Social Rights Constitutionalism ARLSS

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Social Rights Constitutionalism:

Negotiating the Tension
Between the Universal
Access provided by University of Texas - Austin on 09/28/15. For personal use only.
and the Particular

Annu. Rev. Law. Soc. Sci. 2015.11. Downloaded from www.annualreviews.org
Daniel M. Brinks,1,∗ Varun Gauri,2 and Kyle Shen1

1
School of Law, University of Texas at Austin, Austin, Texas 78712;
email: danbrinks@austin.utexas.edu; kyle.shen@utexas.edu
2
The World Bank Development Research Group, Washington, DC 20433;
email: vgauri@worldbank.org.
Annu. Rev. Law Soc. Sci. 2015. 11:18.1–18.20 Keywords

The Annual Review of Law and Social Science is social rights, economic rights, constitutionalism, human rights,
online at lawsocsci.annualreviews.org
vernacularization, enforcement, constitutional rights
This article’s doi:
10.1146/annurev-lawsocsci-110413-030654 Abstract
Copyright c 2015 by Annual Reviews. The increasing importance of social rights language in constitutional texts
All rights reserved
and in the politics of social provision and human security has triggered a
∗
Corresponding author. voluminous academic literature. Despite its global origins, we argue, social
rights language goes through a process of vernacularization, through which
it transforms and is transformed by local politics. The process begins when
particular rights are included in constitutional texts and continues when local
groups take hold of that language to express their particular aspirations. The
struggle to realize social rights is a political one, grounded in and pursued
through local structures of demand. In the course of that struggle, rights
acquire local particularities. At the same time, the global origins and universal
language of rights can open possibilities for subordinate groups to challenge
the status quo. Whether or not social rights constitutionalism in the end
improves the situation for these groups or simply reinforces the status quo
depends on the outcome of this vernacularization process, rather than on
any a priori features of social rights language or social constitutionalism.
18.1
Changes may still occur before final publication online and in print
INTRODUCTION
The global language of human rights, and of social and economic rights in particular, pervades
progressive politics around the world. The demands of displaced communities become judicial
claims under the right to housing; groups mobilizing for better schools decry violations of the
right to education; the human need for basic social provision is framed as a basic subsistence right,
grounded in human dignity; and poverty itself has become a human rights violation.1 Courts in
many countries have picked up the challenge and sought to enforce these rights-based claims, but
many social movements use the language without necessarily intending to use the courts. This
appeal to rights language can be read to express something presumably universal about human
needs and the required response to them—an attempt to ground demands in a universal logic of
human dignity that transcends and even precedes local politics, local constraints, local aspirations
and ideals. Properly understood, however, it is one more instance of the tension between the par-
ticularism of domestic constitutions and their appeal to universal principles (cf., Jacobsohn 2010,
p. 112 et seq.). The comparative literature on social rights, and especially the judicial enforcement
of social rights, can be read as an account of how the universal language of rights is transformed
by and transforms particular contexts.
In this essay we review the literature on what we call social rights constitutionalism—the
increasing inclusion of social and economic rights language in constitutions, the increasing use of
that language by social actors to pursue their goals, and the increasing judicialization of political
disputes under the social rights rubric.2 Many of the critiques of social rights—their imperialistic
nature, purported ineffectiveness, and the like—are grounded in the idea that human rights are or
should be universal, relatively concrete prescriptions for particular solutions that can be imposed
by legal means. We argue instead that, although the language used is indeed global, once they
are constitutionalized these rights go through a process of vernacularization (Merry 2006) that
selectively translates apparently universal aspirations into a much more localized version deeply
grounded in local social and political realities. The extent to which they are universal, or particular,
or effective, is a function of this process of vernacularization.
The tension between universalism and particularism that this embodies can be a generative
tension, opening up opportunities to challenge local structures of power and connect with global
movements to advance local aspirations. But it can also be a way to bound and constrain more
representative forms of politics, limiting the ability of the local community to define its own goals
and priorities, its own understanding of the requirements for a truly dignified existence. Moreover,
in the process of vernacularization itself, rights can reacquire the local pathologies of power they
are meant to challenge. The outcomes are not, in our view, universally predictable a priori. On the
whole, in spite of an early general skepticism among normative constitutional theorists, research
has uncovered more positive than negative ways in which this tension has been resolved, but that
may only be the result of selective research strategies. Moreover, in contrast to the international
human rights discourses described by Merry (2006), we believe social rights constitutionalism
shifts the center of gravity somewhat more in favor of local over transnational actors, interests,
and institutions.
1
Already in 1998, the United Nations established, within its system of special procedures, a mandate on extreme poverty and
human rights. The position of Special Rapporteur on extreme poverty and human rights is currently held by Philip Alston of
New York University Law School.
2
For ease of presentation, and at considerable risk of oversimplification, we refer throughout to social rights, by which we
mean the entire spectrum of economic, social, and cultural rights, such as those detailed in the United Nations Declaration
on Economic, Social, and Cultural Rights.
18.2 Brinks · Gauri · Shen
As we dig deeper into this phenomenon, we still need to learn more about why countries are
choosing social rights constitutionalism over other ways to promote well-being and the fulfillment
of basic human needs, and we need to learn more about the causes and consequences of different
attempts to reconcile the universal demands of rights with the local realities of their realization.
In particular, the central role of courts in many instances raises concerns about their legitimacy
and capacity to make the distributive allocations these claims entail. One could conclude that as
the demands become more grounded in global discourses and practices, and as they become more
legal and judicial, they might become less democratic and less responsive to local conditions. But
what we already know suggests that, rather than always being agents of universal and uncompro-
mising views of rights, acting against more representative political institutions, courts are a part of
the vernacularization process, working alongside, not against, the other government branches and
social forces. Therefore, although the tension between a judicially enforced social rights constitu-
tionalism with profound global influences and a locally rooted majoritarian democracy does not
disappear, it is also not fatal to the overall social rights constitutionalism project, which appears
to hold considerable, if qualified, promise for progressive political projects.
THE TEXTUAL FOUNDATION OF SOCIAL RIGHTS

