Economic rights and political decision making

Human Rights Quarterly

Volumn 31, Issue 2, 2009, Pages 368-393

  Minkler, Lanse ^a  

^a UNIVERSITY OF CONNECTICUT   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CONSTITUTIONAL REFORM; DECISION MAKING; ECONOMIC POLICY; HUMAN RIGHTS; INDEPENDENCE; POLICY DEVELOPMENT; POLITICAL IDEOLOGY; STATE ROLE;

EID: 68249127387     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.0.0070     Document Type: Article

References (84)

1. Univerisal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, arts. 23, 25, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. 127 (Supp. 1949).
2. For discussion on all of these kinds of issues, see the contributions in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES (Shareen Hertel & Lanse Minkler eds., 2007).
3. See Daron Acemoglu, Constitutions, Politics, and Economics: A Review Essay on Persson and Tabellini's The Economic Effects of Constitutions, 43 J. ECON. LIT. 1025 (2005).
4. See also GEOFFRE BRENNAN & JAMES M. BUCHANAN, THE REASON OF RULES: CONSTITUTIONAL POLITICAL ECONOMY (1985). Buchanan and his colleagues have argued that distribution rules should be directly incorporated into constitutions as a means of limiting the effects of politician self-interest. Such rules could accommodate a negative income tax, which could be made consistent with the right to an adequate standard of living.
5. Wojciech Sadurski, Constitutional Courts in the Process of Articulating Constitutional Rights in the Post-Communist States of Central and Eastern Europe Part I: Social and Economic Rights 17 (European Univ. Inst., Dep't of Law, EUI Working Paper LAW No. 2002/14, 2002), available at http://cadmus.eui.eu/dspace/bitstream/1814/192/1/law02-14.pdf.
6. Varun Gauri, Social Rights and Economics: Claims to Health Care and Education in Developing Countries, 32 WORLD DEV. 465, 466 (2004).
7. Other recent topics in behavioral economics include loss aversion, the endowment effect, the economics of happiness, emotions, framing effects, fairness, and the role of principles.
8. See, e.g., Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 ECONOMETRICA 263 (1979) (loss aversion, endowment, and framing effects); Andrew J. Oswald, Happiness and Economic Performance, 107 Econ. J. 1815 (1997) (economics of happiness); Jon Elster, Emotions and Economic Theory, 36 J. ECON. LIT. 47 (1998) (emotions); Ernst Fehr & Simon Gächter, Fairness and Retaliation: The Economics of Reciprocity, J. ECON. PERSP., Summer 200, at 159 (fairness); LANSE MINKLER , INTEGRITY AND AGREEMENT: ECONOMICS WHEN PRINCIPLES ALSO MATTER (2008) (principles).
9. Moreover, if we limit the geographic scope to districts, then sorting could occur with policymakers moving to districts that match their own preferences and principles. If voters in a certain district prefer economic rights policy fulfillment, a similarly inclined legislator could move there and get votes. For discussion and evidence of this kind of political behavior, see LANSE MINKLER , INTEGRITY AND AGREEMENT, supra note 6, ch. 5.
10. 2), where superscripts denote the time period.
11. See also Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFF. 317 (1977); DANIEL M. HAUSMAN & MICHAEL S. MCPHERSON, ECONOMIC ANALYSIS, MORAL PHILOSOPHY, AND PUBLIC POLICY ch. 8 (2d ed. 2006); MINKLER , INTEGRITY AND AGREEMENT, supra note 6, ch. 3.
12. See David Beetham, What Future for Economic and Social Rights?, 43 POL. STUD. 41 (1995); WILLIAM F. SCHULZ, IN OUR OWN BEST INTEREST: HOW DEFENDING HUMAN RIGHTS BENEFITS US ALL (2002) (emphasizes the importance of empathy).
13. HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY 19 (2d ed. 1996).
14. Id. at 74.
15. See Shareen Hertel & Lanse Minkler, Economic Rights: The Terrain, in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES, supra note 2, at 1.
16. See also Beetham, supra note 10. See generally Alan Gewirth, Human Dignity as the Basis of Rights, in THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES 10-28 (Michael J. Meyer & William A. Parent eds., 1992);
