the laws majestic equality1

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AUTHOR QUERY S1537592714000887q

AQ The distinction between surnames can be ambiguous, therefore to ensure accurate tagging for indexing purposes online (eg for PubMed entries), pleasecheck that the highlighted surnames have been correctly identied, that all names are in the correct order and spelt correctly.

1 In India, Public Interest Litigation is always capitalized, as it refers to a specic cause of action. It is not equivalent to what we in the US describe aspublic interest litigation.

2 I'm not sure why you would hyphenate here, or in the following negative rights cases . It seems more natural to me to eliminate the hyphens onpositive-rights and negative-rights throughout

3 An article seems to be missing in this passage.4 This is the correct citation for n.47.5 Is this a book or a pamphlet? Book should be ital.., no quotes.


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The Laws Majestic Equality?The Distributive Impact of JudicializingSocial and Economic RightsDaniel Brinks and Varun Gauri QA

While many nd cause for optimism about the use of law and rights for progressive ends, the academic literature has long skeptical that courts favor the poor. We show that, with the move toward a robust new constitutionalism of social and economicrights,the assumptions underlyingthe skepticismdo notalwayshold.Ourtheories mustaccount forvariation in theelite biasof lawlitigation. Inparticular, weneedto paycloserattentionto thebroad,collectiveeffectsof legalmobilization, rather thanfocusingnaron thelitigantsand thedirectbenets theyreceive. We support theclaim by showingthat litigationpursued in legal contextsthat createthe expectation of collective effects is more likely to avoid the potential anti-poor bias of courts. On the other hand, policdominated by individual litigation and individualized effectsare morelikelyto experience regressiveoutcomes. Using dataon soceconomicrightscases in fourcountries,we estimatethe potential pro-poor impact of litigationby examining whetherthe poorareorunder-representedamong thebeneciariesof litigation. Wend that theimpactof courts ispositive and very much pro-poor in India andSouth Africa,andslightlynegative in Indonesia andBrazil. Overall, we challenge thetendency in theliteratureto focus on theeffectsof litigation,nd thatthe resultsof litigationare morepositive forthe poorthan theconventionalwisdomwould lead us to expeand offer an explanation that accounts for part of the variation while raising a number of questions for future research.

A s constitutions increasingly set out to protect socialand economic rights, itmay be timetorevisit AnatoleFrances famous critique of the law: Another sourceof pride, to be a citizen! For the poor it consists in . . .

laboring under the majestic equality of the laws, whichprohibit the rich and the poor alike from sleeping under bridges, begging in the streets and stealing bread. 1 At the end of the nineteenth century it might have beeneasy to conclude that formal equality before the law

was just another way to protect and entrench privilegewhile denying substantive justice. As Judge Richard Posner famously said in reference to the United StatesConstitution, citizenship rights then were largely a charter of negative rather than positive liberties. 2 As recently as the 1970s, Morton Horwitz could say that the rule of law creates formal equality . . . but it promotes substantive inequality . . . . By promoting procedural justice it enables the shrewd, thecalculating, and the wealthy to manipulate its forms to their advantage. 3 As a result of the law s proceduralism, its lack of sub-stantive notions of social justice and equality, and itsperceived bias in favor of the already powerful, Horwitzcould legitimately question how it was possible that

a Man of the Left

could see the rule of law as an unqual-i ed human good. In this view, the quest for substantivesocial justice will rarely run through constitutions or the law.

At the beginning of the twenty-rst century, however,there have been changes in global constitutionalism thatseem explicitly designed to benet the disadvantaged.These changes have led to an explosion of litigation and the judicialization of the politics of social provision that

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Daniel Brinks is Associate Professor of Political Science at the University of Texas at Austin, specializing in Comparative Politics and Public Law ([email protected]). His current project explores constitutional and judicial transformations in Latin America since the 1970s. Varun Gauri is Senior Economist with the Development Research Group of the World Bank. His current research examines compliance with human rights court orders in developing countries.([email protected]). The authors would like to thank Yanran Chen, Nara Pavo, and Vctor Hernandez Huerta for providing excellent research assistance on the distribution of bene ciaries. They are also grateful for the extensive, detailed,

and insightful feedback provided by the editor and the anonymousreviewers, whowent farbeyond thenorm in helping us strengthen the piece, to Dan Brinks colleagues at the University of Texas, who provided valuable feedback and to Varun Gauri s colleagues at the World Bank. The project enjoyed the support of the Nordic Trust Fund and the Research Support Budget at the World Bank. The ndings and opinions expressed in this piece are those of the authors alone and do not necessarily re ect the views of the World Bank.doi:10.1017/S1537592714000887 American Political Science Association 2014 June 2014 | Vol. 12/No. 2 1

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appear, on their face, to seek to expand the supply of goods that are important to the poor, such as health care,education, and social provision more generally. At thispoint, then, it seems important to examine whether and

to what extent this change in the apparent nature of constitutionalism can actually deliver on its promise; and whether and to what extent the increasing involvementof courts in social policies actually improves matters for the poor. For simplicity, we call litigation that dispro-portionately benets the poor progressive, while if thepoor are underrepresented among beneciaries, we callthe litigation regressive. We use here the results of a multi-country survey of social and economic rights(SER) litigation to explore the extent to which the poor bene t from this activity. Our analysis suggests thatthe literature so far has been far too focused on thedirect, individual effects of litigation to adequately gauge its impact on the overall distribution of the

gains. If we better theorize the impact of judicialinterventions on SER, expanding our vision beyond the immediate direct effects of those interventions,we may well nd that the SER judicialization thathas become a feature of twenty-rst century constitu-tionalism is less biased toward the middle class thanmany have suggested.

We outline a conceptual, methodological and theo-retical approach designed to better understand thepolitics of the new social rights constitutionalism. Werst describe the contours of the new constitutionalism

and the legal mobilization it has triggered and outlinethe theoretical reasons to be skeptical or optimisticabout the distributive effects of legal mobilization, as

well as the gaps in the empirical research on theseeffects. In the main theoretical section that followswe lay out in some detail the distinction betweenindividual and collective effects that animates much of our empirical discussion, and explain why the expec-tation of collective effects changes the litigant calculusin a way that should lead to more pro-poor outcomes.The subsequent empirical section relies primarily ona tabulation of the beneciaries of SE rights mobiliza-tion in Brazil, India, Indonesia, and South Africa, a summary discussion of Nigeria, and on narrative descrip-tions of the motivations and goals of the main actorsinvolved in that mobilization.4 We then summarize thendings and implications, before turning to a conclusion

that raises questions for further research and developsthe theoretical, normative, and practical implications of social rights constitutionalism, as practiced today. Our main goal here is to lay bare some of the assumptions onwhich most distributive critiques of SE rights litigationare based, suggest when they might or might not hold,and outline the beginnings of a research agenda on theprogressive potential of litigation and enforceable socialand economic rights.

