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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Social Rights

David Landau

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 24 May 2024

Subject(s):
Right to education — Right to work — Right to food — Right to health — Right to housing — Social rights — Social security

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum
Managing Editor: Martina Mantovani

A.  Introduction

1.  Social rights are the rights of people to achieve their basic human needs. In domestic constitutional orders, common social rights include the right to healthcare (right to health), right to housing, right to food, right to education, right to social security, and right to work. In both international law and domestic constitutional law, these rights are often called ‘second-generation’ rights, to differentiate them from ‘first-generation rights’, which include civil and political rights like the freedom of expression, freedom of religion (freedom of conscience and religion or belief), and due process, as well as ‘third generation’ rights which include a broad spectrum of rights including group rights and the right to a healthy environment (concept and types of environmental rights). They are also often called ‘positive rights’ to denote that they require affirmative steps from the state to be realized, in contrast with ‘negative rights’ which are said to merely require the state to refrain from acting (Fabre 263).

2.  However, each of these categorizations is inexact. There is considerable slippage between the ‘generations’ of rights, which are based on broad temporal patterns in international human rights law (Macklem). Moreover, rights commonly classified as negative rights, like the right to due process, in fact require affirmative steps from the state and cost money, while rights commonly classified as positive, like the right to education, can be protected in a negative sense, say by requiring the state to remove laws or other barriers that prevent some or all citizens from receiving an adequate education (Langford 30–31). Thus, the idea of a social right is better defined as a common set of rights than as a precisely defined-concept.

3.  Part B of this brief essay surveys debates and trends on the inclusion and enforceability of social rights. It argues that over time, social rights have increasingly been included in domestic constitutions. More recently, they have increasingly been seen as judicially enforceable rather than as guides for the non-judicial branches or as fulfilling some other function. Part C covers differences in the textual formulation of social rights in modern constitutions. Finally, Parts D and E cover two major debates in contemporary comparative constitutional law––the interpretation of social rights and the judicial remedies for their violations—respectively. Part F briefly concludes by considering future trends and challenges in the enforcement of socioeconomic rights.

4.  Methodologically, this entry focuses on social rights from the perspective of comparative constitutional law, rather than international human rights law or political theory, although there is inevitably some overlap. It aspires to broad coverage of the major issues, but for the sake of clarity and importance focuses largely on three well-known constitutional orders from the ‘global south’: India, South Africa, and Colombia.

B.  Debates on the Inclusion of Social Rights

5.  The first constitutions to include social rights pre-dated World War II. For example, the Mexican constitution of 1917, written in the midst of the Mexican revolution, was an important model both regionally and globally. The constitutional drafters affirmed the importance of affirming social rights alongside classical liberal rights, even if, the social rights in its constitution were often—although not always—rendered non-justiciable, particularly via the Mexican individual complaint mechanism (individual complaints procedures) or amparo (Suarez-Potts).

6.  The post-World War II period brought a flourishing of social rights discourse in international law, within the broader framework of international human rights. The Universal Declaration of Human Rights (1948) included social rights as well as civil and political rights, and the International Covenant on Economic, Social, and Cultural Rights (1966) (‘ICESCR’) was written alongside the International Covenant on Civil and Political Rights (1966) (‘ICCPR’). However, although the ICESCR made social rights a part of international human rights law, it also preserved key differences between social rights and civil and political rights (Langford and King 482). For example, the language of obligations in the ICESCR was softer and in general required that states ‘take steps…to the maximum of its available resources, with a view to achieving progressively’ the various rights laid out in the Covenant (Art. 2, 1). The institutions behind the ICESCR have also been, until very recently, weaker than those behind the ICESCR. Thus, the general thrust of the scheme set up by the two Covenants was that both civil and political rights and economic, social, and cultural rights were human rights, but that there were significant distinctions in the immediacy and enforceability of obligations placed on states.

7.  These distinctions have left a deep imprint on comparative constitutional scholarship and practice. A vein of scholarship has continued to question the inclusion of social rights in constitutions at all, as well as their judicial enforceability. Arguments against inclusion sometimes turn on philosophical questions about the nature of rights or at least their priority. However, in current discourse they more commonly rest on pragmatic arguments about judicial enforceability. Social rights are said to place uniquely high burdens of democratic legitimacy and institutional capacity on courts, which are beyond what these institutions can bear. Social rights are said to suffer from a particularly high degree of indeterminacy, thus giving courts too much judicial discretion in interpretation (Cross 901). Enforcement of these rights is said to require courts to undertake resource allocation decisions and to construct social welfare programmes, both of which require courts to carry out tasks that they should not undertake in a democratic order and that they are not at any rate institutionally equipped to undertake (Sunstein). Some scholars assert that faced with this problem, courts face a Hobson’s choice: either overstep their institutional bounds in gross ways by ‘running everything,’ or (more likely) do little to nothing with these rights (Cross 920). This raises a related potential cost of inclusion: social rights may cheapen confidence in constitutions by disappointing popular expectations.

