Research Handbook on Critical Legal Theory
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Research Handbook on Critical Legal Theory

Edited by Emilios Christodoulidis, Ruth Dukes and Marco Goldoni

Critical theory, characteristically linked with the politics of theoretical engagement, covers the manifold of the connections between theory and praxis. This thought-provoking Research Handbook captures the broad range of those connections as far as legal thought is concerned and retains an emphasis both on the politics of theory, and on the notion of theoretical engagement. The first part examines the question of definition and tracks the origins and development of critical legal theory along its European and North American trajectories. The second part looks at the thematic connections between the development of legal theory and other currents of critical thought such as; Feminism, Marxism, Critical Race Theory, varieties of post-modernism, as well as the various ‘turns’ (ethical, aesthetic, political) of critical legal theory. The third and final part explores particular fields of law, addressing the question how the field has been shaped by critical legal theory, or what critical approaches reveal about the field, with the clear focus on opportunities for social transformation.
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Chapter 20: Social rights

Fernando Atria and Constanza Salgado

Abstract

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.

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