CONSTITUTIONALISM
Social rights constitutionalism goes well beyond the textual changes that brought social rights
into domestic constitutions around the world. Still, no account of the phenomenon is complete
without a look at the remarkable diffusion of social rights into constitutions around the world
over the past fifty or sixty years. Constitutions increasingly include specific provisions regarding
economic and social rights, and just as frequently, today, empower courts to enforce these rights,
often through expedited proceedings that give the rights special priority and the courts little time
to weigh the pros and cons of enforcement.
Under the usual conceptualization, human rights are creatures of international law and are
developed through international and regional mechanisms and nongovernmental organizations.
What we have called social rights constitutionalism brings these human rights—or a subset of
them—into domestic constitutions. Sometimes they do so piecemeal, by incorporating specific
rights into the constitutional text; less frequently, they do so wholesale, by giving all or some
international human rights treaties constitutional status. This process of incorporating global
principles into a domestic text is not new: “Much of the aspirational content of a nation’s specific
constitutional identity consists of goals and principles that are shared by other nations and that
are indeed part of a common stock of aspirations we have come to associate more generally with
the enterprise of constitutionalism” ( Jacobsohn 2010, p. 112; see generally pp. 112–17). But social
rights are a relatively new addition to the global stock of principles from which constitution drafters
draw when writing their texts.
Origin stories for human rights usually locate the birthplace of human rights among inter-
national movements and international institutions (Moyn 2010). The more traditional narrative
places the birth of modern human rights at the inception of the Universal Declaration on Hu-
man Rights (UDHR), emerging from a post–World War II milieu (Simmons 2009, p. 41; Steiner
et al. 2008, p. 134). In rejecting the classical story of the emergence of human rights following
the Second World War, Moyn claims that the true flourishing of human rights as a practice did
not occur until the emergence of international human rights institutions and organizations and
discussions about human rights in the late 1970s. Despite the emergence of the UDHR and the
International Covenant on Civil and Political Rights (ICCPR), Moyn argues, human rights did
www.annualreviews.org • Social Rights Constitutionalism 18.3
200
At least one social right
No social rights
Number of constitutions
150
100
50
0
1800 1850 1900 1950 2000

Year
Figure 1
Number of constitutions with either at least one or no social rights in the text. We are very grateful to
Zachary Elkins, Tom Ginsburg, and James Melton for sharing their data on rights in constitutions with us.
The graphs count the following social rights: the right to join a trade union, to strike, to enjoy the benefits of
scientific progress, and to be free from child labor, as well as the right to just remuneration, leisure, a
minimum standard of living, social security, a safe working environment, shelter, matrimonial equality, child
protection, health care, free health care, health care provision as a duty of the state, development of
personality, free education, and free higher education. Source: Comparative Constitutions Project.
not come into their own as a viable ideology until the proliferation of rights discussions among
international organizations and international lawyers in the late 1970s.
The focus on international instruments, international institutions, and international actors
obscures the earlier origins of domestic social rights, as well as the movement toward domestic
social rights constitutionalism that has taken place since the Second World War. Moyn (2010,
p. 222), for example, argues that support for economic and social rights declined just as civil and
political rights gained more recognition in the late 1970s. Moreover, Merry’s (2006) argument,
focusing as it does on the international human rights regime, emphasizes the global origin of the
ideas, and the dominant role of transnational actors in the process of vernacularization. Neither
of these things appears to be true, at least to the same degree, in social rights constitutionalism.
First, as seen in Figure 1, attention to social and economic rights—at least at the time of drafting
constitutions—spiked in the postwar era and continues to increase through the present. And
second, the actors, institutions, and laws are more likely to be local, obviating some of the concerns
of a more internationally grounded movement. In social rights constitutionalism, the focus is more
on the domestic, once we move beyond the initial moment of including the rights in the domestic
regime. From there on in, the international influences must be negotiated locally—as when courts
cite foreign or international interpretations of particular rights ( Jacobsohn 2010, pp. 136–212).
Social rights have long been present in constitutions—notably the Mexican constitution of
1917 and the Weimar constitution, as well as many US state constitutions—but between the 1920s
and the mid-1940s it became more common to have at least one social right than to have none
(Figure 1). The postwar, postcolonial constitutions of Africa, and the post-redemocratization con-
stitutions of Latin America, increasingly included social rights among the necessary ends of gov-
ernment. From the 1940s to the early 1990s, the growth rate of social rights constitutions roughly
parallels the growth rate in constitutions overall, as evidenced by the nearly flat line for nonsocial
8
Mean number of social rights
0
1800 1850 1900 1950 2000
Year
Figure 2
Average number of social rights in constitutions. Source: Comparative Constitutions Project.
rights constitutions—in this period almost every new constitution is a social rights constitution,
whereas the old ones stay the same, perhaps as a consequence of a Cold War politics in which social
rights were associated with the Soviet world. After 1990, with the end of the Cold War, however,
new social rights constitutions have replaced nonsocial rights constitutions as countries add social
rights to existing documents or replace their old constitutions with more rights-rich texts.
Moreover, once they begin to include some social rights, the list rapidly expands; the average
constitution now has approximately one-third the total number of social rights we counted
(Figure 2). The average number of social rights included in constitutional texts begins to increase
appreciably in the 1920s, with two notable discontinuities in the growth line. It first jumps in the
late 1940s, after the Second World War, when African and other postcolonial countries begin
writing their own constitutions. Then the growth rate stagnates until after the end of the Cold
War, to jump again in the 1990s. By the turn of the twenty-first century the average number of
social rights in constitutions is more than 6 out of the possible 18 we included for this count.
There is some debate over whether the trends in incorporating social rights in various con-
stitutions can be traced to international sources or are the product of simultaneous domestic
developments (Elkins et al. 2013, Law & Versteeg 2011). Observing the emergence of numerous
social rights since 1946, Law & Versteeg (2012, p. 839) find little correlation with the major rights
documents in the International Bill of Rights: There may be a tendency to copy the ICCPR but
not the UDHR or the International Covenant on Economic, Social and Cultural Rights. In any
event, they attribute the increase in social rights provisions to concurrent trends in constitution
writing, and not to a causal relationship between international documents and constitutionalism.
In contrast, others find a causal relationship between major rights treaties and constitutions (Elkins
et al. 2013; Z Elkins, T Ginsburg & J Melton, unpublished manuscript3 ). The literature to date
may have underplayed the influence of former Soviet block constitutions and early advances in
subnational constitutions. More research is certainly needed on the relationship of international
instruments and actors to domestic constitutions, and more generally on the ideational currents
and political impulses that drive the appearance of social rights constitutionalism in all its variants.
We should be clear that not all countries are converging toward a single model of social rights
constitutionalism. The United States, at least at the federal level, retains a largely proceduralist,
3
Elkins Z, Ginsburg T, Melton J. Imagining a World Without the Universal Declaration of Human Rights. Unpublished
manuscript.
negative-rights-focused constitutionalism, and many states in Europe have made social provisions a
matter of ordinary legislation rather than constitutional mandate. However, some Latin American
countries, such as Bolivia and Ecuador, while embracing the full complement of rights, have to
some extent rejected the use of purportedly neutral courts to enforce them, in favor of a more
participatory version of mass politics and a more politically responsive judiciary. Dworkin (1986,
p. 356) once said, “The United States is a more just society than it would have been had its
constitutional rights been left to the conscience of majoritarian institutions.” These countries,
in contrast, appear to trust the conscience of majoritarian institutions more than that of judicial
ones, which they find overly elite-focused and largely deaf to the demands of majoritarian but
marginalized populations.
In any event, although the exact origins of the textual changes are still open to debate, it seems
clear that the Global South is embracing new forms of constitutionalism that are quite distinct
from the US or European models, precisely for their focus on social rights. Focusing less on the
text than on its animating principles, Bilchitz, for instance, argues that the new constitutionalism of
the Global South is distinct for its emphasis on robust, substantive notions of distributive justice, in
contrast to the more civil and political rights–oriented constitutions of the Global North (Bilchitz
2013; see also Brinks & Gauri 2014). A series of events—the dismantling of many European
welfare states, the end of the Cold War and the incorporation of the “Second World’s” concern
for welfare rights, the failure of earlier heterodox attempts to ensure a general level of social
welfare, and general disillusionment with neoliberal market prescriptions for bringing prosperity
to all—seemed to call for a new approach to social democratic politics. In this context, social rights
seemed to offer a common ground for liberals and progressives of all political persuasions, as well
as a possible starting point for a new form of social democracy (Brinks & Forbath 2014).
Moreover, this seems to be a persistent and expanding phenomenon. Once in a text, consti-
tutional rights rarely are taken out, in a sort of ratchet effect (Elkins et al. 2013). If they truly
are countermajoritarian, this should be at least mildly surprising—one would expect a determined
majority to eventually find a way to remove nettlesome provisions from the constitution. Their
persistence could mean one of two things. On the one hand, it may be that they are effective
enough to generate support among constituencies that can resist attempts to remove the rights
from the constitutional text or make them unenforceable. The difficulty of constitutional amend-
ment would give these constituencies an advantage, but without any support it is unlikely a truly
troublesome constitutional provision would last indefinitely. On the other hand, it may be that
social rights never truly challenge powerful actors; if so, their permanence is evidence of irrele-
vance and inertia, rather than success and resistance. We return to the question of effectiveness in
the final section, but the successful experiences of many groups who deploy social rights suggest
that, at least in some places, social rights are sufficiently linked both to universal aspirations and
to local sociopolitical dynamics as to make them difficult to purge from the text.
The next section begins the examination of these sociopolitical dynamics, looking at the process
by which rights are deployed in local contexts and showing how the realization of social rights
depends on a series of locally rooted actors and institutions. It is precisely this reliance on a
domestic process of translation that leads to the vernacularization of social rights. Subordinated
groups often latch on to the more universal ideals of human rights to challenge and destabilize
existing political settlements. But the translation of those ideals into local realities requires an
intrinsically political process that can, in some cases, make them better express local, previously
submerged aspirations, and in others fold back into existing structures of power, thus failing in
their promise.
SOCIAL RIGHTS CONSTITUTIONALISM: RESOLVING UNIVERSAL