8.  Defenders of social rights have raised several arguments in response to these critiques. At the philosophical level, they argue that social rights are an equal part of the human rights tradition as classical liberal rights, and indeed form a prerequisite for effective enjoyment of those rights (Bilchitz 67). They also question the assumption that there is a rigid conceptual demarcation between social rights and other rights. For example, enforcement of so-called negative rights like the rights to due process and free speech can also cost money and thus require courts to make resource allocation decisions (Langford 30–31). The indeterminacy of rights is also a problem afflicting all constitutional interpretation, not just social rights. Thus, they reject the premise that social rights are beyond the capacity and legitimacy of courts to enforce. Moreover, they point out that citizens commonly demand the inclusion of these rights, particularly in the developing world.

9.  At a high level of generality, those who favour the inclusion of social rights appear to be winning the argument. While not all states have included social rights in constitutions, statistical evidence shows that an increasing number of states have included those rights through time (Ginsburg and Melton 23). Perhaps the best-known counterexample is the United States. Nonetheless, recent work challenges this assumption by pointing out that many state constitutions in the United States include social rights (some with rich histories of enforcement), and in general United States state constitutions may look more like constitutions elsewhere in the world (Zackin).

10.  But at a more nuanced level, the debate about inclusion of social rights continues to exert a significant impact. First, as noted below, there continues to be significant variance regarding the judicial enforceability of social rights, even if more constitutions and courts seem to have moved towards justiciability through time. Second, concerns about legitimacy and capacity sometimes seem to impact the manner in which courts enforce social rights, in certain contexts making them more reluctant or less aggressive in enforcing these rights than other kinds of rights. If social rights are clearly not different from ‘first generation’ rights in kind, they may at least be different in degree. All rights involve resource allocation decisions, for example, but social rights may require deviations from the status quo that require courts to be unusually assertive (Tushnet 233–34).

C.  Styles of Textual Inclusion

11.  There is great variance around the world in terms of which social rights are included and how they are included.

1.  Directive Principles and Non-Justiciability

12.  Some countries, for example, have tried to include social rights while either making them non-justiciable or limiting their justiciability. India (which was followed by Ireland) is a paradigmatic example of such an approach: social rights are included but placed in a separate section on ‘directive principles’ that is explicitly unenforceable. The idea of such an approach is that social rights should be recognized as part of the constitutional project and included for the guidance of the political branches, even if courts cannot enforce them.

13.  Elsewhere, social rights have been included in constitutional projects but excluded from the scope of certain legal instruments. Chile offers an example, where only certain rights can be enforced using the individual complaint mechanism (the recurso de proteccion), and social rights are generally excluded from that list (Constitution of Chile: 11 September 1980, Art. 20 (Chile)). Finally, in some contexts courts have achieved the same result through jurisprudence. In Mexico, for example, courts have long used concepts related to standing and to the programmatic nature of social rights to decline to enforce them via the Mexican individual complaint or amparo. At the same time, creative courts have also proven able to overcome barriers in constitutional design that might appear to make unenforceable. In India, for example, the Supreme Court has developed a robust social rights jurisprudence despite the directive principle design, both by linking those obligations to fundamental rights like the right to life and by focusing on circumstances where the state has undertaken an obligation through law but not fulfilled that obligation (Khosla 751). In Colombia as well, another country well-known for its social rights jurisprudence, the Constitutional Court established the justiciability of social rights in the face of an ambiguous constitutional text by linking them to fundamental rights like the right to life (Decision T-426 (1992) (Colom)).

2.  Variation in the Nature of Obligations

14.  Among those constitutions where social rights are both included and not made explicitly non-justiciable, there is significant variation in the way rights are framed. South Africa is an influential example of an approach that qualifies social rights. The right to housing in the South African constitution states first that everyone ‘has the right to adequate housing’ and then says that ‘the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right’ (Constitution of South Africa: 4 February 1997, Art. 26 (S Afr)). The rights to health, food and water, and social security are written with virtually identical language. These textual formulations, which track language in the ICESCR, suggest that an individual right exists (individual rights), but it is a right to have the state move towards realization of the right, rather than to fully enjoy adequate housing, healthcare, etc immediately.

