Economic and Social Rights in National Constitutions

44 Pages Posted: 4 Nov 2013 Last revised: 16 Jul 2015

See all articles by Courtney Jung

Courtney Jung

Department of Political Science, University of Toronto

Ran Hirschl

University of Toronto

Evan Rosevear

University of Toronto - Department of Political Science and Faculty of Law

Abstract

Much has been written about the global convergence on constitutional supremacy, and the corresponding rise of an apparently universal constitutional discourse, primarily visible in the context of rights. In this paper, we examine the global constitutional homogeneity claim with respect to economic and social rights. Based on a new and unique dataset that identifies the status of seventeen distinct economic and social rights in the world's constitutions (195 in total), we make four arguments. First, although economic and social rights have grown increasingly common in national constitutions, not all ESRs are equally widespread. Whereas a right to education is so common as to be practically universal, rights to food or water are still very rare. Second, constitutions accord ESRs different statuses, or strengths. Roughly one third of countries identify all economic and social rights as justiciable, another third identify all ESRs as aspirational, and the last third identify some ESRs as aspirational and some as justiciable. Third, legal tradition — whether a country has a tradition of civil, common, Islamic or customary law — is a strong predictor of whether a constitution will have economic and social rights and whether those rights will be justiciable. Fourth, whereas regional differences partly confound the explanatory power of legal traditions, region and legal tradition retain an independent effect on constitutional entrenchment of ESR. We conclude by suggesting that despite the prevalence of economic and social rights in national constitutions, as of 2013 there is still considerable variance with respect to the formal status, scope and nature of such rights. Because the divergence reflects lasting determinants such as legal tradition and region, it is likely to persist.

Keywords: Economic Rights, Social Rights, Comparative Constitutional Law

Suggested Citation

Jung, Courtney and Hirschl, Ran and Rosevear, Evan, Economic and Social Rights in National Constitutions. American Journal of Comparative Law, 62:4 (2014): 1043-1098. Available at SSRN: https://ssrn.com/abstract=2349680 or http://dx.doi.org/10.2139/ssrn.2349680

Courtney Jung (Contact Author)

Department of Political Science, University of Toronto ( email )

Sidney Smith Hall
100 St George Street
Toronto, Ontario M5S 3G3
Canada

Ran Hirschl

University of Toronto ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Evan Rosevear

University of Toronto - Department of Political Science and Faculty of Law ( email )

Sidney Smith Hall
100 St George Street
Toronto, Ontario M5S 3G3
Canada

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