T9 – Resisting Law’s Empire

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T9 intro – audio transcript.

In this track I explore a position that few non-lawyers (much less lawyers!) ever argue for: that it is possible to be strongly in favour of human rights while at the same time being firmly against the lawyers’ appropriation of the term.

I have a book coming out with Virginia Mantouvalou with Hart Publishing, either this week or next, Debating Social Rights in which Virginia and I argue the pros and cons of the judicial enforcement of social rights.  I am getting my critical comments in here early so if you want balance I’ll need to ask you to get the book and read Virginia’s bit – that is unless what I am about to say stimulates her to contribute to this web site (which I hope will be the case!).

A Summary Of My Position

  • The idea of human rights is a valuable one that deserves nurturing and protection. It should not be written off by the Left or by any progressively-inclined thinker:  I have already covered this ground in earlier essays, on track three and track four so won’t talk about it so much here.
  • The value of human rights lies principally in the political arena – again I have already dealt with this here, in track one so will also leave it aside for now.
  • (this is what I DO want to talk about here) The least effective way of securing rights generally, and social rights particularly, is via an over-concentration on the legal process, letting lawyers do all the work for you via litigation and legal agitation.

Heresy for lawyers perhaps but do I have a point?

Tame, Not Destroy

For sure there is a role for law in the enforcement of social rights.  Politics produces laws which the courts must then interpret and explain.

I am not against that.

What I am against is enacting vague and woolly laws which you call human rights laws and which you then hand over responsibility for to the judges.  Since I am concerned mainly with social rights here (and in the book) I should explain what I mean by this term.  Rights like:

  • The right to health
  • The right to work
  • The right to social assistance
  • The right to a home

Let me be clear: I am in favour of all these rights – it is just that I do not think the way to get them is to turn them into ‘constitutional rights’ and hand their enforcement over to the judges and the lawyers.

Here are some excellent objections to such a course, not from me but from the UK’s august Joint Committee on Human Rights:

  • The rights themselves would be ‘too vaguely expressed’, and would ‘only raise expectations and encourage time-consuming and expensive litigation against public bodies’
  • The move ‘hands too much power to the courts and so is undemocratic’
  • Such an adjudicative power would involve ‘the courts in making decisions about resources and priority setting that they are ill-equipped to take’

Several Further Objections!

And I would add:

  • The strong emphasis on the individual that is inherent in the whole idea of litigation runs counter to the kind of collective work we all need to do to achieve social rights.  It is not individual wins we are after but community victories.
  • The way cases get resolved, which is hugely adversarial, does not fit with the kind of work that a society needs to do to achieve social rights for all.  Courts are no good at processing  empirical data and guessing about future trends – yet these are exactly the kinds of things that should underpin all social policy (including on the provision of social rights).
  • Even if courts were the right places to protect social rights, who would follow-up their decisions to see that they had been effectively implemented?  What happens when unexpected glitches in effecting a court’s orders are encountered?  Supposing the court’s guesses about the cost of its intervention prove to be wrong, how are the new financial implications to be properly taken into account?
  • Even if it is successful now and again, fighting for individual justice in specific cases uses  up too much of an NGOs organisational time, its money and its campaigner zeal.  The fight is better fought in the legislature, in civil society, and if necessary on the streets.

An Old Cliché Helps Make Another Point For Me

What is sauce for the goose is sauce for the gander.

What is to stop the rich and powerful, the beneficiaries of our unequal society using their social rights (to a private education? To private health care? To property?) to resist change which may hurt them a bit but which is for the better of society overall?  After all, the achievement of the kind of equal society in which social rights do truly allow all to flourish will not be cost-free, in financial or in political terms.  What kind of changes would most societies in the world have to make if they really truly wanted good social rights for all?  The answer is obvious – the changes would have to be radical indeed.  Taxes would need to be raised, restrictions on individual freedom introduced, bureaucracies empowered.

A topical example comes to mind.

