Social and Economic Rights in Theory and Practice

Critical Inquiries

Helena Alviar García, Karl Klare, Lucy A. Williams, Helena Alviar García, Karl Klare, Lucy A. Williams

• Publisher: Routledge
• Year: 2014
• eBook ISBN: 9781317964421
• Topic: Law
• Subtopic: International Law
• Index: Law

Since World War II, a growing number of jurisdictions in both the developing and industrialized worlds have adopted progressive constitutions that guarantee social and economic rights (SER) in addition to political and civil rights. Parallel developments have occurred at transnational level with the adoption of treaties that commit signatory states to respect and fulfil SER for their peoples.

This book is a product of the International Social and Economic Rights Project (iSERP), a global consortium of judges, lawyers, human rights advocates, and legal academics who critically examine the effectiveness of SER law in promoting real change in people's lives. The book addresses a range of practical, political, and legal questions under these headings, with acute sensitivity to the racial, cultural, and gender implications of SER and the path-breaking SER jurisprudence now emerging in the "Global South".

The book brings together internationally renowned experts in the field of social and economic rights to discuss a range of rights controversies from both theoretical and practical perspectives. Contributors of the book consider specific issues in the litigation and adjudication of SER cases from the differing standpoints of activists, lawyers, and adjudicators in order to identify and address the specific challenges facing the SER community.

This book will be of great use and interest to students and scholars of comparative constitutional law, human rights, public international law, development studies, and democratic political theory.

Part 1

Perspectives

1 Critical perspectives on social and economic rights, democracy and separation of powers

Karl Klare¹

[T]o be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.

(Nelson Mandela 1994: 544)

Prologue: social and economic rights stand at the intersection of democracy and distributive justice

In our time, in many places, poor, excluded, and oppressed people and their advocates, advisers, and allies have found in human rights discourse (HRD) an evocative, mobilizing, oppositional medium for voicing claims for democracy and distributive justice. Fitfully, some of these claims become incorporated into or inflect the law. A growing number of jurisdictions have adopted progressive constitutions or entered international commitments that guarantee social and economic rights (SER) in addition to political and civil rights, treat SER as judicially enforceable or highly influential “soft law,” impose positive obligations on governments to fulfill SER, and sometimes apply their bills of rights horizontally (to private parties) and/or mandate revision of private law to reflect SER.

Numerous third world jurisdictions have adopted progressive rights guarantees, often in connection with transition from authoritarian rule to democracy. However, SER enforcement is not just an experiment occurring in certain developing nations. Important examples appear in economically advanced democracies and social democracies and in international instruments. Voices seeking to enlarge post-communist democracy also call for binding SER. SER enforcement exemplifies what some see as trends toward the judicialization of public life and empowerment of judges (Kennedy 2006b: 63–73).

These chapters examine advocacy experience and judicial output under progressive constitutions to learn what happens in SER adjudication, whether constitutionally binding SER open political space for excluded groups to contend over their substantive content and enforcement, and whether SER produce significant change on the ground. “Constitutionally binding” refers to “higher law” wherever sourced (e.g., national constitutions, transnational instruments, interpretive practices) and however administered (e.g., by constitutional or other peak courts, international commissions, or ordinary courts in the course of private law development). Higher law is “constitutional” if its norms may not be altered or compromised by ordinary parliamentary processes. The terminology of “courts” and “judges” is used here as a short-hand reference to decision-makers in all such systems.

Within a broadly progressive frame, the authors express different and even conflicting views, speaking only for themselves. Two themes inform the project as a whole. First, democracy and SER are mutually constitutive – social and economic rights that are in some sense constitutionally binding are of the essence of democracy. Some contributors believe this proposition can be rationally established; for others, it is a powerful intuition or simply a working hypothesis. However embraced, the idea is central. Our project concerns not just delivering social goods and alleviating poverty but promoting more democratic ways of conducting politics and social life.

Second, we aspire to take critical perspectives on SER and seek to pursue critical projects within human rights work. We reject “rights fundamentalism” in favor of appropriately reserved expectations about what human rights work and litigation can achieve. “Critical approaches” identify problems to address and pitfalls to avoid; they do not criticize human rights from some external position.

