Some Ideological differences that drove the polarised
preconceptions/differences between West and the East about socio-economic
rights in the post-World War II period
Capitalism ideology versus socialist/communist orthodoxies (Individual
enterprise versus welfarist/egalitarian ethos)
Fear of emancipatory demands for redistribution following years of colonial
exploitation and subjugation
Disinclination from any enforceable instruments that would clog the wheels of
global capital
Socio-economic rights as rhetorical/hortatory versus civil and political rights as
enforceable, tangible and realizable norms.
Western liberal thought argues that judicial adjudication is not the only way of
implementing social change and deepening social justice. it is argued that it is
fruitless and even dangerous to look to the courts for the first and last word on
any matter concerning the vindication of fundamental societal values.
Progressive versus Conservative visions of Judicial Capacity/Competence
The resistance to constitutionally entrenched social rights on grounds of
institutional competence is often summarized in the view that social rights are
said to be positive rights and therefore requiring governmental action; resource-
intensive and therefore expensive to protect; progressive and therefore requiring
time to realize; vague in terms of the obligations they mandate; and involving
complex, polycentric, and diffuse interests in collective goods. Civil and political
liberties, on the other hand, are said to be, paradigmatically, negative rights that
are: cost-free; immediately satisfiable; precise in the obligations they generate;
and comprehensible because they involve discrete clashes of identifiable
individual interests.
Progressive versus Conservative Visions of Social Justice
The legitimacy dimension of justiciability can be further refined by reference to
a distinction between "conservative" and "progressive" visions of social justice. A
conservative vision of social justice views the constitutionalization of social
rights as illegitimate because such rights entail the redistribution of wealth and
state intervention in market economies. According to this view, a constitution
ought to guard against state intervention and subject state initiatives that seek
to institutionalize the values underpinning social rights to constitutional
scrutiny. The kind of rights that ought to be constitutionalized are those that
create and protect a zone of individual freedom from state intervention, not
rights which place positive obligations on the state.
A progressive vision of social justice, on the other hand, does not take issue with
the legitimacy of the values underpinning social rights, but may well have
concerns about the legitimacy of empowering the judiciary to overrule the
popular will as expressed through legislative activity.65 This may simply be a
particular version of the general argument from majoritarian democracy which
opposes not simply the constitutional entrenchment of social rights but the
entrenchment of any rights at all. Proponents of this view prefer to see battles
won through majoritarian politics6 6 and energy devoted to reform of that
process as well as to the attainment of substantive outcomes through that
process. Thus, for the "progressive", it is not the "social" content, but the
"constitutionalized" content of the subject-matter in question that speaks against
justiciability. Buttressing this view are somewhat different democratic concerns
about the lack of an appropriately representative judiciary. Judges are
traditionally almost exclusively male, white and wealthy, and their decision-
making perspective is bound to be heavily structured by their background. On
this view, there would be little, if anything, different about social rights from
other kinds of constitutional rights that would prevent courts from interpreting
those rights regressively.
POSITIVE VS. NEGATIVE RIGHTS
The key difference between the elevation of socio-economic rights
and civil and political rights to a status of enforceability, in terms of
potential intrusion into political policy, is alleged to be that of "positive" and
"negative" effects. Socio-economic rights are "positive rights," requiring the
state to expend resources to provide a remedy, whereas civil and political rights
are "negative rights," which simply require the state to refrain from unjust
interference with individual liberty.
The "positive rights" criticism tends to align with a conservative ideological
view, suspicious of perceived steps towards increased state intervention that
would interfere with the operation of the free market by authorizing
redistribution of WEALTH.
The preference for negative rights alone derives from principles of natural law,47
in particular the Kantian view of negative liberty based on autonomy. From this
perspective, the poverty that an individual may experience as the result of the
operation of a free market is not to be construed as a limitation of individual
liberty, as the outcomes of markets are an unintended consequence of decisions
of individuals to buy and sell.48 This goes some way to explaining the double
standard of the U.S. Supreme Court, which has openly acknowledged that socio-
economic rights receive scant judicial scrutiny in relation to civil and political
rights, 49 a position that undoubtedly reflects the libertarian orientation of the
country's socio-political outlook." Today the United States refuses to
acknowledge socio-economic rights, not only as being legally enforceable, but as
constituting human rights at all.
Even those who are not ideologically opposed to the principle of state
intervention in the form of public expenditure may query the merits of giving
responsibility to an unelected judiciary to determine that expenditure through
positive rights litigation. But the presumption that socio-economic rights as
positive rights is questionable. Firstly, the enforcement of civil and political
rights also requires resource expenditure, and as such, these rights are
equally positive. For instance, the right to a fair trial can only be attained by the
maintenance of an expensive court system. The case of Airey v. Ireland, 53
highlights this point, as it suggests that the rightto a fair trial goes so far as to
constitute a right to legal aid funding." The assertion that socio-economic rights
matters tend to require a more resource-intensive state response is questionable,
and is dependent on the individual case.
Secondly, judicial review of a socio-economic right does not necessarily involve
the determination of a particular level of resources to be spent by the state or
the exact way they are to be spent; a judgment can simply consist of pointing out
where a violation has occurred, and instructing that it should be remedied in
which ever way the public authority deems most appropriate, or simply that an
appropriate inquiry should be instigated. For example, in the Venezuelan case
Cruz del Valle Bermudez v. Ministry of Health and Social Action,55 the Supreme
Court considered whether those with HIV/AIDS had the right to receive the
necessary medicines without charge and, identifying a positive duty of
prevention at the core of the right to health, it ordered the Ministry to
conduct an effective study into the minimum needs of those with HIV/AIDS to
be presented for consideration in the government's next budget.
