Constitutional Law Meets Comparative Politics: Socio-Economic Rights and Political Realities (Chapter 10)

Ran Hirschl

University of Toronto - Faculty of Law

Evan Rosevear

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

February 24, 2011

Campbell, Tom, K.D. Ewing, and Adam Tomkins, (eds.), 2011. The Legal Protection of Human Rights: Sceptical Essays. Oxford: Oxford University Press.

Abstract:     
Three-quarters of the world’s written constitutions make reference to a right to education, and nearly half to a right to health care. Most also include a generic protection of ‘the right to life’ or of ‘human dignity’. And, several key regional and international human rights regimes protect a variety of subsistence rights. Despite this flurry of constitutional innovation, little attention has been given by legal academics to questions such as what prompts countries to constitutionally entrench socio-economic rights, the place of such rights in a larger scheme of the welfare state, or the non-idealist, ‘realpolitik’ factors that explain the variance in judicial interpretation of socio-economic rights provisions or divergence in the actual distributive consequences of social rights regimes. This chapter examines several possible ‘extra-constitutional’ explanations for the tremendous variance in constitutional protection of social and economic rights and our analysis suggests that there are multiple paths and trajectories to the realization (or neglect) of social welfare rights, of which constitutionalization is only one aspect. Moreover, a significant body of scholarship in comparative politics and political economy attempts to determine the primary causal factors involved in shaping the form and strength of social protections regarding inequalities in living conditions, redistribution of wealth, and provision of welfare services. We submit that this literature and the empirical data upon which it draws could serve as a solid jumping off point for an investigation of the relationship of constitutionalization of socio-economic rights and their actual provision. Likewise, an exclusively doctrinal-legalist examination of socio-economic rights jurisprudence is limited without taking into account the extra-judicial determinants of judicial behaviour, in particular given the fact that socio-economic rights jurisprudence often has crucial fiscal and political ramifications.
Number of Pages in PDF File: 23
Keywords: Law and Politics, Economic and Social Rights, Comparative Constitutional Law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2237427