TY - JOUR
AU - Fowkes, James
AB - Abstract A common skeptical view holds that socioeconomic rights are a different kind of right than civil-political rights. Even those who support justiciable socioeconomic rights often see them as a different kind of right with special challenges. I argue that this view is wrong. What all these observers are reacting to is not an inherent property of socioeconomic rights: it is a contingent property of a situation in which judges are asked to enforce a rights claim without a pre-existing set of familiar public understandings of the right’s content and/or an existing structure of officials and procedures to give effect to that content. It is because the rights claim is new, and this is something that can be, and often is, true of rights across the spectrum. Any rights claim is problematic to enforce to the degree that it is new, but these obstacles can and do disappear if society changes and the claim becomes less new. In the first part of the Article, I seek to establish the accuracy of this argument, drawing on examples of rights distinctions from the nineteenth-century United States and rights across the spectrum displaying newness in contemporary South Africa and India. I then show how controlling for newness can help us to understand standard features of the socioeconomic rights debate: the ubiquitous, but misleading, negative–positive distinction; arguments about resources; Fuller’s endlessly cited polycentricity argument; and current controversial cases, such as the budget-shifting judicial enforcement of Latin American healthcare entitlements. These topics are central to our widespread intuition that socioeconomic rights are different; newness can help us to see that this intuition is misleading us, and by recalibrating the debate can filter out some distractions that have long dogged it. Introduction: The Stubborn Sense that Socioeconomic Rights Are Different The first premise of all skeptical arguments about socioeconomic rights is that they are different: different in comparison to traditional, civil-political rights. This is the logical starting point of all the well-known arguments that follow about why that difference is a source of problems. It is the implicit first premise of all the familiar conclusions: that socioeconomic interests should not be included in constitutions, or should not be included in the form of justiciable rights, or should not be enforced by courts to the same extent or in the same ways that more traditional rights are. Supporters of socioeconomic rights have been chipping away at these arguments for decades now. But the first premise, the stubbornly pervasive idea that socioeconomic rights are different, remains widely, even universally, accepted. It is also, I believe, flatly incorrect. This is what I set out to show in this Article. For all the work that supporters of socioeconomic rights have done, they seldom question the idea that socioeconomic rights are different. Instead, supporters make two standard arguments: (i) that socioeconomic interests are at least as important as the interests protected by more traditional rights, both in themselves and as essential foundations for meaningful enjoyment of civil-political rights; and (ii) that there are plausible, useful, and increasingly proven ways in which courts can enforce socioeconomic rights. Neither argument denies that socioeconomic rights are different, and each often positively embraces this idea. They are arguments that socioeconomic interests deserve to be framed and enforced as rights notwithstanding their special challenges, or that these challenges are not a decisive objection to making socioeconomic interests justiciable because there are feasible things courts can do despite them. In other words, these arguments agree that socioeconomic rights are different and then try to show that this does not or should not matter. This state of affairs reflects the stubborn power of the intuition that socioeconomic rights are different, even in the most sympathetic of heads. Supporters making arguments (i) and (ii) are rightly confident that they have rebutted any bright-line distinction between socioeconomic rights and civil-political rights. Both kinds of rights can cost money, for example, and so socioeconomic rights do not uniquely involve positive obligations.1 But supporters and skeptics alike continue to accept that there are significant differences of degree: that socioeconomic rights are more policy laden, more technical, more polycentric, and, above all perhaps, that they alone imply spiraling resource-intensive entitlements against the state, and that adjudicating this sort of obligation is fundamentally different from something like setting normative limits on free speech. Showing that all rights cost money has not dispelled the stubborn intuition that socioeconomic rights are different because they cost much more money and are much more fundamentally about resources than other, more traditional rights.2 My argument will not be that we are wrong about any of this, exactly. We are not wrong to think that features of many socioeconomic rights cases around the world today produce challenges for the legitimacy and institutional capacity of courts. Nor are we wrong to think that these features mark points of difference compared to a traditional picture of rights enforcement in which courts apply rights to facts and order individual concrete remedies to the extent that the facts do not match up. Our mistake arises when we understand this state of affairs as having something to do with the inherent nature of socioeconomic rights on the one hand, and civil-political rights on the other. Instead, I claim, the difference we are seeing here is entirely about the fact that, in this comparison, we are actually mentally comparing novel, unfamiliar, nontraditional socioeconomic rights claims with settled, entrenched, traditional civil-political rights claims. The distinction that actually matters, in other words, is between traditional and nontraditional, settled and unsettled, entrenched and unentrenched. This distinction is about a property I will call newness: the degree to which a rights claim is entrenched and embodied in a society’s norms and institutions. Later sections will spell out the details of this claim. What matters here at the outset is to see that, if we accept it, two things happen to our standard categorizations. First, we will see that newness is an entirely contingent property, all about understandings and institutions in a given society at a given time, and thus all about things that can change and in fact do change all the time. And, second, we will see that it is a contingent property of a society, and not an inherent property of a particular kind of right. We all appreciate that all civil-political rights were at one time new, meaning that they were contentious interests whose official enforcement could by no means be taken for granted. Many civil-political rights are still new in this sense in large or small degree, depending on the society. Conversely, we all appreciate how some civil-political rights claims, over time, have become settled in some or most societies. Either way, these are conclusions about the system, not the right. Claims under rights of all kinds can become settled, or display newness, depending on how their society views them. My aim in this Article is to show that once we take this into account, all the respects in which we think socioeconomic rights are different in kind—including their resource implications—will be seen to be things that can be equally true of civil-political rights as well. In other words, once we control for newness, the apparent meaningfulness that the distinction between kinds of rights has will evaporate. We will see that socioeconomic rights claims, too, can become more settled over time, and that when they do, they can and do behave just as traditional civil-political rights claims do when they are settled (though we will have to deal with a little-noticed but enormous sample bias to see the key proof of this). This conclusion should end our interest in the distinction between socioeconomic and civil-political rights as a distinction that is in any inherent way a distinction about justiciability or other aspects of how rights behave. Such categories are things we construct; we should drop them if they are misleading us. Some may still want to distinguish socioeconomic rights from civil-political rights for the same taxonomical reason that we sometimes want to distinguish the right to free speech from the right to vote. But we should no longer see the former distinction as holding any more significance than we currently attach to the latter. This is a conclusion about concepts, but it has very real stakes. It tackles, head on, the intuition of difference that is a key reason why socioeconomic claims around the world still so often have to defend themselves as a category, and have to overcome an initial hurdle of first-principle separation of powers arguments in a way that more traditional rights claims do not. To be clear, this would by no means end debates about socioeconomic rights. Analysis in terms of newness does not alter the fact that claims that display newness are more challenging for courts to enforce. (I will say more about this shortly.) It also does not alter the fact that, in many systems today, socioeconomic rights claims do significantly populate the category of claims that display significant newness. Much will therefore be left for skeptics to object to and for supporters to grapple with, and rightly so. But we will see how newness reshapes these debates, recalibrating certain familiar arguments and stripping out some distortions and distractions from issues that are quite difficult enough without them. It also warns us about a way in which supportive socioeconomic rights scholarship has been its own worst enemy. Since socioeconomic rights have so often been attacked as a category, supporters have understandably found it natural to respond by defending them as a category. But if the intuition of difference has been an obstacle to understanding socioeconomic rights and enforcing them, each of these defenses will have served to reinforce that damaging intuition by accepting the skeptic’s starting premise that these rights constitute a separate category. How much has the sometimes all-consuming preoccupation with skepticism contributed to the vaguer general intuition of difference in this way? How much supportive writing on socioeconomic rights, so careful in its opening theoretical sections to rebut the arguments of socioeconomic rights skeptics, has plausibly won those specific battles only to lose the war for hearts and minds by talking only about socioeconomic rights thereafter? How much has been lost by an approach that, however understandably, has effectively defended socioeconomic rights as separate but equal? This is why it matters to challenge the categorization and the intuition of difference directly, and to see how the arguments reshape themselves once we do so. Reasonable people have fought many battles over socioeconomic rights. That much of the fight may have been over an artificial line drawn in the wrong place is all the more reason to stop and check our maps. In later Parts of this Article, I will advance the argument by discussing landmark debates about socioeconomic rights, such as Lon Fuller’s argument about polycentricity in an article which is more cited than read but which we will see offers considerable support for my argument about newness. I will also offer several practical illustrations from around the world of how different kinds of rights behave the same once we control for newness. But I should begin by saying more about what I mean by newness and why it is so significant. I. Understanding Newness The basic idea behind newness is one that will startle no modern student of how rights work in practice. We know that rights claims are only equal on paper. We know that in practice, how real and meaningful a particular claim under a particular right turns out to be depends on a host of factors about government action, public opinion, social movements, and so on.3 Often, we have to consider these factors separately, for example, when trying to decide about the importance of one of them in relation to the others. But here, what matters is only the significance of these factors in general, which is why I find it useful to use a cluster term like “newness.”4 The general point is that a rights claim in relation to which these extratextual factors add up favorably will represent a very different prospect, for all practical purposes, to one where these factors are adverse. It is for this reason that we can think of rights claims, in a given context, as falling along a spectrum from those that are most settled or entrenched to those that are least so. To the degree that a rights claim lies towards the unsettled or unentrenched part of the spectrum, I refer to it as displaying newness. It follows that newness is not the same as youth, though the two can often go together and the term is intended to make us think of the situation where a novel kind of right has been introduced in a society not used to that legal entitlement and not yet set up to enforce it. A right can have been written down ages ago in some dusty text, but if it has had little impact on society and its institutions, it can display formidable newness if someone suddenly starts trying to enforce it. Conversely, a freshly written right to something familiar and entrenched will not display much newness, because despite the new label, the substantive claim will probably be business as usual. A right can also become more or less settled over time, or stay unsettled, and different claims under the same right can display newness to different degrees: there is no necessary logic to something that depends on social and political patterns. It will be clear, therefore, that in talking about newness I am not using a new term (as it were) because I am picking out a hitherto unnoticed property that is, in substance, unfamiliar. I use a new term only because we seem to need a reminder in this context that the nature of a right for practical purposes depends on contingent factors. Even the best scholarship has not come to terms with the implications of this point in this context.5 Newness might be made up of familiar ideas, but it helps us to understand rights in ways that will not be so familiar. Since the arguments I am concerned with in this Article are above all arguments about the enforcement of (socioeconomic) rights by judges, the most useful way to explore the significance of newness further is to see what it means from the perspective of a judge. A. Newness as What Enforcement Requires of the Judge Consider a very familiar right, such as the right to a fair criminal trial, in an established system of criminal justice such as, say, the German one. In such a system, a judge asked to adjudicate a claim in terms of the fair trial right will (almost all the time) have to do nothing more than decide how