15.  Other constitutions state social rights in more unqualified terms. Art. 51 of the Colombian constitution, on the right to housing, states that all citizens ‘are entitled to live in dignity’ (dignity and autonomy of individuals) while requiring the state to ‘determine the conditions necessary to give effect’ to the right and to ‘promote plans’ for affordable housing and long-term finance. This formulation states the right without qualifications although it does appear to give the state a role in determining how the right will be carried out.

16.  There is of course no straightforward correspondence between the way a right is framed in the text and the way it is enforced. Judicial enforcement of social rights is mediated by many other aspects of the legal and political culture (Gloppen). But in many prominent cases, text seems to make a difference. In South Africa, for example, the framing of the right influenced the Court when it declined to give an individual remedy to a person seeking dialysis treatment in the Soobramoney case. The Constitutional Court of Colombia (Corte Constitucional de Colombia) often holds that the state has the primary obligation to create programmes for the enforcement of social rights, and it steps in primarily when the state either fails in its obligation to create a programme or does not ignores its own statutory obligations. In Decision T-025 (2004) (Colom), for example, the Court issued a structural remedy affecting internally displaced persons largely because it found that the state had ignored public policies and requirements found in existing legislation.

17.  An important point is that potential claimants for social rights claims include private actors like private schools and health care providers, as well as the state. The constitutional text in many countries allow constitutional rights to run against at least certain private actors, and the ability to bring constitutional actions against these actors seems to be related to the availability of positive rights. Existing empirical research suggests that in practice, a significant percentage of social rights litigation is against private parties charged with providing essential services (Gauri and Brinks 11).

3.  The Social State Principle

18.  There are some states that define themselves in the Constitution as a ‘social state’ or, using the well-developed German usage, as a Sozialstaat. In some cases this designation is made in addition to the inclusion of social rights (see, eg, the Constitution of Colombia: 4 July 1991 (Colom)), and in some cases it is made without the express inclusion of social rights (as in the Basic Law for the Federal Republic of Germany: 23 May 1949 (Ger)). The meaning of this designation will differ from case to case (for example, as to whether it imposes judicially-enforceable obligations), but it generally acts as a normative principle that requires the state to organize itself in accordance with the dictates of a social or welfare state (Katrougalos and O’Connell). Thus, the social state principle may impose some of the obligations of social rights, either through the political process or judicial interpretation, even in cases where those rights themselves are absent. King for example has shown that the social state principle has been referred to in over 120 decisions of the Federal Constitutional Court of Germany (Bundesverfassungsgericht) and has influenced jurisprudence in that country (King (2014) 13).

D.  Interpretation

19.  A pressing debate in contemporary scholarship and practice deals with the ways in which social rights should be interpreted. The peculiar difficulty with interpreting social rights lies in what has been called their ‘raging indeterminacy’ (Michelman 31). The right to housing, for example, potentially has many different facets for different groups of people, and there is no a priori way to prioritize competing claims for housing or to balance the right to housing against other rights and priorities. The different interpretive approaches outlined here are not mutually exclusive, and most courts appear to use different approaches at different times or for different rights. Moreover, for reasons of space it is not exhaustive. As an example, it does not cover the use of proportionality as an interpretive tool for social rights (Contiades and Fotiadou).

1.  Progressive Realization and Non-Retrogression

20.  The influential General Comment 3 of the International Commission of Economic, Social, and Cultural Rights (the body charged with interpreting the ICESCR) notes that under the ICESCR, the state’s main obligation with respect to social rights is to make sure that they are progressively realized over time. According to the Commission, this means not only that the state must move in the direction of expanding enjoyment of social rights, but also that steps which reduce enjoyment of these rights must be specially justified. Moves which cut social benefits are not automatically invalid, but do invite heightened suspicion.

21.  In comparative constitutional law, this aspect of social rights interpretation has proven to be influential. Thus, there are many cases of courts reviewing cuts in benefits, generally in the midst of economic crisis, and either wholly or partially invalidating them. A famous example is the cuts to Hungarian social security benefits in the mid-1990s, when the Constitutional Court used property concepts and ideas about settled expectations to strike down sweeping cuts to benefits (Scheppele). More recently, this dimension of social rights has been important in Southern Europe. In Portugal, for example, the Court in reviewing both the 2012 and 2013 budgets struck down reductions to pensions and civil servant pay, in the process holding that these cuts were subject to especially demanding scrutiny and that the cuts were invalid because they were concentrated on certain sectors rather than being evenly shared among all citizens (Nolan, Lusiani and Courtis 143–44).