The New Social RightsConstitutionalismIt may be true, as Posner argued, that the men whowrote the [US] Bill of Rights were not concerned that

government might do too little for the people but thatit might do too much to them, but the vast majority of new constitutions are moving from a purely negativeconception of rights to a more positive one. Social and economic rights have been creeping into constitutions for decades. David Law and Mila Versteeg present data showing a dramatic increase in the number of civiland political rights, as well as social and economic rightsexpressly protected in constitutional texts, since the1960s.5 The trend begins with a set of post-colonial con-stitutions, but the sharpest increase especially in theprotection of social and economic rights comes after thecollapse of the Soviet Union in 1990. The new constitu-tionalism is suf ciently preoccupied with rights, over and against questions of structure and procedure, that itcan be described as rights constitutionalism and, for much of the developing world in particular, social rightsconstitutionalism.6

David Bilchitz, for example, contrasts the Western tradition of focusing on civil and political rights, and theideal of liberty, with the new constitutions of the GlobalSouth. For the latter, he writes, matters of economicdistributive justice . . . are central. 7 The new constitutionsare, in effect, seeking to push beyond a model of law and constitutions that protects mainly the freedom to besecure in ones person and property should one happento own any. They typically include a more robust set of obligations on the government to create the conditionsfor substantive equality, a dignied existence, and theeffective exercise of democratic citizenship. In places asdisparate as the post-Soviet countries, South Africa,Brazil, and Colombia, constitutions at least purport toset up entitlements for the poor that go far beyond themere freedom to pursue ones interests unhindered.Under these new constitutions, citizenship now meansthat the rich and the poor alike can claim guarantees of adequate food, health care, education, a minimum standard of living, and a decent place to live, turning Francesmordant, iconic statement on its head.

Nor have these rights remained mere parchmentpromises. Progressive activists around the world have

seized on the judicial enforcement of social and economic rights as a powerful new tool in the politicsof social provision, a change that is reected in theexplosion of academic interest in the judicializationof politics. 8 Samuel Moyn has argued, not necessarily with approval, that human rights have become The LastUtopia one of the few remaining political ideals thatpromise a more just society.9 When the Thatcher and Reagan revolutions and the Washington consensus brought

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welfare states under attack in much of the world, when theutopian aspirations of the Second World ended with thefall of the Berlin Wall, when neoliberal orthodoxy governed the ideological landscape, the language of rights

enshrined in constitutions and treaties seemed to offer some leverage for protecting and extending social pro-vision to the poor, especially through litigation.10 Socialrights constitutionalism, and its judicialization,expanded the political opportunity structure for the left, whichotherwise found itself frozen out of the debate about theproper role of the state in moderating the effects of themarket and providing material goods.

Twenty or thirty years into this process, judicial inter-ventions on behalf of SE rights cannot be dismissed astangential to the politics of welfare. In one Brazilian statealone, Rio Grande do Sul, right to health cases grew from1,126 in 2002 to 17,025 in 2009; that same year thehighest non-constitutional court in Brazil heard nearly

six thousand such cases,11

resulting in large percentagesof state medication budgets being allocated by courts.12The Indonesian Constitutional Court issued a series of opinions from 2004 2006 that doubled budget alloca-tions to the education sector redirecting about vepercent of the entire national budget.13 In 2004 the South African Constitutional Court required a recalcitrantMbeki government to launch a major program to preventthe transmission of HIV from mothers to infants, likely averting tens of thousands of HIV infections.14 In India,the courts have issued numerous consequential rulings onthe constitutional rights to health care, education, housing,the environment, nutrition, and labor.15 Even in Russia people turn to the courts by the hundreds of thousands in

efforts to secure pensions.16

The phenomenon is wide-spread, deeply affecting health care, education, and eventhat most fundamental of classical liberal rights, the right toproperty, in many countries around the world.17

Of course, we should not be surprised to nd thatcourts have not managed anywhere to create a new utopia for the poor. Even what is probably the most celebrated court in the world in this respect, the South AfricanConstitutional Court, has come under re recently for failing to take seriously and to operationalize within its judgments the issue of structural poverty. 18 SouthAfricancourts have also been less than successful in dealing withproblems of land redistribution or sexual violence. Even indealing with SER, courts have sometimes turned them

from positive entitlements into purely negative rights.Perhaps the most striking example of this is Victoria (City)v. Adams ,19 in which the courts of British Columbia determined, under the right to housing, that the city government could not prevent homeless people fromputting up temporary shelters on public property, giventhe absence of adequate public shelter elsewhere. But thevery fact that courts can be criticized for failing to addressstructural poverty adequately or improve the lack of

housing for the homeless demonstrates how vast theexpectations now are.

Given the importance of rights constitutionalism tothe distribution of state resources, welfare state politics,

and the aspirations of the left in many countries, it is allthe more urgent to return to a slightly modied versionof the question Horwitz posed forty years ago: Is theconstitutionalization and judicialization of SE rights anunalloyed human good? Or does it remain the case thatthe law enables the shrewd, the calculating and thewealthy to manipulate its forms to their own advantage,thus promoting substantive inequality in the end?20 It istrue, of course, that constitutional aspirations may bepursued through many means that have nothing to dowith courts and law, and there is perhaps less controversy about the value of these approaches, although it is possiblethat the language of rights constrains the politics of provision in different ways that are worth exploring

empirically.21

Here, however, we limit our view to theeffects of judicial interventions, which play a large rolein many strategies to make SER effective.

The literature has presented many reasons to beskeptical of the law as an instrument for the weak againstthe powerful. Economic, social, and procedural barriersprevent the great majority of poor people from making claims in courts;22 accumulated experience gives the richand the powerful advantages in the courtroom;23 patternsof judicial recruitment and retention, which reect prevail-ing congurations of political power, incline the attitudesand calculations of judges toward the status quo;24 and without the active support of elected of cials, opponentscan easily limit and undermine the implementation of any

rulings that might challenge that status quo.25

As RanHirschl has argued, the constitutionalization of rights may even be an attempt by outgoing elites to protect their interests by limiting the ability of majorities to enact moreredistributive legislation.26 For all these reasons, and inspite of Brown v. Board of Education and other famouscases that appear to suggest the contrary , it has long seemed unreasonable to expect that the courts will con-sistently produce outcomes that signicantly favor theunderprivileged.27

Perhaps the dominant account that places rights at thecenter of improving the material conditions of the lessadvantaged is T.H. Marshalls classic story of the evolu-tion of civil, political, and ultimately social citizenship.28

Similarly, the western liberal left has often made civilliberties a central plank in its platform, at least in partto ensure equal access to politics, the ability to associate,and to demand outcomes more favorable to previously excluded groups. In this account, however, classic liberalrights merely create the conditions for an extra-legal,extra-constitutional politics of social citizenship. In theliberal model, judges are neutral umpires, protecting theplaying eld on which the politics are worked out, and

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rights are(in theory) relativelyneutral as well, agnostic aboutthe ultimate distributional outcomes the political strugglemight produce. The realization of social and economicrights is then a consequenceof liberal rights plus masssocial-

democratic politics. In social rights constitutionalism thepolitics of social and economic demands are prior to and embedded in the constitutional structure. This almostinevitably, although with the important intermediation of legal mobilization, shifts some of the responsibility for working out the substantive details of social provision, and some of the work of monitoring compliance, to judges.