17. Joel Feinberg, The Nature and Value of Rights, in THE PHILOSOPHY OF HUMAN RIGHTS (Morton Winston ed., 1989) (claim rights);
18. ALAN GEWIRTH, THE COMMUNITY OF RIGHTS (1996) (purposeful action and human dignity);
19. David Copp, The Right to an Adequate Standard of Living: Justice, Autonomy, and the Basic Needs, 9 SOC. PHIL. & SOC'Y 231 (1992) (need fulfillment); AMARTYA SEN, DEVELOPMENT AS FREEDOM ch. 8 (1999) (freedoms).
20. As already noted, many (especially newer) constitutions include economic and social rights provisions. Also, even NGOs usually associated with civil and political human rights work, such as Amnesty International, have begun to emphasize the importance of economic and social rights. Moreover, some grassroots anti-poverty movements are also invoking economic rights arguments with some success, as witnessed by the Kensington Welfare Rights Union.
21. See generally FORD FOUND., CLOSE TO HOME: CASE STUDIES OF HUMAN RIGHTS WORK IN THE UNITED STATES (2004).
22. CHARLES MALLAR , STUART KERACHSKY, CRAIG THORNTON & DAVID LONG, EVALUATION OF THE ECONOMIC IMPACT OF THE JOB CORPS PROGRAM: THIRD FOLLOW-UP REPORT 248 tbl. VIII.10 (1982).
23. See also David T. Ellwood & Elisabeth D. Welty, Public Service Employment and Mandatory Work: A Policy Whose Time Has Come and Gone and Come Again?, in FINDING JOBS: WORK AND WELFARE REFORM 299 (David E. Card & Rebecca M. Blank eds., 2000).
24. SEN, DEVELOPMENT AS FREDOM, supra note 13, ch. 8.
25. Id. at 20-21.
26. David G. Blanchflower & Andrew J. Oswald, Well-being over Time in Britain and the USA, 88 J. PUB. ECON. 1359, 1373 (2004).
27. See, e.g., Sen, supra note 13, at 46-48.
28. Sudhir Anand & Martin Ravallion, Human Development in Poor Countries: On the Role of Private Incomes and Public Services, J. ECON. PERSP., Winter 1993, at 133, 141.
29. t more than the policymaker does, implying that the policymaker may exert less effort toward that outcome than the public prefers.
30. As just one example, consider the words of Cass Sunstein, certainly an advocate for the social and economic policies envisioned by economic rights. When addressing the issue of enforceability of economic rights, he states firmly: "No nation can ensure that every citizen has a job; a certain level of unemployment is inevitable." CASS R. SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR's UNFINISHED REVOLUTION AND WHY WE NEED IT MORE THAN EVER 210 (2004).
31. PHILLIP HARVEY, SECURING THE RIGHT TO EMPLOYMENT: SOCIAL WELFARE POLICY AND THE UNEMPLOYED IN THE UNITED STATESCH. 2 (1989).
32. Id. at 44 tbl. 2.6.
33. Id. at 49 tbl. 2.9.
34. Id. at 44 tbl 2.6.
35. Actually, it would be more accurate to say that the policymaker might now act out of more informed preferences or reasons because while reasons might influence preferences, they are different from preferences and thus can act as an entirely different motivator. See MINKLER , INTEGRITY AND AGREEMENT, supra note 6, ch. 3.
36. See Mary Robinson, Connecting Human Rights, Human Development, and Human Security, in HUMAN RIGHTS IN THE "WAR ON TERROR" 308, 310 (Richard A. Wilson ed., 2005).
37. United Nations Millennium Declaration, adopted 8 Sept. 2000, G.A. Res. 55/2, U.N. GAOR, 55th Sess., Agenda Item 60(b), ¶ 19, U.N. Doc A/RES/55/2 (2000).
38. Lower developed countries are also required to earmark .15 percent of their own GDP. See Sakiko Fukuda-Parr, International Obligations for Economic and Social Rights: The Case of the Millennium Development Goal Eight, in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES, supra note 2, at 284, 295-96.
39. Jeffrey D. Sachs, John W. McArthur, Guido Schmidt-Traub, Margaret Kruk, Chandrika Bahadur, Michael Faye & Gordon McCord, Ending Africa's Poverty Trap, BROOKINGS PAPERS ON ECON. ACTIVITY, Spring 2004, at 117, 144.
