Economic freedom and economic rights: Direction, significance and ideology

Date01 January 2018
Published date01 January 2018
Economic freedom and economic rights: Direction,
significance and ideology
Christopher Harding*
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 talkand 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, forwardlooking 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.
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 levelsinternational, supranational and national.
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.
Whereas basic political freedom and rights comprise the domain par excellence of individual human assertion, the
School of Law, Aberystwyth University.
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).
See, for instance, the position adopted in the midtwentiethcentury 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 manand 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;24:2135. © 2018 John Wiley & Sons 21

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