1,720,971 research outputs found
Review of 'Whitney K. Taylor, The Social Constitution: Embedding Social Rights Through Legal Mobilization (Cambridge University Press 2023)'
No full text
Realizing social rights: the material impacts of constitutional entrenchment
No full textUsing data on the constitutional protection of social rights in 195 countries from 2000-2015 and controlling for economic, political, and demographic variables, I found moderately strong evidence that the right to health leads to increased public expenditures on healthcare but mixed evidence in relation to health outcomes, limited evidence of that the right to education improves primary school enrolment levels in non-civil law jurisdictions, and no correlation between the right to social security and income inequality. Contrary to expectations, I also found that ICESCR rati cation is positively associated with declining infant mortality rates.<br/
Review of 'Towering Judges: A Comparative Study of Constitutional Judges' by Rehan Abeyratne & Iddo Porat (eds.)
No full textEconomic, social, cultural and new rights
No full textThis chapter examines the constitutional inclusion of economic, social and new types of emerging rights, drawing from experience in OECD countries. After briefly outlining their prevalence in contemporary constitutions, the first sections present the debates regarding the advisability of their constitutionalisation, the “strength” they ought to be accorded, and the impact of differences between constitutional ideals and reality. It discusses particular economic, social, cultural, and new rights, including health, education, employment, environmental, privacy and digital rights, making reference to existing patterns of entrenchment. Issues pertaining to accessibility and enforcement as well as the potential contribution of human rights commissions are noted. Finally, some cautionary concerns are raised about the specificity of rights language, progressive realisation and deference to the elected branches
Social rights interpretation in Brazil and South Africa
Full text linkIn this paper, I examine the social rights jurisprudence of Brazil and South Africa, two jurisdictions that have adopted markedly different approaches to their interpretation. In doing so, I advance three arguments relating to the study of social rights adjudication and the effects of the resulting jurisprudence. First, understanding the development of social rights jurisprudence requires understanding the pre-existing set of judicial norms that define the role of the judges and acceptable mode(s) of legal reasoning. Second, variations in institutional design and understandings of precedent means that one cannot assume that the decisions of the apex court will be universally or quickly incorporated into the decision of the lower courts. As such, it may be necessary to look beyond apex court decisions to get an accurate picture of patterns of social rights jurisprudence in a given jurisdiction. Third, both of the dominant approaches have the potential to institgate significant policy change, but they also encourage different type of litigation and different litigants. This, in turn affects the approach taken to addressing the policy areas and does not necessarily lead to the prioritization of areas where the investment of state resources will yield the greatest returns or be the most socially just.Neste artigo, examino a jurisprudência de direitos sociais
do Brasil e da África do Sul, duas jurisdições que adotaram
abordagens marcadamente diferentes para sua interpretação.
Ao fazê-lo, adianto três argumentos relacionados ao
estudo da judicialização dos direitos sociais e aos efeitos da
jurisprudência resultante. Em primeiro lugar, entender o desenvolvimento
da jurisprudência dos direitos sociais exige
compreender o conjunto pré-existente de normas judiciais
que definem o papel dos juízes e o(s) modo(s) aceitável(is)
de raciocínio jurídico. Em segundo lugar, as variações no
desenho institucional e nos entendimentos de precedente
significam que não se pode presumir que as decisões do
tribunal superior serão universal ou rapidamente incorporadas
às decisões dos tribunais inferiores. Como tal, pode
ser necessário olhar além das decisões judiciais ágeis para
obter uma imagem precisa dos padrões da jurisprudência
de direitos sociais em uma determinada jurisdição. Terceiro,
ambas as abordagens dominantes têm o potencial de afetar
mudanças políticas significativas, mas também encorajam
diferentes tipos de litígios e litigantes diferentes. Isso,
por sua vez, afeta a abordagem adotada para tratar das áreas de política e não leva necessariamente à priorização
daquelas nas quais o investimento de recursos estatais produzirá
os maiores retornos ou será o mais socialmente justo
Economic and social rights across time, regions, and legal traditions: a preliminary analysis of the TIESR dataset
No full textNearly all written constitutions in the developing world contain one or more economic and social rights. However, some rights are more commonly enshrined than others, and there is wide variation in terms of whether such rights are identified as justiciable – enforceable in a court of law – or merely aspirational. The most interesting variations occur along three dimensions: time, region, and legal tradition. Most constitutions are new, and the contemporary constitutional model affords greater standing to economic and social rights than the previous post-War model. There are significant regional differences in the relative prevalence of such rights, and some regions exhibit a clear regional norm with respect to economic and social rights. Finally, the constitutions of com- mon law countries are significantly less likely to include economic and social rights, and to identify them as justiciable, than those of civil law countries. This article reports some of the initial findings of a new dataset measuring the constitutional entrenchment of economic and social rights
Judicial interpretation of social rights: The rights to education, health, and housing in Brazil and South Africa
No full textThis work examines how legal education, the organization of the legal profession, and the structure of the judiciary shape and reproduce jurisdiction-specific judicial logics of appropriateness—judicial cultures—in Brazil and South Africa and the impact of the jurisdiction-specific judicial cultures on the interpretation of constitutionalized social rights. I argue that variation in the pre-existing judicial culture of the two countries is key to explaining their different interpretations of the rights to education, health, and housing entrenched in both of their constitutions. My findings suggest that social rights jurisprudence tends toward one of two ideal types. Countries with a diffuse system of judicial review, a large and relative inexperienced judiciary, and an approach to legal reasoning emphasizing theoretical consistency with a limited role for stare decisis will tend to develop an individualized social rights jurisprudence that focuses on remedying specific harms suffered by individuals. In contrast, countries with a more centralized system of judicial review, characterized by a small number of experienced judges operating in a system which has a strong adherence to stare decisis, will develop a more policy-oriented social rights jurisprudence that emphasizes the importance of addressing structural problems faced by groups or classes of people
Economic and Social Rights in National Constitutions
Full text linkMuch has been written about the global convergence on constitutional supremacy, and the corresponding rise of an apparently universal constitutional discourse, primarily visible in the context of rights. In this paper, we examine the global constitutional homogeneity claim with respect to economic and social rights. Based on a new and unique dataset that identifies the status of seventeen distinct economic and social rights in the world's constitutions (195 in total), we make four arguments. First, although economic and social rights have grown increasingly common in national constitutions, not all ESRs are equally widespread. Whereas a right to education is so common as to be practically universal, rights to food or water are still very rare. Second, constitutions accord ESRs different statuses, or strengths. Roughly one third of countries identify all economic and social rights as justiciable, another third identify all ESRs as aspirational, and the last third identify some ESRs as aspirational and some as justiciable. Third, legal tradition — whether a country has a tradition of civil, common, Islamic or customary law — is a strong predictor of whether a constitution will have economic and social rights and whether those rights will be justiciable. Fourth, whereas regional differences partly confound the explanatory power of legal traditions, region and legal tradition retain an independent effect on constitutional entrenchment of ESR. We conclude by suggesting that despite the prevalence of economic and social rights in national constitutions, as of 2013 there is still considerable variance with respect to the formal status, scope and nature of such rights. Because the divergence reflects lasting determinants such as legal tradition and region, it is likely to persist
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