This research brief summarises findings from a widely-cited book: Gauri, V., and Brinks, D. M. (Eds.). (2008). Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World Cambridge University Press. The book documents the impact of courts on policymaking across the developing world. Five country cases – Brazil, India, Indonesia, Nigeria and South Africa – explore the courts’ involvement in the enforcement of social and economic rights in the areas of health and education. It finds that legal strategies seem to be producing measurable impacts on access to health care and education, but that questions remain about the distribution of those benefits and their impact on democracy and bureaucratic accountability.
The authors elaborate and test theories that might account for the varying levels of legalisation across countries and policy areas and for the differential impact of legalisation on the actual distribution of health care and education services. Key findings are as follows:
How much legal mobilization for social and economic rights is there?
Social and economic rights cases in which courts order the government to provide a good or service to a plaintiff are not common. More typical are cases demanding governmental regulation of privately or subnationally provided services, or changes in the legal obligations of private providers. A closer look at cases within countries suggests that legalisation of demands for economic and social rights might be serving the interests of the middle classes rather than of the poor. A civil society support structure is not necessary. In some cases non-governmental organizations are strategic about not developing a legal support structure because the courts are hostile to their claims.
Legal strategies have had a direct impact on access to health and education services
The Indian Supreme Court played a critical role in the enforcement of air pollution regulations and in the recent expansion of a mid-day meals program, which has increased school enrolment among girls. The South African Constitutional Court issued rulings accelerating the roll-out of policies for the prevention of maternal-to-child HIV transmission and treatment for AIDS patients.
Legal strategies can be direct, indirect, and have very different distributional impacts
An example of direct effects on litigants includes medications for mostly middle-class litigants in Brazil. An example of direct effects for non-litigants includes a new school policy that may benefit not only litigants but also other families enrolled in the school. An example of an indirect effect internal to the legal system includes the early AIDS cases in Brazil which facilitated future cases on other diseases. Finally, an example of an indirect effect external to the legal system includes cases where the government generalizes a court decision by changing policy.
The data show that the effects of health cases dwarf the effects of education cases in all jurisdictions. Also, with the exception of health in Brazil and education in Indonesia, the impact of claims for direct government provision is lower than that of demands for regulation or changes in private obligations.
The indirect effects of court cases have more potential to benefit the poor, who generally do not have the resources to litigate themselves
The poor are more likely to benefit when they share the interests of the middle-class litigants (e.g. regarding clean air, infectious diseases, and public hospitals) or collective claims are brought on their behalf. This suggests that efforts to promote legal procedures to facilitate collective claims and universalise the particular policies adjudicated in courts will be more effective where judges are receptive to claims on behalf of the poor.
See also a 10-page excerpt from the book’s opening chapter on the publisher’s website.