40. See, e.g., William Easterly, Can Foreign Aid Buy Growth?, J. ECON. PERSP., Summer 2003, at 23; William Easterly, The Big Push Déjà Vu: A Review of Jeffrey Sach's The End of Poverty: Economic Possibilities for Our Time, 44 J. Econ. Lit. 96 (2006); Dani Rodrik, Goodbye Washington Consensus, Hello Washington Confusion? A Review of the World Bank's Economic Growth in the 1990s: Learning from a Decade of Reform, 44 J. ECON. LIT. 973 (2006); François Bourguignon & Mark Sundberg, Aid Effectiveness-Opening the Black Box, 97 AM. ECON. REV. 316 (2007). Much has been made of Sachs' optimism about the potential of foreign aid versus Easterly's pessimism. Some fear that Sachs is raising expectations too high, while Easterly is promoting inaction (which he is not). For a careful review of the literature, including substantial evidence that foreign aid has had undeniable "micro" benefits (e.g., on health outcomes) but more ambiguous effects on "macro" variables (e.g., economic growth), see Finn Tarp, Aid and Development, 13 SWEDISH ECON. POL. REV. 9 (2006).
41. Timothy Besley & Robin Burgess, Halving Global Poverty, J. ECON. PERSP., Summer 2003, at 3, 10 (2003).
42. Sadurski, supra note 4, at 19-20.
43. 1, with a larger divergence decreasing ω̄.
44. Gauri, supra note 5, at 467-68.
45. Wiktor Osiatyński, Social and Economic Rights in a New Constitution for Poland, in WESTERN RIGHTS?: POST-COMMUNIST APPLICATION 233, 241 passim (András Sajó ed.,1996).
46. Formally, the additional constraint would look like: Q(x́)> Q, where x́ are the policies necessary to assure some bundle of outcomes Q that define an adequate standard of living for every individual.
47. Sadurski, supra note 4, at 11, 27.
48. Daniel Farber, Rights as Signals, 31 J. LEGAL STUD. 83, 88-89 (2002).
49. The only study I am aware of that calculates the economic effects of respect for human rights is Lorenz Blume & Stefan Voigt, The Economic Effects of Human Rights, 60 KYKLOS 509 (2007). In a cross country analysis they find that basic civil and political rights do have a positive effect on investment, and that worker rights and equal opportunity rights are associated with higher productivity. None of the human rights they look at ever has a significant negative impact on the economic variables they consider.
50. Many have adopted this view, including SUNSTEIN, supra note 22; David Forsythe, The United States and International Economic Rights: Law, Social Reality, and Political Choice, in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES, supra note 2, at 310; Wiktor Osiatyński, Needs-Based Approach to Social and Economic Rights, in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES, supra note 2, at 56. Another potential cost could include individual citizens exerting less effort to secure the objects of economic rights if they believe that the legal system will assure that provision for them. Both William Easterly, Institutions: Top Down or Bottom Up?, 98 AM. ECON. REV. 95 (2008), and Dani Rodrik, Second Best Institutions, 98 AM. ECON. REV. 100 (2008), make a related claim for commercial contracts: new, expensive legal systems in developing countries can sometimes damage existing relational contracts between buyers and sellers that work based on reputations.
51. While Communist constitutions were replete with economic entitlements, they did not provide enforceable individual claims. Instead, they offered "material guarantees," so named because of the socialist ownership of property. Osiatyński, Social and Economic Rights in a New Constitution for Poland, supra note 37, at 258.
52. But there have been periodic attempts in the United States to instantiate economic rights more formally. In his famous "Second Bill of Rights Speech," FDR proclaimed that a necessitous man is not a free man, and that injustice should be corrected with a job for all those willing to work. Sunstein argues that FDR never intended for such a right to be justiciable, but rather a directive principle aimed at guiding policymakers. SUNSTEIN, supra note 22, at 182-83, also discusses a constitutional amendment proposed in 2003 (H.J. Resolution 35) that would, among other things, have given every citizen the right to work in much the same spirit that FDR proposed. Sadurski, supra note 4, at 9 n.33, similarly notes US Supreme Court decisions that find no fundamental rights to public education or adequate housing.
