Book contents
- Frontmatter
- Contents
- Foreword
- Preface
- Contributors
- 1 Introduction: The Elements of Legalization and the Triangular Shape of Social and Economic Rights
- 2 Litigating for Social Justice in Post-Apartheid South Africa: A Focus on Health and Education
- 3 Accountability for Social and Economic Rights in Brazil
- 4 Courts and Socioeconomic Rights in India
- 5 The Impact of Economic and Social Rights in Nigeria: An Assessment of the Legal Framework for Implementing Education and Health as Human Rights
- 6 The Implementation of the Rights to Health Care and Education in Indonesia
- 7 Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings
- 8 A New Policy Landscape: Legalizing Social and Economic Rights in the Developing World
- Index
- References
7 - Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings
Published online by Cambridge University Press: 27 July 2009
Book contents
- Frontmatter
- Contents
- Foreword
- Preface
- Contributors
- 1 Introduction: The Elements of Legalization and the Triangular Shape of Social and Economic Rights
- 2 Litigating for Social Justice in Post-Apartheid South Africa: A Focus on Health and Education
- 3 Accountability for Social and Economic Rights in Brazil
- 4 Courts and Socioeconomic Rights in India
- 5 The Impact of Economic and Social Rights in Nigeria: An Assessment of the Legal Framework for Implementing Education and Health as Human Rights
- 6 The Implementation of the Rights to Health Care and Education in Indonesia
- 7 Transforming Legal Theory in the Light of Practice: The Judicial Application of Social and Economic Rights to Private Orderings
- 8 A New Policy Landscape: Legalizing Social and Economic Rights in the Developing World
- Index
- References
Summary
More than a half century ago the Universal Declaration of Human Rights defined education and physical well-being as human rights to “be protected by the rule of law.” Although a significant number of national constitutions now include language that embraces a right to education, to health, or to both, disease and illiteracy remain pervasive throughout the world. Almost a billion individuals, a sixth of the international population, cannot read; similar numbers lack access to health care or to potable water. These deprivations cause physical harm, undermine a person's sense of autonomy, and subvert democratic possibilities. Against this dismal background, skeptics question not only the conceptual foundation of social and economic rights, but also their strategic value in fostering improvement for the disadvantaged and dispossessed.
The current project examines a specific aspect of this problem: the extent and efficacy of using national courts to enforce constitutionally based claims to health and to education services. Focusing on five nations – Brazil, India, Indonesia, Nigeria, and South Africa – the project offers an ambitious account of institutional practices based on cross-disciplinary, comparative case studies that combine quantitative with qualitative analysis. The countries under discussion have all codified social and economic rights in their national constitutions and in some places have enacted legislation to effectuate these provisions. The preceding chapters do not revisit the wisdom or legitimacy of extending constitutional protection to health or educational services.
- Type
- Chapter
- Information
- Courting Social JusticeJudicial Enforcement of Social and Economic Rights in the Developing World, pp. 268 - 302Publisher: Cambridge University PressPrint publication year: 2008
References
2005. Social rights and economics: Claims to health care and education in developing countries. In and (eds.), Human rights and development: Towards mutual reinforcement (pp. 65–66). Oxford: Oxford University PressCrossRefGoogle Scholar
2007. Human rights, health and environmental protection. Hum. Rts. & Int'l Legal Discourse 1: 9, 56Google Scholar
and (eds.), International human rights in context: Law, politics, morals. Oxford: Oxford University Press: 239
2006. Economic, social and cultural rights: Girls' right to education. In Commission on Human Rights, Report submitted by the Special Rapporteur on the right to education, E/CN.4/2006/45: 9
et al. 1999. The role of health professionals in protecting and promoting human rights: A paradigm for professional responsibility. In , , and (eds.), The universal declaration of human rights: Fifty years and beyond (pp. 357–358). New York: BaywoodGoogle Scholar
, 2004. The right to water: The road to justiciability. Geo. Wash. Int'l L. Rev. 36: 1181Google Scholar
2003. Not just a tragedy: Access to medications as a right under international law. B.U. Int'l L. J. 21: 325Google ScholarPubMed
2000. Social rights under the constitution: Government and the decent life. Oxford: Clarendon PressCrossRefGoogle Scholar
2003. The case for social rights. In , , and (eds.), Protecting human rights: Instruments and institutions (pp. 323, 326). Oxford: Oxford University PressCrossRefGoogle Scholar
