by Daphne Barak-Erez and Aeyal M. Gross (ed). Oxford and Portland, OR: Hart Publishing, 2007. 416pp. Hardback. £48.00/$95.00. ISBN: 9781841136134.
Reviewed by Gad Barzilai, Professor of International Studies, Law and Political Science, University of Washington. Email: gbarzil [at] u.washington.edu.
Social rights surely merit exploration and in-depth examination. Both the concept of ‘social rights,’ primarily debated in the professional literature after the 1960s, alongside their practice in a variance of socioeconomic and political settings, require scholarly attention. There are various epistemological and theoretical, empirical and methodological perspectives one could apply to look into this central topic. One key outlook is to inquire whether social needs and social predicaments may be addressed through legalization regarding basic needs, such as shelter [housing], food, health and work. The other perspective is to examine different legalistic issues of legalization of social needs. In an ideal intellectual space these ways of comprehension should be complementary since protection and maintenance of basic social expectations may be only very restrictively articulated through legislation and court rulings (Barzilai 2003; 2005).
The excellent edited volume by Daphne Barak-Erez and Aeyal Gross, EXPLORING SOCIAL RIGHTS: BETWEEN THEORY AND PRACTICE, is an important contribution to debates about social rights, especially but not solely in the second perspective mentioned above (pp.1-17). The bulk of the book is devoted to drilling into major concerns regarding the legalization of social needs. The chapters in the book reflect a diverse range of theoretical perspectives. Frank Michelman struggles in his essay to sort out a legalistic strategy to entrench social rights without imposing on the state and the judiciary a specific legalistic concept with an economic and political burden that the judiciary and the government may not be able to maintain (pp.21-40). The intellectual result is a compound essay that offers a neo-liberal, neo-Rawlsian, minimal definition of a social right that should be entrenched in law. Upendra Baxi, on the other hand, offers to see social rights in the neo-Marxian perspective and hence to encourage developing them as part of decolonization of the state (pp.41-55). Lucie White, in a superbly important essay (pp.57-73), analyzes the problems in the language of social rights, if that rhetoric is not embedded in an essential ontology that promotes social accessibility and practical equality: “Human rights consciousness would train them [deprived people] to think of themselves as good, liberal, rights consuming subjects as they watched their children die” (p.72).
However one may conceive the actual and potential virtues of social rights’ discourse, this volume testifies to an empirical growth of international legislation, in both domestic and international law, as well as more court [*364] rulings referring to social rights. Thus, Yuval Shany’s chapter points to such a legalistic growth. Yet, Shany critically and forcefully argues that there is a severe discrepancy between the more prevailing legalistic language of social rights in multilateral covenants and the absence of ex-post facto support of nation-states to comply with and practice international law of social rights in their domestic municipalities (pp.77-106). Above the issue of compliance, crucial as it may be, Kerry Rittich’s chapter prominently addresses the need to have a concept of distributive justice that is necessary for actualization and mobilization of social rights. Social rights are important as a tool to reform and eradicate socioeconomic inequalities (pp.107-134). Similarly, Eva Brems, in a very systematic chapter, demonstrates that the European Court of Human Rights has only implicitly developed a certain discourse of social rights through rulings over political and civil rights. Brems illustrates why this judicial tactic of developing social rights discourse only implicitly is unsatisfactory (pp.135-167).
The volume devotes a significant portion to concrete analysis of nation-states as well. Dennis Davis’ analysis argues that South Africa is a good example showing how the lack of a clear concept of distributive justice allows the courts not to develop a package of social rights (pp.193-212). In some other countries, however, courts have generated a more empowered discourse of social rights. Jayna Kothari’s chapter about social rights in India demonstrates that despite the absence of a definition of social rights in India’s constitution, the Indian judiciary has formed those rights in response to large number of public interest litigation cases. Thus, the Indian judiciary has sanctified rights to food, clothing, and shelter (pp.171-192). Social rights in Canada, argues Patrick Macklem, were generated through some rulings that adapted international law by Canadian courts. Hence, international law was useful where legislation was missing (pp.213-242). Yet, it is very doubtful whether litigation may be a proper and effective replacement to a public policy that promises to generate and activate social rights. The editors, Barak-Erez and Gross, demonstrate through the case of Israel that, with no such public policy, court rulings may have only a very limited effect (pp.243-261). The editors analyze how the Israeli Supreme Court developed a vague set of social rights based on right to equality and human dignity. The level of success in generating social rights in Israel is very limited and “Social citizenship is still second class to civil and political citizenship” (p.261).
Dealing with specific types of social rights is also crucial. Accordingly, the edited volume refers to explication of a right to education (Rabin, pp.265-288), health (Gross, pp.289-339), and work (Mundlak, pp.341-366). Especially Gross’ and Mundlak’s chapters are important in their emphasis on social consciousness of distributive justice, as a necessary condition to make social rights a practical reality, and a space to challenge further socioeconomic inequalities. The last part in the book refers to two sociopolitical groups that may deserve special attention – physically challenged people and women. Neta Ziv, in a very insightful chapter (pp.369-395), carefully analyzes the ambiguity about the empowerment that disabled people may gain from [*365] social rights. While aware of the ability to use social rights for litigation, the chapter critically ponders whether individual rights may change the power and knowledge that frame physically challenged human beings as incapacitated. Because women are significantly discriminated against in the labor market, Barak-Erez underscores the need to use social rights to empower and protect women. Social rights should also become a prioritized feminist matter (pp.397-408). To summarize, this very valuable and well edited book is a must read to adherents of social rights.
Barzilai, Gad. 2003. COMMUNITIES AND LAW: POLITICS AND CULTURES OF LEGAL IDENTITIES. Ann Arbor: University of Michigan Press.
Barzilai, Gad. 2005. “The Evasive Facets of Law: Litigation as Collective Action.” 10 ADALAH’S REVIEW 1-5 (February)
© Copyright 2009 by the author, Gad Barzilai.