Many states wrestle with the problem of privately-funded education as a barrier to the achievement of a truly equal society, one in which social rights are available to all.  This is because of the disproportionate hold the ‘alumni’ of such elite environments have on the society in which they are to be found.  The United Kingdom is an outstanding example of this as Alan Milburn’s report Unleashing Aspiration made so depressingly clear.  And yet because of the existence of the (social) right to education that happens to appear in a protocol to the otherwise civil and political European Convention on Human Rights, anyone seeking genuine reform finds an unnecessary roadblock strewn in their way in the form of a parental entitlement to an education of their choice.

Of course a reformer could and indeed should make strong arguments the other way, but the point is that in doing so he or she is having to pit a known individual’s freedom against the merely hypothetical social rights that unknown numbers of currently deprived children would (it has to be argued) enjoy in the future if the freedom of an actual, knowable set of children is limited now.

The masses of pupils who are potential beneficiaries of the change are, despite their likely numbers, less visible as individuals than the named boys and girls who are being made to suffer now.

Reformers coming from outside the rights tradition would have no difficulty with this:

  • of course the known few must suffer for the future unknown many
  • the fact that there is a withdrawal of the privileges of the minority now so as to assist in their future flourishing is of the essence of policy-making: this is exactly what planners ought to be doing.

But judges and lawyers just don’t think like this.  They are trained in individual facts not imagined futures.

Supporting Politics

What progress there has been in Britain in the delivery of social rights generally has been achieved by political action, by legislation forced upon our rulers by determined and brilliantly dogged egalitarians.  This includes:

  • the successful establishment of the national health service
  • the delivery of free education for all
  • the guarantor of legal aid for those too poor to pay for such support themselves.

But just to identify the gains is to remind oneself of the losses, of how each of these successes has been undermined by the recent antagonism of successive governments, particularly the current coalition: see my sidetracks on higher education and legal aid.

Of course politics is inevitably a slow business, often poisoned by the influence of money and with seemingly endless setbacks along the way, various pitfalls that seem always to need to be negotiated and concessions made – all of this tries the patience of rights activists and drives many of them into the courtroom in search of a speedy dash to absolute victory.

The central argument of this track is that such tempting short-cuts are in truth cul-de-sacs.

There is no alternative to careful navigation of the traditional route, one that when it is successfully negotiated and the finish line reached has carried all its passengers with it to a destination that is both new and real, and where everybody now agrees it is right to be.

And A Final Thought

Freed from the constraints of law, human rights work has the potential to be the single most important contributor to social justice and to equality in the decades to come.  But first it must consolidate its intellectual foundations, celebrate the potential of politics and be perpetually wary of their noisy friends in horsehair.

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17 Responses to T9 – Resisting Law’s Empire

  1. While I would agree that the law cannot and should not be the only method of protecting and developing human rights, I think it is also important to state the very real role the law can play in protecting them. ‘Vague and woolly laws’ as you phrase them are no help to anyone, but the law has a place in codifying those smaller rights (the right to free emergency medical care, say, rather than the right to health) that have achieved political consensus on the way to the larger rights that we believe in but have not yet become sufficiently acknowledged. Laws are much easier to put into effect than general political will. To my mind, the role of law in the progress of human rights is to mark and clarify what we have achieved so far, rather than produce goals for what we should achieve next.

    • carol harlow says:

      Nobody is suggesting that law cannot play a part in the struggle for human rights. Statute law is the best way to record democratic participation in the rights-creating progress. it is important however to separate principles, which may become ‘vague and woolly laws’ if they are justiciable through courts, and more specific provisions. This is a valid criticism of the European Charter of Fundamental Rights.

      If for example one sets out in a human rights charter ‘a right to healthy’ justiciable in a constitutional court, then this will effectively leave judges to decide what drugs must be made available to citizens. As need here is demand-led, a drain on resources will be created, which will havean impact on other policy areas. A Health Service Law can be more specific.

      The counter-argument is that the majoritarian/political approach above leaves human rights in the hands of government and legislature – and that is precisely whsat human rights are intended to prevent.

      No one has really resolved this dilemma so far!