AND LOCAL TENSIONS?
Realizing constitutional social and economic rights is a process of reconciling their purportedly
global ideals with local aspirations and limitations, and then finding the institutional avenues to
express the resulting synthesis. Given the legal language of rights, courts very often become an
important—though not the only, and in some cases not the most important—space in which all
this is negotiated. A naı̈ve view of courts might suggest, as a result, that solving these differences
is exclusively the province of judges and lawyers, and that the logic is one of legal reasoning and
jurisprudential development. Although one still occasionally finds such a view in the literature,
of course, most authors recognize that, although the language of the solutions and many of the
actors may well be legal, the process of arriving at a settlement is deeply political. One useful
way to organize this process—and the literature around it—is to break it down into the four
stages it follows, which we have elsewhere called legal mobilization, judicial response, compliance,
and follow-up (Gauri & Brinks 2008). Each stage of the process contributes something to the
vernacularization of social rights.
Legal Mobilization
The starting point for any process of realizing social rights is legal mobilization. Some entity—a
group, an individual, an organization—must define its interests and frame its demands in terms
of rights and begin to organize around them. Groups often mobilize to incorporate rights into
constitutions, as the indigenous groups of Latin America have done (Van Cott 2002). More often,
however, they organize around rights that are already included in a constitution and seek to adapt
the language of rights to support their demands. This begins the process of vernacularization
by locating the demands in a particular political geography of needs and capabilities. Constitu-
tional rights that do not inspire mobilization are more likely to go unexpressed, remaining mere
parchment promises. At the same time, many of the groups that mobilize around social rights
participate in and draw considerable support from a global network of social rights activists and
funders (Gloppen & Roseman 2011). Thus, as with every step of the process, we can see both local
and global influences at work in this stage.
Building on Epp’s (1998) work on the social roots of a “rights revolution,” the literature on
legal mobilization typically focuses on the strategic choices facing advocates in light of the legal
opportunity structure presented (Gauri & Brinks 2008, Gloppen & Roseman 2011, Wilson &
Rodrı́guez Cordero 2006). Every successful litigation campaign requires a significant social base,
the nature of which is partly a function of the opportunities and constraints presented by the legal
opportunity structure (Gauri & Brinks 2008, p. 16). The point is that claimants’ capabilities must
match up to the legal opportunity structure if the process of claiming rights is to begin at all.
One negative implication of this is that the cost of appealing to courts may well put them out
of reach for much of the population, leaving courts adjudicating the social rights of the middle
class and elites, not the poor (cf. Brinks & Gauri 2014). One way to address this, of course, is by
making access swift and costless, so that underprivileged litigants can appeal to the courts (Wilson
& Rodrı́guez Cordero 2006).
Although some courts have done this through procedural means, like the Costa Rican amparo
or the Colombian tutela, some research suggests that a better way to reach the poor is by using
fewer but wide-reaching, public policy–like decisions (Brinks & Gauri 2014). Courts such as the
Indian Supreme Court and the Colombian and South African constitutional courts are more likely
to reach the poor with their decisions because they do not rely as much on individual litigation
and individual remedies. In these cases, international and domestic donors can occasionally carry
some of the costs of social rights mobilization on behalf of groups that would not otherwise
have the resources. An interesting, classically sociolegal, question would be the extent to which
this process transfers control over the social rights agenda to external actors, thus impeding the
vernacularization of demands, who then make use of purportedly unaccountable courts, in a double
blow to democratic processes.
We showed that among constitution drafters there was a significant focus on social rights
starting immediately after World War II, but it is equally true that these provisions languished
until much more recently. The turn to a discourse of rights and to judicial enforcement as a way
to claim social rights—now dominating debates about social provision in many countries in Latin
America, for example—did not truly take off until the 1990s (Brinks & Forbath 2014, Yamin &
Gloppen 2011). The change seems partly driven by changes in the institutional framework, thus
producing a new legal opportunity structure (see, e.g., the changes chronicled in D Brinks & A
Blass, unpublished manuscript4 ), and partly driven by large-scale disappointment with alternative,
mostly market-based, means of ensuring social welfare (Brinks & Forbath 2014). Regardless of its
causes, it is now abundantly clear that one cannot talk of reforms to and the provision of health
care, education, and various other aspects of the welfare state in Latin America and other regions
without considering how courts are intervening in the process.
The turn to legal strategies does not, however, imply an abandonment of politics. Unlike many
legal mobilization efforts in the United States, successful social rights movements in other parts
of the world appear to consider legal strategies as just one of several weapons in their arsenal
(Brinks & Forbath 2014, p. 234; Gauri & Gloppen 2012). Even where the courts are active and
receptive, as in Colombia or South Africa, movements that seek large-scale social transformation
integrate political and legal strategies (see, e.g., Rodrı́guez Garavito 2011 on Colombia; Forbath
2010 on South Africa). Conversely, where litigants seek purely private goods, strategies tend to
be individual and purely legal (Brinks & Gauri 2014, Hoffmann & Bentes 2008). Social rights
constitutionalism thus depends on a local structure of demand, which in turn depends on local
aspirations, local capabilities, and the available legal opportunity structure—with the substantial
caveat that many of the groups promoting social and economic rights are part of a global network
of nongovernmental organizations and donors focusing on these rights.5 There is little research to
date on the extent to which social rights mobilization is externally funded or domestically driven,
but in most cases it seems to be a mixture of the two, with the balance tilting to the local side.
Even those who focus on the effectiveness of international treaties acknowledge the impor-
tant role of local social mobilization, thus relying on the same localizing dynamic. In Keck &
Sikkink’s (1998) work on transnational advocacy networks, local actors partner with international
nongovernmental organizations to exert leverage on states. Although they credit the “boomerang
effect” of international actors with generating much of the pressure on local governments, the ini-
tiative often rests with movements within countries. Similarly, Simmons (2009) attributes much
of the effectiveness of treaties to domestic variables. She shows that to the extent they matter, they
do so because they guide national agendas, stimulate popular mobilization, and offer an additional
persuasive tool for litigation. Relatedly, Gauri (2011a,b) show that, in the context of children’s
rights, the effect of international human rights treaties depends, in part, on the fiscal cost of
4
Brinks D, Blass A. Rethinking Judicial Empowerment: The New Foundations of Constitutional Justice. Unpublished manuscript,
on file with authors.
5
See, e.g., ESCR-Net (http://www.escr-net.org) and the focus on economic and social rights in the Ford Foundation’s
Human Rights Overview page (http://www.fordfoundation.org/issues/human-rights/strengthening-human-rights-