The conversation to which this book hopes to contribute is intelligible only in the context of commitment to egalitarian, inclusive democracy, respect for individual freedom and dignity, and classical political and civil rights. HRD is predominantly a progressive and democratic idiom today, although it has no inherent political orientation. Those seeking to reinforce inequality and exclusion often hijack the rhetoric of human rights. Thoroughly unjust regimes adorn themselves with rights-rich constitutions. But even under democratic conditions, human rights law by itself cannot make poverty and social conflict disappear, nor does it possess a store of self-revealing solutions to the institutional and distributional challenges faced by democratic societies. The human rights tradition offers us always evolving entry points for discussion. Fundamental rights, as we understand them, are sites for democratic contestation, not endpoints imbued with timeless meaning (Mundlak 2007: 211–12; 2011: 365–6; van der Walt 2008).

This chapter reflects my views only. The first section surveys critical traditions on human rights (“critique of rights”) considering HRD both as a general vocabulary and cultural asset and more narrowly as a component of legal discourse and lawyers’ professional vocabulary. I identify strands of criticism that remain powerful and should be assimilated in contemporary rights advocacy.

A third, concluding section deploys a critical approach to address an apparent mismatch between the transformative potential of SER and conventional wisdom about separation of powers (SOP), which in some jurisdictions now presents a barrier to effective realization of SER. I propose a revised perspective on SOP in which courts’ appropriate institutional role sometimes permits or even obliges them to robustly enforce SER. My conclusion relies in part on an argument that the traditional SOP presumption in favor of judicial deference rests on a limited understanding of democracy. The middle section of this chapter develops this point and elaborates on alternative views of democracy. As will be seen, these alternative approaches to democracy resonate with Nelson Mandela’s statement quoted at the outset. The discussions of rights, democracy, and SOP are linked methodologically in that they all proceed from an anti-foundationalist mindset.

A note on terminology: discussion of these matters inevitably resorts to the overused and often analytically vacant terms “judicial activism” and “deference.” In some jurisdictions, “activism” means little more than actually enforcing the law in rights cases. In the U.S., “activism” has become an empty pejorative applied to rulings of which one disapproves. Our contributors generally mean by “activism” a decision-maker’s relative willingness to challenge and upset legislative and/or civil society (market) outcomes (Kennedy 2006c: 4).

Critical genres

Critical thinking about rights by people committed to human freedom has a long history. While this work teaches important lessons, much now seems anachronistic or overdone. Rights discourse is more plastic and better able to incorporate contemporary political and cultural perspectives than critics imagined. Some lines of criticism turn out on inspection to concern not rights as such but generalized doubts about whether legal strategies can contribute to progressive social change. Some critical traditions retain compelling analytical power but even these ultimately provide no convincing reasons to abandon human rights practice.

Contextual limitations and encapsulation

One critical genre arises from the raison d’être of legal sociology: that we can observe differences between law-on-the-books and law-in-action. Human rights texts do not build houses, establish schools, or deliver food. In the context of widespread and durable poverty, unraveling welfare states, elite capture of democratic processes, resurgent xenophobia and racism, and hegemonic neoliberalism, HRD is likely for the foreseeable future to make many unfulfilled promises. In much of the world, anything approaching fulfillment of SER is exceedingly unlikely absent sustainable economic development.

While incontestable, these observations provide no rationale for abandoning human rights work. They simply remind us to take the long view. Immediate, material accomplishments are not the only measures of success. Small victories can ameliorate bad conditions enabling people better to carry on the struggle. SER work in courts and communities can open political and cultural space. Legal initiatives can provide rallying points for public consciousness-raising. Some true believers talk as though merely identifying the correct roster of human rights finishes the job, but sophisticated SER activists and practitioners long ago took on board an appreciation of the limitations imposed by social and political context. Human rights are normative and discursive resources in struggle, not magic wands (Albertyn 2011a: 139, 157–8).

A strong version of the limitations critique holds that legal results are not simply constrained by social context but locked in by foundational social and economic structures independent of law. Accordingly, human rights aspirations cannot be fulfilled without transcending these encapsulating structures. This genre descends from Marx’s argument that while incorporating the working class into the system of civil and political rights would be a hugely positive step, it would not be sufficient to establish the pre-conditions of human freedom (Marx 1975a; 1975b; 1959). Marx’s approach has many modern variants; for capitalism substitute, for example, racism, patriarchy, homo-normativity. The lasting message is that social and economic structures can deflect or block legal progress toward democracy and distributive justice. Advancing human freedom therefore requires transforming social and economic as well as legal conditions.