Research on the real-world effects of judicially enforced social rights constitutionalism is remarkably thin. Theliterature often includes cautionary notes about itspossibly negative effects, but little empirical evidence.Researchers are beginning to focus on questions of compliance,29 butcompliance andimpact, though related,are not the same. Csar Rodrguez Garavitos interesting

work addresses impact,30

but he focuses primarily onwhether there has been impact, as does Gerald Rosenberg sclassic work,31 not on who bene ts from impact. Recentresearch exploring this question has focused on healthrights litigation, mostly claims for particular medications or treatment,andmostly inBrazil,32 questioningwhetherhealthrights litigation skews policy in favor of the better-off.33Even in Colombia, David Landau argues, the dominantmodels of SE rights enforcement have a very pronounced tilt towards higher income groups; they are unlikely to domuch for poorer citizens. 34

Thus far, the research on who wins and who loses hastaken the most direct approach, identifying the actualremedies directly required by the courts, or conducting

a survey of people receiving benets by court order in aneffort to ascertain the socio-economic prole of the classof people who litigate successfully and capture the directeffects of litigation in the individual case.35 Clearly, thisis where it is easiest to measure the effects of litigation, justas it is easiest to observe the socio-economic characteristicsof actual litigants. But, as we will see, it seems likely thatthe area under the proverbial street lamp is precisely whereeffects are likelyto be bothmost regressive and least important in the overall public policy context least important simply because the number of people and resources affected by collective effects dwarfs that of individual effects, and mostregressive because opportunity costs will ensure that, whencases benet both litigants and non-litigants, the litigants

are likely to be among the most privileged of all potentialbene ciaries. As always, but especially here, the choice of research design is highly likely to determine the ndings.

Understanding the Individual andCollective Effects of JudicializationIn what follows, we argue that focusing narrowly on thedirect, individual effects of cases biases the ndings infavor of a more regressive conclusion. Indeed, it is in large

part the expected reach of the effect of the cases thatdominate a particular litigation environment that deter-mines whether the aggregate effects ultimately favor thepoor or the better off. When potential litigants expect that

cases seeking social and economic rights can and will haveeffects beyondthelitigantsthemselves, it is more likely thatlitigation will be funded by third parties, and undertakenas a mechanism to extend greater benets to the poor, evenbene ts that are very low cost, such as vaccines, or very diffuse,such as clean air. When litigation is expected to havepurely individual effects, then it will target higher-end goods,be carried out by better-off litigants, and have greater potential to further skew the distribution of state goodstoward the better off.

Widening the lens is also crucial because many cri-tiques of litigation, while they have a nicely contextualand political vision of how courts work, often rest ona thin notion of what law is and how it works. Horwitzs

concern about the proceduralism and formal equality of therule of law rests on a nineteenth-century vision of thecontent of the law. While it may t the US Constitution,36it is at odds with themore robust ideas of substantive justiceembodied in twenty-rst century constitutionalism atleast the constitutionalism emerging in middle-incomecountries.37 And the structural critiques of public interestlitigation elite biases in access,courtroom advantage, judi-cial preferences and compliance depend partly on a visionof the law as a command and control mechanism, triggered by well-resourced litigants and operated by judges. In thisview, the effects of litigation are mostly reduced to whether judicially ordered relief reached the litigants in questionwhether the cases had direct (individual) effects.

Since at least the 1970s, however, scholars have argued that law is more than a set of operative controls thatpeople either follow or fail to follow.38 Law and litigationas social practices and political resources, scholars haveargued, have wide ranging, systemic effects that extend far beyond the cases and litigants themselves.39 Indeed,scholars like Michael McCann would argue, the indirecteffects and uses of litigation may be the most important of all for political struggles by most social movements. 40More recently,Mariana Mota Prado hasargued that, whenconsidering the effects of SER litigation, we need to bemuch more sensitiveto collective effects than we have beenso far.41 These insights suggest that SER cases can bearrayed on a continuum based on the expected reach of

theireffects

from those with effects limited to one or twoindividual litigants to those with virtually universal effects.Many taxonomies of effects have been offered, and dif-

ferent classications are often useful for different researchgoals. We adopt here a very simple framework, classifying cases as either individual or collective depending onwhether they are expected to produce purely individualor more collective effects. At one end of the spectrum arecases with expected effects that are essentially limited to

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individual litigants. These cases, which we refer to asindividual cases, seek to capture individual goods, whether private or from a common pool, for the litigants and noone else a particular plaintiff sues for access to a particular

course of medication or for payment for a particular personal service, and for no other reason. On the oppositeend of the spectrum are cases that are expected to producecollective effects that is, effects for a group that may noteven be represented in the courtroom.

Cases produce collective effects through two channels.First, cases can have collective effects directly, whenlitigants sue for, and court orders directly require, theprovision of inherently collective goods: the creation of common pool or club goods, as when a lawsuit seeks thecreation a new AIDS program; and occasionally thesafeguarding of public goods, as when a lawsuit seeksthe protection of clean air or water, in order to protecthealth. We refer to these as direct collective effects. Second,

cases might produce collective effects when judicial inter-ventions in a policy area modify the incentive structure and bargaining power of key actors in that eld, even if they donot directly order the creation of collective goods. This iswhat we refer to as systemic collective effects. Examples of systemic collective effects are the transformations in labor rights negotiations produced by changes in the law, as inMcCanns work; decisions taken in anticipation of litiga-tion, such as using safer playground equipment or training police to avoid violence, in Epps work; and the decision by Brazilian public health bureaucrats to extend court-ordered remedies to all similarly-situated persons in order to avoid the costs of litigation or simply to equalize provision, in our own work.

It is likely true that virtually all cases brought for anindividual, private purpose have some collective effects.Our argument, however, hinges on the intent of theparties, and so we classify cases that do not explicitly seek collective goods as collective only when they are undertakenspecically for their expected systemic effects, as in theclassic model of landmark public interest litigation. TheSouth African health cases fall in this category, as would Brown v. Board of Education, Victoria (City) v. Adams ,and many other cases that are brought in order to set animportant precedent, even though by their terms they areonly brought on behalf of particular plaintiffs. In other words, nominally individual cases are brought as collectivecases when they are pursued in order to, and expected to,

generate systemic effects. We should note here that SER are often characterized as positive rights, and SER litigation is typically imagined to aim at securing collective or individual goods at gov-ernment expense. In fact, SER cases can often be muchmore akin to traditional negative-rights cases (and civiland political cases much more like positive-rights cases)than this model would suggest, and for that reasonwe avoid relying on the positive/negative distinction.

