Civil Rights and Social Welfare: Some Thoughts on the Contemporary Relevance of T. H. Marshall

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Abstract

This article draws on T H Marshall's celebrated classification of civil, political and social rights to examine the use of the courts by individuals seeking to establish rights to particular forms or models of welfare service provision. It argues that tensions between the collective and individual aspects of social rights, the relationship of social rights to inequality, and the difficulty of quantifying (and therefore enforcing) legitimate expectations, all make the use of litigation to establish social rights intensely problematic. Drawing on the recent UK Supreme Court case of R (on the Application of McDonald) v Royal Borough of Kensington and Chelsea, it goes on to suggest that it is unhelpful to think of social rights in terms of human rights: instead, we would do better to adopt Marshall's emphasis on the citizenship basis of social rights and on the social and political context within which they necessarily exist.

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