[Editor’s Note: In this special installment of I•CONnect’s Review Series, Brian Ray offers a critical review of the I•CON debate between David Bilchitz and Xenophon Contiades & Alkmene Fotiadou on socio-economic rights and the economic crisis. The debate appears in the current issue of I•CON, beginning with Bilchitz’s paper here, followed by a reply by Contiades & Foutiado here, and concluding with a rejoinder from Bilchitz here. All three parts of the debate are available in full-text for free.]
Review by Brian Ray of I•CON Debate on Socio-Economic Rights and the Economic Crisis
—Brian Ray, Cleveland-Marshall College of Law
The recent exchange between Professor David Bilchitz and Professors Xenophon Contiades and Alkmene Fotiadou in ICON’s pages over how courts should enforce social rights during times of economic crisis illustrates the decisive—and refreshing—shift away from the justiciability questions that long have dominated the comparative constitutional law discussion. Starting as these authors do with the assumption that courts have a legitimate role enforcing social rights doesn’t resolve the democratic-legitimacy and institutional-competence objections, but it reorients them in a more practical and interesting direction that takes up Ran Hirschl’s call for comparativists to engage with the realities of how rights really work in practice. It’s not enough to theorize about the hypothetical competencies of courts versus legislatures or the executive. What really happens when a court intervenes? Do different interpretive frameworks or remedies change these outcomes? What conditions constrain or enable courts to intervene in these ways?
These authors use the recent global financial crisis as a “proving ground” for considering these practical questions. Specifically they examine whether poor people are better protected against rights infringements in times of crisis by courts establishing substantively strong interpretations like the minimum-core standard or by relying on more flexible standards and techniques such as proportionality.
Bilchitz forcefully argues that hard standards are necessary to give courts the authority to withstand the increased pressures a crisis places on society’s resources and to protect the politically powerless. Malleable standards like proportionality, in his view, set up courts to yield to those same pressures. On a doctrinal level, he points out that proportionality is merely an analytical framework that courts can’t properly apply without articulating some substantive standard like the minimum core.
Contiades and Fontiadou take the opposite view and argue that the inflexibility of the minimum core is likely to “scare the judiciary away” in times of crisis. They worry that the enforcement approach Bilchitz calls for will lead courts effectively to “read down” the social rights protections to avoid political backlash. They contend that courts can and inevitably do apply proportionality without first clearly conceptualizing the content of a particular right and instead use the balancing process itself to articulate that content in the context of a particular case. The flexibility of this approach has allowed courts in Europe to avoid the worst outcome of declaring social rights meaningless during the height of a crisis and to enforce them later as the crisis lengthened and social rights litigation became more focused.
Bilchitz worries that without a strong conception of the state’s obligations social rights give courts no basis to reject legislative reductions, much less to scrutinize bailouts to well-resourced sectors of society. Contiades and Fontiadou concede that in early crisis litigation European courts generally applied proportionality to give legislative responses a pass without real scrutiny of the alternatives. But they argue a judicial approach that relied on a strong abstract conception of social rights would have fared no better in those political circumstances. By flexibly applying proportionality to approve these early measures, however, courts preserved the authority to review future legislation in more rights-protective ways.
Notably the distance between these arguments appears much more extreme in the abstract. Both sides agree that during fiscal crises social rights will be implicated most often in legislative proposals to cut back existing benefits. Both also analyze the European Court of Human Rights decision, NKM v. Hungary, as evidence of how courts apply social rights during fiscal crises. NKM involved a challenge to Hungarian legislation that increased the tax rate on severance benefits paid to government employees terminated as a result of austerity measures. The court held the tax was an unjustifiable deprivation of property because the employees had a long-standing expectation of retaining a larger portion of the benefits and the higher tax rate imposed substantial hardships.
Bilchitz argues the decision demonstrates that courts can enforce social rights more robustly where the content of the right is clearly defined. The existing benefit in NKM was a de facto substantive standard that provided the necessary framework for the court to scrutinize the new legislation and possible alternatives.
Contiades and Fontiadou point out that NKM involved a legislatively defined benefit—not a judicially created standard. It is much easier for courts to rely on legislative definitions than to identify and enforce free-standing constitutional standards like the minimum core. For them, N.K.M and similar cases that developed later in the European crisis illustrate the flexibility that proportionality creates for courts to tailor their responses to political realities. Here that flexibility allowed a court to apply proportionality in more muscular ways than other courts had in earlier cases. It also created the authority to enforce a higher standard than the minimum core and to develop indirect, implicit content on a case-by-case basis without risking an unsustainable political confrontation with the legislature.
Bilchitz implicitly recognizes this same potential in his insightful analysis of the rich potential for “negative” enforcement in times of crisis. As he notes, some of the most interesting and creative decisions by the South African Constitutional Court have involved preventing the state or private parties from interfering with existing access to goods and services protected by social rights. These cases—in particular those dealing with evictions—have established a robust legal framework for protecting poor people in times of crisis, but without identifying in concrete terms precisely what each right requires. Instead, the Court has relied on a case-by-case application of something like a proportionality analysis—in most cases drawn from a set of legislative factors—to strike a balance that gives the social rights priority over both the state and also private property rights.
Bilchitz applauds these developments but cabins them as illustrations of negative enforcement and so misses how closely they track the NKM decision. Like NKM, the Court in these cases relied on a legislatively crafted standard to prevent deprivation of existing access—in these cases to shelter. While formally these cases are examples of enforcing negative obligations, they also have the potential to lay the groundwork for identifying positive obligations. On the one hand, these decisions are case-specific precedents that courts can rely on in similar cases. More importantly, as Stuart Wilson has noted, the legal right to retain existing shelter that these decisions establish creates a form of legal tenure. Where a court enforces the negative obligation to prevent a private landowner from evicting an illegal occupier, it strikes a balance that gives the social right priority over private property. If the court makes eviction from private property dependent on the state’s ability to provide alternative accommodation—as the South African Court almost uniformly has done—that turns the negative obligation into leverage to demand—and shape the content—of the positive obligation to provide housing, all without clearly articulating the scope of that obligation, and while preserving flexibility to strike the constitutional balance differently in a later case.
Making this connection between enforcing negative obligations and crisis measures sheds a different light on the question of which normative framework is more likely to effectively enforce social rights during times of crisis. Is it better for a court to commit itself to a strong objective standard or to work incrementally on a case-by-case basis? Put differently, under which approach is a court more likely to press forward and issue pro-poor decisions and under which to retreat and limit or deny relief? The answer boils down to how strongly we think courts are constrained by politics in times of crisis. Bilchitz is surely correct that, if we are confident courts will take a principled stand against prevailing political winds, then a strong standard is more likely to result in better protections for poor people. As Contiades and Fontiadou point out, however, the available evidence—while limited—suggests the opposite. Rather than give up on social rights, however, they read that evidence optimistically as support for a new enforcement model in which courts incrementally develop—and at times retreat from—a set of positive obligations. This incremental process draws on the creative potential for enforcing negative obligations, which Bilchitz also identifies. That new conception is unlikely to flourish during fiscal crises and so offers at best limited protection from them. At the same time, however, it recognizes the political constraints such crises impose on courts and attempts to carve out a second-best approach that preserves judicial authority to enforce social rights under different circumstances.
Suggested Citation: Brian Ray, I•CON Debate Review by Brian Ray: Socio-Economic Rights and the Economic Crisis, Int’l J. Const. L. Blog, Nov. 8, 2014, available at: http://www.iconnectblog.com/2014/11/brian-ray-review-icon-debate-socio-economic-rights