Courts and Economic and Social Rights/Courts as Economic and Social Rights
The Future of Economic and Social Rights (Katharine G. Young, ed., Cambridge University Press, 2018 Forthcoming)
29 Pages Posted: 23 Jun 2017
Date Written: June 9, 2017
This chapter puts courts into economic and social rights discourse with three aims in mind. A first is to understand what can be learned about courts by seeing them through this lens. A second is to understand more about economic and social rights once justice systems are seen as within that fold. A third is to use the example of courts to analyze the impact of privatization and globalization on the sovereignty of states and the array of services that they have come to provide.
My argument is first that by classifying courts as economic and social rights, the challenges and the fragility of judicial systems in democratic orders become vivid. Egalitarian social and political movements of the twentieth century changed the persons to whom courts had to provide fair treatment and expanded the kind and nature of rights claims to be advanced. The result has been soaring demands for services, bringing to the fore questions about levels of funding for both the justice apparatus and its users. Courts thus provide an example of a successful universal entitlement under stress, as diverse individuals and groups regularly seek services. Detailed below are debates about funding and subsidies that reflect the commitments to, the challenges of, and the backlash against open courthouse doors.
Second, rights-to-courts have a special character. Arguments for constitutionalizing economic and social rights often rest on their ability to enable individuals to have a “decent life” by supporting their autonomy and well-being. Rights-to and rights-in courts are not only in service of users, but also are statist; governments depend on courts to implement their norms, to develop and to protect their economies, and to prove their capacity to provide “peace and security.”
Third, the risks of the unraveling of “the governmental” put courts and an array of other rights in jeopardy. Efforts to insist on the privatization of government activities, in pursuit of deregulation, aim to denude the state of its identity as a provider of goods and services. Deregulatory efforts in courts is part of the movement against the egalitarian redistributive aspirations that the moniker “economic and social rights” encodes and that transformed courts into institutions protecting rights across classes, from the propertied to the prisoner.
Keywords: social and economic rights, separation of power
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