the facts of the case fit with the mostly settled ideas of what a fair trial requires. That is not always an easy job. But the point is that once the judge has made the determination about how the facts fit or do not fit the existing law, and dealt with any small legal idiosyncrasies the facts might present, she simply has to make the proper entries in the case file and put it back on the trolley. That is all that enforcing the right requires. This is the traditional picture of rights adjudication, with the judge as an impartial interpreter identifying individual violations and making concrete, final orders accordingly. We can usefully understand newness in terms of a contrast to this routine picture: as a measure of how much more a judge has to do or decide, compared to this routine picture, in order to get a right enforced to the same effect as it is in this routine case. In the routine rights case, the judge can take for granted a largely settled idea of what a fair trial requires and why it matters, as well as a range of preexisting procedures and institutions and trained officials in courts and prisons and prosecutors’ offices that give effect to the judge’s ruling and ensure that it has the impact in the real world that the judge has decided the law requires.6 Her ruling may involve difficult legal questions in the traditional sense, but it does not involve live political or policy issues or raise questions calling for expertise beyond the narrowly legal. It is, however, easy to imagine a situation in which the judge could not take all or some of these things for granted, and I describe a claim as displaying newness to the degree that this is the case. In such a situation, the judge cannot vindicate the claim to the same extent as in the routine picture unless she does and decides more, and possibly much more. She may have to do more herself to work out what a fair trial requires, which also entails deciding, in favor of herself as a judge, the institutional question about who should decide such issues. She may have to work out how such rulings should be implemented and by whom and how to ensure this happens, which again implicates institutional questions about who should decide such issues. In the hypothetical situation of maximal newness, the judge will not be able to proceed with a rights claim in the ordinary way at all without confronting a whole set of prior, basic questions about content and institutions. The range of what acting on a simple individual rights petition could call on a judge to decide would be simply vast. In the face of this, of course, judges usually chose not to do and decide all these things. Instead, they will make separation of powers arguments about democratic deference and institutional expertise and the proper judicial role, and adopt some weaker form of review and defer on at least some of the issues. Whatever we think of that choice in a given case, the result will be that the right is enforced in some different and usually lesser way than is true in the routine picture. Even if the court acts, the individual’s claim will often be left open in an important respect, and the issue referred to the legislature or some other institutional process. Whether the judge picks boldness or restraint, and whatever skeptics and supporters think of her choice, she will either act differently or enforce the right differently, compared to the routine picture.7 It is the routine picture, with its concrete enforcement of individual entitlements, that so often informs our understanding of what traditional rights enforcement amounts to, or should amount to. It is easy to see how we might map this contrast on to the distinction between socioeconomic rights and more traditional civil-political rights. But once we are talking in terms of newness, we can see how the things in the routine picture that make it routine could be absent in any rights case. Everything depends on the state of a given society’s ideas and institutions in relation to the particular rights claim at hand. B. Newness and the Negative–Positive Rights Distinction The distinction between socioeconomic and civil-political rights has a long association with the distinction between positive and negative rights. From the perspective of newness, the positive–negative rights distinction gets closer to the truth but still has important limitations, and seeing these will help to explain the significance of newness. One problem with the distinction between negative and positive rights is not really its fault. The old flawed argument that only socioeconomic rights cost money or require positive action of the state has driven an enduring association of “positive” rights with “socioeconomic” rights, and “negative” rights with “civil-political” rights.8 This continues to cloud talk in terms of positive and negative rights.9 But the real reason to prefer analysis in terms of newness is not to avoid these ambiguities. It is because newness has superior explanatory power, including to explain why the positive–negative distinction runs into trouble. The single most important idea driving the intuition of difference is the argument that socioeconomic rights are uniquely demanding, whether in terms of the amount they cost or the broader positive effort by state mechanisms that they entail. Newness is crucial to seeing past this argument. The familiar recognition that all rights can require positive state action does indeed rebut attempts to treat this as the basis for an absolute distinction between civil-political and socioeconomic rights.10 But, as noted, this has never been a convincing reply to those who know that there is a difference between requiring some resources, and requiring a lot of resources. To these observers, for example, there remains a meaningful difference between a judge enforcing fair trial or voting rights, whose resource implications can be far from trivial but which nevertheless represent only a sliver of a modern state budget, and a judge enforcing socioeconomic rights to interests like housing or healthcare that typically make up the largest chunks of modern state budgets. The idea is correct as far as it goes, but it misses the crucial point. The comparison only works if we are comparing building new houses or creating new healthcare entitlements. A judge making such rulings would indeed effectively be ordering huge increases in the budget and implicitly demanding a sharp rise in things that government institutions would somehow have to make happen. But if the state has pre-existing, largely established housing and healthcare programs, funded as pre-existing and familiar budget items, and judges are making their rulings in that context, then things look very different. Even though the socioeconomic interests might inherently cost more, if most or all of that cost is in the budget already, a judicial order about those interests does not necessarily imply any more fresh expenditure than an order in a civil-political rights case (and could imply less). It is the fresh expenditure that matters, because only then is the judge really making an extensive budgetary decision, as opposed to making findings on other matters in the context of a budgetary decision already made elsewhere. The same goes for other forms of positive state action. It is when judges are working with positive entitlements for which existing budgets and institutional arrangements already make provision that the analogies deployed by the “all rights cost money” line of argument really work. When the fire service protects property rights or the electoral system underpins the right to vote, the key point is not that this entails resources or requires costly and complicated institutions. That claim is true, but it will always run into the simple reply that socioeconomic rights are more demanding in these respects. The key point is that, in such examples, things are already set up. The money is already in the budget and the fire stations already have people and machines in them, or at least everyone usually takes it for granted that this is the sort of thing the state should take care of. What matters is not the degree of positive action required, but the degree of controversy: about the degree to which the positive action is familiar and already provided for, or not. A judge enforcing something with long-accepted positive implications, of whatever magnitude, will be able to take the associated institutional and budgetary issues for granted, just as the judge in the functioning criminal justice system can take the costly institutions of the courts and the prisons and their personnel for granted. In that situation, whatever the implications of enforcing the right for positive state action, enforcing the right will not require that the judge herself takes a decision to increase the budget or the outputs of state mechanisms. This is why the analogies to fire stations and electoral systems are only of limited power when we are comparing them to the possibility of vast new socioeconomic entitlements. The true analogy is to socioeconomic entitlements that are entrenched in a given society’s budget or its expectations about what the state should pay for to the same degree that fire trucks and voting booths usually are. This insight will need unpacking in specific contexts in several sections below; I will also there address the point it plainly leaves open, namely that positive implications will matter a lot in socioeconomic rights cases when they are new, which skeptics may well think is still more than enough to ground their arguments. But we should first simply see how newness is grasping something here that the positive–negative distinction and the familiar arguments that use that distinction have been too blunt to capture. The key is not whether a right is positive rather than negative, because negative claims and settled positive claims alike can be enforced without judges having to decide to expand the state’s positive outputs—without, in other words, having to spend resources in anything more than the implicit all-rights-cost-money way that judicial enforcement of traditional rights does all the time. This is also the reason for our uncertainty about whether an individual is making a positive or a negative rights claim when she challenges the withdrawal of an entitlement she previously enjoyed. Newness can thus help us start to see how the greater positive demands that socioeconomic rights can entail can be entirely irrelevant to their judicial enforcement as rights. Resource questions are a very real obstacle to enforcement as long as they represent new demands; their relevance to enforcement can melt away if expectations and budgetary baselines change. The positive–negative distinction, which has never escaped its basis in inherent kinds of obligations, is poorly designed to capture this vital insight about contingency, and the point has tended to slip through the fingers of socioeconomic rights discussions. II. Illustrations The argument just made implies that cases displaying similar degrees of newness should be similarly challenging for judges, regardless of the category of right involved. We should therefore be able to find settled socioeconomic rights claims behaving routinely, and we should be able to observe judges reacting similarly to similar degrees of newness across rights contexts. Several examples illustrate that this is indeed what we see, though we will sometimes have to look beyond how judges talk in order to see it. The distinction between socioeconomic and civil-political rights is pervasive and so it affects judges as much as everyone else. But if we focus on what they do in substance, we will be able to see just the sorts of cross-cutting similarities that my claims about newness tell us to look for. A. South Africa The South African case is a useful starting point. In addition to being a fixture of socioeconomic rights debates, its socioeconomic rights are only one part of a broadly aspirational or transformative constitution. It therefore offers an array of relatively un-settled or unentrenched rights claims from across the spectrum for us to evaluate. In socioeconomic rights talk, South Africa has become something of a middle case. It remains a pathbreaking illustration that socioeconomic rights can be credibly and sustainably enforced by courts, but its judges have generally been more restrained than some of their Global South counterparts. The evolving terms of the local debate, however, have been broadly typical. Contests about socioeconomic rights going back three decades have displayed considerable disagreement about whether socioeconomic interests should be rights and, if so, how they should be enforced. With only the most fleeting exceptions, however, the participants in the debate have invariably talked about socioeconomic rights as a different kind of right with special challenges.11 This attitude is written into the South African Constitution. Most aspects of the socioeconomic rights are internally qualified in ways that other kinds of rights are not, with textual references to available resources, progressive realization, and reasonable government efforts. The Constitutional Court has picked up on this last phrase in particular, and debates about South Africa’s approach to socioeconomic rights focus, above all, on the reasonableness test the Court has employed in its major socioeconomic rights cases. Under this test, the government’s obligation is to take reasonable measures to give effect to socioeconomic rights and improve access to them over time. For some, this is a praiseworthy effort to give meaningful bite to rights that were always going to be troublesome, including politically troublesome under a powerful African National Congress (ANC) government; for others, it inexcusably avoids giving concrete content to socioeconomic rights.12 The justices, products of their society, have also at times spoken in ways that imply that socioeconomic rights are different in kind.13 In this way, the early sense of difference has found a firm foothold in text and judicial interpretation and thus perpetuates its own sense of apparent validity.14 What matters here is that if we focus on what the Court actually does, and not how everyone speaks, the facts do not fit this pattern. As I have argued elsewhere, the idea that the reasonableness test is a symbol of the Court’s special failure to take socioeconomic rights seriously is straightforwardly belied by the fact that the Court uses the reasonableness test in a number of other contexts as well. The Court has used it to review the state provision of security on public trains, under the right to be free from public and private harm; to assess facilitation of the right to vote, and of public participation in the legislative process; and in articulating the duty to structure an anticorruption body so as to ensure its independence, an obligation the Court based on the state’s general legal obligation to respect, protect, promote, and fulfill the rights in the Bill of Rights. None of these is a socioeconomic rights claim as standardly understood.15 Yet such is