El diligente y talentoso colega Oscar Delgado selecciona este intercambio entre juristas estadounidenses sobre el refuerzo, la garantía a los derechos sociales en Colombia y USA.
Son apartados ilustrativos y apropiados para los tiempos por venir, en el marco de las auspiciosas negociaciones de paz, que tendrán un escenario propicio para la sociedad civil colombiana en este diciembre de novenario por la paz sin aguinaldos con los descarados anuncios de la reforma tributaria. N d la R.
The Reality of Social Rights Enforcement
By David Landau
David Landau is an Assistant Professor of Law, Florida StateUniversity College of Law.
Share Article:
--
Despite the lack of socio-economic rights in the U.S. Constitutionand the absence of political will to enforce them, the vast majority ofconstitutions around the world now include these rights, and courtsare enforcing them in increasingly aggressive and creative ways.
Scholars have produced a large and theoretically rich literature onthe topic. Virtually all of this literature assumes that social rightsenforcement is about the advancement of impoverished,marginalized groups. Moreover, the consensus recommendation ofthat literature, according to scholars like Cass Sunstein and MarkTushnet, is that courts can enforce socio-economic rights butshould do so in a weak-form or dialogical manner, whereby theypoint out violations of rights but leave the remedies to the political branches.
These scholars argue that by behaving this way, courts can avoidsevere strains on their democratic legitimacy and capacity. Basedon an indepth case study of Colombia, which draws on myextensive fieldwork within that country, and on evidence from othercountries including Brazil, Argentina, Hungary, South Africa, and India,
I argue that both the assumption and the consensusrecommendation are wrong. In fact, most social rights enforcementhas benefitted middle- or upper-class groups, rather than the poor.
Courts are far more likely to protect pension rights for civil servantsor housing subsidies for the middle class than they are to transformthe lives of marginalized groups.
Moreover, the choice of remedy used by the court has a huge effecton whether impoverished groups feel any impact from theintervention.
Super-strong remedies like structural injunctions are the most likelyways to transform bureaucratic practice and to positively impact thelives of poorer citizens. The solution to the socio-economic rightsproblem is to make remedies stronger, not weaker.
* This excerpt does not include citations. To read the entire article,including supporting notes, please download the PDF.
Article also available at (subscription required): HeinOnline |LexisNexis | Westlaw
________________________A Response to David Landau
By Mark Tushnet
.
Mark Tushnet is the William Nelson Cromwell Professor of Lawat Harvard Law School.
Suggested Bluebook citation: Mark Tushnet, A Response toDavid Landau, 53 Harv. Int'l L.J. Online 155 (2012),http://www.harvardilj.org/
Share Article:
David Landau’s article, The Reality of Social Rights Enforcement,[1]is an important contribution to a growing literature on the judicial role in enforcing social and economic rights.
He joins others in noting that debate has ended over whetherconstitutions should include such rights and whether, if included,those rights should be judicially enforceable.[2] Not “whether,” but“how” is the question now on the table among serious scholars and judges.
Landau’s article presents the “how” question in a new light. Drawingtogether numerous strands in the literature, he helpfully identifiesfour remedial forms—individual actions primarily seekingindividual-level affirmative relief,[3] negative injunctions, weak-formreview, and structural injunctions—and assesses their likely effectson the distribution of the material goods that social and economicrights are designed to secure.[4] Proponents of such rights seekthem primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity.
As Landau observes, effective implementation of social andeconomic rights for the least advantaged faces formidableobstacles.[5] Many of the world’s poorest nations have severelylimited internal economic resources.[6]
Political obstacles are substantial even when resources areavailable or could be made available through tax increases.
Those already advantaged typically have a favored position innational politics, allowing them to block redistributive initiatives(whether from the legislature or from the courts). The leastadvantaged may be quite numerous, but they face resourceconstraints in mobilizing politically or in litigation.
The prospects for achieving substantial improvements in thematerial conditions of the least advantaged through political orjudicial action are inevitably small.[7]
One might think that judicial resources should be husbanded foruse in the most favorable conditions for enforcing social andeconomic rights. Yet, as Landau persuasively argues, individualactions are likely to provide social and economic rights primarily forthose in the middle classes, not for the least advantaged.[8]
The reason is that those in the middle classes are more likely thanthe least advantaged to have the ability to mobilize the legal systemin an individual action. They have the requisite knowledge and haveaccess to legal assistance to bring these actions. In short, theyhave a better “support structure” for securing rights, to use politicalscientist Charles Epp’s term.[9]
Landau acknowledges that nongovernmental organizations and similar agencies, some associated with the state itself, can provideeducation about legal rights and legal assistance to the leastadvantaged.[10]However, the resources devoted to such efforts areunlikely to overcome the structural advantages the middle classeshave in individual actions.
[1] David Landau, The Reality of Social Rights Enforcement, 53Harv. Int’l L.J. 189 (2012).
[2] The United States is an exception for two perhaps relatedreasons. First, the U.S. Constitution is an old one, written before thepolitical and ideological developments that fueled the inclusion ofsocial and economic rights (and, now, cultural and environmentalrights) in more recently written ones. Its text provides fewerresources for developing constitutional arguments for judiciallyenforceable social and economic rights. “Fewer,” though, does notmean “none,” and Cass Sunstein has suggested that only RichardNixon’s narrow victory over Hubert Humphrey in 1968 prevented theSupreme Court from crafting a substantial jurisprudence of socialand economic rights. Cass R. Sunstein, The Second Bill of Rights:FDR’s Unfinished Revolution and Why We Need It More Than Ever149–72 (2004). Second, the general weakness of the socialdemocratic tradition in the United States, which is both political andideological, has meant that advocacy of judicially enforceable socialand economic rights has been limited.
[3] I assume that individual damage actions would havecharacteristics similar to those Landau associated withindividual-level affirmative relief.
[4] Landau, supra note 1, at 201.
[5] See generally Landau, supra note 1.
[6] For that reason, typical formulations of social and economicrights refer to their progressive realization within availableresources.
[7] I note that fairly strict market-oriented policies might be the bestones to achieve the progressive realization of social and economicrights, at least on the level of political and economic theory.Advocates for social and economic rights usually reject thattheoretical case. Notably, even that case might commend somejudicial intervention in support of market-oriented policies—of thesort typically associated in the United States with Lochner v. NewYork, 198 U.S. 45 (1905).
[8] Landau, supra note 1, at 202–29.
[9] Charles R. Epp, The Rights Revolution: Lawyers, Activists, andSupreme Courts in Comparative Perspective ch. 3 (1998).
[10] See Landau, supra note 1, at 227.
No hay comentarios:
Publicar un comentario