercise of our autonomy and enable us to achieve well-being. Insofar as, by virtue of Ch. 1, social rights are such fundamental rights, it follows that they should be constitutionalized."^[2]

From a legal standpoint several approaches exercise and guarantee social rights; social rights under the constitution are rights of subjects or "subject rights". This assures that the public receives equal distribution of collective and private interests.^[3]

References

1. Introduction of the Bill of Rights in congress, 1789 Jun 8, Jul 21, Aug 13, 18-19; Annals 1:424-50, 661-65, 707-17, 757-59, 766.
2. Fabre, Cecile. "3. Constitutional Social Rights." Social Rights Under the Constitution 1: 67-110.
3. Societies Without Borders; Jul2009, Vol. 4 Issue 2, p158-174, 17p