This working paper makes a thought-provoking contribution to debates about the value of litigating rights to advance social change. It asks whether litigating the socio-economic rights that have been incorporated into many of the constitutions drafted during the past 50 years or so has what the authors term “pro-poor” effects. And, to the extent that such effects occur, what political, economic, social and legal factors and institutions might account for them? In response to these questions the authors offer a comparative analysis and reworking of data from five case studies of socio-economic rights litigation reported in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World, a book edited by the same authors and published in 2008.
All five research sites are large so-called emerging economies with constitutions that recognise socio-economic rights, some more explicitly than others.1 The case studies of socio-economic rights litigation in India, Nigeria, Indonesia, Brazil and South Africa that are discussed in the 2008 book provide extensive details of reported cases in the fields of health care and education in each country and the authors estimate the direct and indirect effects of the cases on each country’s population and public policy. This paper revisits the data, incorporating it into a small sample comparative study across the five jurisdictions; a study that makes intriguing, if cautious, claims about the capacity of some courts to decide some socio-economic rights claims in ways that are beneficial to some of the poor.
To investigate the distributive impact of socio-economic rights litigation is, of course, to engage with well-established and often-repeated findings about litigation processes and courts as tending either to favour the rich and powerful, the “haves” of the societies in which they are situated, or, more likely, to be ineffectual. Brinks and Gauri believe that such claims about the regressive impact and impotence of rights litigation over-generalise from a limited number and narrow range of courts, cases, constitutions and countries. They claim that a more systematic analysis, taking into account variation between different types of cases and characteristics of courts, shows that litigating social and economic rights may sometimes yield robustly pro-poor effects, at least in the areas of health care provision and education.
Brinks and Gauri’s framework for analysing the distributional consequences of socio-economic rights litigation is built on three core elements: the reach of a judicial decision, that is its broad applicability beyond individual litigants; the ‘impact’ of a decision, that is the size and scale of its’ benefits; and the distributional consequences of a decision, that is the share of those benefits received by the poorest 40% of the population. Reach is the basis for the paper’s estimates about the indirect effects of litigation, the type of effect that Brinks and Gauri regard as fundamental to the progressive potential of socio-economic rights litigation and largely absent from the literature on rights litigation. Making this point, the authors observe that “the areas were it is easiest to measure the distributive effect of litigation — direct effects on litigants, especially in individual cases — …. are the areas where effects are most likely regressive and least important in the overall public policy context” (p.15 emphasis in the original).
Reach depends on procedural characteristics of the legal system, including the extent to which conventions about precedent and universality render specific cases as generally applicable. Reach also depends on non litigants having access to the benefits of a decision to uphold or extend a socio-economic right without having to surmount the multiple barriers to litigating individual rights claims. Finally, reach varies with the types of cases that are litigated. The case typologies (drawn from categories elaborated in more detail in the book) differentiate between entitlements to public “provision” of socio-economic rights to educational and health care goods and services, litigation to secure or enforce “regulation” that enables access to or improves enjoyment of rights to health or education, and claims to the enforcement of a third party’s “obligations” in relation to educational and health care rights.
Brinks and Gauri reason that non-litigants might be expected to have reasonably good access to the benefits of successful regulation-type cases when they share the same policy space as the litigants and cannot easily be excluded from the policy environment that the regulation changes, that is when they use the same services in the same areas as successful litigants. A court decision compelling the enactment and enforcement of cleaner fuels regulation in a major city, such as the Delhi clean air cases discussed at pp.32-33, for example, has considerable reach and the beneficial impact of such regulation on respiratory health may well be experienced disproportionately by those who lack the resources to protect themselves in heavily polluted public spaces. By contrast non-litigants may be wholly excluded from the benefits of an “obligation” type decision when they do not use educational or health care facilities run by private third party providers. Thus a decision to strengthen health care rights by facilitating malpractice lawsuits against doctors in India, a society where such lawsuits are associated with the private medical system, for example, is unlikely to have distributionally progressive consequences. As for the provision cases, the paper suggests that distributional effects of this type of litigation may be unpredictable. While the express purpose of such litigation is often exclusive in the sense that it seeks public provision of goods or services to the litigants, potential exists for more far reaching effects when the aggregation of a large number of cases forces a policy shift towards universal provision, as apparently has happened in some Brazilian states after thousands of individual cases seeking access to particular medications.
The paper applies the case typology to health and education rights cases across the five countries, assesses the social impact or effects of different cases, and estimates the share of any beneficial impact that goes to the two lowest income quintiles in each country. This analysis finds considerable variation in the distributional impact of socio-economic rights ranging from apparently “very much pro-poor” in countries (e.g. South Africa and India) and policy areas that are dominated by regulation type decisions through to “close to distribution-neutral” in countries (e.g. Brazil and Indonesia) where individualised results may be generalisable beyond litigants to “sharply anti-poor” consequences in settings (e.g. Nigeria) where the impact of socio-economic litigation is tightly confined to individual litigants.
This paper is interesting because it takes seriously the work of courts and legal mobilisation in countries of the Global South, because it engages with variation in the distributional consequences of decisions in different courts and about different socio-economic rights, and because it touches on the social, economic, political and institutional conditions associated with variation in distributional impact. A rich paper and a stimulating read, Law’s Majestic Equality yielded few definitive answers, but its claims about the progressive potential of some types of socio-economic rights litigation pose plenty of theoretical questions, methodological questions, and political questions about the equality project of getting rights right.
- There is considerable variation in what that recognition might entail. Eg., the socio-economic rights set out in the preamble to the Nigerian constitution are not justiciable as such see the OMCT, FIDH, Obs reportNIGERIA: Defending Human Rights: Not Everywhere Not Every Right, International Fact-Finding Mission Report, available at http://www.omct.org/files/2010/05/20688/nigeria_mission_report.pdf. But as the Brinks & Gauri study shows, some individualised human rights claims have been crafted that draw on rights to education and healthcare.