Social rights as rights to anti-discrimination (and viceversa)

This article argues that anti-discrimination law and the right to non-discrimination correspond, in contemporary law, to the traditional concepts of “social law” and “social rights”. To demonstrate this, the article begins by examining some exemplary definitions of social rights and social law, comparing them with the main characteristics of anti-discrimination law and the right to non-discrimination. Then, the article highlights that, overall, anti-discrimination is based on the same fundamental ideas as social law and social rights: the individual is socially constituted, and solidarity requires everyone to “socialize” their resources, whatever they may be. All of this impacts the nature of fundamental rights and the forms of their protection, the article concludes. Regarding the first point (the nature of fundamental rights), the article observes that while in the past, at least in Italy, much has been done to “fundamentalize” the social rights (which is to say, to “elevate” them to the rank of true “human rights”) anti-discrimination presents us with a reverse process that we might call the “socialization” of fundamental/human rights. This leads to the second point (forms of protection of fundamental rights). A salient feature of the process of “socialization” of fundamental human rights is that, in the name of social inclusion, anti-discrimination focuses on the “social function” of all rights, particularly the most intimate human rights, such as those related to sexual and reproductive rights, and not just those that supposedly imply a certain social power or privilege (e.g., private property). This profoundly transforms the traditional idea that protecting fundamental rights means fighting against “private powers” in the name of combating inequality.