    • Christina says:

      Yes well Holly!
      Fawcett went to court arguing that the govt had not used due dilligence in its assessing of the impact of the cuts being disproportionately upon women. While the court -judge- agreed that the govt had not taken this into account, he moved it over to the Equalities and Human Rights Commission to assess. Apart from the fact that they may disappear, they have no sanctions to apply. Rather like passing it on to a royal commission.
      So, law when it is properly applied!

  2. Paul Bernal says:

    From the perspective of a lot of my own research – specifically in terms of privacy on the internet – the role of the law and lawyers is very much a supportive one. A crucial one, but in the background rather than the foreground. The point here is that the key players in these terms are commercial organisations – and while commercial organisations do of course pay attention to the law and lawyers, they pay even more attention to the views and opinions of their customers. Facebook are more likely to change their privacy settings as a result of a mass rebellion of users than they are as a result of a possible investigation by any of the various law-making bodies in the field.

    Of course that may be because they know that there are conflicts between all the various regulators, or that they know that the legal processes are lengthy and complex, and that the penalties that arise are relatively painless for an organisation as big as they are – but those are some of the problems inherent in a legally-based approach.

    Commercial organisations are of course different from governments – but governments are dependent at least to an extent on their people, just as commercial organisations are dependent on their customers. Rights, engaged in at a political rather than legal level, can have an impact on the behaviour of those abusing those rights, at least in this kind of a context. They can also cut across borders in a way that law rarely can. The law needs to be there, and to have teeth, but it has to follow the mood and the needs and the rights of the people, rather than lead them.

  3. Zoe Fiander says:

    Agree with the main thrust of this track -and the comments. I would add that law has its own internal tradeoffs (not least, the concept of procedural justice) which mean it can never entirely protect universal human rights and can’t be used as a source of them. I suppose this relates to law’s individualism too.

    I think this is particularly apparent in relation to the grant of legal aid subject to prioritisation criteria (or indeed, the withdrawal of legal aid from certain categories of cases). In the interests of procedural justice this has potential to be a good thing, ‘fair’ even – who wants to spend loads of public money on poorly evidenced cases? – but it doesn’t seem like a good way of forming (or even protecting) a conception of rights, because whether or not it is ‘right’ to spend money on fighting a particular case has nothing to do with the scope of the ‘right’ which is being questioned. I hope that makes sense…

  4. Richard Buck says:

    Conor I generally agree with you. Even with court mandated rights, political action is needed to secure the resources and the enforcement needed to make the court order a social reality. I would not want to dismiss the courts as sometimes a necessary catalyst for the social changes. I am thinking of the U.S. Supreme Court Case Brown v. Board of Education. This case established the principle that separate is not equal in education and was the beginning of desegregation of schooling in the U.S. South. However, it has taken years of work by various Presidents and the Congress to make it a reality. But I believe that the court case was the necessary first move. However, court ordered transportation of students between communities to eliminate de facto segregation in schools was a fiasco for the reasons you pointed out. The courts did not have control of the resources or have the knowledge needed to carry out the decision, or the wisdom and expertise to make a good decision in the first place. It resulted in students being transported in some cases for hours each day. It was the catalyst for various legislative initiatives to put a stop to it, but not much positive action to end de facto segregation in education.

  5. Craig Valters says:

    I think it may be worth discussing this in terms of representative democracy and the posed ideals it entails. If we see law as ultimately created by the political realm, then the form of governance we have is crucial in understanding the potential for human rights to eventually form more genuine, meaningful and substantiated laws.

    Firstly, I would argue that not only does the ‘strong emphasis on the individual that is inherent in the whole idea of litigation run counter to the kind of collective work we all need to do to achieve social rights’, but that it actually runs counter to the way in which international human rights law is made: these covenants, treaties and the like are agreements by states, in those states interests – and therefore not necessarily in the interests of the citizens of those states. The fact that they then can possibly pertain to an individual within those states who can make a claim tends to be of fairly limited relevance – a signature on a treaty appears to normally be a matter of political bargaining (leading to woolly documents), in order to make other gains (be them economic, strategic etc) – and is rarely enforced on powerful states.

