The Law's Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights
Author: Daniel M. Brinks and Varun Gauri
Size: 42 pages (978kB)
Optimism about the use of laws, constitutions, and rights to achieve social change is high among practitioners. But the academic literature is sceptical that courts can direct resources toward the poor. Using data on social and economic rights cases in five countries, this paper finds that not all courts are the same. Countries and policy areas characterised by judicial decisions with broader applicability tend to avoid the potential anti-poor bias of courts. Areas dominated by individual litigation and individualised effects are less likely to have pro-poor outcomes.
Constitutional rights are increasingly supporting demands for social and economic goods and services. Courts are taking on an increasingly important role in deciding the extent to which the seemingly non-negotiable interests embodied in constitutions should be considered and protected in policy making. Social movements are litigating diverse issues under the banner of social and economic rights.
The existing literature on the distributive impact of litigation tends to assume or imply that all courts have a similar pro-poor potential, regardless of their individual features or social and political context. In addition, the more structural accounts of courts' alleged shortcomings miss the role of politics and agency in modifying the impact of structure, underestimating the capacity of social groups and litigants to turn courts to their own purposes.
The study finds that the more a system relies on litigation that is expected to have only individual effects, the more that litigation will centre on high-end state benefits rather than low-cost goods, and thus will be less progressive. Overall, however, the study finds that the results of litigation are much more positive for the poor than conventional wisdom would suggest:
Brinks D. M. and Gauri, V. (2012) 'The Law's Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights', Policy Research Working Paper 5999, Washington DC: World Bank
Organisation: World Bank, http://www.worldbank.org/