We have mentioned already the striking negative-rightsapproach to housing rights taken in Victoria (City)v. Adams . In that case, the courts of British Columbia essentially sanctioned the right to sleep in a cardboard

box (if you have one) in a public park (if there is one); buttheycreatednoaf rmative dutiesupon thestate to ensurethat anyone has anything like adequate shelter. In anequally striking example of systemic collective effects,however, public authorities responded to this narrow decision in part by creating more public shelters for thehomeless, even though the courts did not order them todo so, simply to keep their parks free of squatters. What isinteresting about that case for our purposes is notwhether itcanbe categorized as positive or negative, but whether itwasexpected to producewide effects, either throughan order for a collective good or systemically, and who it ultimately bene ted, whether the poor or the better off.

Because they depend on extant characteristics of the

legal and political context, collective effects may be moreor less predictable by groups seeking to produce socialchange. Sometimes SER litigants will request, and judgeswill directly order, the provision of collective goods e.g.,the production of an orphan vaccine by the government,as in the Viceconte case in Argentina.42 Whether litigantscan bring these cases depends on whether the legal systemin question allows for them, and whether the judges arewilling to issue orders that are often perceived as treading on legislative territory.Civillaw systems oftencontemplatethe possibility of abstract constitutional challenges inwhich the decisions by their very terms have universalapplication each case either strikes or upholds the law inquestion, affecting rights for all persons regulated by the

statute. The Indian Public Interest Litigation is a sort of public interest class action that was created by judicialat;43 the Ao Civil Pblica , a similar device contemplated

in Brazils 1988 constitution, empowers either the publicprosecutors or certain public interest organizations to leactions asserting collective or diffuse interests. In all thesecases the directly affected individuals never have to appear before a court.

At other times features of the legal system in questionautomatically assign systemic effects. Systems with a strong norm of following judicial precedent (what is known asstare decisis ), for instance, implicitly make every case a collective one, creating a rule that is legally binding on allsimilarly situated people. Thus many social movements

have as their primarygoal nota victory in the individual casebut the creation of precedent to produce broad systemicchange. The conventional wisdom is that common law systems have the edge in this regard, although the extent towhich a given system actually responds to precedent is really an empirical question, and largely driven by a politics of enforcement and compliance, as the vast literature on law and social change has emphasized. Because some civil law countries have a de facto system of precedent, the extent to

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which activists feel they can rely on precedent to change thelaw will vary; the CELS in Argentina, for example, focuseson strategic litigation precisely because they expect impor-tant cases to set precedents and change the law. In Brazil,

in contrast, activists expect very little rule change fromthe courts.In these environments, systemic effects arise from

individual cases much more unpredictably. There is stillthe potential for systemic collective effects in Brazil, wherepublic health of cials will sometimes extend the sametreatment to non-litigants that they were compelled toextend to litigants, even though everyone agrees judicialdecisions are binding only on the immediate parties to thecase. Thus, even in Brazil, AIDS activists brought caseswith the goal, ultimately, of changing treatment for allHIV positive people. But the road to generalizing the effectwas not as clear as it would have been in places with normsof stare decisis , like the United States or South Africa.

As a result, the evidence suggests that later generationsof health-rights plaintiffs in Brazil are primarily motivated by the individual effects they can capture for themselves.44Collective systemic effects in Brazil, however real, are lesspredictable in advance of the litigation and are typically nota part of the litigant calculus leading to a lawsuit.

The progressive potential of SE rights litigation hingeson the strategic calculus of potential litigants, who mustdecide whether it is worth litigating for a particular policy good. The argument draws on the notion of opportunity structure frameworks for analyzing when and wheresocial movements concentrate their efforts, a notion thathas been explicitly applied to litigation by Siri Gloppen,Bruce Wilson, and others, as well as in our own work.45

When benets are limited to litigants, individuals mustgenerally raise the resources to litigate, and the individualbene t being demanded must generally exceed the fullcost of litigation, so litigation will tend to focus on higher-end goods and services, and benets are more likely to skew toward the better off. Moreover, if systemic effects areunlikely or unpredictable, social movements will not focustheir efforts on litigation, and thus groups seeking toimprove the lot of the underprivileged are unlikely toseize on courts as the venue. On the other hand, if benetsare expected to generalize beyond actual litigants, thenthose who cannot afford to (and do not) litigate can stillbene t, and the aggregate benet of even very low-costinterventions can justify relatively expensive (in practice,

often third party-funded) litigation. For example, Treatment Action Campaign, a South African NGO, mounted anexpensive and complicated litigation and activism campaignto require the government to offer pregnant women a $5.00dose of Nevirapine, to prevent mother-to-child transmissionof HIV. For any single individual, or even for a charitableenterprise, it would be irrational to engage with themachinery of courts to secure something of such low cost.But, as in thiscase, public interest NGOs andother social

movements may very well litigate for individually smallbene ts on behalf of the poor, if they can engage in impact litigation rather than litigating on behalf of eachneedy person, one at a time.

Schematically, in the absence of (expected) collectiveeffects, citizen i will litigate only if the expected individualbene ts exceed the expected individual costs of litigation,or E(bi) E(ci) . 0. This means that, rst, because of thehigh opportunity costs of litigation for the poor, the richwill be more likely to litigate unless E(ci) 0. But moreimportantly, if E(ci) .. 0, the expected benets to thelitigant must be very high. That rules out not only litigationfor low cost inputs and interventions, but also litigationfor public goods or against public bads (e.g., dirty water, bad air) whose harms are often only demonstrableat the population level, and in a probabilistic sense. Adding collective benets from positive-rights litigationfor collective goods radically changes the equation,

justifying even relatively costly litigation for relatively low cost individual benets that can be multiplied by theentire population of similarly situated claimants.

This suggests that an emphasis on litigation with col-lective effects is likely to have a larger impact on the shareof poor beneciaries than lowering barriers to courts: evenwhen c is very low, it is still high enough (in the form of opportunity costs) that, although poor people will litigate,they will do so for relatively expensive goods and services. We agree with the claim that lowering barriers to accesswill make it somewhat easier for the poor to litigate; and one can nd instances in which the poor litigate en masse.46Buteven in those instances, they are litigating for relatively high-value benets. In contrast, the beneciaries of collec-

tive SE rights litigation can be poor even when access iscostly; and the benets sought can be individually inex-pensive, so long as decisions have broad collective effects.The expectation of broad collective effects should changethe composition of SE rights litigation so that it is morelikely to involve less-expensive goods and services that canbe provided to many more people, as well as more public,non-excludable goods.