22.  An interpretation of social rights which emphasizes non-retrogression may put courts in a relatively comfortable role, because it merely requires that they defend the status quo rather than ordering the construction of new programmes. At the same time, an overly rigid conception of this principle may prevent the state from undertaking necessary shifts in the economy or in the nature of the social welfare net. Further, particularly in developing states, an over-emphasis on non-retrogression may benefit middle class groups already receiving social benefits rather than the poor (who are often left out of existing networks). The Hungarian social security decision was criticized on both grounds (Sajo 96–98).

2.  The Minimum Core

23.  In General Comment 3, the Committee on Economic, Social, and Cultural Rights also emphasized that some obligations of social rights must be fulfilled by all state parties immediately (or at least given the highest possible priority). Thus, the Committee stated that under the ICESCR, all states should provide a minimum core of social rights immediately, and resource constraints would generally not excuse failure to provide at least this level of enjoyment of the rights. Thus, the Committee’s vision of social rights is multi-faceted: the minimum core must be provided immediately, but the state retains obligations to progressively achieve more complete enjoyment of social rights through time.

24.  The minimum core concept has also proven influential within comparative constitutional law. However, both scholars and courts have critiqued the concept. Thus, Young has argued that it is subject to several different meanings and may be indeterminate (Young (2008)). Similarly, the Constitutional Court of South Africa on several occasions has refused to define the minimum core. Most recently, in Mazibuko, two lower courts drew on international law to set a different ‘minimum core’ quantity for the right to water, while the Constitutional Court held that it was beyond its institutional competence to set a quantity, and it would merely review the overall programme for reasonableness.

25.  Despite these challenges, the minimum core approach may have the advantage of putting more clarity and teeth on obligations faced by the state (Bilchitz 208). And because it focuses on a minimal set of obligations towards all citizens, it may be more successful than other approaches at targeting obligations towards the poor. Some jurisprudence of the Colombian Constitutional Court may be helpful in suggesting ways that the minimum core can be employed without requiring courts to define a minimum core set of entitlements with great precision. In Decision T-025 of 2004, the Court held that state policy towards internally displaced persons constituted a state of unconstitutional affairs, and required the state to direct more spending and create new programmes to deal with the problem. In the course of issuing the decision, the Court noted that IDPs (internally displaced persons) were entitled to a core of rights immediately, and gave guidance as to what those basic entitlements should be. In practice, though, the content of those entitlements was worked out over time in discussions with the state and with civil society. Thus, the Colombian Constitutional Court has relied heavily on a minimum core approach but has employed it as a flexible principle of priority—the state should emphasize social spending for the basic needs of the poor—rather than as a fixed set of entitlements.

3.  Reasonableness Review

26.  In rejecting a minimum core approach, the South African Constitutional Court has instead employed a reasonableness approach, which it has borrowed from other areas of administrative law. Thus in the Soobramoney case the Court upheld a failure to provide dialysis treatment to a dying man with a chronic disorder by holding that such an allocation of resources was reasonable in the context of the overall plan of health spending. In Government of the Republic of South Africa v Grootboom Case (S Afr), the Court after rejecting a call to set a minimum core of housing entitlements nonetheless held the state’s plan unconstitutional because it did not establish any short-term plan for those in greatest need. In Treatment Action Committee, the Court struck down the failure to make antiviral drugs preventing transmission of HIV from mother to child during pregnancy available nationwide, after noting that the company had made the drug freely available.

27.  Reasonableness review has been praised for its flexibility. At the same time, scholars have criticized it for its vagueness, noting that it lacks any explicit standard for which aspects of social rights should be prioritized. It has also been critiqued as being potentially too deferential towards the state given that review is designed to uphold fundamental rights (Liebenberg 223).

E.  Remedies

28.  One of the most active and unsettled debates surrounding social rights is what kinds of remedies should be issued for their violation. Here again, courts and scholars have shown great creativity and variation in recent years.

1.  Abstract Review and Social Rights

29.  Social rights are quite commonly protected in the abstract review of existing or new legislation. The most common remedy here is to partially or completely block proposed reductions or alterations to existing social benefits, as in the Hungarian and Portuguese decisions noted above. However, as with other forms of abstract review, it is possible for courts to issue a variety of more creative judgments in this area. For example, courts may delay the effect of a judgment that significantly affects the budget rather than issuing an immediate determination of unconstitutionality, in order to give the state time to comply. Further, courts may issue ‘integrative’ judgments that order certain groups or situations to be read into statutes so that they receive the same benefits as other groups or situations (Klare 20).