the perception that socioeconomic rights are different that this broader use of the reasonableness test in other rights context is not even noted in South African socioeconomic rights discussion. This is the most striking illustration, but there are others. The mechanism of meaningful engagement has succeeded reasonableness as the South African socioeconomic rights device of the moment. Under this mechanism, instead of the court issuing a ruling about what substantive outcome the law requires in a given dispute, the court orders the parties to the dispute to engage with one another to work out a way forward, subject to court approval and in the shadow of the Court’s precedents.16 It was developed in the context of eviction cases under the right to housing and continues to find its greatest application there. But it is also simply a dialogic device for responding to complex, context-sensitive disputes, and as such is already being applied in other rights cases: for instance, in a recent dispute between school governing bodies and the education department over a pupil pregnancy policy.17 Or, to take another example, the Court’s restraint in the socioeconomic rights context is standardly seen as a particular product of that context and of the justices’ reactionary nervousness about socioeconomic rights. But the complaint of excessive restraint is also commonly made about much of rest of the Court’s output. In those contexts, the kind of right is no longer mentioned, and now other forces, such as the Court’s approach to the application of the constitution to the common law and to private conduct, are said to be at work.18 Newness tells us that these common features, cutting across rights contexts, simply reflect that the Court is dealing with similar challenges throughout. Open-ended aspirational mandates can put judges in the same sort of position relative to the status quo, regardless of the type of right involved, and South African judges have duly responded with similar doctrines and approaches, including the reasonableness test, across rights contexts. It is only the intuition that socioeconomic rights are different, and the way it leads us to carve up case law and scholarly topics, that prevents us from seeing these consistent patterns. B. India One plausible reaction to the South African case is to wonder if it shows only what socioeconomic rights look like when they are enforced with some caution. South African judges, in other words, might be responding to the dangers that make socioeconomic rights different by mostly avoiding them, and it might be this that accounts for the cross-cutting similarities in the cases. It is therefore important that a much bolder example yields the same lesson. India’s constitutional text treats socioeconomic interests even more skeptically than South Africa’s. The newly independent India included socioeconomic interests in its constitution only as non-justiciable directive principles, following the approach of the slightly less newly independent Ireland.19 Subsequent judicial interpretation, however, has famously blown through that restriction, driven by arguments about the importance of socioeconomic interests and the need for their judicial protection.20 If South African judges have been quite cautious, India’s have been boldly experimental. Scholars urging more expansive approaches to socioeconomic rights therefore regularly invoke Indian examples, pointing above all to the right to food case, PUCL v. India.21 The case, which has recently been brought to an end after sixteen years of interim orders, made broad use, on a very large scale, of the sorts of special devices that are usually offered as ways to meet the particular challenges of socioeconomic rights cases, including ongoing supervision, regular interim orders, and the use of court-appointed commissioners to inform the court and monitor implementation.22 And since these efforts can claim a significant measure of success, PUCL is attractive evidence that courts can handle even very complex, very large-scale socioeconomic rights cases. As with the South African doctrines of reasonableness and meaningful engagement, however, it is a mistake to see PUCL as reflecting anything specifically about socioeconomic rights. The model being deployed in the case is the broader PIL, or public interest litigation, approach developed in India since the late 1970s and well known for its use across the spectrum of rights cases. Seminal early cases concerned awaiting trial prisoners and bonded laborers.23 These are readily classified as traditional liberties cases, though they are probably best seen as illustrations of how mixed and interdependent civil-political and socioeconomic rights often are. Other major PILs have concerned non-socioeconomic rights topics such as political corruption and sexual harassment, or again are best seen as cases displaying a mix of rights issues where separate categorization would serve little purpose. The Supreme Court’s interventions in forestry management, for example, blend concerns about property, mining rights, economic development, environmental protection, and an array of indigenous and cultural rights, including the political rights of such communities.24 This breadth of application makes sense because many issues in India display considerable newness, including but by no means limited to socioeconomic rights cases. PUCL is doubtless an important case to study—but as part of a broader judicial response to social injustice and governance failures impacting on interests of all kinds. Socioeconomic claims are certainly prominent in Indian PIL, as we would expect from an active judiciary in a country struggling with poverty. But we should not confuse prevalence with uniqueness in kind. As in the less expansive South African example, the Indian case shows judges drawing on the same judicial devices in response to newness across rights contexts. C. Sample Bias: Settled Socioeconomic Entitlements Without Socioeconomic Rights South Africa and India are examples of how rights of all kinds behave when they are new. The other half of what newness implies—that all rights should behave similarly when they are settled—is not as easy to illustrate. When we go looking for settled socioeconomic rights claims, we encounter a very large sample bias, and one that is often missed. The biasing of the sample begins because we often talk about socioeconomic rights in the context of emerging systems where poverty and need are most pressing. The reasons for this are understandable. But it means that we often talk and think about socioeconomic rights in the context of systems like South Africa and India where many socioeconomic entitlements are in large measure still aspirational and where giving universal effect to basic socioeconomic rights still represents an enormously incomplete task. As a result, the places where we most commonly study socioeconomic rights are places where any reasonable observer would expect them to behave differently compared to the traditional, routine picture of rights enforcement. This difference, for some, supports the idea that socioeconomic rights are different. But it could also just be a matter of where we are drawing our sample from. We can test this by examining a sample in which socioeconomic rights are less new, but it is here that the bias grows deeper. We are, of course, familiar with societies in which basic socioeconomic entitlements are largely entrenched in institutions and budgets. This is the state of affairs, broadly speaking, in the richest social democracies. But for two reasons, we seldom take this properly into account when we assess socioeconomic rights. The first reason is that at least the most prominently studied of these richer societies do not have much in the way of socioeconomic rights in their constitutional texts. Some lack them altogether (e.g., Canada or the United States at the federal level); others recognize them in some manner that has real legal weight but is nevertheless not the same as the status of a right in the bill of rights (e.g., Germany, with its Sozialstaatsprinzip, the social state principle). Of course, this is a weak generalization. Many legal systems in richer states contain socioeconomic rights, including in the United States at the state level and in Europe in many domestic constitutions and in regional human rights law. But this does not seem to have weakened the association of socioeconomic rights with the constitutions of emerging, poorer countries. This may have something to do with efforts to claim socioeconomic rights as a particularly Global South phenomenon, or with the way arguments about Western states’ Cold War hostility to socioeconomic rights are sometimes extended well beyond the places where those arguments are plausible, or it may simply be due to comparative law’s bad habit of making claims about the world on the basis of only a few standard cases.25 But whatever the cause, the result has been a strong sample bias against settled examples of socioeconomic rights claims. The second reason for the bias is that socioeconomic claims in the world’s most established welfare states usually manifest themselves as statutory or administrative law claims. Judicial action to enforce and supervise the entitlements of the welfare state in this way is routine in these systems. But because it does not usually happen in terms of socioeconomic rights, even in systems whose constitutions include them, this huge body of judicial practice is easy to leave out when socioeconomic rights are being assessed.26 Or, worse still, it may be taken into account as evidence for skepticism: the fact that this judicial activity is routine and does not produce the problems associated with socioeconomic rights claims, goes this argument, is because it occurs in terms of classic judicial activities like policing procedure and interpreting statutes and not in terms of socioeconomic rights.27 Drawing attention to these twin biases conveys the suggestive force of the argument: we have only to picture a rich, established welfare state that framed more of its existing legal claims to socioeconomic interests in terms of socioeconomic rights to see how the set of socioeconomic rights claims could contain a vast body of exceedingly routine judicial activity. There would doubtless be some more controversial cases, and a ragged frontier where roughly settled entitlements would end and debates about judicial expansiveness or deference would begin—and this picture would precisely match the way any civil-political right looks. Question-begging concerns may be felt here. They arise, for both sides of the argument, in the following way. We are seeking to evaluate the justiciability of socioeconomic entitlements. My concern here is with the exclusion, from the sample of behavior used to evaluate this claim, of the enforcement of socioeconomic claims in systems where they are often not enforced or conceptualized in terms of socioeconomic rights. That exclusion is question begging. If socioeconomic rights are a different and troublesome kind of right, then it might make sense to look only at systems with socioeconomic rights in them, and then we would expect that systems without them would function with less trouble. But of course that is the very question at issue. The same is true for my side of the argument. I would also beg the question if I stipulated the relevance of these cases to the assessment of socioeconomic rights. It is only if you think that the presence or use of a particular kind of right has no particular magic or import, as I do, that you will feel free to generalize easily across cases with and without socioeconomic rights. These difficulties, however, do not prevent us from proceeding. The following argument suffices for my claims here, and it is not question begging. The newness argument implies that insofar as claims under a socioeconomic right are not new, it is possible for courts to enforce that right in an increasingly traditional-looking manner, with individuals asserting rights and courts granting concrete individual orders as a matter of routine judicial business. In established social democracies, judicial enforcement of socioeconomic entitlements often looks like this. This is evidence that such entitlements can indeed be enforced in such ways by courts. That evidence is relevant to understanding cases where courts enforce such entitlements in socioeconomic rights cases, because the same substantive problem is at issue. Therefore, even if lots of judicial activity in relation to socioeconomic interests in established social democracies does not happen in terms of socioeconomic rights, this body of practice offers strong reason to think that judicial engagement with socioeconomic entitlements can be routine. And if that is so, this powerfully bears out the most important implication of the argument from newness, namely that socioeconomic rights will look very different if only we see them in a context where they are less new. D. Socioeconomic Rights Skepticism as a Self-Fulfilling Prophecy The tendency to talk of socioeconomic rights as a separate category is pervasive, and the illustrations already discussed show us how it can generate its own momentum. Since socioeconomic rights are seen as controversial and troublesome, constitutional drafters will have plausible reasons to omit them or to include them only as directive principles or internally qualified rights in ways they would not do with more traditional rights. These drafting decisions thereafter generate impeccable legal reasons for treating socioeconomic rights differently in these systems.28 Socioeconomic (and cultural) rights have been treated differently from civil-political rights on the international level in substantive ways, but the mere fact of having separate-but-equal covenants for the two categories similarly reinforces the intuition of difference.29 I also noted earlier the more insidious effect of the self-fulfilling prophecy in shaping the terms of the debate. Talk about socioeconomic rights often takes the form of debates about skepticism. Skeptics frame their arguments in terms of socioeconomic rights’ problematic differences. Supporters reply in the same terms: this category should not be treated as insuperably problematic. The debate thus becomes framed in terms of socioeconomic rights as a special category, and the intuition of difference quietly strengthens itself. In this way, both skepticism and the broader intuition of difference are encouraged simply by the fact of the long and ongoing controversy over socioeconomic rights. It is therefore important to underline that, as a source of evidence, this is again question begging. If socioeconomic rights are not a different and more troublesome kind of right, but many people wrongly think that they are and as a result treat them that way, then of course the way these rights are handled will look different. And when these people are part of a legal community, their handling will get built into texts and doctrine and professional expectations, so that the belief will construct the legal