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Fernando Atria and Constanza Salgado

For social rights to be emancipatory, they have to be understood as challenges to neoliberalism. Unlike human rights, social rights have this emancipatory potential because they are based on citizenship, which provides both an egalitarian principle and a political space to struggle for its realization. This is not the way in which social rights are understood by legal science. The standard, even ‘progressive’ view on social rights focuses on the issue of their ‘justiciability’. To make social rights justiciable legal science attempts to blur any difference between civil and social rights. If successful, this is a Pyrrhic victory: social rights can become justiciable as civil rights, but they lose their specific emancipatory content. Social rights’ emancipatory potential can be realized in the political sphere rather than courts. It is in the political sphere, through democracy, where social rights are able to challenge the power of neoliberal articulation of capitalism.