On the Social Construction of Legal Grievances: Evidence From Colombia and South Africa

• Author: Whitney K. Taylor
• Published date: 01 July 2020
• Date: 01 July 2020
• DOI: http://doi.org/10.1177/0010414019897685
• Subject Matter: Articles

https://doi.org/10.1177/0010414019897685

Comparative Political Studies

2020, Vol. 53(8) 1326 –1356

© The Author(s) 2020

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DOI: 10.1177/0010414019897685

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Article

On the Social

Construction of Legal

Grievances: Evidence

From Colombia and

South Africa

Whitney K. Taylor1

Abstract

Leveraging comparisons within and across cases, this article investigates legal

mobilization for social rights in Colombia and South Africa. This kind of

rights contestation represents a new phenomenon, in which both ordinary

citizens and judicial actors have come to view problems related to access

to health care, housing, education, and social security through the lens

of the law. Research on legal mobilization has tended toward one-sided

examinations of this complex phenomenon, focusing primarily on either legal

claims-making or judicial decision-making, and neglecting to fully theorize

the relationship between the two. Drawing on an analysis of rights claims

and 178 interviews, this article aims to correct these imbalances. In doing

so, it offers a generalizable model that accounts for the social construction

of legal grievances and the development of judicial receptivity to particular

kinds of claims, and explains both the emergence and continuation of legal

mobilization for social rights.

Keywords

African politics, judicial process, Latin American politics, law and courts, law

and society

1San Francisco State University, CA, USA

Corresponding Author:

Whitney K. Taylor, Department of Political Science, San Francisco State University,

1600 Holloway Avenue, San Francisco, CA 94132, USA.

Email: wktaylor@sfsu.edu

897685CPSXXX10.1177/0010414019897685Comparative Political StudiesTaylor

research-article2020

Taylor 1327

Introduction

Increasingly, states have recognized social rights in their constitutions and

empowered courts to hear claims to these rights. In fact, at present, 133 coun-

tries recognize the right to health, 74 recognize the right to housing, and 94

have Constitutional Courts (Constitute Project, 2018). The constitutional rec-

ognition of social rights offers citizens a new channel through which they can

seek to access social goods or alter social policy. While typically expansions

in social protection have stemmed from electoral competition or other pres-

sures on elected officials (Garay, 2016; Iversen, 2005), shifts in the prefer-

ences of employers (Mares, 2003; Swenson, 2002), or the empowerment of

the political left (Esping-Andersen, 1990; Huber & Stephens, 2012), social

incorporation also expands by virtue of the ability of citizens to advance

rights claims through the formal legal system. In other words, legal claims-

making related to social welfare goods reflects a new model of state–society

relations, wherein social incorporation derives from universalistic rights rec-

ognitions rather than programmatic or particularistic linkages to parties,

patrons, or employers.

However, citizens have advanced claims to social rights using these new

courts in very different ways across countries (Gauri & Brinks, 2008). For

example, in Colombia, legal claims to the right to health have become ubiq-

uitous, particularly through the tutela procedure,1 yet relatively few housing

rights claims have emerged. Legal claims to the right to health in South

Africa, on the contrary, have been rather limited, whereas claims to the right

to housing predominate. Why is this the case? What accounts for variation in

legal mobilization across countries and issue areas?

Existing research on legal mobilization2 has tended toward one-sided

examinations of this complex phenomenon, focusing primarily on either legal

claims-making or judicial decision-making, and neglecting to fully theorize

the relationship between the two. While functionalist accounts suggest that

claims-making patterns will simply reflect differences in underlying need, this

is not so. Furthermore, neither institutional design nor support structures are

necessary or sufficient conditions for explaining claims-making practices,

though both feature prominently in existing accounts. Similarly, although the-

ories of judicial behavior offer insight into the decisions that judges hand

down, they have been largely divorced from questions related to how and why

citizens or social movements bring particular cases before the courts at par-

ticular times.

Leveraging comparisons within and across cases, I investigate legal mobi-

lization for social rights in Colombia and South Africa. While the constitu-

tions of both countries recognize social rights, they do so in different ways,