evidence for itself. But the fact that a belief is common does not make it right, and this should make us wary of certain sorts of evidence. Courts seldom discuss this sort of question openly, but the well-known 2010 South African water rights judgment in Mazibuko is an exception.30 The (unanimous) Constitutional Court judgment included a section titled “Litigating social and economic rights.” In it, the Court set out what it thought could be achieved by litigants using its reasonableness approach to socioeconomic rights. It was responding to the persistent criticism of that approach, including from counsel in the case.31 One can, of course, see this passage as confirmation that the Court itself believes that socioeconomic rights are a different sort of right that requires special, more restrained handling, and the Court’s critics have read it this way.32 But the argument could also just be framed this way because the Court was responding to criticism that is always framed in this way. I do not purport to know what the judges were thinking, but their actions might speak loudest. As noted, the Court’s substantive actions do not divide up neatly by kind of right, and the author of Mazibuko, Justice O’Regan, is the same judge who had explicitly ruled a few years earlier that the reasonableness approach is a device for positive claims, not just socioeconomic claims, and that socioeconomic claims are not alone in sometimes having cost implications.33 If so, the specificity of Mazibuko’s remarks is only skin deep—and its apparently clear admission of socioeconomic skepticism, seen as so damning by its critics, would in fact be only a reflection of the way that those critics themselves talk constantly about socioeconomic rights as different. III. Newness, Polycentricity, and Complexity Arguments about complexity in socioeconomic rights have come to be indelibly associated with Lon Fuller’s concept of polycentricity. Newness has important implications for how we understand these arguments. But first, I reverse direction and consider what Fuller’s arguments can tell us about newness. A. Polycentricity as a General Phenomenon Concerns about the complexity of the underlying issues are standard in socioeconomic rights debates, but of course they are hardly limited to that context in reality. Given how often polycentricity is invoked in relation to socioeconomic rights debates, it is first worth noting that Fuller himself was very clear about this. Polycentricity has taken on a life far beyond Fuller’s discussion, having seemingly been built into the intuition that socioeconomic rights raise special problems. Civil-political rights claims are complex, but socioeconomic rights cases are polycentric, and this is often meant to state a verdict rather than describe the problem Fuller was talking about. But Fuller himself was not concerned to talk especially about socioeconomic rights. His polycentric examples included issues from labor law and railway tort liability, and he observed that “[i]f we survey the whole field of adjudication and ask ourselves where the solution of polycentric problems by adjudication has most often been attempted, the answer is: in the field of administrative law.”34 It was also in the administrative context that Fuller thought the problems he addressed in his paper were “most acute.”35 And though he was wary, he furthermore did not believe that the presence of polycentricity meant judicial involvement was necessarily inappropriate: [T]he fact that an adjudicative decision affects and enters in a polycentric relationship does not of itself mean that the adjudicative tribunal is moving out of its proper sphere. On the contrary, there is no better illustration of a polycentric relationship than an economic market, and yet the laying down of rules that will make a market function properly is one for which adjudication is generally well suited. The working out of our common law of contracts case by case has proceeded through adjudication, yet the basic principle underlying the rules thus developed is that they should promote the free exchange of goods in a polycentric market.36 Fuller, then, would have no part in treating polycentricity as a basis for a distinction between the judicial review of civil-political and of socioeconomic rights, nor necessarily as a reason to think courts should stay away from polycentric complexity in any context. While he and contemporary critics like Owen Fiss would disagree about the degree to which courts can or should act despite polycentricity, they agreed it was everywhere in law.37 B. Fuller’s Concerns and Perceptions of Socioeconomic Rights Fuller’s broader reason for talking about polycentricity is also of interest here. He thought the problems he was concerned with were most acute in the context of administrative law because he saw how the imperative to give “every citizen his day in court” had led complex governance issues to be channeled into the sphere of adjudication. He did not necessarily welcome this, arguing that “[g]enerally speaking, it may be said that problems in the allocation of economic resources present too strong a polycentric aspect to be suitable for adjudication.”38 It is thus perfectly fair to cite Fuller if one is concerned that the imperative to help the poor is running the same risk in the socioeconomic rights context. But the problem Fuller was arguing against is really the mirror image of the one I am arguing against here. Fuller wanted to get people to recognize the potential polycentric problems in areas of law that are familiar judicial business (like contract law), or in areas being turned into familiar judicial business (such as way the hallowed idea of giving citizens their day in court was bringing polycentric problems into the realm of adjudication on the back of an expanding government and an expanding administrative law). He wrote at length about this because it is easy for people to see the label “contract law” or “administrative law” and conclude that what is going on is judicial business as usual—without looking at what the court is actually being asked to do and thus missing the polycentric hazards Fuller wanted them to see. Socioeconomic rights face the opposite problem: we see the label “socioeconomic rights” and make the reverse assumption, on a similarly questionable basis, that what is going on is not judicial business as usual. We may thus be problematically over-sensitive to these pitfalls in the context of less established categories of rights, just as Fuller was worried that we might be under-sensitive to them when the legal category was more familiar. Thus the challenges that individual socioeconomic rights claims can sometimes genuinely display give rise to general skepticism of the justiciability of the whole category, while the challenges that individual civil-political rights claims can sometimes genuinely display get the benefit of different background assumptions and are just seen as the individually difficult cases they are.39 The way that polycentricity has come to be used as a shorthand for the apparently special complexities of socioeconomic rights cases illustrates this double standard. This image problem is the reason that the South African Grootboom case has been so influential: not because it was so good at dealing with housing problems, but because it has been so good at dealing with worries about the justiciability of socioeconomic rights as a category.40 Its most significant contribution in the South African context may well be its role in normalizing judicial involvement in socioeconomic matters in the face of government discomfort and widespread skepticism among lawyers. It is also in this guise that Grootboom’s approach changed the minds of external observers like Cass Sunstein,41 and influenced wary states involved in drafting the new Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights.42 The new Optional Protocol provides for an individual complaints mechanism to match that one that has long existed for civil-political rights under the International Covenant on Civil and Political Rights. The idea that an international body might adjudicate socioeconomic entitlements raised objections of a kind that other international rights have not had to face. To meet these, the Committee on Economic, Social, and Cultural Rights had to do what no other international rights enforcement body has had to do, and announce in advance the assessment standard that it would use—and it was to the reasonableness test that it turned to do this.43 C. Polycentricity and Newness The two points just made about Fuller serve the argument that the same issues and problems arise across rights context, and thus support the claims of the newness argument. But of greatest interest is to reverse the direction and see how newness helps us understand the argument about polycentricity as Fuller made it. As with the positive–negative distinction, newness can help us to identify more sharply where the real issues lie. Consider again the situation where a rights claim is not new. A court, in this context, will be operating in the context of an existing, well-established practice of judicial involvement in a particular issue. An array of legal and other actors will be involved in constantly moving between the details of particular cases and the larger picture of the issue as a whole. What a judge has to do in one of these cases, then, is be a small piece of this system for a small moment of its ongoing operation. As a result, she can potentially involve herself in hugely complicated and polycentric issue without herself having to try and grasp the whole of that system as a condition precedent to responsible intervention. Because there is a sophisticated mechanism engaging the issues both before and after a particular judge has to decide a particular case, and because we are confident that mechanism will engage with and react to the court’s decision, judges can be less worried about mistakes or unforeseen consequences and so can the rest of us. Judicial involvement in areas such as those Fuller uses as examples—contract law in the context of markets, administrative law in the context of governance—reflect just this pattern, with routine, discrete cases being parts of much broader mechanisms for trying to deal accurately with very complex, often polycentric issues. The point can be made well in terms of Fuller’s metaphor of polycentric problems as spiderwebs. Some of the power of that metaphor lies in how it makes us imagine ourselves coming across a perfect spiderweb on a dewy morning that no-one has touched, and consider the consequences of just one careless pull. That is a perfectly reasonable way to think about how a polycentric problem can look to a judge considering making a first, unilateral intervention in an area where judges have not traditionally been involved. But things are different in a context where judicial involvement is routine and part of an existing complex mechanism. Then, there is a much smaller risk that one case that tugs at one thread will imperil the whole web. The pulls will mostly be coming from familiar directions, directions around which the web has been built and rebuilt, and if unfamiliar, unforeseen tensions happen to arise, there are plenty of other actors on the web to respond. It is not, in other words, that the spider web is any less polycentric for being in familiar use. It is that in this metaphor such a judge is a spider, among other spiders, and spiders intervene in webs all the time. Part of what is going on here is a phenomenon that Fuller recognized, namely that one can solve a polycentric problem as a non-polycentric one by choosing to ignore aspects of it.44 You can solve a complex case with a blunt rule. If you are setting the blunt rule for the first time, this approach is risky because the pieces of the problem it ignores might matter. But if everyone expects the blunt rule as a kind of default, and the court is merely one small part of the mechanism for handling the issue, then other actors can shape their behavior accordingly and make adjustments when necessary. Law does this all the time. Instead of trying to think about all the complexities of the market when designing contract law, for example, at least one time-honored approach is to set limited simple rules and expect market actors to adjust their behavior so as to produce the sorts of contracts courts will treat as enforceable. Judges might make incremental adjustments, but do not try, as it were, to start with a blank sheet of paper and draw up the optimal contracting structures for the markets they intervene in. This distinction, between incremental rule writing and actually trying to design what contracts should look like, was one Fuller thought crucial in deciding what was institutionally appropriate for courts. He thought judges were fine doing the former and got into trouble doing the latter.45 But whatever you think about his conclusion, note how the distinction is really about newness, not about polycentricity. Since Fuller thought judges could administer an existing system of contract law, notwithstanding the polycentric aspects of regulating economic agreements in a market, his argument was really that judges should not intervene in polycentric areas where judges and other actors have not already acted. Just as the true obstacle is not whether a rights claim is positive but whether it is a new positive claim of a kind not already in the budget, so the obstacle here is not polycentricity itself but the challenges of confronting it unsupported by existing institutions, doctrine, and expectations. This logic can seem, frustratingly, to beg the question in favor of the status quo: courts should not intervene except on issues where courts already intervene.46 It is in fact a perfectly fair, if debatable, argument about the difficulties courts will encounter if they try to confront significant newness unilaterally. But the way that arguments like Fuller’s can seem to beg the question in this way is the reason that socioeconomic rights can seem so daunting when they are first proposed, and yet can so suddenly look a lot less daunting once their enforcement gets properly under way. They really are that daunting when new, and they really can become quickly less daunting once some groundwork is laid. IV. Types of Newness and the Core of the Skeptical Intuition To this point, I have been arguing in terms of newness in general, and suggesting that the alleged differences between socioeconomic and civil-political rights disappear once we control for newness. But showing that all rights can be new still leaves open the possibility that the two kinds of rights might nevertheless be different because they display newness in different ways. Any challenge to the intuition of difference has to address this—and we will see that doing so takes us to the heart of the intuition, where it is possible to kill it. A. Back to Cost This objection—even if all rights display newness, different kinds of rights might be new in different ways—marks a return to the stubborn sense that socioeconomic rights alone imply vast