worldwide).
implementation, as well as the costs that domestic, mobilizing actors are able to impose on the state.
Social rights constitutionalism thus creates effects that international treaties and organizations do
not produce on their own, precisely through a process of local mobilization and enforcement.
At the same time, given the structure of demand in many conservative societies, not all vernac-
ularization leads to what we might recognize as progressive ends, or to expansive protections for
social rights. In some of the same countries where courts and civil society have made substantive
gains in the protection of one set of rights, similar language is used to restrict the expansion of
other rights. In Argentina and Chile, the constitutionalization of the right to life long supported a
total ban on and criminalization of abortion (P Bergallo, unpublished manuscript6 ) or restrictions
on access to certain contraceptives. Similar constitutional arguments were deployed when the
Colombian Constitutional Court initially restricted the right to abortion for victims of rape (P
Bergallo, unpublished manuscript). Following these total bans on abortion, new tests balancing
fetal rights to life and women’s health also relied on rights language. In many places, it appears
the process of vernacularization includes actors who restrict the legal or political effect of social
rights, giving them a meaning that contradicts those in other contexts. Researchers have so far
given very little attention to movements that seek to establish what are by most accounts regressive
or rights-limiting interpretations.
Judicial Responses
Judicial decision making is also an inherently political process, as the judicial behavior literature
makes amply clear, and thus is another step in the vernacularization of social rights. We can
usefully map judicial responses in social rights cases on two dimensions (see Brinks & Forbath
2014, pp. 238–39). The first is the classic distinction between courts that are more deferential or
more assertive in relation to the other branches of government. The other dimension, however, is
equally important in these cases, having important implications for the resulting texture of social
rights mobilization and response. Some courts, such as the Brazilian lower courts, and to some
extent its highest court, adopt a more formalistic, syllogistic approach to judging these cases,
focusing on the language of the constitutional text and the facts of the case at hand. Others,
however, like the Colombian or the South African constitutional courts, appear to use individual
cases to think more programmatically about the underlying problem and to craft more public
policy–like solutions to the problem that generates repeated cases. Courts, then, rather than always
embracing open-ended (or limited) understandings of the rights in question, respond differently
in different contexts, partly in response to state capacity and political tolerance for the claims being
asserted, and partly out of preexisting understandings of the proper judicial role.
As briefly noted above, the attitude that courts adopt when confronted with social rights claims
has important implications not only in the stages after the decision but also for shaping the nature
and extent of legal mobilization. It is clear that an expected negative judicial response potentially
forestalls legal mobilization altogether, as in Nigeria (Odinkalu 2008), just as a broadly positive
expected reception can encourage a virtual avalanche of litigation, as in Colombia (Yamin et al.
2011). Moreover, the formalistic or programmatic nature of the judicial response can give social
rights mobilization very different characteristics—a refusal to endorse collective claims leads to
individual actions for individual remedies, largely privately funded, whereas a greater willingness
6
Bergallo P. Complementarities and Mismatches in Recent Latin-American Conversations on Abortion and Human Rights. Unpub-
lished manuscript, on file with authors.
to issue broad, public policy–like decisions can encourage public interest litigation on behalf of
more disadvantaged groups (Brinks & Forbath 2014, pp. 238–42; Brinks & Gauri 2014).
Most commentators caution prudence in this respect. Even those commentators who support
a role for judicial enforcement argue that courts adjudicating social rights issues ought to adopt
a relatively restrained approach (see especially Tushnet 2009, King 2012). Tushnet (2009) has
advocated for what he calls a “strong rights, weak remedies” approach that would keep the courts
out of the business of devising specific solutions to the problems they identify as inconsistent with
social rights constitutionalism. Others, however, argue that strong judicial remedies will lead to
a greater enforcement of social rights (Berger 2008, Landau 2012). Strong remedies, they argue,
are more likely to produce compliance, making them optimal tools for targeting marginalized
populations. Our impression is that weak remedies might be appropriate when it is reasonable to
assume that the target of the litigation roughly shares the court’s goals, but that more directive
orders and a greater reliance on monitoring are appropriate when the target is resistant. Although
we do not yet have clear empirical evidence on the actual consequences of different approaches,
it is clear that courts are proceeding with caution in many if not most cases.
The South African Constitutional Court gained early fame for its vigorous social rights en-
forcement. South Africa’s 1996 constitution contains numerous rights provisions, and the Consti-
tutional Court is widely cited as being one of the friendliest to international law. Among others,
the Grootboom case, decided in 2000, made it clear that the courts would be willing to enforce
social rights [Government of the Republic of South Africa v. Grootboom and Others (2000)]. In this and
subsequent cases, the court required the government to respond with a public policy on issues such
as housing needs and the medical response to HIV/AIDS. Since then, the South African Constitu-
tional Court has expanded protections for many social rights, including the right to housing, rights
to land, and marriage equality. In perhaps its most famous case, Minister of Health v. Treatment
Action Campaign (2002) (the TAC case), the court ordered the public healthcare system to provide
HIV antiretroviral treatment, in the face of considerable resistance by the government (Berger
2008, Forbath 2010). And yet, for all its fame in comparative constitutional circles, it is clear that
the Constitutional Court has always adopted a relatively deferential attitude toward the govern-
ment’s policy-making discretion (Brinks & Forbath 2014). One manifestation of this restraint is
the court’s adoption of a jurisprudential approach that leaves most of the initiative and control in
devising specific solutions firmly in the hands of the government (Dixon 2007). At times, this has
led local activists to critique the court as overly timid (Dugard 2013).
Even apparently bolder approaches retain some level of deference. The Indian Supreme Court
is often quite activist. In Unnikrishnan v. State of AP (1993), the Court insisted the right to education
could be a fundamental right, even if it were not so labeled in the constitution. Although most social
and economic rights are labeled as nonjusticiable “directive principles” in the Indian constitution,
the Indian Supreme Court interpreted the right to life broadly to include social rights, such as
housing, education, and food, and render them judicially enforceable. It also relaxed procedural
requirements for access to courts, in the hope of stimulating populist and redistributive judicial
interventions, though in reality the redistributive record of the Indian courts is mixed (Gauri
2011a,b; Thiruvengadam 2013). Similarly, in Colombia the constitution limited the reach of
rapid procedural protections to “fundamental rights,” which initially appeared not to include
social rights. Taking an even broader approach than the Indian Supreme Court, the Colombian
