Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings
Files
Description
More than a half century ago the Universal Declaration of Human Rights defined education and physical well-being as human rights to “be protected by the rule of law.” Although a significant number of national constitutions now include language that embraces a right to education, to health, or to both, disease and illiteracy remain pervasive throughout the world. Almost a billion individuals, a sixth of the international population, cannot read; similar numbers lack access to health care or to potable water. These deprivations cause physical harm, undermine a person’s sense of autonomy, and subvert democratic possibilities. Against this dismal background, skeptics question not only the conceptual foundation of social and economic rights, 8 but also their strategic value in fostering improvement for the disadvantaged and dispossessed. The current project examines a specific aspect of this problem: the extent and efficacy of using national courts to enforce constitutionally based claims to health and to education services. Focusing on five nations—Brazil, India, Indonesia, Nigeria, and South Africa—the project offers an ambitious account of institutional practices based on cross-disciplinary, comparative case studies that combine quantitative with qualitative analysis. The countries under discussion have all codified social and economic rights in their national constitutions and in some places have enacted legislation to effectuate these provisions. The preceding chapters do not revisit the wisdom or legitimacy of extending constitutional protection to health or educational services. Instead, the investigation takes for granted the existence of such rights and focuses on whether and to what extent litigation—taking unmet claims to court—helps secure their enforcement in ways that improve individual lives and enhance social conditions. Working from the ground up, the case studies attempt to trace the particular local processes that influence the judicial and extra-judicial implementation of health and education claims, dealing with issues that range from the availability of money damages to compensate for substandard medical care, to the regulation of private school practices affecting student conduct. From the perspective of a U.S. lawyer, the case studies tell an unexpected and important story—particularly when considered against the usual discussion of the justiciability of social and economic rights. The question of whether federal courts in the United States can and should enforce affirmative constitutional claims tends to focus on the capacity of judges to deal with polycentric, value-laden policy questions in disputes involving the government, and also on the legitimacy of having unelected courts mandate goods and services that are not provided by the democratically elected branches of government. These arguments, wedded to American doctrine, have spilled over to the jurisprudence of other nations and even to transnational analysis. ‘[W]hatever the logic and moral force of social and economic rights,” David M. Beatty states, “their enforcement seems to compromise the democratic character of government and the sovereignty of the people to determine for themselves what the collective, public character of their communities will be.” Implicit in this well-trod discussion is a state-centric focus: the assumption that social and economic rights, if justiciable at all, run against the state and the bureaucratic officials who work as its agents, but not against private actors. Moreover, the debate takes a narrow approach to the concept of state duty, so that the government is constitutionally obliged to redress only those deprivations for which it is directly responsible. Although private actors play a vital role in realizing or defeating access to social and economic goods, the conventional account leaves the manufacturer of pharmaceuticals, the manager of a private school, and the doctor who vaccinates a child subject only to the private rules of tort, contract, and property law, and immune from constitutional regulation.
Source Publication
Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World
Source Editors/Authors
Varun Gauri, Daniel M. Brinks
Publication Date
2008
Recommended Citation
Hershkoff, Helen, "Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings" (2008). Faculty Chapters. 772.
https://gretchen.law.nyu.edu/fac-chapt/772
