AuthorFerraz, Octavio Luiz Motta
PositionResponse to article by Pedro Felipe De Oliveira Santos in this issue, p. 493

    The increasing legal recognition of rights to health, education, and housing, often referred collectively as "welfare rights," "social and economic rights," or simply "social rights" as I shall refer to them in this piece, has generated heated debates on several interrelated questions. Are these rights of the same nature as other human rights such as freedom of speech, freedom of religion, freedom from torture, and fair trial, often collectively named "civil and political rights?" Should social rights be judicially enforced in exactly the same manner as civil and political rights? Who actually benefits when courts decide to enforce social rights assertively, the poor or the better-off?

    To repeat, these are interrelated questions. The nature of a right will influence the manner in which courts should enforce it or if they should enforce it at all. And the manner in which a court enforces a particular right, i.e., the type of remedy it chooses, may in turn have a significant bearing on who actually benefits from the right.

    To illustrate, those who believe that social rights are different in nature from civil and political rights tend to defend a less assertive role for courts when adjudicating them, or no role at all. (1) This may in part be explained by a belief that, should courts use traditional rights protecting remedies, such as individualized injunctions, they might end up benefiting the "wrong" individuals, i.e., the better-off. (2) On the other hand, those who believe that social rights and civil and political rights are identical in nature often, though not always, also believe that courts should therefore make no difference among them regarding enforcement. (3)

    These debates are far from being purely academic, as they once were when social rights had been recognized in only a handful of constitutions and the United Nations International Covenant on Economic, Social and Cultural Rights ("ICESCR") (4) had been ratified by a dozen or so countries. (5) With the increasing ratification of the ICESCR and other international law instruments that include social rights (6) and the explosion in the number of national constitutions that include these rights, (7) these debates have become more prominent and consequential. The debates left the constraints of academic circles and became the daily preoccupation of constitutional courts across the world, and, though less often, of international adjudicative bodies at the UN and regional human rights' systems, such as those of Europe and Inter-America. (8)

    My aim in this short commentary piece is not to describe and engage in detail with the several complex aspects of the important debates that flow from each of the questions above. (9) Rather, I will focus on a specific aspect that has been the subject of renewed attention more recently: the issue of the distributive impact of judicial enforcement of social rights and its relationship with the type of remedy employed by courts when enforcing these rights.

    It has become increasingly clear in the experience of some countries that social rights'judicial enforcement can often disproportionately benefit middle and upper classes rather than the poor. Some authors, such as David Landau (10) and Pedro Felipe de Oliveira Santos (11) have suggested that this is determined, in great part, by the type of remedies used by courts.

    If this is true, and assuming this is even a problem, (12) the solution would logically lie at the remedial stage; that is, courts should adopt whatever remedies are most suited to achieve the desired result of benefiting the poor rather than the middle and upper classes. I want to suggest in this piece that the regressive effects of social rights litigation seem to me less related to the type of remedy than to the interpretation of social rights adopted by courts.


    As I mentioned in the previous section, the perceived problem we are focusing on here is the finding of a mounting number of empirical studies that social rights litigation often does not benefit those whom they are supposed to benefit, i.e., the poor. Here is how David Landau aptly describes it:

    there is a basic disconnect between the theoretical claims being made about the enforcement of social rights and the empirical realities of their enforcement. In the theoretical literature, scholars equate a robust enforcement of social rights with the advancement of the prospects of marginalized groups--by ensuring that citizens have minimum levels of things like food and shelter, the courts will improve the lot of the poorest members of society. Yet much of social rights enforcement is aimed not at the poor, but instead at middle- and upper-class groups. When courts in the developing world prevent pension reforms or salary cuts that would affect civil servants, when they order the state to give an expensive medical treatment or pay a pension to a middle-class professional, or when they force the state to raise subsidies for homeownership, they are deciding cases that help mainstream rather than marginalized groups. (13) There is, of course, disagreement about these findings. Some reject them altogether; (15) others claim more plausibly that a relatively small number of the poor do benefit directly from judicial intervention and may also benefit indirectly from litigation driven by the middle and upper classes if and when-and these are important conditions-the government decides to change its policy and universalize the benefits granted by courts. (16)

    Again, this is a large debate which I will not be able to engage with any further here. Following Landau, I will simply focus on the less controversial point that, in many places, it seems clear from empirical studies that social rights litigation is not having the transformative impact on the lives of the poor it is supposed to have. The important questions, once this is acknowledged, are why and how could this be changed?

    For Landau, and Santos who seems to agree with him, both answers are to be found, in great part, in the remedies used by courts. To cite Landau again, "courts are likely to choose certain remedies [individualized remedies and negative injunctions] because of ideology and resource constraints and these remedies are particularly ineffective at targeting lower class groups." (17) As a consequence, he argues, we are in need of "remedial innovation," i.e., "more aggressive, unconventional enforcement strategies--especially the judicious use of structural injunctions [which] can more effectively target social rights' interventions towards the poor." (18)

    Santos seems to follow Landau in his piece in this volume: "The Brazilian data fit Landau's classification, in the sense that achieving structural enforcement seems to be the most effective...

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