Constitutional Court has accorded social rights fundamental rights status, on grounds that they
are necessary for protecting human dignity. In comparison to South African courts, then, the
Colombian and Indian courts have typically taken a more directive stance (on Colombia, see
Brinks & Forbath 2014, p. 239, table 11.1; on India, see Shankar & Mehta 2008). Even in these
cases, however, the tendency is not to take final, operational decision making from the government,
but rather to engage in an open-ended, iterative problem-solving process. This approach, very
similar to more recent approaches taken by US courts in public interest litigation (see Sabel &
Simon 2004), entrusts many of the specifics of the remedy to the defendant, albeit under close
judicial supervision.
It is likely no coincidence that the modal judicial response to these difficult cases is restrained.
All our current models of judicial politics, which frame courts as political actors constrained by the
preferences of other branches of government or public opinion, would predict such an outcome.
Whether limited by their dependence on other branches for enforcement (Rosenberg 2008),
by their appointment by these other branches (Dahl 1957), or by their strategic anticipation of
negative reactions (Epstein & Knight 1998), we should not expect courts to stray too far from
what the ruling national coalition would tolerate. Still, this leaves considerable space for courts to
shape public policy in important ways.
The South African Constitutional Court in Grootboom, for instance, worked with a favorable
government, declaring strong rights and a vague remedy to produce significant effects (Kapiszewski
& Taylor 2013). In the context of housing rights, the court could count on the post-Apartheid
government to advance the right to housing to the best of its ability, even without defining it too
explicitly. In contrast, in the TAC case a few years later, the South African court faced a much
more opposed government, requiring it to deploy stronger remedies on behalf of the right to
health. Even here, however, much of the work of defining the specifics of the necessary public
health program was left to government bureaucrats, and the work of monitoring and enforcement
was entrusted to the Treatment Action Campaign itself. In short, the outer bounds of the judicial
response to social rights demands are set by the characteristics of the local social and political
system.
In addition, different legal traditions also shape the judicial response to social rights. In Brazil,
perhaps because of its adherence to certain aspects of the Civil Law tradition, the courts have
refused to engage in broad, public policy–like decision making, largely limiting themselves to in-
dividual remedies in individual cases (Hoffmann & Bentes 2008). As a result, health rights litigation
in Brazil is dominated by myriad individual petitions, leading to a more narrow definition of rights
and a remedy for individual litigants, and possibly somewhat more regressive outcomes (Brinks &
Gauri 2014). In contrast, one common law system, India, produced right to education cases that
both defined the right broadly and offered ambitious remedies—for example, providing prepri-
mary education in the entire state of Gujarat, or requiring every state in the union to develop and
implement a mid-day meals scheme for enrolled students (Drèze 2004, Shankar & Mehta 2008).
The influence of legal tradition is not determinative, however. Colombia’s (civil law) constitutional
court has distinguished itself as a broad-minded policy-making institution (Rodrı́guez Garavito
2011). Much more research is needed on why different courts adopt such different decision-making
styles, but what is clear is that each court imbues social rights constitutionalism with a local flavor.
A possible countervailing force to the vernacularization of social rights through local courts
might be the presence of regional, supranational courts. In Latin America, for example, the
Inter-American System of Human Rights, including the Inter-American Court of Human Rights
(ICHR), may be contributing to a regional constitutionalism, at least in certain rights-related
areas (Contesse 2014). Essentially, the ICHR produces particular interpretations of certain rights,
which are then adopted by constitutional courts across the region. Occasionally, the ICHR itself
draws on the decisions of domestic courts in coming up with its own decisions. Although we do not
know how widespread it might be, this process of lifting jurisprudence out of one domestic context,
internationalizing it, then dropping it back down into another one might be a force for generating
regionally specific solutions to common rights problems. A similar local-regional dynamic may
be at play in the European Court of Human Rights, although not with regard to social rights.7
To capture the influence exerted through the Inter-American System, Contesse coins the phrase
Inter-American Constitutionalism. He makes the observation that the Inter-American System’s
influence is most notable in the increased protection for fundamental rights by constitutions and
constitutional courts in some countries within Latin America.
We have made the argument that courts, because they are embedded in domestic politics, tend
to act as vernacularizing agents. However, the development of Inter-American Constitutionalism
and other regional interpretations, the increasing reliance on a global legal discourse of human
rights, and the increasingly common practice of citing foreign decisions suggest that courts perhaps
homogenize rights understandings—an outcome in tension with the story of vernacularization we
have been telling here. Hirschl (2004, 2008, 2010) has also argued that, in a variety of contexts,
and even with respect to the deepest questions of national identity or the role of religion in
politics, courts respond to relatively universal impulses, in relatively predictable and uniform ways.
Similarly, as noted above, Jacobsohn argues that constitutionalism includes universal principles
to go along with the specific version of national identity they embody. For Contesse (2014) and
Jacobsohn (2010), this is a positive force, one that introduces a more progressive, rights-protective
jurisprudential strand into the warp and weft of domestic politics. For Hirschl, however, courts’
inherent tendency to incorporate universal, cosmopolitan ideals has the potential to flatten local
particularities on the most fundamental issues of national identity.
Clearly more research is needed on whether the universal, the particular, or some blend of the
two prevails in most judicial approaches, and on when to expect a more positive outcome from one
or the other. Many courts can be seen to bow to domestic politics. Brazil’s constitutional court,
at times one of the most rights-friendly of Latin American courts, has recently rejected Inter-
American court decisions protecting indigenous rights and forbidding amnesty for the human
rights violations of the military regime, in an implicit concession to the domestic politics of these
issues. Chile’s constitutional court has resisted attempts by the Inter-American court to expand
reproductive rights, in the interest of protecting its own vision of the right to life. However, the
Argentine court has eagerly embraced Inter-American court decisions on a host of issues, and the
Uruguayan court has had to bow to the regional court’s prohibition on amnesties, despite repeated
plebiscites to the contrary. In the prior section we noted that the process of incorporating rights
into domestic constitutions gives each place its own blend of universal and domestic rights—
and their qualifications—for courts to enforce. The politics of judicial decision making pushes
interpretation even further in the direction of local politics. Our own belief is that courts are
more responsive to local politics than some of the more universalizing accounts might suggest,
but it is clear in any event that courts charged with enforcing social rights are locating their
decisions somewhere in the landscape between universal understandings and local aspirations and
limitations.
Compliance and Follow-Up