This analysis of collective effects should have a bearing,then, on who benets from litigation. But this may becontingent on the politics of legal mobilization in a given jurisdiction. If only the privileged litigate, and if they litigate primarily for the sorts of things only the privileged care about for club goods, in other words, in clubs that

exclude the poor, like better public university education inpoor and unequal countries, or hospitals colonized by theupper classes because of their geographic location thenthe effects, though collective, are likely also to be regressive.Thequestion, therefore, is whether theripples caused by thecollective effects simply magnify the initial bias or whether the collective effects of litigation can ameliorate that initialbias. The answer to this is not obvious, and we do notpurport to offer a full answer here, but our ndings at

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minimum caution against a facile equation of unequalaccess to justice with unequal benets from formal rights.

Furthermore, we do not mean to suggest by this argu-ment that we could magically create a politics of pro-

gressive, twenty-rst century social rights constitutionalismsimply by formally assigning to judicial decisions collectiveeffects. The literature has amply established that any successful project seeking to realize the promises embedded in social and economic rights depends upon a robust set of political, organizational and nancial resources. That is thebasic conclusion of our prior research, and nothing herecontradicts that conclusion.47 Social mobilization capacity determines the success of what we have previously identi ed as the four stages of the legalization of policy from the initial mobilization and ling of cases, to gaining the support of the courts, to matters of compliance and,ultimately, the close engagement with the implementationprocess that distinguishes transformative projects from ones

that turn out to be a mirage. Both the magnitude and thedistribution of the actual benets from any such strategy will, of course, depend on the conformation of the politicalstructures that undergird the entire enterprise. The possi-bility of collective effects interacts with the politics of legalmobilization by creating stronger incentives both to litigateprecedent-setting and collective-goods cases and to usecourt orders in political mobilization and implementa-tion monitoring.

If our claim is true, it has a clear and somewhat coun-terintuitive policy implication. In the more cautionary, juriskeptical academic literature, judges are often urged to be wary of interventions on behalf of positive rights,and especially of ordering broad public policy-like effects.

The fear is that they will lose legitimacy by violating the separation of powers,48 and simply make mattersworse by exceeding the bounds of their competence and capabilities.49 But if they heed this advice, they may wellbe encouraging a more regressive form of judicialization. An analysis of the collective effects of their rulings may complicate the analysis considerably. If we nd thatsystemic effects are positive say because the added judicialscrutiny of executive decision-making encourages the gov-ernment to address felt needs that have somehow escaped the political process or that collective judgmentscancreatethe conditions for better policy-making around a particular issue,50 we might encourage justices to think in a morepolicy-conscious way, rather than narrowing their vision to

the litigants standing before them in the courtroom. To theextent their legitimacy is tied to a consequentalist analysisof the effects of litigation rather than to traditional notionsof separation of powers, a more conscious attention tocollective effects might enhance rather than detract fromtheir legitimacy.

The broader point, which we will not develop in any detail but which becomes self-evident in light of our dis-cussion, is that we believe the literatures in comparative

politics and comparative legal analyses must become moreopen to each other. While this is rapidly changing, it isstill true that beyond the relatively few people who focuson judicial behavior, the comparative politics literature

takes too little account of legal processes, and has a rela-tively unsophisticated understanding of how those pro-cesses actually operate. This literature could benet fromthe insights of scholars of law and politics, both in theUnited States and elsewhere. By the same token, much of the literature on law, even that which is grounded in thesocio-legal literature, is too innocent of the vast compar-ative politics literature, which provides a more nuanced understanding of the political and institutional context inwhich legal institutions operate, and could benet froma more sophisticated reading of that literature.

The Distribution of the Benets ofRights Litigation in Five Countries

The immediate problem confronting comparative researchon the differential effects of policy-oriented legal mobiliza-tion is the absolute lack of comparable, cross-country data on the benets of legal strategies, let alone on the distri-bution of those benets. In order to address this and other questions related to SE rights litigation, we carried outdetailed studies of the judicial enforcement of SE rightsin Brazil, India, Indonesia, Nigeria, and South Africa.51 We used local teamsfromeach of thesecountries, underour supervision, to carry out a systematic cross-national survey of SE rights litigation, including descriptions of the casesled in each country, the effect of those cases on public

policies, and estimates of the numbers of people beneting from constitutional health and education rights cases.

For this article, we took that data as the starting pointand carried out additional studies of the beneciaries,using secondary sources and interviews. The results of this second-stage investigation (including Nigeria, only summarily discussed here) are detailed in an on-lineappendix that lays out the data, our calculations, and our assumptions.52

We were occasionally forced by the lack of data to rely on rather strong assumptions about the effects of thelitigation. But where our data are weaker as in the effectsof the Indian or Indonesian cases on education wemade dramatically conservative assumptions, using a small fraction of the potentially affected schoolchildren.In the Indonesian case in particular, we assumed that

the effects of more spending on education, and thus thebene ts of either higher quality or lower cost publiceducation, were distributed across all existing users of public education, rather than focused on the poor by bringing new children into the system. Ultimately, weare in every case very condent of the policy domains inwhich the benets can be found, and in selective casessomewhatless condent of thesocio-economic compositionof the beneciaries in each policy domain. In the latter we

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have made conservative assumptions, to ensure we donot overstate the potential benet to the poor. In any event, the analysis highlights the policy areas affected,and the reader ultimately can judge whether the nature

of these policy areas justies concluding that litigation isan elite-centric enterprise.The country teams followed comparable but not iden-

tical strategies. In Indonesia they identied all cases relating to the rights to health care and education. In the absenceof systematic compilations of decisions, they used archivalresearch in the various courts, and interviewed theprincipal legal NGOs. In India and South Africa theteams used electronic searches to identify all reported cases from appellate courts on up. In Brazil, where thenumber of cases was vastly higher, they searched electronicdatabases for appellate and higher courts in a cross-sectionof subnational units including states at both ends of the socio-economic spectrum and extrapolated from this

sample to produce nationally-comparable numbers.Sampling differences are not likely to affect the conclu-sions we reach here. In the rst place, our conclusions donot depend on having identied every last beneciary ineach country. We do not aggregate and average acrosscountries, so our conclusions are not affected so long aswe have identied representative beneciaries in eachcountry. We do aggregate across policy areas withincountries, but here we applied the same sampling techniques, and we adjusted for population size wherenecessary to arrive at comparable gures.

These countries will not necessarily give us a representa-tive sample of SE rights litigation across the world thereare no post-Soviet cases, no advanced industrial democra-

cies, no cases at the bottom of the global income spectrum.But they can fairly be called representative of themiddle-income cases (Brazil and South Africa are upper middle-income and Indonesia and India are lower middle-income economies) where social rights constitutionalismhas been most important and thus where we focus our attention. More importantly, these countries, for differentreasons, offer both cross-national and within-country variation in the extent to which litigants should expecttheir cases to have collective effects. In India, a commonlaw country, and in South Africa, which blends commonand civil law traditions, cases have broad precedentialeffects, simply by virtue of that tradition. Meanwhile, inthe civil law countries (Brazil and Indonesia), individual

cases are expected to have individual effects, but there is thepossibility of ling cases with primarily and self-consciously collective effects. The Ao Civil Pblica , in Brazil, and theabstract constitutional challenge, in Indonesia, for instance,both gure among the cases in our sample.