entitlement programs, with costs to match. As I acknowledged when discussing that issue earlier, the argument to this point has not rebutted the idea that socioeconomic rights can manifest their newness in terms of fresh budgetary implications on a scale that civil-political rights claims never approach, and that this is a real and important point of difference. This deeply intuitive argument is much weaker than it has appeared to so many for so long, once we focus our attention on what actually matters for the judge asked to enforce the right. I argued that newness reveals the real constraints on judicial activity in resource-intensive areas to be the existing budgetary baselines in the society. Thus these constraints would melt away if judges were asked to enforce costly socioeconomic entitlements within or close to existing budgetary allocations. Now it is the flip side of that argument that matters. The limit on socioeconomic rights enforcement, when the claims in question are not already provided for in this way, is a set of social or political expectations about budgets and welfare state entitlements. The controversies about legitimacy and institutional ability arise when socioeconomic rights lead judges to make their own decisions about those issues rather than leaving them to elected officials or more appropriate experts. We have only to state the point in this way to see that the analogy to civil-political rights claims, when they are similarly new, is a direct one. The obstacle in either case is a social one about attitudes towards the distribution of resources, whether these are largely concrete ones like medications or largely intangible ones like marriage recognition. The natural objection is that, at least some of the time, the limit on socioeconomic rights really is set by the amount of money in the treasury, in a way that is not true for examples like marriage recognition. At a certain point, it does not matter what society believes or what judges think it should believe if it cannot afford to pay for the resulting entitlements. I agree this situation can arise, but on closer scrutiny, it is not much of a reply to the argument being made. On the one hand, as any observer of socioeconomic rights litigation knows, the real point where everyone usually starts to become very cautious about a socioeconomic rights claim is long before the point where society really could not afford it. It is long before the point where the state would go bankrupt, or be unable to pay for other essential things, or have to raise taxes beyond a level that the economy could bear. Instead, the limit hovers around the current set of entrenched ideas about what level of redistributive taxation is tolerable and what sort of a welfare state is appropriate.47 In reality, the absolute resource limit is usually a merely theoretical one, while it is the social or political limit that really matters, just as with other rights. Theoretical limits matter, of course, but we would do better to draw our categorizations based on what matters for rights enforcement in practice. And, on the other hand, it is not even true that socioeconomic rights are unique in their potential to break budgets. Once we make ourselves look, we can see that such cases can arise under civil-political rights too. The fact that costly fire services underpin property rights becomes more contentiously apparent when the bill for protecting second homes against wildfires skyrockets. But the truest analogies are to possibilities that we do not usually even consider in the context of civil-political rights, where longer practice usually keeps our ideas more grounded, and where we do not give our imaginations license to consider hypotheticals the way we can do for socioeconomic rights. If, for the sake of argument, we permit ourselves similarly free rein in the context of civil-political rights, we can easily imagine similarly budget-busting possibilities: awarding the resources of a television channel or a newspaper company to every holder of political opinions or free speech rights; or endlessly generous catering to religious groups or speakers of minority languages; or the cost implications of extending full dignity and equality rights to non-human animals. Each outcome is perfectly possible to reach if we take the relevant civil-political right and run with it, just as it is very easy to think of ways you could use a right to health or housing to blow any budget. Even when we get to the most dramatic arguments about huge resource implications, the two categories of rights still behave the same, provided we adjust for newness and ensure we really are making a like-for-like comparison. One of the best ways to confirm this point to ourselves is simply to ask what would happen if a judge were actually to make a socioeconomic rights order that society really could not afford. The fear that the state would go bankrupt, or that resources would be stripped from other vital areas, depends on the extremely hypothetical assumption that everyone would go along with the judge’s order and pay up. In reality, such an order would meet the same sort of reaction as would have arisen if, say, a U.S. judge had ruled in 1870 that same-sex marriage was protected under the Fourteenth Amendment, or if that judge today ruled that non-human animals may no longer be kept in “slavery or involuntary servitude” for food production under the Thirteenth Amendment. Both are new in the same way, as large shifts in “the way things are”—the limits in either case are about social baselines. Those baselines can of course concern things that cost resources, but that is not ultimately what they are about. If people are used to paying a certain amount in taxes, then that becomes the rough baseline, even if it would seem inconceivably demanding from the perspective of other times used to much lower rates. What matters to the judge in all cases is not whether the relevant social baselines are about tangible or intangible resources, or how much of them. It is what those baselines treat as normal or as novel (and insofar as they treat something as novel, how far the judge believes she can or should challenge the baselines in the name of rights). The argument about the greater resource implications of socioeconomic rights has had a long run because of the obvious truth it contains. Its defect, however, is not about that truth, but about the limited relevance it actually has to the business of enforcing rights in court in practice. Seeing this point will help us to shake off the enormous inertia of the resource argument, the single most important reason for the nagging intuition that socioeconomic rights are different. But it will also help us to detect one of the larger inconsistencies in how we judge different kinds of rights. When judges are asked to enforce, for example, equality rights in the context of uncertain and evolving social expectations, we talk about the limits of what it is possible for courts to achieve in a certain kind of society. But when courts are asked to enforce socioeconomic rights in the context of uncertain and evolving social expectations, we talk about the limits of what courts can do to enforce that kind of right. Recognizing that the true constraints on socioeconomic rights are also a matter of social attitudes will allow us to see this differentiation for the inconsistency, and the distraction, that it is. B. An Illustration from Latin America An example will again be useful at this point in an argument about intuitions. And having just suggested that socioeconomic rights enforcement should not be understood as fundamentally about resources, and that judicial orders for unsustainably costly entitlements are a danger more hypothetical than real, it is especially useful to discuss an example from Latin America. Developments in justiciable health rights in several Latin American countries represent the case study that critics might well themselves select as an illustration of the dangers of judges using socioeconomic rights to grant spiraling entitlements in ways that threaten whole national budgets. It has become common in several Latin American jurisdictions, prominently including Brazil and Colombia, for individuals to use litigation to compel the state to pay for treatments not otherwise covered by healthcare plans. Judges have granted thousands of these orders, often without paying much attention to whether they add up to a just and sustainable healthcare policy.48 Socioeconomic rights are being treated as individually enforceable entitlements, and the result, the skeptics will say, is spiraling spending without any clear sense of its own limits, just as they predicted. What this argument actually shows is the inconsistency of our judgements across types of rights. There are certainly things to criticize, but ultimately what we are seeing here, I suggest, is judges coming to ignore aspects of a polycentric problem as part of the process of a right becoming less new. Certainly, some Latin American courts have engaged the bigger picture of healthcare policy and whether it is sustainable to conduct it by individual petition, and that too is part of an institutionalizing process.49 But a large portion of the judicial activity simply seems to reflect the view that individuals should usually get urgently needed treatment when it can help them even if they cannot personally afford it, that judges should mostly focus on establishing these narrow facts and making orders accordingly, and that society should react as necessary.50 It seems to represent, in other words, a shift towards treating these healthcare claims in the same way as claims in Fuller’s examples of the administrative and contract law contexts: namely, by not engaging their full polycentric complexities, because the judges in the individual cases understand themselves to be entitled to apply much simpler decision-making rules, and to expect other actors to adjust. Whether other Latin American healthcare actors actually will adequately adjust remains to be seen. My aim here is simply to see (as Fuller would want us to) how a pattern that critics easily dismiss as recklessness should be familiar from other rights contexts where we would not pass the same judgment. We usually do not expect judges, especially lower court judges working their way through routine dockets, to come to terms with market capitalism when they enforce a contract. We do not expect them to consider whether adjudicating one of a thousand routine contract cases in a slow and careful “judicial” way is fueling a shift to private arbitration, for example, and demand that they come to grips with that macro-institutional issue as a condition for making a responsible order on the individual contract.51 To the contrary, many systems (especially historically) have dealt with contracts by permitting judges to decide them heavily on the basis of ancient authorities without taking much account, for example, of broader empirical data or economic issues. Again, the issue is not whether this was wise or not—scholars from fields like law and economics can offer important arguments about why this could be a bad thing, just as scholars can offer important criticisms of socioeconomic decision making by judges (and others).52 What matters here is to see how we accept as normal in the context of a more settled area like contract law just the sort of narrowed thinking that is said to constitute myopic recklessness in the context of a less settled area such as the litigation of healthcare claims. This difference does not arise because one issue is more complex than the other or has more at stake. It arises from the contingent social fact that most systems currently are more comfortable with judges ignoring complexities in this way in the context of contract law than they are in the context of socioeconomic rights. It is, in other words, once again a difference really about newness. V. Recalibration: Rights Debates as Arguments About Newness The arguments of this Article have all been directed to showing that we see socioeconomic rights as different only when we do not have the basis of comparison right. Newness can help us correct for this. Re-description is not resolution, and this kind of recalibration will not and should not end many important debates, but it does not leave them unaltered. A. Newness and Restating the Debate If the argument from newness is right, then skeptics cannot maintain their claim that socioeconomic rights as a category are less justiciable. However, they are perfectly free to argue that socioeconomic rights claims that display a significant degree of newness are troublesome and controversial, and that these are reasons for courts not to enforce them or to be cautious about doing so. As I have emphasized, analysis in terms of newness leaves open the great and perennial question about how courts and others should respond to newness. It just insists on re-framing the question in those terms. Skeptics who shift to resisting the justiciability of socioeconomic rights claims that display significant newness will no longer be guilty of being inconsistent about rights—provided they accept that courts should treat other more traditional rights claims displaying a similar degree of newness with similar restraint. Similarly, some supportive arguments may require restatement. Supporters often argue that socioeconomic rights should be treated the same as civil-political rights, and they offer evidence of more restrained enforcement, in a given system, as evidence that socioeconomic rights are not being treated the same. An argument in these terms only holds up if civil-political rights claims of a similar degree of newness are or would be treated more favorably in that system. If all new rights claims are treated with similar caution, then the supporter may be able to argue fairly against judicial restraint in general, but socioeconomic rights skepticism will not be the problem—and repeating all the standard rebuttals to socioeconomic rights skepticism will, in that context, be entirely beside the point. Another version of this argument claims that for socioeconomic rights to be taken seriously as rights is for them to be enforced to the same effect as civil-political rights: for example, that if civil-political rights ground concrete, individually enforceable orders, then so should socioeconomic rights claims. That, too, is fair enough—but then those who argue this must acknowledge that if they are asking a court to enforce a new socioeconomic rights claim to the same effect as a settled civil-political rights claim, they are asking more of the court in the former case, and often much more.53 Many supporters of socioeconomic rights do acknowledge this point, explicitly or implicitly, when they argue for creative, bold sorts of judicial activity to enforce socioeconomic rights effectively. However, it is then no longer open to these supporters to contend without more that those who do not accept their arguments are being inconsistent between categories of rights. It is perfectly possible that their targets, whether scholars or