53. Mwangi S. Kimenyi, Economic Rights, Human Development Effort, and Institutions, in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES, supra note 2, at 182; David L. Cingranelli & David L. Richards, Measuring Government Effort to Respect Economic and Social Human Rights: A Peer Benchmark, in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES, supra note 2, at 214.
54. Both measures also suffer from the serious problem that they are country averages rather than averages disaggregated by sex or ethnicity. A country could have a relatively high HDI or PQLI score because the majority is doing well but also have a smaller disfavored group with very low scores. Real economic rights attainment would protect such a group.
55. Kimenyi, supra note 45, at 194-97.
56. Cingranelli & Richards, supra note 45, at 226.
57. Compare Cingranelli & Richards, supra note 45, at 226, with Kimenyi, supra note 45, at 194-97.
58. HAYASTANI HANRAPETUT́;YUN SAHMAEWADROWT́YOWNÉ art. 31 (Arm.).
59. Id. arts. 33-35.
60. Id. arts. 44-45.
61. CONST. FOR THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA art. 27.
62. Id. art. 29.
63. SAḰART́VELOS KONSTITUĆIA art. 32 (Geor.).
64. KUSHTETUTA E REPBLIKËS SE SHQIPËRISË art. 59(1) (Alb.).
65. Id. art. 59(2).
66. International Convenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 2, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
67. S. AFR. CONST. art. 27.
68. Id. art. 26.
69. See Albie Sachs, The Judicial Enforcement of Socio-Economic Rights: The Grootboom Case, Paper Presented at Conference on Third Party Effects: What Happens When the State Promotes Rights?, 12th Annual Conference on The Individual Versus the State, Central European University, Budapest (18-19 June 2004).
70. Id.
71. The Polish government's effort ranking is in the midrange in both Cingranelli & Richards, supra note 45, at 232, and Kimenyi, supra note 45, at 195, at a ranking of 41 and 60, respectively. According to my ranking on constitutional strength of economic rights provisions, Poland ranks a 2, also in the midrange (which is consistent with the analysis offered here). Article 25 of Sri Lanka's 2000 draft constitution also provides for access to health care, sufficient food and water, and appropriate social assistance.
72. KONSTYTUCJA RZECZYPOSPOLITEJ POLSKIEJ art. 68 (Pol.).
73. Id. art. 70.
74. Sadurski, supra note 4, at 35.
75. MONGOL ULSYN ÜNDSEN HUUĹ art. 17 (Mong.).
76. AL-MAMLAKEH AL-'URDUNNIYYAHAL- HĀŠIMIYYAH DASTOOR art. 23 (Jor.).
77. NY LALAMPANORENANA art. 27 (Madag.); CONSTITUIÇÃO DA REPÚBLICA DE ANGOLA art. 46. Making work a duty is in contraposition to those economic rights advocates who support a basic income guarantee (BIG). See, e.g., Michael Goodhart, "None So Poor That He Is Compelled to Sell Himself": Democracy, Subsistence, and Basic Income, in ECONOMIC RIGHTS: CONCEPTUAL, MEASUREMENT, AND POLICY ISSUES, supra note 2, at 94. BIG supporters favor minimum income payments to all individuals irrespective of their ability to work in order to avoid stigmatism and to assure the true freedoms that economic rights are supposed to protect and promote.
78. CONSTITUIÇÃO DA REPÚBLICA DE ANGOLA art 50.
79. MONGOL ULSYN ÜNDSEN HUUĹ art. 16(7) (Mong.); NY LALAMPANORENANA art. 24 (Madag.); AL-MAMLAKEH AL-'URDUNNIYYAH AL- HĀŠIMIYYAH DASTOOR art. 20 (Jor.).
80. CONSTITUIÇÃO DA REPÚBLICA DE ANGOLA arts. 29(3), 31, 49(1).
81. MONGOL ULSYN ÜNDSEN HUUL' art. 16(6) (Mong.); NY LALAMPANORENANA art. 19 (Madag.); CONSTITUIC̃ÃO DA REPÚBLICA DE ANGOLA art. 47(1).
82. MONGOL ULSYN ÜNDSEN HUUL' art. 16(5) (Mong.); NY LALAMPANORENANA arts. 21, 30 (Madag.); AL-MAMLAKEH AL-'URDUNNIYYAH AL- HĀŠIMIYYAH DASTOOR art. 23(ii)(c) (Jor.) ("Special compensation shall be given to workers supporting families and on dismissal, illness, old age and emergencies arising out of the nature of their work.").
83. CONST. art. VIII, § 11 (Phil.).
84. CONST. OF THE REPUBLIC OF NAMIBIA art. 20(2); CONST. OF THE SECOND REPUBLIC OF GAMBIA art. 30.