We estimate the regressive or progressive impact of litigation by examining whether the poor, dened in nearly all cases as those in the bottom two income quintiles, areover- or under-represented among the beneciaries of

litigation relative to their share of the population inother words, whether more or less than 40 percent of thebene ciaries fall below the fortieth income percentile.Finally, in calculating the distribution of benets, we

discount cases with partial or no implementation, and weaccount forthe likelihoodthat the poor will notreceive eventhe collective benets of litigation by including only thepopulation that has access to the mechanisms that dispensethe goods in question schools,hospitals, blood banks, etc.

For each subset of cases, we examine whether thedecisions effects are expected to be narrow and tied to theinitial litigants, or whether the impact is the product of broader, more collective decisions. In general, South Africa and India are the two countries that experienced the mostcollective litigation. In both of these countries high courtdecisions strongly guide both lower courts and publicof cials. Indian courts, moreover, rely heavily on PublicInterest Litigation AU1, a legal device thatencourages individuals

and NGOs to speak on behalf of otherwise unrepresented interests, encourage fundamental rights litigation, and arenot shy about addressing regulatory issues, which are col-lective by denition. These countries should have the mostpro-poor outcomes, with litigation targeting lower-costgoods and policy areas that serve more people. At the oppo-site end of the spectrum, cases in Brazil are largely pursued for their individualized benets, and are expected by litigants to have purely individual effects in the short term,and thus should focus on more expensive goods and be lesspro-poor. To look at within-country variation we alsoexamine Brazilian education cases, which rely more on the Ao Civil Pblica , a legal device used to challenge broad public policies, and which should, therefore, have a higher

share of disadvantaged beneciaries. We have two additional cases on which to draw,Nigeria and Indonesia, but in neither of these cases haslitigation had a very signicant impact across policy areas.The reasons for their limited impact are fully discussed inour other work.53 Here we focus more narrowly on thedistribution of whatever impact there is, so Nigeria isdiscussedonly in the tablesandtheonlineAppendix,whilethe discussion of Indonesia focuses on the one set of casesthat had a discernible impact.

Brazil By far the most common form of litigation in Brazilconsists of individual actions in which litigants sue for

medical services and medications. Our survey identied about eight thousand cases in four states (Rio de Janeiro,Rio Grande do Sul, Bahia, and Goias); of these, over 94percent were individual actions for health-related goodsand services. Some 66 percent of these were demandsfor state-funded medications. Essentially all the cases areindividual demands to capture individual goods from a common pool. All the research on Brazil makes it clear that these cases are undertaken for their individual effects,

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relating to private schools (for example, allowing legislativelimits on tuition increases) and public schools (mostly,easing procedural restrictions on hiring new teachers),estimated the number of beneciaries in each, and applied

the known demographics of public and private schoolstudents to these ndings. According to the Brazilianstatistical service60 about 80 percent of public schoolstudents, and 27 percent of private school students were underprivileged. 61 Our survey found about 40,000bene ciaries in public schools and only 400 in privateones. Applying the demographics of education to thisratio, at least 78 percent of the beneciaries of educationlitigation came from the lower two income quintiles, sothat the poor were overrepresented in Brazils morecollective right-to-education litigation by about 2 to 1.

South Africa South Africa s post-apartheidconstitution of 1996 explicitly

includes rights to housing, health care, food and water,education, and social security. Our review of cases at thelevel of the High Court and above found twenty-four casesdealing with health and education rights. In contrast toBrazil, andas expected in a common lawjurisdiction, South Africa showed not only a markedly smaller number of cases,butalso a set of cases primarily targeting collective effects onpublic policy, rather than individual impact on litigants.This means that, even more than for Brazil, the demo-graphics of the actual SE rights litigants in South Africa areof trivial importance, compared to the demographics of therelevant policy area beneciaries we are less interested inthe few named plaintiffs in the Treatment Action Campaigncase, for example, than in the demographics of the

thousands of women and children who beneted fromthe resulting distribution of medications to preventmother-to-child transmission of HIV.

The overall results for South Africa, in keeping with

our expectations, were more pro-poor than those inBrazil: more than eighty percent of all those beneted by these decisions t even a fairly narrow denition of underprivileged, compared to the slightly negative effectof litigation in Brazil. If we assume that the South African underprivileged come from the bottom-fortieth incomepercentiles (in fact, theywere probably even less privileged than that), then South African SE litigation was twiceas pro-poor as the Brazilian model. We summarize our calculations in table 2.

Note that the ndings for South Africa are signicantly driven by the fact that HIV/AIDS, the object of most of the signicant cases, has a much higher prevalence among poor South Africans. Still, the results support our basic

claim

in collective litigation-friendly South Africa, it makessense to litigateeven the relativelylow-costsingledose needed to prevent mother-to-child transmission of HIV.

India Starting in the early 1980s, India s Supreme Court beganto enforce economic and social rights. But perhaps asimportant was a signicant opening to collective cases thatoccurred in the same era: the Indian courts established Public Interest Litigation, in which applicants need notdemonstrate that they themselves have suffered harm inorder to address a public policy issue; the courts lowered the standard for a petition, so that even letters to the courtcould qualify; and the Supreme Court began to examine

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Table 2Distribution of benets in South Africa

Name of caseDescription

of caseN

beneciariesPercent

under-privilegedN

under-privdUnderprivileged

dened as

HealthVan Biljon Treatment for HIV 1

prisoners57,600 100 57,600 Prisoner

TAC PMTCT for HIV1pregnant women

55,000 69 37,950 , $132/mo householdincome

Interim procurement Expedited procurementof ARVs


Hazel Tau Access to ARTgenerics


Total Health 274,100 76 206,985EducationPremier

MpumalangaSubsidies for poor

children22,500 100 22,500 Subsidies designed for

indigent childrenWatchenuka School age asylum

seekers50,625 100 50,625 Asylum seeker pending

decisionTotal Education 73,125 100 73,125Total 347,225 80.67 280,110




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social concerns on its own initiative. Ninety-nine percentof all thebeneciaries we identied in India were theresultof cases like these, with broad collective goals.

Our review found 209 cases involving the right

to health and 173 involving the right to education.The Indian courts heard cases involving low-cost goodsand services, such as the regulation of, and policies toward,primary education and basic health care. Many of theseare not classic cases of positive rights AU2 provision, but look more like negative rights cases and even these some-times suffer from a lack of enforcement.62 Examples of poorly-implemented negative-rights decisions includea ban on child labor, a ban on corporal punishment inschools, a ban on smoking in public places,63 injunctionsto close polluting factories and set up green zones, and a case permitting criminal prosecution of medically-negligenthealth care providers. Similarly, more positive-rights casessometimes suffer from low implementation, including

rulings on hospital quality, extending the right to pre-primary education, and setting up schools for blind children.64

We did, however, nd substantial impact from severalstreams of litigation in India. In some cases, the benetsof broad collective decisions trend away from the poor,due to weaknesses in the distribution of India s statebene ts. In contrast to South Africa, 77 percent of thebene ciaries of AIDS litigation were not from disadvan-taged classes (table 3) because most of the benets went tothe few who already accessed (very unevenly distributed)hospital care. Similarly, although we estimated a largenumber of beneciaries from increasing patients right tosue doctors for malpractice, these benets went to those

who were utilizing formal sector private medicine, only 13 percent of whom came from the lowest two incomequintiles. Unequal access to basic services can skew eventhe most progressive patterns of litigation.