judges, are socioeconomic rights skeptics. But because the supporters are asking for much more from courts in the one case than the other, it is also possible that their targets are not skeptics and are just concerned about such bold judicial action. If that is the case, arguments against socioeconomic skepticism will again be entirely beside the point, and it is general arguments about restraint and boldness and judicial capacity that will matter. Wherever one stands in these debates, however, reframing them in terms of newness has the signal advantage of removing some artificial constraints on what we treat as the data relevant to them. As the examples in this Article make clear, we already possess a great deal of knowledge about how to respond to newness and how courts can be part of that work. But this knowledge is often segregated by the kind of right. Some devices for enforcing socioeconomic rights, such as structural interdicts, are often discussed across rights contexts. But the rich history of content formation and altering social baselines in the context of more traditional rights remains comparatively untapped as a source of evidence in understanding today’s socioeconomic rights claims. Whatever the answers are to the hard questions about how to confront newness—and they will doubtless vary with context in any case—recognizing that everyone is confronting the same kinds of problems should help to break down such artificial fetters. Doing so will complete the moves to learn across rights contexts long since begun by pragmatic socioeconomic rights litigants around the world who are more interested in what works than in categorizations, and have accordingly drawn freely, to take just one example, on a U.S. movement whose eponymous concern was civil rights. B. Recalibrating Our Expectations: Progressive Realization and the Minimum Core We can also see the need for recalibration, and the way newness can supply it, by looking at doctrines we do not usually treat as applicable to civil-political rights cases, such as progressive realization and the minimum core. That we do not apply concepts like these in the context of civil-political rights has much to do with the intuition of difference, and newness can again expose this differentiation as an inconsistency. The suggestion, for example, that the civil-political rights of minorities are subject to progressive realization may provoke resistance. But one has only to make the statement to see that this is just how these rights often work in practice. The rights of many groups are long-term works in progress; civil rights in the United States are the canonical example, and LGBT rights the example of the moment. This intuition pump works both ways. It should rightly temper tendencies among some supporters to over-inflate expectations of what it means to treat socioeconomic rights “just like other rights.” It also works on skeptics, since whatever discomfort they may feel at the idea of civil-political rights being “only” progressively realizable should apply to socioeconomic rights claims too. There are certainly tensions between approaches like incrementalism and important ideas about what rights are supposed to be: what matters here is only that, whatever we feel about these tensions and how to navigate them, we should feel it in the same way in relation to rights of all kinds. Newness also affects how we view the minimum core.54 As a device aimed at giving socioeconomic rights more concrete, enforceable content, the minimum core conception is a response to skepticism, but it is also a response to newness. It is a manufactured substitute for the process by which a right might otherwise gain by social evolution the more settled content that more traditional rights already have. That international human rights law has used the minimum core only in the socioeconomic context is above all a reflection of how supporters in that context have had their whole activity shaped by the need to jolt skeptical assumptions and prove that the interests they are defending are meaningfully justiciable. To see how things could have been different, and how the minimum core might have been applied differently, we have only to think about what civil-political rights would look like in the context of greater newness. We might think of the caricature of a Soviet-bloc socialist state, in which most people have access to affordable housing, but few have access to political freedoms. In that situation, would we bother to come up with a minimum core conception for the right to housing? Practice and lower level policy documents would already supply the basic idea of what housing people should have, and the widely entrenched nature of the entitlement would make it much less controversial and difficult for a hypothetical judge to fill in what would in any event usually only be smaller gaps in the framework. But if political rights—free speech, voting, freedom of association—were introduced overnight into the constitutions of these societies or if formerly paper protections were suddenly taken seriously, there would be a much greater gap. It might then look more valuable to offer a minimum core statement of these rights. And in fact we do not entirely have to imagine this. The many policy prescriptions and speeches that flowed from the West in the post-Soviet era, and that flow from development agencies to transitioning states more generally, are often attempts to state the essentials of liberal democracy (as well as market capitalism). They are, functionally, minimum core statements of the civil-political rights.55 Or we might consider an even more direct case. Formal law has usually confined the minimum core to socioeconomic rights cases, and so direct formal uses are hard to find outside that context, but they do exist. Judges in Kenya recently confronted a provision in Kenya’s 2010 Constitution that requires at least one-third representation of each sex in public bodies, both elected and appointed. This provision is not about socioeconomic rights, but it is aspirational, and its implications are uncertain, and so it displays significant newness in my terms. In approaching the section, the judgment drew on both the South African reasonableness test, and the minimum core conception.56 Possible technical legal objections aside, this reflects how, from the perspective of that Kenyan court, the problem at hand called for those sorts of tools—of how, in my terms, devices designed to respond to newness in the context of socioeconomic rights are a natural fit for a judge dealing with a claim displaying newness outside that context. The minimum core is a device for shaking up the status quo and the social idea of what should be unconditional, just as progressive realization is a device for slowly trying to ratchet that idea upwards. I argued earlier that it is such social ideas that constitute the real limits on judges enforcing rights claims, and not the brute fact of the resources they may require. Once we recognize this, it is not difficult to see how devices like the minimum core could apply to civil-political rights too—and their hitherto almost exclusive application to socioeconomic rights will be exposed as just one more contingent inconsistency that reflects our intuitions of difference rather than a datum we should treat as confirming them. Conclusion In the United States after the Civil War, the distinction that was insisted upon, and around which debates circled, was one between civil and political rights. Though the distinction was not always clear, “political” rights generally included the right to vote and to stand for office, and to serve on a jury or in a militia. “Civil” rights included the right to make contracts, to sue and be sued, and to give evidence in court.57 We can immediately see why this distinction mattered in a society that wanted to exclude everyone except white men from exercising political rights, but was more liberal about civil rights.58 It was drawn upon by one political leader after another to insist that the Civil Rights Act of 1866, which as the name implies empowered the federal judiciary to enforce all citizens’ civil rights, did not extend to political rights and so would not threaten the white male monopoly on elections, juries, and militias.59 It also made its presence felt in the bifurcated text of the Fourteenth Amendment. Section 1 of the Amendment grants civil rights to all citizens, but Section 2, concerning the political right to vote, introduced the word “male” into the U.S. Constitution for the first time in order to draw the boundaries of that right. Once written into law this way, the distinction naturally affected adjudication, raising formidable obstacles to judicial enforcement of the political rights of other groups via the Fourteenth Amendment. Enforcement was not impossible: for example, it seems that at least two lower court judges were willing to uphold white women’s (political) rights to register to vote under Section 1 of the Amendment before the Supreme Court ruled this out.60 But it was certainly much more difficult, and controversial, for judges to act in such ways. And when Reconstruction-era developments threatened to unsettle matters, opponents drew on the distinction in ways socioeconomic rights scholars today will find very familiar. For example: “Civil rights are absolute and personal. Political rights, on the other hand, are conditioned and dependent upon the discretion of the elective or appropriating power, whether that be the people acting through the ballot or one of the departments of their government.”61 The civil versus political rights distinction was thus a distinction that, though it did not go uncontested, had pervasive purchase on legal activity in its time. And yet today, of course, the distinction has lost that significance, to the point that no one here at the end of this long Article will have felt any qualms at all about how I have been lumping them together as the “civil-political” counterpoint to “socioeconomic” rights. Today, we have little difficulty seeing that the distinction was a product of the attitudes of that society at that time, and not the result of some inner logic or essential feature of the rights in question. We also have little difficulty perceiving how the natural messiness of these social attitudes could have results that questioned the distinction’s claim to be about something logically necessary: for example, the way that the right to serve on a jury was seen as a political right, but the right to be tried by one was classified as a civil right.62 To us today, those look like two aspects of the same right, and we find it natural to look to social attitudes about who should hold power to explain a distinction that otherwise looks odd or artificial. Meanwhile, we have questionable distinctions of this sort of our own: for example, the way my state-enabled right to buy a house or to keep a house I already have is seen as a civil-political right to property, but that if the state supports my acquisition too much it becomes a socioeconomic right to housing. I hardly believe that the category of “socioeconomic rights” will die out everywhere any time soon, still less on the strength of this Article alone. But this little piece of nineteenth-century history reminds us how such distinctions can fall away entirely—as Mark Tushnet argued when making this point nearly thirty years ago.63 Being aware of how contingent such matters are is the best antidote to the intuition that socioeconomic rights are different, a position that in the eyes of the future will come to be seen as a similarly contingent product of its time. As with the struggle for rights across lines of race and gender in the United States, no one denies that differences are present. Black is not the same as white, male is not the same as female, and housing is not the same as voting, though all these ostensibly clear lines quickly become harder to draw in real life. But beyond this most superficial of descriptive judgments, the differences usually matter only if we construct our worlds as if they do. The long fight of socioeconomic rights for equality with other rights should not ultimately rest on assertions of their equal moral importance or about the ability of judges to compensate for their differences. It should rest on the recognition that, although the claim that civil-political rights and socioeconomic rights are different kinds of rights has been built into our institutions and our thinking in myriad stubborn ways, the real difference between them, in the end, is this differentiation itself. I am grateful, across the several years of this Article’s gestation, to Bruce Ackerman, Jennifer Bond, Diane Desierto, Matthias Goldmann, Heinz Klug, Madhav Khosla, Kalyani Ramnath, Susan Rose-Ackerman, and, as always, Michaela Hailbronner, for their help and comments on earlier drafts, as well as the thoughtful and very useful feedback of two anonymous reviewers for the Journal. My thanks also, for their invaluably different comparative perspectives, to the attendees at the inaugural Law & Society in Africa Conference, at faculty gatherings at the University of Ottawa and the Osgoode Hall Law School, and at the Max Planck Institute for Comparative International and Public Law, Heidelberg, where I delivered an earlier version of this Article as a Max Planck lecture at the kind invitation of Arnim von Bogdandy. Finally, and particularly, my thanks to Dieter Grimm, in response to whose Yale class on fundamental rights in Germany the idea of this Article originally arose, for his openness to ideas and his warm encouragement in pursuing them. Footnotes 1 See, e.g., Cass R. Sunstein & Stephen Holmes, The Cost of Rights: Why Liberty Depends on Taxes 35–48, 59–76 (1999). 2 See, e.g., Frank B. Cross, The Error of Positive Rights, 48 U.C.L.A. L. Rev. 857, 865, 874 n.76 (2001); Jeff King, Judging Social Rights (2012). See further infra Parts I.B and V.A. 3 The need to assess judicial enforcement of socioeconomic rights in the context of a broader pattern of institutional activity is central to the argument of King, supra note 2, and, especially in the context of social movements, see, Katharine G. Young, Constituting Economic and Social Rights, esp. ch. 8 (2012). Cross, supra note 2, is an example of a discussion that sometimes runs into error by glossing over distinctions of this kind. 4 The argument in this Part draws on my fuller discussion of the concept in James Fowkes, Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa, esp. 133–42 (2016). There, it was useful to draw further distinctions for the purposes of the newness analysis itself: distinctions between newness in terms of the public status of a right as opposed to the more practical infrastructure for enforcing it, and distinctions between newness that a judge must confront unilaterally and newness where the judge enjoys assistance from other governmental or nongovernmental actors. But I find these distinctions principally useful when addressing the issue of how to respond to newness, which is not the question of this Article. 