Legal enforcement of social rights: Enabling conditions and impact assessment

Siri Gloppen (2010)
in Erasmus Law Review vol. 2 no. 4 pp. 465-480

This article commends the concise and useful analysis of courts and the legal enforcement of economic, social and cultural rights given in Christian Courtis’ book, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability. Yet, in order to complete the picture, a broader analysis of the enabling conditions for litigation and of the social and political impact of judicial activity in this field is required. There are a number of reasons why attempts to litigate economic, social and cultural rights may not result in judicial enforcement and why, even if enforcement is achieved in formal terms, this may not necessarily protect or fulfill the right in practice. Even when compliance is secured in terms of individuals, this may be insignificant or even detrimental to the realisation of the right from a societal perspective. While not dismissing a constructive role for courts in the enforcement of economic, social and cultural rights, it is crucial to investigate carefully who benefits from court enforcement and under what circumstances judicial enforcement is likely to advance the broader realisation of the rights and benefit those whose rights are most at risk. Assessing empirically the impact of social rights litigation is challenging and has rarely been done in a systematic fashion, but this article suggests ways in which this can be pursued.