    The context of this is undoubtedly a national political disinterest in providing for the rights of those who need them most. The governments we receive are not representative of the citizens they govern (racially, culturally, or in terms of age or social upbringing) and there is little hope that this is going to change anytime soon. Our love affair with representative democracy then (and I don’t pretend to know a better solution) allows these elites who gain power to have almost unchecked legitimacy. It’s forgotten of course that representative democracy is often simply a choice between Party A and Party B and (to steal a quote from the cynical writer within J.M Coetzee’s ‘Diary of a Bad Year’) that ordinary people ‘are in their hearts inclined to choose neither’. Either way, (and I get the impression many people feel this way, although I could be wrong) increasingly an elitist government comes to the fore, which leads to policies that reflect this. Recently, this has shone through more than ever (welfare cuts, billions of free cash to banks).

    The point of all this, eventually, is to concur with you Conor that much human rights law is not strong enough, not coherent enough to be worthwhile – yet. But a change to this requires a wholesale change in the way the politics of representative democracy currently runs, as whilst we have elitist politics, we have elitist laws. The task of anyone who wants to see a more egalitarian state of affairs (inclusive of a human rights culture embedded in modern politics) is monumental, to the point of being nearly insurmountable. And ultimately this comes down to the very culture of politics we see every day. It’s nature is increasingly corporate, with free-markets at the forefront – not the majority of people in the state. Reigning in this tendency from those who gain the most from it (such that they agree with the notion of social rights) would be an incredibly radical step, as it would involve not only changing the mindset of the only people who don’t really need change, but creating a culture in which those outside the ‘representative’ political process play a genuinely meaningful role.

    • Richard Buck says:

      The unrepresentative nature of national governments (including executive, legislative and judicial components) needs to be recognized in pursuing the strategy and tactics of securing human rights. Anyone wishing to secure rights for themselves or others must have power. It will not be achieved by good arguments alone. I like Hannah Arendt’s idea that power is essentially collective action. It is people getting together, discussing an issue and agreeing to take action. Even Machiavelli recognized that rulers need the good will of the people. Hannah Arendt pointed out that even the Nazis sometimes backed down in the face of collective refusal to implement their policies. Of course, confronting the force of the state is risky, which is very much in evidence in our present world. Yet, if enough people are committed to a course of action, they can prevail even against the force of dictatorial governments.

    • Christina says:

      Craig, you’ve taken my argument!

      “Our love affair with representative democracy then (and I don’t pretend to know a better solution) allows these elites who gain power to have almost unchecked legitimacy. It’s forgotten of course that representative democracy is often simply a choice between Party A and Party B”, and neither or both.
      Now I realise what an idealist I am, bercuse I believe that if you have more mixed and diverse members of both parliament AND the law, you are going to get greater understanding and empathy. and I don’t just mean women, Asians who have lived in other countires and speak more languages are able to conceive that things might be other. An odd side comment. If Clare Balding had not been on the Olympic commitee, would increeased tolerance of gay rights been raised, mentioned, let alone highlighted?

  6. This might be slightly off-topic here, but I’ve just read this very disturbing blog post about a man with Autism: The Orwellian Present – Never Mind the Future

    I wonder if anything can be done for Stephen under the Human Rights Act in these terrible circumstances? That would be a “good thing” that the Lawyers could do, that perhaps the so-called “professionals” assessing his case appear not to be able to achieve.

  7. Favio Farinella says:

    As always, statements are challenging. I am still thinking of the last idea ‘freed from the constraints of law…’.
    I was told that law makes us free, but now I am thinking of something like a lawyers’ dictatorship…
    Yes, law is a corset. Law means limits. And whenever they blur, judges are the ones in charge of bringing ‘the right interpretation’ to light. Any lawyer would say that it is the only way things are. It’s dogmatic.

    Let’s think of the supremacy of the judiciary once more.
    We were told that judges are independent. Politicians are partisans.
    That’s why judges remain in their office while politicians get in and out depending on the elections.
    Judges analysed the past while politicians enact laws for the future.
    Basically judges belong to a social elite while politicians come from every social class.
    We were also told that law is abstract in the sense that it formulates general statements that judges will then apply particularly in individual conflicts.
    This is half true, or better one third true. In fact, the latter statement can ONLY be true as regards first generation human rights.

