Abstract

Both the legal character of social rights and their justiciability have been contested for a long time. Among other objections, it has been argued that, owing to their lack of philosophical foundation, they are not „real“ human rights. In consequence, social rights are codified in irregular fashion, and they are not guaranteed equal recognition and protection to the same extent as so-called first-generation rights. Against this background, this article discusses the debates regarding the philosophical foundation and the reasons for the validity of social rights which have formed the basis for the non-justiciability of social rights. In the first part of the article I elaborate approaches which can provide a philosophical justification of social rights; in the second part of the article I analyze these approaches critically. Finally, in the third part, I examine the question whether philosophical justification of human rights has any relevance for the question of validity and justiciability in the current concept of rights. I argue that, while we can identify at least three approaches to the normative explanation of social rights, the philosophical foundation of rights is without relevance for understanding the validity and justiciability of rights. In a period defined by legal positivism, rights gain their validity not because of their legitimacy, but because of their legality. Once an interest or a value becomes codified the legal system itself decides about the question of validity within its internal logic.