5 Those that come closest, in my view, are several leading contributions arguing that enforcement of socioeconomic rights need not take the form of strong-form review, and the weak-form modes can be useful for rights of all kinds, at least in some contexts. See Kim Lane Scheppele, A Realpolitik Defense of Social Rights, 82 Tex. L. Rev. 1921, 1931–35 (2004); Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008); King, supra note 2. All three recognize how justiciability problems associated with socioeconomic rights can affect more traditional rights, and how weak-form approaches can therefore be useful across types of rights. A blurring of the categories of rights is inherent in Tushnet’s main argument that weak-form modes of review, historically developed mainly in relation to civil-political rights claims in certain Commonwealth systems, might suit socioeconomic rights enforcement, and indeed also civil-political rights enforcement in systems like the United States that are less accustomed to weak-form review (see Tushnet, supra, at 260–64). King, too, frames much of his argument in general terms. However, all three retain the categorizations of civil-political and socioeconomic rights, and each at least implicitly concedes that while civil-political rights can pose similar challenges to socioeconomic rights claims and can merit similar restrained approaches when they do, traditional strong-form review only fits civil-political rights (although Tushnet may only do so strategically; see his comments, quoted infra notes 39 and 45, which are suggestive the other way). None of these accounts take what the newness argument sees as the crucial step, namely recognizing that the challenges rights can raise are products of social facts that can change and so what works for traditional rights, weak-form or strong-form, can and does work in the same way for any right if we control for newness. This issue, it should be noted, is also not their focus: in my terms, they are mainly presenting advice on the issue I will sideline here, namely how to respond to newness. 6 This is, by now, a familiar part of the argument that rights of all kinds cost money. See, e.g., Sunstein & Holmes, supra note 1. However, newness offers an important modification to the argument: see infra Part I.B. 7 Frank Michelman refers to the “hapless choice between usurpation and abdication” which, it is often argued, is what courts are left with if social rights are constitutionalized: Frank I. Michelman, The Constitution, Social Rights, and Liberal Political Justification, 1 Int’l J. Const. L. 13, 16 (2003). 8 Long a particular concern in debates in the United States: see, e.g., Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (1980); David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864 (1986); Sunstein & Holmes, supra note 1, esp. at 38–55; Cross, supra note 2; more recently, Tushnet, supra note 5, esp. at 185–94; Sotirios A. Barber, Fallacies of Negative Constitutionalism, 74 Fordham L. Rev. 651, 657–62 (2006); and further sources therein discussed. The argument that state power is needed to maintain the free market itself, a staple of legal realist analysis, goes back at least to Robert L. Hale, Coercion and Distribution in a Supposedly Non-coercive State, 38 Pol. Sci. Q. 470 (1923). 9 See also Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties 65 (2008) (“There is now some measure of recognition of th[e] indivisibility of positive and negative duties. But the struggle it has taken to achieve this has meant that few analyses go beyond this and consider the nature of positive rights in detail.”). 10 Sunstein & Holmes, supra note 1, at 29, observe that “judges defer much less in fiscal matters than they appear to, simply because the rights that judges protect have costs,” but do not factor in the difference between new and settled costs, crucial to the issue of deference, that I emphasize here. 11 In many ways, South African debates on this specific issue have not gone further than the early probing of the distinction by Nicholas Haysom, Constitutionalism, Majoritarian Democracy and Socio-Economic Rights, 8 S. Afr. J. Hum. Rts. 451 (1992); the tentative but seminal comments, in some tension with harder-line distinctions drawn earlier in the article, in Etienne Mureinik, Beyond a Charter of Luxuries: Economic Rights in the Constitution, 8 S. Afr. J. Hum. Rts. 464, 470–73 (1992); and the searching survey by external observers Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution, 141 U. Penn. L. Rev. 1 (1992) (for comments particularly pertinent to this Article’s concerns, see id. at 17, 25, 72, 76–77, 84; and see also Craig Scott, Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights, 27 Osgoode Hall L.J. 839–40, 847 (1989) (noting in the international context how notions of justiciability could evolve over time as tribunals and experts flesh out rights)). For rare and usually fleeting examples of later socioeconomic rights scholarship that also references other kinds of rights, see the comparison to a voting rights case in David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights 198 (2007), and the reference to the same case and another on democracy in Stuart Wilson & Jackie Dugard, Taking Poverty Seriously: The South African Constitutional Court and Socio-Economic Rights, 22 Stellenbosch L. Rev. 644, 671 (2011). The latter article comments, elusively in light of this Article’s argument, that “much of the problem lies . . . in the paucity of normative resources on which the Court can draw in the interpretation of socio-economic rights” compared to civil political rights which are “buttressed by several centuries of history and a rich array of jurisprudence.” Rosalind Dixon, Creating Dialogue About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited, 5 Int’l J. Const. L. 391, 417 (2007), approaches South African socioeconomic rights cases via dialogue theory, a model developed in non-socioeconomic rights contexts and typically applied across types of rights; Fredman, supra note 9, also considers South African cases, among others, in a broader ranging discussion that includes equality cases. Brian Ray, Engaging with Social Rights: Procedure, Participation and Democracy in South Africa’s Second Wave (2016), has most recently offered a cross-cutting analysis of some socioeconomic rights and democracy cases based on their shared concern with participation: see Ray, supra, esp. ch. 8. 12 The main arguments here are discussed in Sandra Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution ch. 4 (2010); see more recently Theunis Roux, The Politics of Principle: The First South African Constitutional Court 1995–2005, ch. 7 (2013); Stuart Wilson & Jackie Dugard, Constitutional Jurisprudence: The First and Second Waves, in Socio-Economic Rights in South Africa: Symbols or Substance? 35 (Malcolm Langford et al. eds., 2014); Ray, supra note 11. 13 See in particular Mazibuko v. City of Johannesburg 2010 (4) SA 1 (CC) paras. 159–65, discussed infra Part II.D. 14 See further Part I.D. 15 Fowkes, supra note 4, at 235–36; the broader use of reasonableness test is also noted in Young, supra note 3, at 120. Those who note that these are not all socioeconomic rights claims but are all positive claims are correct, and the Court outside its socioeconomic rights cases has explicitly linked the reasonableness test to positive rights claims: see Rail Commuters Action Grp. v. Transnet Ltd. t/a Metrorail 2005 (2) SA 359 (CC) paras. 84, 86–88. 16 I discuss meaningful engagement in Fowkes, supra note 4, at 325–48; see also Ray, supra note 11. 17 Head of Dep’t, Dep’t of Educ., Free State Province v. Welkom High School; Head of Dep’t, Dep’t of Educ., Free State Province v. Harmony High School (2014) 2 SA 228 (CC); Fowkes, supra note 4, at 340–41. 18 On the application argument, see in particular Stu Woolman, The Amazing Vanishing Bill of Rights, 124 S. Afr. J. Hum. Rts. 762 (2007); Dennis M. Davis & Karl Klare, Transformative Constitutionalism and the Common and Customary Law, 26 S. Afr. J. Hum. Rts. 403 (2010); and see also the rich work of the late André van der Walt on property rights, which included exploration of social categories in ways that overlap with some of themes of this article: see, e.g., A.J. van der Walt, Dancing with Codes: Protecting, Developing, Limiting and Deconstructing Property Rights in the Constitutional State, 118 S. Afr. L.J. 258 (2001). Some recent general accounts (which, significantly, are focused on the judicial role rather than particular areas of rights doctrine) cut across the rights divide to at least some degree: see Theunis Roux, Principle and Pragmatism on the Constitutional Court of South Africa, 7 Int’l J. Const. L. 106 (2009); David Landau, Political Institutions and Judicial Role in Comparative Constitutional Law, 51 Harv. Int’l. L.J. 319, 369–73 (2010); Roux, supra note 12; Stu Woolman, The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa’s Basic Law (2013); as well as my own account, in line with the argument here, in Fowkes, supra note 4. 19 Constitution of Ireland 1937 art. 45; India Const. ch. IV. The Indian Constitution now contains an exception following the introduction of a fundamental right to education in Article 21A, which was inserted in 2002 and came into effect in 2010. 20 Since much of this development has been conducted in terms of the right to life, rather than the non-justiciable socioeconomic directive principles, there is a threshold objection to treating the Indian case as relevant to socioeconomic rights analysis without further ado. I engage in the further ado later in this Article, since this formal objection does in fact need to be met if the arguments on all sides are not to be question-begging. 21 People’s Union of Civil Liberties v. Union of India, Writ Petition (Civil) No. 196 of 2001 (India). For such invocation, see, e.g., Bilchitz, supra note 11, at 241–42, 245. 22 See the final order in the case, People’s Union of Civil Liberties v. Union of India, www.righttofoodcampaign.in/legal-action/supreme-court-orders (unreported order dated Feb. 10, 2017). For recent discussion of this much-cited but under-studied litigation, see Alyssa Brierly, PUCL v. Union of India: Political Mobilization and the Right to Food, in A Qualified Hope: The Indian Supreme Court and Progressive Social Change 212 (Gerald N. Rosenberg, Sudhir Krishnaswamy & Shishir Bail eds., 2019); Rosalind Dixon & Rishad Chowdhury, A Case for Qualified Hope? The Supreme Court of India and the Midday Meal Decision, in A Qualified Hope: The Indian Supreme Court and Progressive Social Change, supra, at 243; and the update by long-time observer Dan Banik, The Hungry Nation: Food Policy and Food Politics in India, 1 Food Ethics 29 (2016); see further the sources cited in James Fowkes, How to Open the Doors of the Court: Lessons on Access to Justice from Indian PIL, 27 S. Afr. J. Hum. Rts. 434, 448 n.68 (2011). 23 See, e.g., Hussainaira Khatoon v. State of Bihar, AIR 1979 SC 1360 (concerning awaiting trial prisoners; the first use of extended supervisory jurisdiction in a PIL); Bandhua Mukti Morcha v. Union of India, 1984 AIR 802 SC (concerning bonded laborers; probably the first use of commissioners to resolve factual and legal issues). 24 For overviews giving a sense of PIL’s scope through the years, see esp. Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-emergency India (2017); Arun K. Thiruvengadam, The Constitution of India: A Contextual Analysis 127–35 (2017); Arun K. Thiruvengadam, Swallowing a Bitter PIL? Reflections on Progressive Strategies for Public Interest Litigation in India, in Transformative Constitutionalism: Comparing the Apex Courts in Brazil, India and South Africa 519 (Oscar Vilhena, Upendra Baxi & Frans Viljoen eds., 2013); Surya Deva, Public Interest Litigation in India: A Critical Review, 28 Civ. Just. Q. 19 (2009); Layanda Rajamani, Public Interest Litigation in India: Exploring Issues of Access, Participation, Equity, Effectiveness and Sustainability, 19 J. Env’t L. 293 (2007); Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems, in Supreme but Not Infallible: Essays in Honour of the Supreme Court of India 159 (B.N. Kirpal et al. eds., 2004); Parmanand Singh, Protection of Human Rights Through Public Interest Litigation in India, 42 J. Indian L. Inst. 263 (2000); P.P. Craig & S.L. Deshpande, Rights, Autonomy and Process: Public Interest Litigation in India, 9 Oxford J. Legal Stud. 356 (1989). The scope of PIL is noted by Young, supra note 3, at 202. I have recently discussed some of the mining cases in forested areas in James Fowkes, Adjusting the North-South Balance: Southern Judicial Boldness and Its Implications for the Regulation of Global Supply Chains, 23 Deakin L. Rev. 1, 3–10 (2018). 25 On the Global South debates, see the critique of southern exceptionalism by Michaela Hailbronner, Transformative Constitutionalism: Not Only in the Global South, 65 Am. J. Comp. L. 527 (2017). On the perception of the West, see, e.g., Daniel J. Whelan & Jack Donnelly, The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight, 29 Hum. Rts. Q. 908, 910 (2009) (“It is hard to imagine anyone could look at the welfare states of Western Europe and claim with a straight face that economic and social rights ‘are largely dismissed by the West.’ Nonetheless, this has become a standard reading.”). The debate generated by their article amply reflects of the surrounding issues and controversies, but does not belie this basic claim, nor could it: Alex Kirkup & Tony Evans, The Myth of Western Opposition to Economic, Social, and Cultural Rights? A Reply to Whelan and Donnelly, 31 Hum. Rts. Q. 221 (2009); Daniel J. Whelan & Jack Donnelly, Yes, a Myth: A Reply to Kirkup and Evans, 31 Hum. Rts. Q. 239 (2009); Susan L. Kang, The Unsettled Relationship of Economic and Social Rights and the West: A Response to Whelan and Donnelly, 31 Hum. Rts. Q. 1006 (2009); Daniel J. Whelan & Jack Donnelly, The Reality of Western Support for Economic and Social Rights: A Reply to Susan L. Kang, 31 Hum. Rts. Q. 1030 (2009). On comparative constitutional law’s biases, see, e.g., Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (2014). 26 Jeff King, who observes that in systems such as the United Kingdom “much of administrative law is really about protecting people’s social and immigration rights in the modern administrative state,” and that “the advocate of constitutional social rights ought to look there first for lessons about judicial control of welfare allocation,” is an exception. See King, supra note 2, at 48. 27 Insofar as this is a claim that judges may be more receptive to claims framed in more traditional or routine terms, this is a perfectly fair argument about litigation strategy, but otherwise it is merely an example of how existing misperceptions entrench themselves, discussed under the next heading. 28 See the careful analysis of the neglected and uncertain doctrinal foundations of social rights in India, partly due to the textual status of most social interests as directive principles, in Madhav Khosla, Making Social Rights Conditional: Lessons from India, 8 Int’l J. Const. L. 739 (2010). 