Economic freedom and economic rights: Direction, significance and ideology

• Date: 01 January 2018
• DOI: http://doi.org/10.1111/eulj.12238
• Published date: 01 January 2018
• Author: Christopher Harding

ORIGINAL MANUSCRIPT

Economic freedom and economic rights: Direction,

significance and ideology

Christopher Harding*

Abstract

The discussion here takes stock of and analyses the way in which ideas of economic freedom and basic economic

rights have evolved during the last half century to generate legal discourse and legal action, and with what effect,

with particular reference to Europe as a site for such developments. It is necessary to probe the understanding

and purpose of such ‘rights talk’and also to set the discourse in relevant ideological contexts. For the purpose of this

exercise, a broad distinction is drawn between two major categories of economic right. The first category may be

broadly described as ‘integration rights’—entrepreneurialin character, forward‐looking and opportunistic in a histor-

ical context of supranational integration and trade liberalisation. The second category, in contrast, may be termed

‘vulnerability rights’; these are more protective in character, and serve to enhance the opportunities of the econom-

ically disadvantaged, those sectionsof the population at risk of social exclusion and poverty. An assessment is made,

on the one hand, of the achievement of the movement to exploit integration rights, and on the other hand, the

prospect for the mobilisation and assertion of vulnerability rights in the wake of governmental policies of austerity.

1|INTRODUCTION

The idea of economic freedom and associated rights, understood as basic or fundamental rights, is now an established

feature of legal parlance and legal practice at a number of levels—international, supranational and national.

1

Yet while

the rhetoric is strong, attempting to penetrate and understand the practice of declaring and asserting this area of

entitlement remains in a number of respects a matter of uncertainty and obscurity. Unlike other categories of legal

entitlement, especially that characterised as ‘political’, what has happened in relation to freedom and rights in the

economic realm may appear more opaque, contingent and indecisive, provoking a certain degree of scepticism.

2

Whereas basic political freedom and rights comprise the domain par excellence of individual human assertion, the

*

School of Law, Aberystwyth University.

1

Although, as a discrete category of human rights protection, the subject of economic rights has attracted relatively little academic

commentary of the more general and textbook kind, so that it is not easy to say at this point, ‘on which, see generally …’. But, for a

more general account, see: Tamara Hervey and Jeff Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental

Rights: A Legal Perspective (Hart, 2003); Katharine G. Young, Constituting Economic and Social Rights (Oxford University Press, 2012).

2

See, for instance, the position adopted in the mid‐twentieth‐century discussion by Marshall, referring to the distinction in any Bill of

Rights between civil and economic protections: ‘One might well wish to include the former whilst excluding or reserving judgment on

the latter. Nobody is very much an expert in elaborating and applying the economic rights of man—and judges less so than many.’

Geoffrey Marshall, Constitutional Theory (Oxford University Press, 1971), at 134. And then, Daintith writing in 2004: ‘I conclude that

‘economic rights is a flawed concept, and that the express constitutional protection of such rights …adds little of value to the protec-

tion that derives from other constitutional and legal sources’. Terence Daintith, ‘The Constitutional Protection of Economic Rights’,

(2004) 2 International Journal of Constitutional Law, 56, 57.

DOI: 10.1111/eulj.12238

Eur Law J. 2018;24:21–35. © 2018 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 21