    Within the old context we have inherited and maintained, first generation human rights constitute a problem of individuals while second and third generations, just a worry for altruistic individuals and the work of NGOs!. With the eighteenth ‘judiciary solution’ the system grant access to the ‘satisfied ones’: people who have education, health and the like are empowered to claim for any violation of the whole three generations.
    On the other side of society, the unsatisfied just remain with the ‘abstract chance’ to get to court because they lack education, they are ill-treated, they are poor (not only an economic condition, but a human status: they lack friends, influence, new ideas, a ‘good’ language, happiness… and also money).

    A good faith conservative could genuinely state that the defence of first generations human rights of which the individual is the only owner, will ever be better secure by granting the analysis of eventual violations to independent, permanent and conservative judges, instead of partisan, erratic (because of real-politik needs and their dependence on elections) and progressive politicians.
    The explanation is simple as the dogma is respected: civil and political rights have a main component of individualism, ownership (or ‘westernship’ to put it in western terms) and tradition. So, let the individual alone claim for any violation. The right to life, personal integrity, the prohibition of torture is about every individual in the world, but first of all, it is about me … (my life, my personal integrity, my body free from torture or ill treatment…).

    But… second generation rights means social democracy, a mobile society, property conceived with a social function. These rights belong to groups. They are misunderstood if they are thought individually. The rights to health, education, housing are first of all, social health, education and housing. They spin around the notion of equality (between the well-offs and the disadvantaged). The state is liable for not granting these rights to whole groups. And for doing this, it is not enough to grant access to individuals, but to have policies designed to improve the status of socially disadvantaged groups and keep them for a certain period. Judges can improve situations individually but the judiciary is not an agency for sketching government social policies and monitoring tendencies.

    The problem is that we used first generation’s devices for protecting second generation human rights.
    Even if NGOs go to justice, they have to choose a ‘victim’ for its leading case. As an exception, strategic litigation implies promoting, denouncing, and making people conscious of their rights, but also, a waste of economic resources and time. They may also stumble with a reactionary judiciary.

    Third generation rights started taking charge of this problem, with the notion of class actions admitted as an special procedure device simply because the environment is owned by no-one. But again, independent, permanent, a bit dogmatic and conservative judges are the ones who are supposed to help us protecting the environment, a task that at least, demands people to be very partisan (on behalf of protection), open minded (in order to change immediately if while monitoring the activity a minimum damage is detected) and progressive.
    In brief, third generation human rights means global democracy: they are about peoples of the world, and we -again- are obliged to rely on the judiciary.

    Up to now, it’s like saying that left activists go to the streets while right activists go to the courts.
    It seems we are doomed.
    But it is not.
    Maybe it is necessary to leave the judicial structure of analysis for individual violations that belong to first generation human rights while at the same time, to demand politicians to work on the particular implementation of the second and third generation human rights.
    For instance, beyond recognizing the abstract right to education, domestic laws should implement it by enacting laws which deal with every aspect of the right: (a) a real state budget to secure the financial aspect; (b) an unique common syllabus and study materials with common contents for all, no matter if the institutions are public or private, in order not to split our future society between the ones that had money to buy more or better knowledge and the have-nots; (c) building new schools; (d) training teachers; (e) rights of special minorities to education, etc.

    Basic rights, and particularly second and third generation human rights are abstractions. The right to health as well as the right to live in a sound environment means nothing by themselves. They are simply containers for what really matters: their content.
    We have to decide if the content should be integrated through individual litigation decided by (again) dogmatic, conservative … judges or if it is the task of our generation to change the old dogma that establishes that judges knows best, and assume that -at least- for the generation of rights created long after the English, French and American revolution, the judiciary solution does not fit, and that a political solution for social democracy is needed, maybe through Parliament and/or Executive planning, depending on each political system.

    • Christina says:

      This is an excellent upacking of the concept, Favio.
      But I wasn’t aware of various layers or geneations of rights. I felt that some were so fundamentally right, as to be inarguable. Then others were slightly further down, but are there 3 generations of rights? like 3 waves of feminism? should we be breaing them up like this?

