Constitutional law meets comparative politics: socio-economic rights and political realities

Hirschl, Ran and Rosevear, Evan (2011) Constitutional law meets comparative politics: socio-economic rights and political realities. In, Campbell, Tom, Ewing, K D and Tomkins, Adam (eds.) The Legal Protection of Human Rights: Sceptical Essays. Oxford, UK. Oxford University Press, 207–228. (doi:10.1093/acprof:oso/9780199606078.003.0010).

Abstract

This chapter presents comparative evidence of the lack of correlation between variations in court-based human rights protection for social welfare rights and the reality of welfare provisions in different countries. The extensive research done on the empirical relation between levels of welfare provision and various non-judicial factors is brought to bear on assessing the relationship between constitutional rights and their impact on inequality. The chapter examines the causal links between constitutional protection and the political salience of socio-economic inequality, poverty, and/or labour unions and other leftists forces and constituencies in a given polity; regional and international political economy factors that explain the expansion or shrinkage of public economy; the political context for ‘aspirational’ statements at the time of constitutionalization; levels of extra-constitutional commitment to, and existence of, a well developed welfare regime (Keynesian, Marxist-socialist, or otherwise) in that polity; attempts by courts to expand the ambit of their influence by acting when elected official will not; and the net effect of constitutionalization or of its prevalent modes of interpretation on the actual realization of welfare rights.

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