The Role of Courts in Enforcing Economic and Social Rights

By Boon, Kristen | The George Washington International Law Review, January 1, 2007 | Go to article overview

The Role of Courts in Enforcing Economic and Social Rights


Boon, Kristen, The George Washington International Law Review


THE ROLE OF COURTS IN ENFORCING ECONOMIC AND SOCIAL RIGHTS Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? Roberto Gargarella, Pilar Domingo & Theunis Roux eds. Ashgate, 2006. Pp. 1, 328, $124.95 (hardcover).

Courts and Social Transformation in New Democracies is an edited collection that explores the role of courts in enforcing social and economic rights.1 It focuses on two questions: (1) when do courts function as agents of social transformation in new democracies; and (2) when do courts act as voices for the poor by enforcing economic and social rights (ESRs)? The authors loosely agree that socially transformative courts are determined by judicial culture, efficient procedural rules, and constitutional entitlements. In response to the second question, however, the case studies demonstrate that indigent plaintiffs will choose courts as a mechanism to pursue poverty-related issues over other methods, such as political lobbying or policy reform, only where there is a comparative advantage to doing so. The book's underlying message is that the role of courts in ESR enforcement is still evolving.

This book contains three chapters on the theoretical relationship between ESRs, courts, and democracy, followed by case studies on several Latin American countries, South Africa, India, Hungary, and Angola.2 Each chapter addresses one or both of the two questions stated above, although not always directly. The book's organization has its pros and cons. Many of the chapters focus on Latin American constitutional courts, which are a rich source of ESR jurisprudence and deserve detailed attention. On the other hand, representative case studies from other continents could help to distill what is particular to the Latin American experience (or vice versa), but do not always succeed. Furthermore, like a number of recent collections on international human rights, this volume attempts to cross-fertilize human rights discourse.3 While the authors in this collection are top-flight, different methodologies and target audiences mean that some of the contributions address country-specific scholars, while others are meant for human rights specialists or political scientists.4

ESRs can be roughly defined as rights that require the government to satisfy the basic needs of its citizens-including food, health care and education.5 Although it is sometimes contended that ESRs are a "second generation" of rights that followed civil and political rights, this distinction has been largely discredited.6 All rights share a common heritage and are interrelated.7 For example, widiout an education, how is there a right to free speech? What is the value in the right to work if individuals are not permitted to assemble in groups to discuss the conditions of work? What is the right to life without die right to health? ESRs create a broad enabling framework for the exercise of all human rights.8

A number of important international instruments contain ESRs, including die International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Protocol of San Salvador.9 These treaties have been integrated into many modern constitutions, particularly after major political transitions.10 With the exception of India, whose constitution is from 1950, all of die countries surveyed in this book have constitutions that post-date 1989. These constitutions are the founding documents of new political orders: from apartheid to the African National Congress in South Africa; from military rule to democracy in several of die Latin American countries profiled in this collection; and from communism to a free market in Hungary. ESRs are a deliberate component of modern constitutionalism, and reflect an emerging desire to enshrine positive rights in national constitutions. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Role of Courts in Enforcing Economic and Social Rights
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.