The paper argues that the conflictual relationship of democracy and Capitalism is largely mediated by the language of rights, and focuses more specifically on the category of social rights. The recent inflation of their significance is symptomatic of a certain displacement of democratic thinking; equally importantly they are conceived as compensating for the inequality that results from the operation of markets. It is argued that they are an attempt to socialise the costs of the operation of markets. Social rights are rights of a different type to civil and political rights, and involve a political claim to the redistribution of resources against market allocations. The paper focuses on certain recent decisions of the European Court (CJEU) relating to the freedom to strike. The Courts increasingly rely on the argument for proportionality that refuses to distinguish amongst types of rights, economic freedoms and social rights, and instead purports a balancing across the board. It suggests that the optimal solution should be one about proportionate burdens and sacrifices rather than any «trumping» function. The paper looks at how problematic and weak the attempt is to bring about social justice in terms of the test of proportionality, especially in the current phase of the European mis-adventure.