    • Richard Buck says:

      I like the three generation distinction. It helps clarify the issues. It seems that we agree that politics is primary arena for advancing human rights–particularly those of the later generation of rights. With third generation rights the issue is often one of resource allocation. In the recent economic collapse, it is interesting that the primary recipients of societal resources were and are the banks and their bond holders. It seems that property rights are trumping rights to health, sustenance, education, etc. Or so it seems. The classical liberal position would be that a well functioning economy is the best way of insuring that there are resources for all. We have just proved empirically that a hyper-functioning economy will be followed by a bust that evaporates that abundance of resources that facilitates funding of third generation rights. When the resources are scarce, the have-nots are the first to lose out. Yet in our somewhat democratic western political systems, the have-nots have votes. These votes in theory should be a source of power, but often the have-nots choose not to vote or vote against their self-interests. For instance, it appears that the voters of the United States are very much in favour of continued tax breaks for the richest 1% of the population. And in Britain people are taking to the streets to protest the actions of a political party that just won an election promising to do the very thing people are protesting about. This can be very discouraging, but the reality is that we must work with the type of politics we have, rather than the enlightened politics we might wish for.

  8. Christina says:

    Law or politics? either or both.
    Conor you’ve argued that democracy is the best model we have.
    BUT if you believe in a democracy, then, unlike Athens ,it must include everyone (slaves and women)

    Funny how that argument is just as pertinent today, both forgotten species.

    IF you believe this is the best, then surely it needs to be more representative?

    So more women, more black, more ethnic minorities. As a head teacher I always believed that the governors, responsible for the governance of the school, should represent the school population. If the school was 30 -50 Afro Caribbean then the governing body should attempt to represent that proportion. Don’t tell me they’re not competent, or argue against positive discrimination. (Asian? disabled?)

    So we have a politically ? elected body `with one of the lowest proportions of women in positions of power. But worse when we come to the judiciary ONE female in the supreme court, and the other men of an age who’s longevity will dominate for some time.

    How can you apply the law like this?

    I have not been a believer in Law, although I felt that Fawcett society were time wasting in going for legal redress. Just as I come to believe that the law is the frame work of possibility, we have the rejection of Fawcett’s challenge to the government’s cuts, that they will disproportionality disadvantage women.

    So much for the Equality Act. What’s the point if you can’t apply it?

    The Equal Pay Act was 1968. Yet still companies avoid applying the law, or re grade women’s’ jobs.

    Then we turn to the political will.

    We have an elected parliament, yet none of it represent what the electorate voted for! Why bother to vote? Strangely there is an new appetite for politics, a sudden radicalized student body. As one who remembers 68/69, it is amazing.

    The right to health
    The right to work
    The right to social assistance
    The right to a home
    These are the very rights which could be arguable or hierarchical, so to separate these kinds of rights into the legal and political sphere makes sense.
    A lawyer friend of mine(A) would argue that through enforcing these rights, we come to a better understanding of humanity, an greater agreement of the first 3 human rights, the fundamental 3 life liberty etc. So I argue for greater diversity, more representative of the population who elected it, and who need to respect its laws.

  9. Chris Garrigues says:

    I don’t think the real question is whether law (human rights, or other) is good or bad, necessary or a distraction. The questions is one of strategy and larger, radical (even revolutionary) change. Does this “win” contribute to the larger victory. Does it alleviate more suffering than it causes in the present? Does it bring more people to our side, collectively working towards our vision? Does it warrant our energies and not distract us from other more important, immediate commitments available?

    A grandiose law with “woolly” language can potentially inspire more people into collective action for personal autonomy and liberation, as opposed to something more pragmatic that promises the availability of certain institutions (e.g. a right to development vs. a right to free, public education). However, the more precise language may bring about actualized programs and real results. In the present, we are responsible for a certain visionary calculus that informs our understanding of what we can do today but what we can also leave for a future society. Having a critical mass dedicated to radical change and alternative institutions may be better than say a formal, public education program. But which is more likely to happen, and which is less vulnerable to co-option by elite interests.