2003. Institutional monitoring of social and economic rights: A South African case study and a new research agenda. S. Afr. J. on Hum. Rts. 19: 189Google Scholar
2006. Social rights and good governance: The Indian perspective. In and (eds.), Human rights and development: Law, policy and governance (p. 437). Hong Kong: LexisNexisGoogle Scholar
, 2004. Towards juristocracy: The origins and consequences of the new constitutionalism. Cambridge, MA: Harvard University Press (p. 13, associating constitutional review with the decline in “progressive concepts of distributive justice”)Google Scholar
2003. The global new deal: Economic and social human rights in world politics. New York: Rowman & Littlefield (pp. 7, 51–53, defining economic and social rights)Google Scholar
2004. Coming to terms with judicial enforcement of socio-economic rights. S. Afr. J. Hum. Rts. 20: 383, 384Google Scholar
et al. 1999. Health and human rights. In et al. (eds.), Health and human rights: A reader (p. 10). New York: RoutledgeGoogle Scholar
1995. Populism and progressivism as constitutional categories. Yale L. J. 104: 1935, 1968–69CrossRefGoogle Scholar
2007. The role of courts in enforcing economic and social rights. Geo. Wash. Int'l L. Rev. 39: 449, 456Google Scholar
2007. Non-state actors and economic, social, and cultural rights. In and (eds.), Economic, social and cultural rights in action. Oxford: Oxford University PressGoogle Scholar
2003–2004. The “horizontal effect” of constitutional rights. Mich. L. Rev. 102: 387CrossRefGoogle Scholar
2005. European and U.S. constitutionalism: Comparing essential elements. In (ed.), European and US constitutionalism (pp. 3–20). Cambridge: Cambridge University PressCrossRefGoogle Scholar
and 2006. The making of European private law: Regulation and governance design. Available at http://ssrn.com/abstract=946284 (accessed May 12, 2008)
2006. Rethinking private regulation in the European regulatory space. In (ed.), Reframing self-regulation in European private law (pp. 3–76). Leiden, The Netherlands: Kluwer Law InternationalGoogle Scholar
2005. Access to court decisions and the problem of lawmaking. The Indonesian Supreme Court: A study of institutional collapse. Ithaca, NY: Cornell University, Southeast Asia Program Publications, pp. 435–455Google Scholar
2007. The paradox of extralegal activism: Critical legal consciousness and transformative politics. Harv. L. Rev. 120: 937, 939Google Scholar
1962. Civil liberties and the constitution. Ann Arbor: University of Michigan Press, p. 129Google Scholar
2006. The constitutional dimension of self-regulation. In Cafaggi, Reframing self-regulation in European private law, 80
2003. Protecting human rights in a democracy: What role for the courts?Wake Forest L. Rev. 38: 635Google Scholar
1993. The state action doctrine, the public–private distinction, and the independence of constitutional law. Const. Commentary 10: 329, 349–358Google Scholar
2001. Designing democracy: What constitutions do. Oxford: Oxford University Press, p. 222Google Scholar
2005. The constitutional status of tort law: Due process and the right to a law for the redress of wrongs. Yale L. J. 115: 524Google Scholar
2005. Why does the American Constitution lack social and economic guarantees?Syracuse L. Rev. 56: 1, 6Google Scholar
1999. Positive rights and state constitutions: The limits of federal rationality review. Harv. L. Rev. 112: 1131, 1133CrossRefGoogle Scholar
1995. Do economic and social rights belong in a constitution?Am. U. J. Int'l L. & Pol'y 10: 1233, 1235Google Scholar
1993. Human rights in the private sphere. Oxford: Oxford University Press, pp. 150–162Google Scholar
2000. Cyberspace and the state action debate: The cultural value of applying constitutional norms to “private” regulation. U. Colo. L. Rev. 71: 1263, 1279Google Scholar
1993. The public/private distinction and constitutional limits on private power. Const. Comment. 10: 361, 365Google Scholar
1993. Poverty, democracy and constitutional law. U. Pa. L. Rev. 141: 1277, 1361CrossRefGoogle Scholar
2005. Market and state: The perspective of constitutional political economy. J. of Institutional Economics 1: 23–49CrossRefGoogle Scholar
, 1997. The province of administrative law. In (ed.), The province of administrative law (pp. 1–21). Oxford: HartGoogle Scholar
1999. Markets and regulation: On the contrast between free-market liberalism and constitutional liberalism. Constitutional Political Economy 10: 219, 220CrossRefGoogle Scholar
1982. State action and liberal theory: A casenote on Flagg Brothers v. Brooks. U. Pa. L. Rev. 130: 1296, 1323CrossRefGoogle Scholar
1985. Contract and justice: The relation between classical contract law and social contract theory. Iowa L. Rev. 70: 769, 772Google Scholar
and 1972. Taxes and civil rights: “Constitutionalizing” the Internal Revenue Code. Yale L. J. 82: 51, 86CrossRefGoogle Scholar
1988. The meaning of privatization. Yale L. & Pol'y Rev. 6: 6, available at http://www.princeton.edu/~starr/meaning.html (accessed Jan. 10, 2008)Google Scholar
2004. The renew deal: The fall of regulation and the rise of governance in contemporary legal thought. Minn. L. Rev. 89: 342, 344Google Scholar
