The Reality of Social Rights Enforcement

60 Pages Posted: 4 Mar 2011 Last revised: 5 Apr 2017

See all articles by David Landau

David Landau

Florida State University - College of Law

Date Written: March 2, 2011

Abstract

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

Keywords: socio-economic rights, comparative constitutional law, remedies, constitutional law

Suggested Citation

Landau, David, The Reality of Social Rights Enforcement (March 2, 2011). 53 Harvard International Law Journal 189 (2012)., FSU College of Law, Public Law Research Paper No. 488, Available at SSRN: https://ssrn.com/abstract=1774914

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
1,137
Abstract Views
3,907
Rank
34,800
PlumX Metrics