I recently spent two weeks doing jury service in an inner London court – a grim experience of leaking municipal toilets, undrinkable coffee, frequently incompetent barristers and Dickensian judges, overseeing a squalid litany of petty crime. In between the alleged threats and beatings, I read Courting Social Justice, a new book on the use of the courts to enforce social and economic rights (in particular healthcare and education) in Brazil, India, Indonesia, South Africa and Nigeria. It left me feeling a bit more optimistic about the role of the law.
The book asks if resort to the legal system makes governments more accountable (because they are forced to fulfil their promises) or less (because courts are often the preserve of the rich). The trade-offs can be complicated: in Costa Rica, a single decision by the Supreme Court led to an 80% reduction in mortality rates among AIDS patients, but on the other hand just after the court review, the health system needed to spend 8% of its medicines budget to treat just 0.012% of its patients.
The book’s key concept is ‘legalization’, which goes well beyond litigation to include monitoring compliance with judicial decisions, turning court decisions into new legislation, threatening to return to court, lobbying public officials and organizing public campaigns. Reality is very far from the myth of impartial judges delivering verdicts without any regard to the political or social context, as I saw in South Africa, where women’s organizations have found that singing and dancing outside courts trying cases of domestic violence greatly increases the chances of success.
So what were the book’s main findings?
The use of the courts is on the rise – ‘the language of rights and the cumbersome tools of the law have become a permanent and prominent part of policy-making.’ Overall, the volume of health litigation far outweighs that on education.
While activists are invariably disappointed at what courts can achieve, ‘from a historical perspective, the achievements seem downright impressive…. [In the countries studied] legalizing demand for rights might well have averted tens of thousands of deaths and enriched the lives of millions of others.’
What circumstances are most propitious for the use of the legal system to enforce rights?
– Laws and constitutions that promise far more than governments are currently delivering (frequently the case given the growing reference to social and economic rights in new constitutions around the world).
– But where governments have the capacity to respond (judges are remarkably cautious in keeping within the limits imposed by the real spending possibilities of states).
– and there is Legal capacity and substantial support for enforcement of rights, by the government, the public or civil society organizations (often the courts help the national government enforce policies on local governments, for example)
In general the researchers found it was far harder to secure collective rulings than individual ones (eg an individual demanding state provision of a particular new medicine – a Brazilian speciality), but the collective cases had much wider impacts, changing government policies that affect millions of
South Africa's Treatment Action Campaign has expertly combined litigation with campaigning
people – e.g. access to medicines (South Africa), free school meals or environmental regulation (India).
Some states and judicial systems are much more open to legalization of policy making (eg Brazil, South Africa, India) while others are much more hostile (the ordinary courts in Indonesia, Nigeria).
What the research reveals is that the courts do not go off on their own and start trying to force governments to do things they can’t afford (or if they do, they have very little success). Instead, they have become a part of an iterative policy-making process in which ‘litigation upsets the status quo, creating the context for a joint search for new solutions’ in areas such as access to medicines for new diseases, or shifts in public opinion on issues such as the right to food or work.
And it ends on an upbeat note: ‘the courts have become an additional place for deliberation and debate. When the courts work in congress with other branches of the state, legalization is democracy by another means.’
Development NGOs tend to leave the legal stuff up to the human rights organizations and their lawyers. Courting Social Justice suggests that we may be missing an important arena for action.