The remaining two litigation streams that affect largenumbers of people were strongly pro-poor. The rstfocused on air quality in Delhi and other urban centers;the other on the provision of midday meals to students in

public schools. The former does not depend on the statefor distribution, and the other is distributed through theschools, where there is a broad base of participation.

The Delhi clean air cases culminated in a 2001 order in which the Indian Supreme Court required commercialvehicles in Delhi to use cleaner fuels. This resulted insharply lower rates of respirable suspended-particulatematter (RSPM) in the air around Delhi. Our calculationsshow that the change saved an estimated 14,323 livesin Delhi from 2002 2006 and signicantly reduced morbidity among about 523,000 people. To estimatedisadvantaged beneciaries, we assumed that thedistribution of illness episodes followed the distribution of asthma in the general population. About 47 percent of

diagnosed asthma sufferers in India come from the lowesttwo income quintiles,65 so that the number of disadvan-taged beneciaries was 259,196 people. This is likely anunderestimate: rates of diagnosis, as in Brazil, are likely lower for the lower-income groups, and in this case thedecisions benets improve conditions for all asthma sufferers the undiagnosed perhaps even more than thediagnosed ones.

We estimated the impact of the right-to-food litigationto be the sum of impacts on school attendance and onnutritional status. The free midday meals increased theincentive for parents to send children to school, partic-ularly girls; and studies indeed found that the programincreased rst grade school enrollment, for girls alone, by

10 percent per year. As a result, the program resulted in412,500 new girls in school each year from 2001 2006. All of these were likely disadvantaged, as the lowest-incomegirls are the ones who are prevented from attending school

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Table 3India distributive impact of litigation streams

Litigation StreamN of people affected up

to the year 2006Share of disadvantaged people

among people affectedN disadvantagedpeople affected

Expand access to tertiary education 20,000 0.11 2,200Extending Consumer Protection Act

to health care providers1,648,240 0.13 219,216

Blood banks 62,000 0.23 14,260Free anti-retrovirals for AIDSpatients

10,000 0.34 3,400

Extend teacher qualication 84,000 0.37 31,080Vehicular pollution 551,481 0.47 259,196New hospital for Union Carbide

victims370,000 0.4 148,000

Midday meals in schools 9,841,667 1.00 9,841,667Total 12,587,388 0.84 10,519,019

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due to a lack of food. We estimated that nearly ten millionstudents beneted from the programs nutritional effects.Similar calculations for other cases are in table 3.

Overall, the share of disadvantaged beneciaries in

India was about 84 percent, consistent with the expect-ations when the legal system permits abstract policy review and cases focus on broad policy issues, such as regulation.Note, however, that the lions shareof the pro-poor benetsin India stemmed from just one or two major cases(con rming our intuition that the most progressive casesare also those that have the greatest potential for broad impact), and that shortcomings in India s state capacity otherwise constrained the potential pro-poor impact of collective litigation.

Indonesia Our survey identied only one right-to-health or right-to-education case with wide impact in Indonesia since the

beginning of the transition to democratic rule in 1999.By far the most consequential SER litigation stream inIndonesia, accounting for 95 percent of the identied bene ciaries, was a series of three cases involving judicialreview of government funding for K 12 education. In the Judicial Review of the 2005 State Budget Law and twosubsequent challenges, the Constitutional Court ordered compliance with a constitutional requirement that thebudget allocate 20 percent of its expenditures to education.These rulingscontributed to an increase in educations share

of the budget from 7 percent to nearly 12 percent inthe next few years (and eventually 20 percent, but only once the denition of the numerator changed). Our study estimated, very conservatively, that at least 750,000 students

received signicantly better schooling as a result of morenancing (out of some 50 million students enrolled inprimary and secondary education at the time).

In Indonesia, the poorest are underrepresented in publiceducation middle class families commonly use publicschools while many of the poorest families are not enrolled at all. These middle class families are not, of course, richby global standards: approximately half of Indonesiansconsumed less than US$2/day in 2007.66 Still,we estimated that 36 percent of the public school students who beneted were from the lowest two income quintiles. This may bean underestimate because adding money to the publicschool budget might have lowered costs (Indonesianpublic school students pay considerable fees and other

costs) as well as raising quality, so that the litigationmight have had the effect of drawing more lower-incomefamilies into the system.

Interpreting the Distributive ResultsFigure 1 summarizes our ndings, showing the percentageof underprivileged persons beneting in each class of litigation. With some exceptions, such as prisoners or refugees, the underprivileged category in each line repre-sents the bottom 40 percent of the population in terms of

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Figure 1Percent underprivileged in each category




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income. Any nding that more than 40 percent of thebene ciaries are underprivileged, therefore, is a nding that the poor are overrepresented among beneciariescompared to the general population. With the exception

of the Indonesia education cases, in all cases in which thelitigation is pursued for its collective effects, the underpriv-ileged are overrepresented and in most cases by a marginof at least two to one. When the landscape is dominated by uncoordinated individual litigation, on the other hand, thepoor are less likely to be among the beneciaries.

Several ndings deserve highlighting. First, of course,the share of underprivileged beneciaries in each class of cases is generally higher when expected collective effectsdominate individual effects. India and South Africa, wherecollective litigation dominates, are at the high end, Nigeria at the low end, and Brazil and Indonesia in between.Overall, in cases with expected collective effects the poor are overrepresented among the beneciaries of SE litigation

by a factor of around 4 to 1. In Indonesia, our estimateof how the poor benet is highly conservative, so thenumbers might actually be better than we show here. Boththere and in India, the pro-poor impact of many collectivecases is muted by the limited reach of the welfare state tothe poorest sectors of the population, not by any structuralelite bias in the law. In these cases, the use of existing statemechanisms to distribute benets whetherof litigationor any other form of mobilization will continue to privilegethose who are already in some relationship to the state.Only a more structural approach aimed at developing state capacity, which we have not observed in existing SER litigation and which may well exceed the capacity of courts, would avoid this outcome. Even absent litigation

explicitly designed to expand state infrastructure, however,legal mobilization could have a positive effect. Especially if we accept the argument that improving education funding or food distribution should extend its reach to lower socio-economic sectors, it appears that, when courts adopt a moreprogrammatic approach, a legal strategy can somewhatcorrect for the prior maldistribution of state services, rather than merely reecting or intensifying inequalities.