But the strong encapsulation thesis goes wrong in several ways. Social practices and structures are chosen and enacted, not given (albeit often this is not our experience of the world (Berger and Pullberg 1965)). Nor can social practice be entirely independent of law in modern societies. Because legal practices and discourses partially constitute the social order, it is circular to argue that extra-legal social structures determine or encapsulate the legal. Rights, legal practices, and legal outcomes are not autonomous forces organizing social life, but neither are they entirely determined by social structures independent of law. Legal practices can sometimes disrupt the ideological or institutional status quo and unleash transformative dynamics (Klare 1979).

Grassroots empowerment and alternative emancipatory discourses

Some critics assert that human rights work diverts political energy and resources from grassroots activism, traps social movements in the rarified and hostile atmosphere of courts, privileges lawyers and experts at the expense of leadership drawn from the base, and empowers judges and self-serving human rights bureaucracies (see Kennedy 2002a: 117–20). The prestige of rights discourse tends to crowd out other approaches that operate on friendlier terrain and address matters avoided by HRD (ibid. 108–10; Adler 2011). Human rights victories might produce interstitial reforms but can also legitimate unjust regimes or codify illegitimate social subordination.

These criticisms are best taken as well-advised cautions against risks always latent in progressive legal work rather than proof that rights-claiming as such leads social movements astray. The genre rarely sheds light on the discursive distinctiveness of rights and never on any uniqueness of rights as a legal form. All progressive legal work risks elite takeover and/or co-optation into ongoing systems of domination. Interstitial victories of any sort and in any legal or political context may add legitimating burnish to compromised or unjust political orders. Thoughtful human rights advocates have internalized this vein of criticism and are more self-conscious about and attentive to such problems than perhaps in the past. It is now jejune to warn that single-minded focus on legal victories risks stunting the development of social movements. In important counter-examples creative legal work dramatizing a particular injustice ignited community mobilization. Rights-claiming “within the system” sometimes creates new political contexts by unfreezing and moving system-boundaries (Simon 1984). The enduring message is not that human rights work should be avoided but that to the extent possible it should be conducted with care and attention to grassroots empowerment and broader political and social perspectives.

Contemporary movements for social change cannot avoid working in the legal medium. There are no “law-free” zones in modern societies to which activists can repair so as to avoid entanglement with law and system. Modern icons of social justice struggle, such as the great “inside-outlaws” Nelson Mandela and Martin Luther King, were acutely aware that the line between legal and extra-legal practices is often indistinct and movable. Throughout their careers they strategically worked both sides of the line endeavoring to craft system-transforming political practices (Mandela 1994: 232 – “Under apartheid, a black man lived a shadowy life between legality and illegality, between openness and concealment”; and King 1993, seeing non-violent civil disobedience as simultaneously illegal and a fulfillment of law).

Discursive pluralism can enrich social justice movements, which should welcome alternative emancipatory vocabularies. Rights-talk that does not address distribution and identity, for example, is radically incomplete. But legal entitlements (including those formulated as “rights”) strongly influence the distribution of wealth and power and partially construct identities. Social change movements cannot avoid engagement on this terrain, and it is difficult to see how they can do this effectively without some type of “higher law” discourse of the kind captured in the idiom of fundamental rights.

Ideological tilt

Another critical tradition sees HRD as an inherently confining and distorting medium that cannot free itself from its Enlightenment origins and biases. HRD served as a legitimating ideology of rising, property-based, Western, capitalist civilizations. Oblivious to gender identity and cultural difference, its intellectual roots are variously described as individualist, egoist, racist, male, hetero-normative, Eurocentric, colonialist, bourgeois, or classical liberal. Founding fathers owned slaves. Rights historically protected wealth and property from redistributive legislation (Horwitz 1988). Liberal rights can restrain state power but also prevent the benevolent exercise of power. Its narrow, formal understanding of equality closed the human rights tradition to the pursuit of substantive justice (Horwitz 1977). HRD addresses the vertical, state–individual relationship but ignores domination in the private sphere. Focused, contemporary variations on ideological-tilt criticism argue, for example, that HRD distorts choices in the third world by portraying “development” as an embrace of conservative, Western ideas about the rule of law (see, e.g., Kennedy 2002a: 115–16); or laments th...

Table of contents

• Cover Page
• Half Title page
• Routledge Research in Human Rights Law
• Title Page
• Copyright Page
• Dedication
• Contents
• Notes on contributors
• Acknowledgments
• PART 1 Perspectives
• PART 2 Global social and economic rights practice: limitations and openings
• PART 3 Looking forward
• Bibliography
• Index