    In the context of law work, the glum reality I think many of the comments avoid acknowledging is that there is no reason to believe that human rights professionals – be they judges, lawyers, academics or NGO staffers – are doing much more than smoothing over the more atrocious human rights violations and actually blunting radical efforts. Real change from below is pushed to the side because it cannot be so easily funded as an NGO defense, codified as a human rights law, or interpreted with the foresight and wisdom judges are not intentionally skilled in. Human rights law becomes a game of chess with the victims – be they individuals, groups or entire nations – pawned by activist professionals. Even with perfect intentions and adequate resources, professionals have their own interests that are part of the system causing injustice in the first place. Thus it is absurd to anticipate anything but small, calculated and neutered progress.

    I would offer that of course the law is important – it is a tool in our toolbox – but it is also a tool used by our enemies, corporations, the inherently-fascist, and even our misguided allies. Thus we must put the lawyers and the judges “in their place”. From below, those facing human rights abuse should consider the law and act accordingly: incorporating legislation and codified rights into their list of demands, using arbitration and courts when tactically beneficial, and ignoring existing, exploitative laws more often. In larger terms, this means seeing the law (among other features of our current system) realistically as more often a bulwark against social change because it has produced apathy by transferring responsibility to others, and induced a collective mindset that ‘there is no alternative’ – that this is the best we can hope for. Even ‘law’ itself, at least as we know it, is something that a radical vision of human rights must be intent to overcome.

  10. Virginia Mantouvalou says:

    In the book ‘Debating Social Rights’, which Conor mentions in the introduction of this essay, I argue that if we are serious about our commitment to a right against poverty, we ought to protect social rights that encapsulate it. The ‘legalisation’ of rights to basic material conditions is a matter of the highest priority in any decent society. It is crucial to protect social rights not only in ordinary legislation but also in documents with a higher status than legislation. In the book, I address the questions of the role of courts and non-judicial bodies, the value of rights for democracy, the supposed conceptual differences between social rights and civil and political rights, the role of legislators and the value of social rights for the world order.

    Here I’d like to comment on the point made above by Conor, that ‘judges and lawyers […] are trained in individual facts not imagined futures’. I believe that this underestimates the role of law for the promotion of principles of social justice. The legal protection of social rights does not only lead to individual justice. Social rights do not only reflect principles against which government is assessed in individual cases (though I believe that in any case it is extremely important for individuals who suffer an injustice to have their voice heard before courts). Framed as abstract constitutional norms (to housing, education, healthcare), social rights also reflect fundamental principles towards which government aspires. Social rights are, in this way, both forward-looking and backward looking. They are not only about individual facts. They are also about ‘imagined futures’, to use Conor’s words again. The law does not only involve claims enforceable in courts. In fact, legalised social rights should guide the legislative process, above all, and this is extremely important to stress.

    What has been achieved so far in the legal protection of social rights at international and national level, thanks to the moral force and the motivating power of these abstract principles, should not be underestimated. In various countries, the judicial protection of social rights has proven capable of providing an important avenue for the poor and needy, while important academic scholarship has emerged focusing on the moral, legal and political duties of our legislators to legislate for the protection of everyone’s basic needs.
    Of course there are several challenges in legalising social rights: we need further theoretical enquiry into the best institutional arrangements, more empirical research on the potential and practical limitations of the contribution that courts can make, detailed analysis of the remedies that best serve the protection of the rights of the poor, more insistence on the duties of legislatures in protecting social rights, more targeted action to revise our legal framework in a way that takes into account and addresses the suffering of the needy. But it is crucial to realise that the world order should be structured in a way that shows the concern and respect of the affluent for the basic needs of the poor. How this will be achieved is an urgent matter for moral, political and legal argument.
    With their exceptional moral force, social rights provide a starting point that captures the key challenges. They reflect the belief that rights to basic material conditions are universal and have a distinct status. They provide a basis and motivation for improvement of the many shortcomings of the world order; they have potential to inspire and lead social transformation. Reflection on how this will be most effectively achieved through the law is, therefore, a pressing need and a challenge for each one of us interested in a fairer society and a more just world order.

