The Reality of Social Rights Enforcement

David Landau

Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights but should do so in a weak-form or dialogical manner, whereby they point out violations of rights but leave the remedies to the political branches. These scholars argue that by behaving this way, courts can avoid severe strains on their democratic legitimacy and capacity. Based on an indepth case study of Colombia, which draws on my extensive fieldwork within that country, and on evidence from other countries including Brazil, Argentina, Hungary, South Africa, and India, I argue that both the assumption and the consensus recommendation are wrong. In fact, most social rights enforcement has benefitted middle- or upper-class groups, rather than the poor. Courts are far more likely to protect pension rights for civil servants or housing subsidies for the middle class than they are to transform the lives of marginalized groups. Moreover, the choice of remedy used by the court has a huge effect on whether impoverished groups feel any impact from the intervention. Super-strong remedies like structural injunctions are the most likely ways to transform bureaucratic practice and to positively impact the lives of poorer citizens. The solution to the socio-economic rights problem is to make remedies stronger, not weaker.

Table of Contents
Introduction . . . 402 R
I. The Existing Debate. . . 405 R
A. The Debate on Inclusion of Social Rights in
Constitutions. . . .  405 R
B. The Debate on Enforcement and the South African
Obsession . . .  408 R
C. The Reality of Social Rights Enforcement . . .  411 R
II. A Case Study on the Difficulties of Social Rights
Enforcement . . .  414 R
A. Background on the Creation of the 1991 Constitution and
Constitutional Court . . .  415 R
B. The Construction of the Vital Minimum Principle . . .  419 R
C. The Vital Minimum Evolves: Individualized
Enforcement . . .  421 R
D. The Vital Minimum Evolves: Large-Scale Judicial
Populism . . .  428 R
E. Attempted Refocus on the Vital Minimum Principle . . .  433 R
F. Conclusions from the Case Study . . .  441 R
III. Evidence from Other Countries . . .  442 R
A. Individualized Enforcement . . .  442 R
B. Negative Injunctions . . .  444 R
C. Structural Injunctions . . .  447 R
IV. Implications . . .  450 R
A. The Conceptual Apparatus of the International Law of
Social Rights . . .  450 R
B. The Nature of the International Dialogue on Comparative
Constitutional Law . . .  453 R
C. Avoidance of Judicial Populism. . . . 455 R
D. Substitutes for Constitutional Courts . . .  457 R
V. Conclusion: Coming to Grips With a Middle-Class
Social Rights Jurisprudence . . .  458 R

Full Article
Source: Harvard International Law Journal