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11 - The New Managerialism

Courts, Positive Duties, and Economic and Social Rights

from Part IV - The Role of Courts in Building State Capacity and Promoting Effective Self-Government While Protecting Rights

Published online by Cambridge University Press:  20 October 2022

Vicki C. Jackson
Affiliation:
Harvard Law School, Massachusetts
Yasmin Dawood
Affiliation:
University of Toronto
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Summary

The constitutional entrenchment of economic and social rights often requires courts to intervene directly in the administration of government. Such rights – to access goods, services, and programs such as social security, education, and health care – are now present in more than two-thirds of the world’s constitutions.1 Newer constitutional amendments extend such rights to housing, land, water, and a clean environment, implicating a wide array of government actions or omissions. Moreover, despite the conventional wisdom that such rights should not be enforced by courts, and should be entrenched at most as directive principles or other statements of aspiration, the duties for government that such rights create are increasingly justiciable.2 For better or worse, courts have become central in enforcing both negative and positive duties, in complaints arising from such matters as medical treatment denials, evictions, education outcomes, pollution levels, or food distribution schemes.

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Publisher: Cambridge University Press
Print publication year: 2022

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