Celeste’s blogpost last week discussed different strategies Courts can adopt to ensure that governments adequately implement their structural rulings on socioeconomic rights (SERs). Yet, some of you may be wondering, why should societies recognize socioeconomic rights and make them legally binding in the first place? After all, the most oft cited constitutional examples (almost exclusively hailing from the Global North) like the U.S. or the French Constitution do not recognize these rights. Instead, they enshrine civil and political rights (CPRs) like freedom of speech. Scholars of Northern constitutionalism argue that these rights enable the proper functioning of democracy, which in turn can indirectly fulfill SERs given its redistributive tendencies. Southern constitutions (like the Indian, Kenyan, Colombian, and Thai to name a few), therefore, seem to have put the cart before the horse, recognizing SERs like the right to food or the right to education as equally important as CPRs.
Being Peruvian-American, I’ve spent the majority of my life living in that hyphen, straddling two cultures and societies. Societies, as people, learn best when they discuss alternatives on equal footing, something that happens rarely across the North-South divide. I think folks in the Global North, particularly in the U.S. (given historic inequality and its corrosive effects on our democracy), could learn a few things from their Southern counterparts regarding the utility and importance of democratically recognized SERs. The recognition and implementation of SERs constitute a Southern constitutional innovation that serves to diminish poverty and inequality, which in turn can deepen democracy by enabling the exercise of CPRs and strengthening the rule of law. Poverty and inequality reduction also make economic sense by yielding long-term growth. Finally, SERs provide moral legitimacy to democratic states by addressing some of the most pervasive and pernicious problems of our time.
Interdependence: All Rights Are Contained in One Person
Scholars and practitioners who emphasize the need to prioritize CPRs over SERs fail to realize that by failing to ensure a minimum level of SERs, CPRs lose almost all meaning. SER recognition and implementation has been a Southern democratic innovation to deal with staggering levels of poverty, as shown in the map below. What use is having the formal right to freedom of speech if you’re too busy trying to keep yourself from starving or don’t know how to read or write? SER violations can have significant and permanent impacts on an individual’s enjoyment of CPRs, creating a vicious cycle of political disenfranchisement. For example, a 2013 Journal of Health Economics study revealed that early childhood malnourishment, even if short-term, can have significant and permanent negative cognitive effects. Failing to fulfill SERs can permanently limit a person’s potential. As Amartya Sen argues, governments and civil society can thus use SERs as a tool to ensure that citizens fulfill their basic needs so that they can participate politically. These rights don’t exist in a vacuum, to prioritize one set over the other shows a serious disregard for the realities faced by many people living in poverty.
Moreover, as Oscar Vilhena Vieira points out, high levels of poverty and inequality have perverse effects on the rule of law. Extreme poverty and inequality result in governments ruling over seemingly separate societies, making it nearly impossible for the law to fulfill its social function: establishing a unified set of predictable rules that prevent the use of arbitrary power. SERs can thus deepen democracy by bridging these separate societies.
Poverty and inequality reduction do not only strengthen democracy but also yield economic returns. The International Monetary Fund (IMF) released a report in 2008 showing that high levels of inequality impede long-term economic growth. Now I don’t mean to state the obvious here, but the IMF isn’t exactly known as the harbinger of social justice. Reducing inequality makes for good economic policy— there are 805 million undernourished people in the world and another 781 million cannot read or write: that’s a lot of untapped human capital!
Percentage of people living on $2 a day ( PPP) or less, Courtesy of the World Bank
More importantly, these numbers not only present an economic opportunity, but also a moral challenge. As Bilchitz (2014) points out, SER recognition squarely fits into democratic theory: all human lives are equally important and thus all people deserve a minimum guarantee of resources to live in dignity. More than a third of the world population lives on less than $2 a day (see map above). It boils down to what we think the purpose of the democratic state should be: simply a regulator for economic activities and guarantor of political liberties? I don’t know about you, but that feel a little 18th century to me. In the 21st century I’d like us to dream bigger: let’s unleash a human flourishing unparalleled in human history, where we truly harness the potential of every human being. Democratically recognized SERs are a step in the right direction.
* Sean Luna McAdams is a researcher at the Center for the Study of Law, Justice, and Society (Dejusticia)