2.  Individual Remedies

30.  Courts sometimes give a victorious plaintiff a direct, individualized award of a social entitlement. The Constitutional Court of South Africa has been generally hostile to this approach, rejecting it in both Soobramoney (dialysis) and Grootboom (housing). But it is fairly common in Latin America. Both the Brazilian Supreme Federal Tribunal and the Colombian Constitutional Court have issued a large number of these orders regarding the right to health, thus giving plaintiffs access to medicines or treatments. Critics have argued that this jurisprudence unfairly allows those who sue to ‘queue-jump’ other potential beneficiaries, and moreover that those who sue tend to be relatively wealthy rather than the poorest and neediest (Motta Ferraz). In Decision T-760 of 2008, these concerns were partially responsible for convincing the Colombian Constitutional Court to issue a structural remedy involving the right to health, after years of issuing individual orders (Yamin, Parra-Vera and Gianella 117).

3.  Weak-Form Remedies

31.  In the Grootboom case, the Court issued a declaration that the state’s housing policy was unconstitutional because it did not take adequate account of the immediate needs of the poorest, who had nowhere else to live. However, the Court left the fix up to Parliament, neither issuing immediate relief to the petitioner nor giving detailed guidance to the legislature in drafting new legislation. This form of remedy, labelled weak-form, has been credited for reconciling enforcement of social rights with concerns about judicial legitimacy and competence (Tushnet 244). At the same time, it has been criticized for being insufficiently forceful to attend to institutional inertia and blockages in policymaking towards the marginalized (Dixon). In subsequent litigation, the South African Court has refined its approach, for example by ordering ‘engagement’ according to certain procedures between groups representing evicted homeowners and the state, without requiring a set solution to those discussions (Ray). Still, questions persist about the overall efficacy of the Court’s approach at advancing housing rights in South Africa.

4.  Structural Remedies

32.  Some courts have issued structural remedies for violations of social rights. These orders differ from individual relief in that they aim to impact a broad group of people, not just a single or small group of petitioners. They differ from weak-form review in that the Court remains more directly, and assertively, involved in shaping the details of policy. Thus, weak-form review and structural injunctions might be envisioned on a spectrum, depending on the degree of ongoing involvement and assertiveness of a given court.

33.  The right to food case in India, PUCL v Union of India and Others, is a prominent example of a recent structural remedy. The Court held that access to food was deficient throughout the country and in numerous respects. It thus retained jurisdiction over the case, gave a set of special masters power to oversee ongoing proceedings, and issued follow-up orders requiring the construction if new programmes and taking other measures. Similarly, the Colombian Constitutional Court issued broad structural remedies in T-025 of 2004 and T-760 of 2008. In each case it has retained jurisdiction, held periodic public audiences, issued numerous follow-up orders, and commissioned both state and civil society institutions with monitoring and reporting on compliance (Rodriguez-Garavito). These approaches have obvious drawbacks in terms of their cost and strain on judicial role, but some scholarship has argued that may be most effective at altering policy and aiding the poor (Landau (2012) 230).

F.  Ongoing Challenges

34.  Recent years have witnessed tremendous progress in scholarship and jurisprudence on social rights, both in human rights law and comparative constitutional law. Perhaps paradoxically, this work suggests a set of ongoing, and very difficult, challenges. At the deepest level, some scholars have returned to the basic question of whether the inclusion of social has or can achieve its goals. Gargarella, for example, in a sweeping look at Latin American constitutional history, has argued that social rights have not achieved their purpose of reducing economic inequality, and have instead either been left dormant by weak or hostile courts used to entrench middle or upper-class interests. He argues that scholars should instead focus on making changes to the ‘engine room’ of constitutionalism by seeking more progressive presidents, congresses, and other institutions (Gargarella). Other recent empirical work has argued that the inclusion of social rights does reduce inequality, at least if those rights are included in enforceable ways and not as directive principles (Minkler and Prakash).

35.  Recent work suggests that in order to overcome this challenge, courts and scholars must push towards more creative interpretations and remedies for violations of social rights. Existing work suggests that there is likely no single, perfect approach. Instead, courts must work towards a range of approaches that effectively catalyze the mobilization of civil society and state policymaking within their respective political contexts (Young (2012)).

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