Second, even in the cases we did not expect to be pro-poor, the impact of litigation was not as elite-biased as wemight have predicted. In the Brazil health cases the poor were, in fact, almost proportionately represented whether that is a terrible outcome or a not so bad one depends onones prior expectations. Cross-country and cross-policy

area differences in the number of cases counsel against toomuch aggregation, but on average the underprivileged areonly underrepresentedamong thebeneciaries of individuallitigation by about twelvepercent (35percent, relative to thedistributionally neutral benchmark of 40 percent), whilethey are overrepresented by over 200 percent in the areaswhere we expected a more pro-poor effect (82 percentcompared to 40 percent). This is in part due to whatwe suggested earlier systems that restrict benets to the

litigants tend to favor a wealthier population, but they alsohaveeffects that are not as widespread. The exception to the individual litigation equals low impact equation is Brazil,where a combination of low barriers to litigation and a

favorable legal environment has produced a veritableindustry of individual litigation. Low barriers to access,when litigation is limited to individual cases, might lower the mean income of litigants and increase the impact of liti-gation, but will continue to exclude the truly marginalized.

Third, as shown here and in the Appendix, even our own fairly narrow examination shows that nearly all caseshave some systemic effects, and estimates of the progressiveor regressive effect of SER litigation need to take this intoaccount. Among cases that direct the state to provide moreresources, the difference between Brazil, on the one hand,and India, Indonesia, and South Africa, on the other, isthat the systemic collective effects in the former werethe product of individual cases that were intended by the

litigants to have purely individual direct effects, so thatthe claims generally targeted higher-end goods for whichdemand was spread across all income strata. Only wherelitigation was expressly undertaken for its collective effectsdo we see a focus on low-end goods for which we mightexpect demand to concentrate among low-income popula-tions, and which are inexpensive enough for the state toprovide on a massive scale.

In summary, for all the seemingly commonsensicalreasons to expect litigation to be an elite game, the evi-dence does not support a nding that only the better-off bene t in fact, in many of the categories, the primary bene ciaries of the cases in our sample were the underpriv-ileged. It is true then that litigation does not,with important

exceptions, target primary health care, where individualinterventions tend to be relatively low cost; but it isnot truethat it does not target primary education. It is true thatmany of the cases are brought by middle class people or people who t some denition of privilege (such as thewhite Afrikaans-speaking populationof South Africa); but itis not true that these cases dominate, either in number of cases ornumberof beneciaries. This is strongevidence thathuman rights litigation on behalf of social and economicrights is not inherently anti-poor, and can actually addressthe needs of marginalized groups.

Conclusion: Future Research on SocialRights Mobilization

There are a number of reasons why our analysis hereshould be treated as a preliminary nding and an invi-tation to further research. The rst is that, as is evidentfrom the preceding discussion, our data are rough and our conclusions could be tested or extended with morein-depth comparative case studies. The more importantone, however, is that, as anticipated in the introduction,we need to think beyond the command and controlmodel of law s operation.

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June 2014 | Vol. 12/No. 2 13


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There are very few studies of the effect of social rightsconstitutionalism on the politics of social policy, beyond the study of litigation, which strikes us as a very partialview. What effect does the constitutionalization of rights

to basic goods like health care, education and so on haveon politics more broadly? We ourselves would expect thisto be positive. Surely the debate in the United States on a federal health care program is deeply colored, to the det-riment of public health provision, by the lack of expresssubstantive commitments to aggregate welfare in theUnited States Constitution. Most countries writing con-stitutions today opt for a more robust vision of the centralgovernments role in providing for the wellbeing of thepopulation than simplymakingspace forprivate enterpriseor subnational units to act. The point of social rightsconstitutionalism is not that putting the right to health, or the right to a decent standard of living, in the constitutionwill make it so. Rather the hope is that under some

conditions a constitution writing process that includesthese commitments may promote a robust politics of rightsprovision, or that, under certain circumstances, the inclusionof these provisions in constitutions affects national identitiesand serves as a focal point for mobilization. Surely draftersexpect these constitutions to lead to societies that take better care of the least well off, for reasons that far exceed thepossibility of litigating particular issues of social provision.

But it is entirely possible that the presence of far-reaching promises in a constitutional text, in the presence of enduring inequalities and deprivation, might havenegative consequences for this and other outcomes.The presence of formal, unfullled social and economicrights might detract from the legitimacy of the constitution,

or shift the politics from the legislative arena to a possibly less effective judicial arena. Couching these entitlements inthe language of rights might have an atomizing, individu-alizing effect, to the detriment of possibly more-effectivecollective, class-based mobilization. Focusing on rights tobasic goods, instead of on the economic or political con-ditions that make the provision of such goods possible,might result in the misallocation of government resourcesand energies. Adding a long list of rights that may never befully realized might cheapen rights overall, leading to a lack of regard for basic civil and political rights. We simply donot have good comparative studies of the overall, systemiceffects of what has become a hugely important politicalphenomenon. Scholars of courts and scholars of compar-

ative politics need to engage in a broader conversation,informed by the insights of both scholarly communities,about the comparative politics, the causes, and the effects of social rights constitutionalism.

The middle-income countries experimenting mostdeeply with social rights constitutionalism live in a world shaped both by the ideological dominance of constitutionaldemocracy and by global markets that place constraining pressures on the welfare state. In that context, many have

settled on social rights constitutionalism as a way to ensurethat the distribution of basic entitlements is not purely determined by the market. This impulse dovetails witha long tradition suggesting that basic levels of material

wellbeing are necessary for a successful, more participatory democracy. It is also congruent with more recent calls for a new model of developmental state, AU3one that emphasizesthe creation of human capital.67 In this view, the socialinvestment called for by social rights constitutionalismis an investment in democracy and an investment indevelopment. The extent to which this is or could be truedepends greatly on the answer to the question we posed here. Does social rights constitutionalism simply deepenthe existing maldistribution of resources and access tostate-provided benets, thus deepening the challenges of unequal and underdeveloped democracies, or does itpalliate that inequality somehow?

This study is one of the rst systematic and comparative

efforts to assess the distributive impact of judicializing socialand economic rights. In our view, it should not be the last.Untangling the impact of judicial involvement in thesebasic issues of social provision and public policy is a morecomplex matter than the current state of research perhapsincluding this piece has acknowledged. SE rights litiga-tion has been used to scrutinize the scientic claims madeto justify the denial of antiretrovirals for treating HIV and AIDS in South Africa, and to require more rigorousreason-giving by policymakers in a variety of contexts.It has been used to call attention to private health careadministrators who deny benets that are actually man-dated by law in Colombia. It has been used to publicizeand generate debate aboutnational legislators decisions on

the level of education funding in Indonesia. Litigation hasrequired policy makers to at least consider the claims of populations with little or no political inuence, such asmigrants and refugees in South Africa and Indonesia,or populations displaced by environmental disasters or con ict in Indonesia and Colombia. The mere possib

the laws majestic equality1

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