Compliance, and its counterpart follow-up, is another place where the global meets the local.
Although the literature on this is at an early stage, most accounts ground successful compliance
in local politics: Elite preferences (Rosenberg 2008) regarding particular court decisions and the
extent of popular support for courts or their rulings (Staton 2010, Vanberg 2001) are usually cited as
crucial factors. As a result, in most cases it remains up to the claimants and other interested parties
7
We owe this observation to an anonymous reviewer.
to create the politics of compliance. Increasing reliance by courts on monitoring mechanisms

points to the same conclusion: Court monitoring and compliance efforts work to the extent that
they create new spaces for political mobilization around the issues (Botero 2014), thus facilitating
and shading into what we have called follow-up. Rights and decisions that are not rooted in a
local politics are far less likely to garner compliance, and thus to simply remain formal rights. At
the same time, many accounts of compliance include a global component. Local groups might
use the boomerang effect of international issue networks to bring additional pressure to bear, and
important international actors often support local groups in compliance efforts. It may well be
that local efforts that align with the priorities of transnational actors are most likely to succeed in
sustaining pressure for compliance.
An instructive experience in this regard is the effort on the part of the Constitutional Chamber
of the Supreme Court of Costa Rica to monitor compliance with its own human rights orders, pub-
licize the compliance rates of government ministries and agencies, and conduct bilateral meetings
with government officials to promote compliance. The Costa Rican court saw promoting com-
pliance as part of its constitutional mandate and took steps to publicize compliance rates in an
effort to increase popular support for its rulings. An analysis of the initiative finds that domes-
tic publicity has a substantial effect on compliance rates: Court orders issued just after a public
press conference publicizing the compliance monitoring program were implemented two months
earlier than orders issued just prior to the press conference (Gauri et al. 2015).
Generally, rights regimes are more likely to become effective when they are embedded in and
supported by a wide set of domestic institutions and actors that can provide “lateral support” (Brinks
& Botero 2014). Without the support of other social actors, without the possibility of securing
political support, and without institutions such as courts or prosecutors to back the claims, a
formal right, no matter how globally popular or how cleverly drafted into a constitutional text,
is unlikely to produce a real change. Even social norms play a role, assigning meaning—and in
the end political consequences—to the fact of noncompliance. This network of lateral support
is often the result of concerted, sustained political activity and iterated policy making, including
in many cases the building of necessary state structures (Brinks & Botero 2014). In other words,
constitutionalized rights are more likely to become effective when interested groups exercise their
civil and political rights, long after the constitution has been drafted, to produce a dense structure
of lateral support.
Similarly, judicial decisions in social rights cases pose crucial compliance challenges that con-
tinue long after a judgment is secured. Although other judgments may be more threatening or
costly to powerful political actors, these cases often pose nontrivial challenges to the status quo.
They may involve complex affirmative orders requiring governments to do difficult things they
have thus far been unwilling to do, to spend money they had perhaps slated for other priorities,
and to do so on behalf of marginalized groups. They might require a government to take on a
problem—such as the contamination of the Riachuelo watershed in the Mendoza case, in Argentina
[Mendoza Beatriz Silvia c. Estado Nacional (2004)]—that has been two hundred years in the making,
and has stymied governments for decades. The challenges of fulfilling social rights would likely be
daunting for a single bureaucracy seeking to order its own priorities and supervise its own lower
ranks, let alone for one bureaucracy—the courts—seeking to reorder the priorities of another and
supervise the latter’s performance.
Many theories of compliance emphasize norm-based, voluntary compliance, or self-enforcing
schemes for which violating the rule brings its own punishment. In these arguments the primary
motors of compliance are elements such as the legitimacy and features of the court (Gibson &
Caldeira 1995, Gibson et al. 1998) or the process (Tyler & Rasinski 1991), or even meta-norms of
compliance (Bergman 2009), that make it more likely that actors would voluntarily comply with
an order. Although the literature on compliance is underdeveloped, we find that, at this stage of
the research cycle, it is fruitful to think of the compliance decision in roughly rationalistic terms.
In other words, as a general rule, the targets of a court decision or the duty-bearers in a rights
regime comply, not out of a general conviction that compliance is the right thing to do, but only
when the net cost of noncompliance becomes higher than the cost of compliance. In this sense,
compliance is simply the counterpart of actual or threatened enforcement, and follow-up is in
part the effort to ensure that the rights secured in a constitution or judgment are carried out, by
bringing attention to lack of compliance and mobilizing to impose costs on the target.8
Examples of this kind of follow-up abound. One notable instance can be found in Colombia.
The Constitutional Court there recently commemorated ten years of continuous monitoring
of the government’s response to the court’s decision on behalf of internally displaced people.
This process relies in large measure on the ongoing efforts of a large network of civil society
organizations and government actors (Rodrı́guez Garavito & Rodrı́guez Franco 2010). Similarly,
in the Mendoza case, the Argentine court itself created a compliance authority to manage all the
activities triggered by a decision to clean up the Riachuelo River Basin, giving both civil society
organizations and ordinary residents of the affected area a voice and a place to be heard. In short,
in many of the most important social rights cases, we see protracted follow-up campaigns, the
primary goal of which is to secure compliance with, and to expand upon, a judgment or right that
has already been secured. Where this is not present, the rights often remain unrealized.
Follow-up, then, is often integral to the compliance story and adds the final veneer of vernacular
politics. Without a process grounded in the politics and realities of the local society, fine-sounding
rights and ambitious rulings remain mere parchment pronouncements. But neither are these
politics completely free of global influences. Many compliance efforts rely on international issue
networks, international donors, and international expertise. No part of this story, therefore, is free
of an often-productive tension between the universal principles evoked by social rights, the global
interests of transnational actors, and the particularities of each place—its aspirations, its politics,
its power structures, its failures and capabilities.
EFFECTS
Of all the facets of social rights constitutionalism, we know the least about its effects. There is an
incipient literature on whether the turn to rights is systematically biased toward elites (Hirschl
2004), whether the judicial enforcement of social rights exacerbates that tendency (Ferraz 2011),
and whether human rights are effective at all (Posner 2014), but these issues cry out for more
comprehensive, systematic, and comparative studies.
As to the purported elite bias of the judicial enforcement of social rights, our own findings
suggest the answer is much more dependent on the way advocates and courts approach the chal-
lenges of enforcement—on just how social rights are vernacularized—than on any systematic bias
or wholesale fundamental deficiency of rights as a language for framing demands (Brinks & Gauri
2014). First, the most important cases are typically not those that benefit the middle class or the
wealthy. Moreover, even where effects do not lead to perfectly equal outcomes or reach the most
marginalized and needy, we often find that they still represent an advance for some individuals
or groups who would not otherwise realize their rights. The extent to which this poses a serious
8
Note that in this discussion, we are describing how to explain compliance with court orders, rather than compliance with law
more generally, which may well require an account of widespread voluntary or quasi-voluntary compliance (Ellickson 1991,
Tyler 2006).
normative problem will depend on the context, and on the extent to which giving to some means
taking from others. In many cases, we find that knock-on litigation and claims are cheaper and
easier, so that less-privileged groups can later piggyback on the gains of the first movers—who may
well be urban, middle-class groups. Finally, it is not obvious that the realization of social rights
is always a zero-sum game, so the mere fact that some benefit more than others does not mean
the latter are being harmed. In short, the question of whether and how effects can be distributed
equitably requires further study, which should focus on when and where the effects of social
