How to cite TSpace items Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters.
Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. ABSTRACTMuch has been written about the global convergence on constitutional supremacy, and the corresponding rise of an apparently universal constitutional discourse, primarily visible in the context of rights. In this paper, we examine the global constitutional homogeneity claim with respect to economic and social rights. Based on a new and unique dataset that identifies the status of sixteen distinct economic and social rights in the world's constitutions (195 in total), we make four arguments. First, although economic and social rights have grown increasingly common in national constitutions, not all ESRs are equally widespread. Whereas a right to education is so common as to be practically universal, rights to food or water are still very rare. Second, constitutions accord ESRs different statuses, or strengths. Roughly one third of countries identify all economic and social rights as justiciable, another third identify all ESRs as aspirational, and the last third identify some ESRs as aspirational and some as justiciable. Third, legal tradition-whether a country has a tradition of civil, common, Islamic or customary lawis a strong predictor of whether a constitution will have economic and social rights and whether those rights will be justiciable. Fourth, whereas regional differences partly confound the explanatory power of legal traditions, region and legal tradition retain an independent effect on constitutional entrenchment of ESR. We conclude by suggesting that despite the prevalence of economic and social rights in national constitutions, as of 2013 there is still considerable variance with respect to the formal status, scope and nature of such rights. Because the divergence reflects lasting determinants such as legal tradition and region, it is likely to persist.2 Terminological clarity has not been a feature of this renewed interest. In addition to economic and social rights, these rights are variously referred to as "second generation rights", "(social) welfare rights", "subsistence rights", "positive rights", and "social rights." They are also frequently included under the ever-expanding umbrella of "human rights".3 SOCIAL RIGHTS JURISPRUDENCE:
The daily media are replete with stories of disasters in various parts of the world-hurricanes, tsunamis, earthquakes, droughts, floods, civil wars, mass shootings, terrorist attacks. Opinion surveys offer pessimistic or even fatalistic assessments of the state of the world. There is also no shortage of gloomy prognostication from policy and academic circles-climate change catastrophe, nuclear Armageddon in the Middle East or on the Korean peninsula, military conflict between China and the
The Future of Economic and Social Rights. Cambridge: Cambridge University Press, 2019 (forthcoming). When both aspirational and justiciable variants are considered, 81% of national constitutions contain the right to education, 70% the right to health, and 43% the right to housing; 83% contain at least one of the eight social rights, and 65% contain four or more.
Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page.This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters. Authors' Note: We thank the Journal's Editor and anonymous referees for their thoughtful comments and suggestions on an earlier version of this paper. We gratefully acknowledge comments on the dataset and earlier versions of this paper from Philip Alston, Dennis Davis, Varun Gauri, Malcolm Langford, Patrick Macklem, Catherine Valcke, Chris Cochrane, and Peter John Loewen. Advice, assistance, and feedback were also provided by the members of the TIESR Advisory Board, and by our partners: The Comparative Constitutions Project; The Center for Economic and Social Rights; and The CIRI Human Rights Data Project. We are grateful to Salvator Cusimano for his meticulous work on compiling the initial dataset and the assistance of Vuk Radmilovic with Slavic and Milena Pandy-Szekeres with Hungarian translation. All responsibility for errors remains with the authors. This project was funded by a grant from the Social Sciences and Humanities Research Council of Canada. Economic and Social Rights in ABSTRACTMuch has been written about the global convergence on constitutional supremacy, and the corresponding rise of an apparently universal constitutional discourse, primarily visible in the context of rights. In this paper, we examine the global constitutional homogeneity claim with respect to economic and social rights. Based on a new and unique dataset that identifies the status of sixteen distinct economic and social rights in the world's constitutions (195 in total), we make four arguments. First, although economic and social rights have grown increasingly common in national constitutions, not all ESRs are equally widespread. Whereas a right to education is so common as to be practically universal, rights to food or water are still very rare. Second, constitutions accord ESRs different statuses, or strengths. Roughly one third of countries identify all economic and social rights as justiciable, another third identify all ESRs as aspirational, and the last third identify some ESRs as aspirational and some as justiciable. Third, legal tradition-whether a country has a tradition of civil, common, Islamic or customary lawis a strong predictor of whether a constitution will have economic and social rights and whether those rights will be justiciable. Fourth, whereas regional differences partly confound the explanatory power of legal traditions, region and legal tradition retain an independent effect on constitutional entrenchment of ESR. We conclude by suggesting that despite the prevalence of economic and social rights in national co...
This chapter presents comparative evidence of the lack of correlation between variations in court-based human rights protection for social welfare rights and the reality of welfare provisions in different countries. The extensive research done on the empirical relation between levels of welfare provision and various non-judicial factors is brought to bear on assessing the relationship between constitutional rights and their impact on inequality. The chapter examines the causal links between constitutional protection and the political salience of socio-economic inequality, poverty, and/or labour unions and other leftists forces and constituencies in a given polity; regional and international political economy factors that explain the expansion or shrinkage of public economy; the political context for ‘aspirational’ statements at the time of constitutionalization; levels of extra-constitutional commitment to, and existence of, a well developed welfare regime (Keynesian, Marxist-socialist, or otherwise) in that polity; attempts by courts to expand the ambit of their influence by acting when elected official will not; and the net effect of constitutionalization or of its prevalent modes of interpretation on the actual realization of welfare rights.
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