2001. Administrative law unbounded: Reflections on government and governance. Indiana J. of Global Leg. Studies 8: 369Google Scholar
, 2005. Deconstructing government? In and (eds.), Institutions & public law: Comparative approaches (p. 141). New York: Pete LangGoogle Scholar
2004. The democracy deficit: Taming globalization through law reform. New York: New York University Press, p. 93Google Scholar
2006. Does privatising public service provision reduce accountability? Available at http://ssrn. com/abstract=1002830 (accessed Jan. 4, 2008)
2003. The constitutional rights of private governments. N.Y.U. L. Rev. 78: 144, 149–150Google Scholar
1945 [Constitution] Art. 28 H (Indonesia), in Constitutions of the countries of the world, available at http://www.oceanalaw.com/gateway (accessed Dec. 7, 2007)
2007. Montréal statement on the human right to essential medicines. Cambridge Q. of Healthcare Ethics 16: 97–108CrossRefGoogle ScholarPubMed
2003. The issue of state action/horizontal effect in comparative constitutional law. Int'l J. Const. L. 1: 79Google Scholar
, 2002. Comparative constitutionalism: State action, social welfare rights, and the judicial role: Some comparative observations. Chi. J. Int'l L. 3: 435Google Scholar
2006. The New Jersey Constitution: Positive rights, common law entitlements, and state action. Alb. L. Rev. 69: 553Google Scholar
2002. A theory of constitutional rights, trans. . New York: Oxford University Press, p. 355Google Scholar
2001. The counter-majoritarian problem and the pathology of constitutional scholarship. Nw. U. L. Rev. 95: 933, 953Google Scholar
(eds.). 2001. Human rights in private law. Oxford: Hart, especially Aharon Barak, Constitutional human rights and private law
2001. Determining the stakes: Binding and non-binding bills of rights. In and (eds.), Human rights in private law (p. 73), Oxford: HartGoogle Scholar
2002. Socioeconomic rights and the international economic order. N.Y.U. J. of International L. & Politics 35: 221, 232Google Scholar
2006. The protection of the right to education by international law. Leiden, The Netherlands: Martinus Nijhoff, p. 569Google Scholar
, 2001. Human rights and private law in German constitutional development and in the jurisdiction of the Federal Constitutional Court. In , and (eds.), Human rights in private law (p. 97). Oxford: HartGoogle Scholar
2001. Equality of opportunity and private law. In and (eds.), Human rights in private law (p. 205). Oxford: HartGoogle Scholar
2001. Constitutional human rights and private laws. In and (eds.), Human rights in private law (p. 21). Oxford: HartGoogle Scholar
2001. Freedom of contract, human rights and human dignity. In and (eds.), Human rights in private law (pp. 181–183). Oxford: HartGoogle Scholar
, 2007. Horizontal application of fundamental rights and state action in India. In (eds.), Human rights, justice, and constitutional empowerment (p. 65). Oxford: Oxford University PressGoogle Scholar
2007. Was Shelley v. Kraemer incorrectly decided? Some new answers. Cal. L. Rev. 95: 451, 469Google Scholar
2007. Safeguarding water contracts in Indonesia. Law Environment and Development Journal 3(2): 152Google Scholar
2006. Constitutional Court's review and the future of water law in Indonesia. Law Environment and Development Journal 2(1): 1Google Scholar
2000. The Supreme Court on human rights and social justice: Changing perspectives. In , , , , and (eds.), Supreme but not infallible: Essays in honour of the Supreme Court of India (pp. 232–255). Oxford: Oxford University Press
and 2006. Introduction: The third moment in law and development theory and the emergence of a new critical practice. In and (eds.), The new law and economic development: A critical appraisal (p. 14). Cambridge: Cambridge University PressCrossRefGoogle Scholar
2006. Resuscitating socio-economic rights: Constitutional entitlements to health care services. S. Afr. J. Hum. Rts. 22: 495Google Scholar
1996. No right to exclude: Public accommodations and private property. Nw. U. L. Rev. 90: 1283, 1466–1467Google Scholar
& 2002. The myth of ownership: Taxes and justice. Oxford: Oxford University Press, pp. 175–176CrossRefGoogle Scholar
1999. Reaching beyond (without abandoning) the category of “economic, social and cultural rights.”Hum. Rts. Q. 21: 633, 646CrossRefGoogle Scholar
2004. Hohfeld's power-liability/right-duty distinction in the law of restitution. Can. J. L. & Juris 17: 295CrossRefGoogle Scholar
2007. Adjudicating non-justiciable rights: Socio-economic rights and the South African Constitutional Court. Colum. Hum. Rts. L. Rev. 38: 321, 341Google Scholar
and , 1998. The political economy of change, p. 27. New Brunswick, NJ: Transaction PublishersGoogle Scholar
2005. Anatomy of private law theory: A 25th anniversary essay. Oxford J. Legal Stud. 25: 203–217CrossRefGoogle Scholar
2006. South African perspective on social and economic rights. Hum. Rts. 13(2), Brief 4Google Scholar
and 2005–2006. Constitutionalism, judicial review, and progressive change. Tex. L. Rev. 84: 433–438Google Scholar
- 1
- Cited by