rights enforcement can benefit the neediest, rather than on essentializing arguments about social
rights.
Of course, that debate assumes that rights and rights litigation have some measurable effect,
which is exactly what critics like Posner (2014) or Rosenberg (2008) call into question. Some recent
attempts to measure the impact of social rights seek to answer the question by simply comparing
outcomes in countries with and without certain social rights in the text of the constitution. For
example, in a recent paper, Edwards & Garcı́a Marı́n (2014) regress the presence of rights to
education on test scores in a variety of countries and ultimately conclude that the right to education
is not effective in improving education. Posner (2014) similarly suggests rights have not and
cannot address local demands adequately. In his view, because of their universal claims, reliance
on international treaties and organizations, and often-vague prescriptions, human rights fail to
create effective enforcement mechanisms and are doomed to remain parchment promises.
But before answering the question of effectiveness, we must do more to set the terms of the
debate. The problems courts and activists are tackling with the language of social rights are among
the most intractable and complex problems facing the world today—the successful provision of
health care and education, the protection of the environment, the support of a dignified existence
for aging populations, and a decent standard of living for vast numbers of poor people. Govern-
ments have failed to solve these problems—even in the relatively rare instances when they have
seriously tried—throughout the entire course of human history, and it is surely unreasonable to
expect that social rights constitutionalism will have solved them in the decades since it has become
a real political phenomenon. Research on the effectiveness of social rights constitutionalism thus
needs to develop and defend theoretically and empirically sound measures of effectiveness.
Among other things, effectiveness cannot be assessed in a vacuum. In essence, we must answer
the question, effective to do what? And compared to what? For example, although we do not
have explicitly comparative studies, the evidence suggests that social rights constitutionalism may
offer more effective tools than international instruments for implementing social rights (compare
Gauri & Brinks 2008, Versteeg 2015 to Moyn 2010, p. 222; Contesse 2014, p. 223; Z Elkins, T
Ginsburg & J Melton, unpublished manuscript). If anything, there may be a reverse boomerang
effect, in which the constitutionalization of rights increases compliance with international treaties,
precisely by facilitating domestic pressures for compliance in addition to international ones (Elkins
et al. 2013). Certainly, the studies of social rights litigation all agree that it has a significant if
not universal impact (Gauri & Brinks 2008, Rodrı́guez Garavito 2011, Rodrı́guez Garavito &
Rodrı́guez Franco 2010, Yamin & Gloppen 2011). Moreover, courts are not the only and possibly
not the best mechanism for implementing social rights constitutionalism, and no one has yet taken
a serious look at the effect of social rights outside the judicial arena. Might social rights become
truly effective only once the language of social rights is fully incorporated into the political, social,
and economic vernacular of a country, so they do not require a heavy judicial intervention?
Finally, no one, not even those who expend vast amounts of energy in the political fight to
constitutionalize particular rights, believes that rights work like magical incantations, by their mere
inclusion in a text. Simmons (2009), in the international treaty context, finds that the successful
application of social rights is highly contingent on local political mobilization.
Examining the impact of the Convention on the Elimination of All Forms of Discrimination
Against Women, Simmons finds that the treaty has significant impacts on women’s access to ed-
ucation, reproductive health, and equal employment. Simmons finds less dramatic effects for the
Convention on the Rights of the Child, but still finds significant benefits for child labor law stan-
dards and moderate gains in the reduction of child soldiers. Gauri (2011a,b) finds more significant
effects for this convention, also contingent on local conditions and local political engagement. In
short, empirical studies suggest that the impact of a treaty is strongly conditional on domestic
factors, and large-N impact studies must find a way to take that into account.
Posner (2014) contends rights are ineffective and proposes abandoning what he perceives as
the top-down model of international human rights in favor of a revised, Western-funded but
locally guided development approach. But do we really have to choose between human rights and
development? It is clear that developmental models and human rights need not be in opposition,
and some have argued that the developmental model achieves better outcomes when informed
and guided by human rights (Paupp 2014). Sen (1999, 2009), in particular, has shown the ways
in which rights and development are indissolubly linked. Moreover, whatever might be said of
purely international human rights regimes, it is clear that social rights constitutionalism is solidly
anchored in local demands and is far from an outside, Western imposition. And even international
rights go through a process of vernacularization, as Merry shows in her work.
On the contrary, what Paupp sees emerging from the Global South is an alternative notion
of human rights that focuses on peace and development. He argues this version of human rights,
deeply congruent with social rights constitutionalism, could well push back against the version
of development and human rights that comes from the Global North, a version reliant on aid
from wealthy economies that separates human rights from development and, in doing so, simply
preserves existing concentrations of wealth and political power (Paupp 2014, pp. 99, 481). If this
is right, then social rights constitutionalism can promote a development model that is both more
focused on improving the material conditions of the least well-off and more sensitive to local
concerns.
In summary, what we know about each stage of their realization makes clear that the potential
impact of social rights constitutionalism depends on just how these rights are vernacularized in a
particular polity, who dominates that process, whether the state has the capacity to respond, and
what institutional avenues there are for claiming and realizing rights. Social rights constitutional-
ism is not a panacea, nor should we expect it to be, but neither is it an empty promise. Although
the language of social rights has become nearly hegemonic in the politics of social provision, there
remains great disagreement about its effects. By one reading, a successful politics of social rights
can promote a broad range of progressive agendas and expand access to basic human services in a
way that is congruent with the aspirations and political economy of a particular country. In many
of the cases we examined, we found this to be true (Gauri & Brinks 2008). However, social rights
could be a distraction, or dangerous to the very goals they ostensibly protect. Social rights consti-
tutionalism as a sort of categorical imperative without regard to economic constraints could lead
to economic dislocations and ultimately to the failure of the overall project. At the other extreme,
if social rights constitutionalism limits majoritarian projects that are more radically redistribu-
tive or emancipatory, it might be a hindrance to advancing the goals it ostensibly proclaims—the
realization of the social, economic, and cultural conditions for a truly dignified existence for all.
We have not yet seen much evidence of negative consequences, and our sense is that social
rights constitutionalism has considerable potential as a progressive political project. Its language
can be used to capture the aspirations and goals of many, though clearly not all, subordinate
groups in many places around the world. Its connection to global movements and international
instruments allows for the possibility of disrupting potentially oppressive purely local relations
of power and the normative frameworks that they produce and that in turn support them.9 At
the same time, the process of realization is sufficiently anchored in local realities, local politics,
and local demand structures that we are reasonably confident it will be deployed in ways that are
contextually appropriate—to the extent that languages that seek to challenge the status quo ever
are or should be “appropriate.” For the same reason, we are equally confident that in the most
difficult contexts they will largely fail to produce results, at least in the short term, but that hardly
seems like a reason to abandon the entire project. Our attention as researchers needs to turn now,
increasingly, to this, the ultimate question for social rights constitutionalism: What happens once
social rights discourse is transformed into the vernacular, and in turn transforms the vernacular
of demands? Under what conditions does it actually advance the goals it appears to proclaim?
DISCLOSURE STATEMENT
The opinions and views expressed in this paper are not necessarily those of the World Bank and
its Executive Directors. The authors are not aware of any affiliations, memberships, funding, or
financial holdings that might be perceived as affecting the objectivity of this review.
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LS11CH18-Brinks ARI 4 August 2015 10:22