29 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3. On substantive differences, see infra note 40 and accompanying text. 30 Mazibuko v. City of Johannesburg 2010 (4) SA 1 (CC). 31 Id. paras. 159–63. 32 See, e.g., Wilson & Dugard, supra note 11, at 664; Liebenberg, supra note 12, at 479–80. I discuss this and other aspects of the case in more detail in Fowkes, supra note 4, at 287–300. 33 See Rail Commuters Action Grp. v. Transnet Ltd. t/a Metrorail 2005 (2) SA 359 (CC). See also supra note 15 and accompanying text. 34 Lon Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 400 (1978). 35 Id. at 355. 36 Id. at 403–04. 37 See, e.g., id. at 397 (“There are polycentric elements in almost all problems submitted to adjudication.”); Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 43 (1979) (“. . . virtually all public norm creation is polycentric” and the list of doctrines that display or confront it “could go on and on [and] would probably include all judge-made law . . . .”). See, more recently, to similar effect, Jeff A. King, The Pervasiveness of Polycentricity, 2008 Pub. L. 101; King, supra note 2, esp. at 6–7, 9, 106–07; Liebenberg, supra note 12, at 72–75. 38 Fuller, supra note 34, at 400–01 (although note his example here is about the distribution of scarce newsprint in England after World War II, and so might well be thought a civil-political rights problem). 39 See also the observation of Mark Tushnet that “the state action question is analytically identical to the question of identifying constitutionally protected social and economic rights,” yet although every court “finds state action or gives horizontal effect to constitutional provisions on some occasions when doing so [implicates general issues of socioeconomic policy] no one raises serious questions about the capacity of courts to develop and enforce a state action or horizontal effect doctrine,” in contrast to the general conclusions that get drawn about socioeconomic rights: Tushnet, supra note 5, at 225, 227. 40 Government of the Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC) (2000). 41 Compare Cass R. Sunstein, Against Positive Rights, 2 E. Eur. Const. Rev. 35 (1993) (counseling against justiciable socioeconomic rights for the post-Soviet bloc states), with Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa, 11 Const. F. 123 (2001) (broadly endorsing the Grootboom approach). See also the criticism of the disproportionate focus on Grootboom in David Landau, The Reality of Social Rights Enforcement, 53 Harv. Int’l L.J. 189, 196–98 (2012). 42 May 5, 2013, 2922 U.N.T.S. 29. 43 Id. art. 8(4); D. Arne Vandenbogaerde & Wouter Vandenhole, The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment of Its Effectiveness in Light of the Drafting Process, 10 Hum. Rts. L. Rev. 207 (2010). See also the earlier, pre-passage discussion by Michael J. Dennis & David P. Stewart, Justiciability of Economic, Social and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?, 98 Am. J. Comp. L. 462, 489 (2004) (“Of all the various issues that gave the [original] Covenant negotiators such serious pause, the most fundamental was the difficulty of developing workable criteria by which to measure states’ compliance with, or violation of, economic, social and cultural rights.”). They also view Grootboom’s approach as at least alive to their skeptical concerns: see Dennis & Stewart, supra, at 496, 498 n.245. 44 Fuller, supra note 34, at 398, 401–03; Melvin Aron Eisenberg, Participation, Responsiveness, and the Consultative Process: An Essay for Lon Fuller, 92 Harv. L. Rev. 410, 424 (1978); King, supra note 2, at 191–92. 45 Fuller, supra note 34, at 404. Fuller emphasized a flexible approach to precedent so “the process of decision” could be “a collaborative one projected through time, an accommodation of legal doctrine to the complex aspects of a problem . . . [as they] reveal themselves in successive cases.” (Id. at 398.) Essentially similar arguments are made by others in discussing justiciability: for example, Frank Michelman comments that courts are “better at decisions calling for application of value- and policy-judgments already recorded in what may be a very complex body of law,” while “decisions calling for fresh judgments of policy or value” should be made by legislatures: see Frank I. Michelman, Democracy-Based Resistance to a Constitutional Right of Social Citizenship: A Comment on Forbath, 69 Fordham L. Rev. 1893, 1896 (2001). Mark Tushnet’s comments about First Amendment cases address this issue in a way closer to the argument presented here: in discussing why weak-form review might fit cutting-edge First Amendment cases, he says: “[o]ne point about these examples deserves emphasis: in the main, they involve relatively new social phenomena [e.g., the Internet] . . . . Experimentalist modes of review might be particularly appropriate in such cases . . .”: Tushnet, supra note 5, at 263. And in generalizing from the U.S. Supreme Court’s approach to First Amendment cases, he argues that [a]t any particular time, courts might be exercising strong-form review in some areas, weak-form review in others. They would not have principled reasons—that is, reasons distinguishing the different areas on grounds that stand up to close rational scrutiny. But they might treat the areas differently because they simply have not accumulated enough experience to be confident that their specification of a constitutional provision’s meaning is clearly better than the legislature’s specification. Tushnet, supra note 5, at 75. See also infra note 46. 46 Others have noted the vicious cycle in which socioeconomic rights are thought non-justiciable because they are undeveloped and are undeveloped because they are thought non-justiciable: David Marcus, The Normative Development of Socioeconomic Rights Through Supranational Adjudication, 42 Stan. J. Int’l. L. 53, 53–67, 88–89, 101–02 (2006); Scott & Macklem, supra note 11, at 72–73. See also the skeptical argument that “a strong case can be made that further clarification and elucidation of the rights and obligations set forth in the ICESCR . . . is . . . an essential first step before any of those rights can be said to be justiciable in any meaningful sense” by Dennis & Stewart, supra note 43, at 465–66. 47 See also Fowkes, supra note 4, at 237–38. The argument that the budgets allocated to enforcing various rights represent political choices appears throughout Sunstein & Holmes, supra note 1. Frank Cross’s U.S.-focused discussion argues that judicial enforcement of positive welfare rights would be difficult given their controversial public status: Cross, supra note 2, at 887–90. See also Cross, supra note 2, at 917–18. This is both fair enough and, of course, an entirely contingent argument; the other countries considered in this Article (not Cross’s focus) show how things might be different, and indeed his claim is debatable even in the U.S. context where (as Cross notes) extensive state provision of socioeconomic interests occurs in forms other than federal constitutional rights. See also William Forbath, Constitutional Welfare Rights: A History, Critique and Reconstruction, 69 Fordham L. Rev. 1821, 1824–26 (2001) (commenting on Frank I. Michelman, The Supreme Court 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969), and Lawrence Lessig’s famous remark, a generation later, that Michelman’s article “doesn’t live in the world anymore” because U.S. society has changed: Colloquy: Fidelity as Translation, 65 Fordham L. Rev. 1507, 1509–10 (1997)). 48 The most detailed empirical picture we have (at least in English) is of developments in Brazil: see João Biehl, Mariana P. Socal & Joseph J. Amon, The Judicialization of Health and the Quest for State Accountability: Evidence from 1,262 Lawsuits for Access to Medicines in Southern Brazil, 18 Health & Hum. Rts. J. 209 (2016); Daniel M. Brinks & Varun Gauri, The Law’s Majestic Equality? The Distributive Impact of Judicializing Social and Economic Rights, 12 Perspective Pol. 375, 382–84, 387 (2014); Daniel W. Liang Wang & Octavio Luiz Motta Ferraz, Reaching Out to the Needy? Access to Justice and Public Attorneys’ Role in Right to Health Litigation in the City of São Paulo, 10 Sur Int’l J. Hum. Rts. 158 (2013); Octavia Luiz Motta Ferraz, Between Usurpation and Abdication? The Right to Health in the Courts of Brazil and South Africa, in Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa, supra note 24, at 375, 390–97; João Biehl et al., Between the Court and the Clinic: Lawsuits for Medicines and the Right to Health in Brazil, 14 Health & Hum. Rts. 36 (2012); and earlier sources cited therein. On developments in Colombia and elsewhere, see Katharine G. Young & Julieta Lemaitre, The Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa, 26 Harv. Hum. Rts. J. 179, 186–97, 210–11 (2013); Young, supra note 3, at 196–200; Landau, supra note 41, at 209–16; Litigating Health Rights: Can Courts Bring More Justice to Health? (Alicia Ely Yamin & Siri Gloppen eds., 2011); Alicia Ely Yamin & Oscar Parra-Reva, Judicial Protection of the Right to Health in Colombia: From Social Demands to Individual Claims to Public Debates, 33 Hastings Int’l & Comp. L. Rev. 431 (2010); Rodrigo M. Nunez, Ideational Origins of Progressive Judicial Activism: The Colombian Constitutional Court and the Right to Health, 52 Latin Am. Pol. & Soc’y 67, esp. 86–91 (2010). 49 The Colombian Constitutional Court’s activities reviewing tutelas are the most important example: see Yamin & Parra-Reva, supra note 48, at 445–55; Landau, supra note 41, at 223–29; Nunez, supra note 48, at 89–90; Manuel José Cepeda Espinosa & David Landau, Colombian Constitutional Law: Leading Cases 167–78 (2017). 50 Though they are no more than suggestive (and not intended by their authors to make my point), see also the remarks in Young & Lemaitre, supra note 48, at 197 (“Judicial leadership has ingrained into the popular consciousness a sense of healthcare entitlement.”), and João Biehl et al., supra note 48, at 49 (“Our interviews with patient-plaintiffs suggest that judicialization is now part of the medical lexicon. Physicians routinely introduce patients to the possibility of judicializing and encourage them to pursue it in order to access prescribed medicines.”). 51 And, of course, even this is a substantial over-simplification of the issue of what has usefully been called “dispute diffusion”: see Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L.J. 2804 (2015). 52 A useful summary of the insights of economic analysis of contract law is Lewis A. Kornhauser, An Introduction to the Economic Analysis of Contract Remedies, 57 U. Colo. L. Rev. 683 (1986). See also Eric A. Posner, Economic Analysis of Contract Law After Three Decades: Success or Failure?, 112 Yale L.J. 829 (2003). 53 This point was recognized many years ago by Scott & Macklem, supra note 11, at 76 (“In effect, when critics claim that . . . social rights suffer from a lack of precision and therefore ought to imagined as non-justiciable, they are comparing apples and oranges. That is, they comparing civil and political rights at the relatively precise level of [negative obligations to respect] with social rights at the relatively imprecise [level of positive duties to promote].”). 54 U.N. Comm. on Econ., Social & Cultural Rights, General Comment 3: The Nature of States Parties’ Obligations (1990). See further, e.g., Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 Yale J. Int’l L. 113 (2008). See also Fowkes, supra note 4, at 266. 55 The field of law and development has, of course, spent significant time either underestimating or agonizing over the difficulties besetting such attempts at simple, basic lists that can be used across societies, a problem not unknown to the minimum core. See, e.g., Yong-Shik Lee, Call for a New Analytical Model for Law and Development, 8 Law & Dev. Rev. 1 (2015); Brian Z. Tamanaha, The Primacy of Society and the Failure of Law and Development, 44 Cornell Int’l L.J. 209 (2011); Kevin E. Davis & Michael Trebilcock, The Relationship Between Law and Development: Optimists Versus Skeptics, 56 Am. J. Comp. L. 895 (2008). See also the classic study by David M. Trubek & Marc Galanter, Scholars in Self-estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 4 Wis. L. Rev. 1062 (1974). 56 Fed’n of Women Lawyers Kenya v. Attorney General [2011] eKLR (Kenya), http://kenyalaw.org/caselaw/cases/view/76517. I was originally referred to the case by Nicholas Wasonga Orago, Socio-Economic Rights and the Potential for Structural Reforms: A Comparative Perspective on the Interpretation of the Socio-Economic Rights in the Constitution of Kenya, 2010, in Human Rights and Democratic Governance in Kenya: A Post-2007 Appraisal 68 (Morris Kiwinda Mbondeyi et al. eds., 2015). 57 Sandra L. Rierson, Race and Gender Discrimination: A Historical Case for Equal Treatment Under the Fourteenth Amendment, 1 Duke J. Gender L. & Pol’y 89, 103–04 (1994); Mark Tushnet, The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston, 74 J. Am. Hist. 884, 886–87, 890 (1987). 58 Thus the United States was certainly not the only society to draw this distinction. See the same distinction as drawn, for example, by the French revolutionary-era jurist Abbé Emmanuel-Joseph Sieyès, as quoted in Lynn Hunt, Inventing Human Rights: A History 67, 148 (2007). 59 Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 216–18 (1998); see also id. at 259–61. 60 Rierson, supra note 57, at 105–06, 109, 112 n.135; Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875). 61 Ex parte Virginia, 100 U.S. 339, 363 (1879); see also id. at 367–68. 62 Until the post-Civil War developments disrupted the picture, in ways that illustrate the same point. The majority in Strauder v. West Virginia, 100 U.S. 303 (1880), which attracted a dissent from Justices Field and Clifford drawing on Ex parte Virginia, 100 U.S., also reflects the uncertainties of the civil versus political rights distinction—not least in the way that it entirely ignores the implications of its own findings against exclusion of black people from juries for black women’s rights in relation to jury participation and thus for the exclusion of women of all races from political rights. See further Amar, supra note 59, at 272–73; Mark Tushnet, Civil Rights and Social Rights: The Future of the Reconstruction Amendments, 25 Loy. L.A. L. Rev. 1207, 1209 (1992); Rierson, supra note 57, at 114–15. 63 Tushnet, supra note 62. In that article, he confined himself to rebutting some standard arguments raised by socioeconomic skeptics (id. at 1211–19). I do not know whether, in light of his later work, he would agree with the detail of where this Article has gone from there: see supra note 5. © The Author(s) [2020]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Normal Rights, Just New: Understanding the Judicial Enforcement of Socioeconomic Rights
JF - American Journal of Comparative Law
DO - 10.1093/ajcl/avaa027
DA - 2020-12-19
UR - https://www.deepdyve.com/lp/oxford-university-press/normal-rights-just-new-understanding-the-judicial-enforcement-of-L3KNynV0eZ
SP - 1
EP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -