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3 - Judicial Politics and Social Rights

from Part I - Adjudication and Rights

Published online by Cambridge University Press:  04 April 2019

Katharine G. Young
Affiliation:
Boston College, Massachusetts
Amartya Sen
Affiliation:
Harvard University, Massachusetts
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Summary

Recent scholarship has suggested judicial enforcement of social rights is sometimes targeted at groups that are relatively affluent. While questions remain about the empirical extent of this phenomenon or the conditions under which it will arise, there are theoretical reasons to think that it is common. These forms of enforcement are seen as a betrayal of the transformative purpose of social rights. This chapter challenges that assumption by pointing out the potentially legitimate roles played by social rights that target relatively affluent groups. First, these forms of enforcement might broaden political and social support for social rights, helping to build a base for the rights and thus enabling judicial and political enforcement for the marginalized. Transformative and non-transformative forms of enforcement may work together rather than being mutually exclusive. Second, non-transformative forms of enforcement may have significant value and a logic of their own because they respond to bureaucratic and political failures that impact large proportions of the population in developing societies.
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Publisher: Cambridge University Press
Print publication year: 2019

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