  11. Mairead Moore says:

    In an ideal world, obviously it would not be left to the Judges to protect and enforce social rights. It would (and should) be the role of politicians and the democratic manifestation of the parliamentary process to ensure that these rights are protected. This should be precipitated by collective lobbying action by the people on specific rights issues which are then taken up by politicians.

    I used to believe in the power of mass campaigning, direct action and ultimately civil disobedience when the Government are not prepared to listen particularly in relation to social rights. Having been influenced by the civil rights movement in N Ireland- which initially arose as a grass roots movement primarily in relation to denial of housing rights to the catholic minority (though other issues connected to electoral rights-widespread gerrymandering and employment rights were also central) which became a national movement. Having grown up in Derry, and witnessing the aftermath of Bloody Sunday in my city, I have seen first hand how long this process takes and how easy the temptation to escalate and resort to violence becomes when it is clear that all too often politicians are not prepared to listen to the will of a minority people who demand social rights- we need only look at the events last week in parliament square.

    But more than this, I don’t agree with Prof Gearty’s assertion that he is strongly in favour of human rights but at the same time against lawyers, and that a concentration on the legal process is not desirable in the sphere of social rights – what everyone seems to be missing from this idealistic human rights discussion, is the position of Ethnic Minority groups. For many ethnic minority groups, they simply don’t have a VOICE, they are not a strong group in society, they don’t have large numbers who can come together and more than this, they don’t enjoy the public sympathy and because of this how can be expect the politicians to recognise and enforce their social rights? Of course they won’t-so what options do they have? None. Their only option to ensure their social rights are in fact recognised in the first place, and then ultimately protected, is the legal process.

    Let me take the example of the Gypsy Roma Traveller (GRT) communities in the UK. In my experience working with these communities, I can engage with wonderfully sympathetic politicians, send off endless Shadow reports to the UN, briefings to countless Govt committees, meet with Commissioners from the EHRC to criticise them for their inaction, constantly pester senior figures in the EU to take action, protest constantly- but it doesn’t work! The reason? Unlike the predominantly middle class protestors involved in the tuition fee cuts, the GRT communities don’t enjoy the public support and indeed the public campaign to deny these communities their social rights to housing are much stronger than campaigns waged by the GRTcommunities themselves. As a result politicians have no incentive to recognise these social rights (and indeed to do so would risk their political positions) we need only look at the recent Westminster debate on the issue last week, to become aware of the extent of the blatant discrimination against these communities and the incredulity by Politicians that the GRT communities should even mention the language of human rights in relation to the recognition of their social rights.

    So what then for Ethnic Minorities like the GRT communities? What are their options, should they just be denied social rights because the majority of society don‘t support their recognition? Their ONLY option is the legal process when the rest of society is not prepared to recognise their social rights. It is only because of landmark cases such as the Buckley, Doherty and Connors cases in the UK that the social and cultural rights of the UK GRT communities have ever been recognised (let alone been given the possibility of being enforced). For example, in the Connors Judgment, the Court for the first time recognised that Travellers should be entitled to the same security of tenure in relation to housing that the rest of society so freely is entitled to in relation to social housing. As an aside to this, it has been 6 years since the Connors Judgment and this has still not been implemented by the Govt, despite the joint human committee on 3 separate occasions asking why this is not been implemented- in fact, this shows exactly the reasons why the legal process is the only option for such communities, when the Govt fails to even implement the policy even after the EcTHR has required them to do so).

    This is exactly the same across Europe, in relation to the Roma communities where it is only through the Courts that the rights to health and particularly education of these communities have been protected despite the best attempts of the respective Governments to deny these rights. It is solely because of Judges in Strasbourg that any changes have been made in recognising the protection of these rights for these communities. It is the same at the European level, having previously worked for the European Commission, from my experience, it is equally clear that public bodies whether at the European level, will not at all feel compelled to recognise the social rights of these groups through changes to their policy implementation guidelines, unless they are mandated to do so by the rulings of the Court.

    So to answer the question, I think that for some communities, recourse to the legal process is the only possible and effective method for the recognition of their social rights particularly when we are talking about Ethnic Minorities, and to say otherwise does not recognise just how chronically excluded such groups are from mainstream society.

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