by Varun Gauri and Daniel Brinks (eds). New York: Cambridge University Press, 2008. 384pp. Hardback. $90.00. ISBN: 9780521873765. eBook format. $72.00. ISBN: 9780511426841.
Reviewed by Jamila Smith-Loud, Department of Government & Politics, University of Maryland. Email: jamsmith [at] gvpt.umd.edu.
COURTING SOCIAL JUSTICE: JUDICIAL ENFORCEMENT OF SOCIAL AND ECONOMIC RIGHTS IN THE DEVELOPING WORLD, edited by Varun Gauri and Daniel Brinks, asks the important question of what role do judicial bodies play in the implementation of social and economic rights? It also asks, when comparing the judicial branches of different countries, how if at all do differences in political and legal culture affect a court’s social justice agenda? Through the use of in depth case studies, the authors of this book were successful in delivering an extremely useful and important analysis of the judicial process and how the process through which a country constitutes social and economic rights may affect the legal outcomes for underrepresented members of the community. By the end of the book readers will recognize that whether courts expand or limit the protection of social and economic rights will depend on a host of social, legal and political factors.
The book offers a comparative analysis of five countries, South Africa, Brazil, India, Nigeria and Indonesia. Each case study is equally rich in empirical detail, as well as relevant social and political factors. All of the case studies examine social and economic rights by focusing primarily on health and education rights litigation. This book is written to be accessible to both the serious empirical scholar of law and justice, as well as anyone interested in social justice and the protection of rights for disadvantaged populations. The ideas presented offer academics, scholars, and activists, alike, the possibility of applying theoretical and empirical analysis to their own practices to further social justice.
In the introductory chapter, Gauri and Brinks set out a theoretical framework for understanding courts and social and economic rights. This chapter serves as a useful guide for the reader in recognizing the common themes of the book, despite the vast differences in each country with regard to legal norms, processes and outcomes. At the outset, Gauri and Brinks explore the intersection of formal rights and legalization. The editors define the “legalization of policy” as the life cycle of public policy litigation, which they say occurs in four stages: 1) legal mobilization; 2) judicial decision making; 3) bureaucratic, political and private responses; and 4) follow-up litigation.
For Gauri and Brinks, the question of whether the legalization process can occur in countries where the constitutional process does not allow [*293] substantive rights to be attached to a formal right appears to be an essential question. I agree that the question of whether social rights are enumerated in the constitution is the starting point for understanding how these types of rights will be handled, but the most striking and distinguishing factor between the countries is not the existence of the formal right, but how, through the process of judicial review, the relationship between constitutional rights and state actors is enforced. In each case study, the extent to which the judicial branch can delineate duties to state actors is a determinative factor of the overall success of social and economic rights litigation. For example, Nigeria’s constitution contains provisions for social and economic rights, including access to health care and education, but issues regarding access to the legal system and procedural issues, such as standing, seem to limit the extent to which courts can be influential with regard to social and economic rights.
The connections between constitutional decision making and the state and the resulting relationships that emerge between state and provider represent a set of issues that reappears throughout the book. Helen Hershkoff further explores the relationship between social and economic rights, constitutionalism and private entities in a chapter entitled “Transforming Legal Theory in Light of Practice.” Hershkoff examines the extent to which judicial decisions could affect the manner in which private organizations provide social services, particularly in areas such as health care in which the government is often not the provider of the service. This analysis is particularly relevant and useful in light of the case studies which consistently challenge the notion that constitutional enforcement is only applicable to government activity. In Brazil, where access to health care is considered a fundamental right, as well as an essential part of “humane democracy,” health rights litigation addresses the fulfillment of obligations by not only the government, but also private health entities, including insurance companies. In India, health and education rights are considered non-justiciable rights, as the Indian constitution distinguishes between enforceable fundamental rights and non-enforceable directive principles (p.148). Hershkoff uses India as an example where courts reshape constitutional norms to affect how private contracts and market regulation impact social and economic rights. Evidence from India provides particularly useful insights into the potential for courts to influence social change, as the Indian Supreme Court not only has constitutionalized health care rights, but as explained by Hershkoff, has applied constitutional principles, such as the right to health care in litigation against private entities.
While there is significant literature questioning the ability of the courts to protect rights or effect social change (e.g., Rosenberg 2008), the editors of this book seem optimistic about the courts and role they play. As prior research has indicated, the ability of the courts to produce social change is limited by issues such as access of litigants to the judicial process (Galanter 1974). For many countries, as noted in the India case study, common law systems only permit courts to hear cases from those personally affected (p.140). This procedural rule has a significant [*294] impact on access to the legal process for marginalized groups. In Brazil, Nigeria and South Africa, the furtherance of social and economic and rights have been thwarted by potential litigants’ lack of resources, which limits their ability to pursue social and economic rights litigation. Regardless of the existence of a social or economic right, either enumerated in the constitution or created by legislative or international law, the quantity and substantive importance of these types of cases is rather unimpressive. In Nigeria, the standing requirements have proved to be particularly problematic because “individual victims who are required to disclose personal interest in the matter rarely succeed because, personal interest, defined as interest over and above that of the general public, is difficult to prove where the alleged violation (or governmental failure) also affects other members of the public” (p.198). A question that arises and needs to be addressed more thoroughly in this book is what significant role can courts play in the policy process when individuals or groups in most need of legal protection have limited resources to participate in the process. Furthermore, do such procedural hurdles add to the argument that courts enhance the distance between “the haves” and “the have-nots” by allowing only the interest of those with resources to find protection in the judicial branch.
Overall, this book successfully merges theoretical analysis regarding the courts as policy makers and their ability to protect rights with empirical data through the case studies. The value of the comparative model allows for a comprehensive assessment of the myriad of factors that influence the judicial review process, specifically with regard to social and economic rights litigation. The case studies identify numerous factors related to the ability of courts to make policy changes, including the political will of the court, as well as historical political and social factors. However, the volume of factors that are considered may leave readers with a fragmented understanding of the circumstances necessary for courts to be effective in social and economic rights policy making. In sum, I expected a more definitive conclusion about the role of courts and the protection of rights, but I also accept that there is no perfect set of circumstances, and positive social change is difficult to achieve.
Galanter, Marc. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change.” 9 LAW & SOCIETY REVIEW 95-160.
Rosenberg, Gerald N. 2008. THE HOLLOW HOPE : CAN COURTS BRING ABOUT SOCIAL CHANGE? (2nd ed). Chicago: University of Chicago.
© Copyright 2009 by the author, Jamila Smith-Loud.