Review in Advance first posted online

still occur before final publication

Social Rights Constitutionalism:

and the Particular

Daniel M. Brinks,1,∗ Varun Gauri,2 and Kyle Shen1

Annu. Rev. Law Soc. Sci. 2015. 11:18.1–18.20 Keywords

18.2 Brinks · Gauri · Shen

to hold considerable, if qualiﬁed, promise for progressive political projects.

THE TEXTUAL FOUNDATION OF SOCIAL RIGHTS

www.annualreviews.org • Social Rights Constitutionalism 18.3

1800 1850 1900 1950 2000

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Average number of social rights in constitutions. Source: Comparative Constitutions Project.

www.annualreviews.org • Social Rights Constitutionalism 18.5

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SOCIAL RIGHTS CONSTITUTIONALISM: RESOLVING UNIVERSAL

vernacularization of social rights.

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18.8 Brinks · Gauri · Shen

www.annualreviews.org • Social Rights Constitutionalism 18.9

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www.annualreviews.org • Social Rights Constitutionalism 18.11

Compliance and Follow-Up

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to create the politics of compliance. Increasing reliance by courts on monitoring mechanisms

www.annualreviews.org • Social Rights Constitutionalism 18.13

18.14 Brinks · Gauri · Shen

www.annualreviews.org • Social Rights Constitutionalism 18.15

18.16 Brinks · Gauri · Shen

www.annualreviews.org • Social Rights Constitutionalism 18.17

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UK: Cambridge Univ. Press

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18.20 Brinks · Gauri · Shen

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