Abstract
AbstractThere is a growing body of scholarship examining the impact of courts’ social rights judgments, especially their distributive impact (ie the extent to which they deliver social rights-related goods and services to the poor and marginalised). Commentators have used this impact to evaluate the effectiveness of courts in realising citizens’ social rights. This paper contributes to the scholarship by adding a new ‘relational’ dimension to our understanding of such impact. It uses the literature on the concept of trust from philosophy, sociology and other disciplines to analyse the impact that social rights judgments have on the relationship between citizens and the political branches of government, and argues that social rights judgments can modify two elements of this relationship that determine the dynamics at play in it: citizens’ vulnerability to the political branches with respect to the relevant goods and services; and citizens’ uncertainty about the political branches’ exercise of control over the goods and services (which can promote the political branches’ trustworthiness). By broadening our understanding of these judgments’ impact, the paper offers a valuable lens through which to analyse social rights judgments and adds needed nuance to current debates about courts’ effectiveness in realising citizens’ social rights.
Highlights
With the global rise of constitutionalised and justiciable social rights,1 researchers are increasingly examining the impact of courts’ judgments enforcing these rights
This paper contributes to the scholarship by adding a new ‘relational’ dimension to our understanding of such impact. It uses the literature on the concept of trust from philosophy, sociology and other disciplines to analyse the impact that social rights judgments have on the relationship between citizens and the political branches of government, and argues that social rights judgments can modify two elements of this relationship that determine the dynamics at play in it: citizens’ vulnerability to the political branches with respect to the relevant goods and services; and citizens’ uncertainty about the political branches’ exercise of control over the goods and services
This paper adds a new dimension to our understanding of impact by analysing what I will call the ‘relational’ impact of social rights judgments. By this I mean that in addition to their distributive impact, social rights judgments have consequences which help redefine the relationships that are engaged by social rights
Summary
With the global rise of constitutionalised and justiciable social rights (rights to housing, education, health and social security), researchers are increasingly examining the impact of courts’ judgments enforcing these rights. How the political branches will exercise their control over those goods and services in a way that promotes the political branches’ ‘trustworthiness’ with respect to social rights It must be noted, that these two forms of impact are neither comprehensive nor mutually exclusive: they merely illustrate how courts’ social rights judgments can impact the citizen-government relationship. In evaluating an approach to judicially enforce social rights, it is beneficial to consider how that approach plays out under ideal circumstances It provides an indication of the best that approach can offer in terms of the relevant form of impact – in this case, its relational impact, on the citizen-government relationship.
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