Can Rights Combat Economic Inequality?

In a highly influential book, Not Enough, Samuel Moyn argues that the modern human rights movement has failed to address economic inequality. Moyn criticizes the human rights movement for not doing enough, but also expresses skepticism that human rights law will ever be suitable for promoting economic justice: its premises are too individualistic and its toolkit for pressuring governments is too weak. Moyn envisions economic transformation realized through global economic interventionism, massive tax reforms, and new antitrust rules, with the goal of rebuilding the social welfare state. This Book Review addresses the question that Not Enough provokes but does not ultimately answer: can human rights law, including litigation and other forms of legal mobilization, be used to promote material equality? To do so, it an angle mostly absent from Not Enough: the phenomena of courts’ around the world interpreting their domestic constitutions to promote economic equality. Courts in Colombia, Mexico, Argentina, Peru, Hungary, Portugal, Russia, Romania, Lithuania, and Latvia have all, on occasion, rendered decisions that tackled inequality. Some of these courts have provided access to social rights-related goods and services to the poor and middle classes alike. Others have protected middle-class entitlements in the face of harsh austerity measures or have prevented tax cuts for the rich and/or new tax burdens on the poor. In essence, these courts have used constitutional rights to do exactly what Moyn says human rights law has failed to do: attempt to advance economic equality. One takeaway from these foreign experiences is that rights do have a potential role to play in promoting economic equality. Many courts have deployed their constitution to promote economic justice and, in doing so, have illuminated numerous possible connections between rights and material equality. Even though these decisions may fall short of Moyn’s transformative vision, they do represent equality gains if faithfully implemented. Another takeaway is that the political economy of these judicial interventions is very different from Moyn’s description of the international human rights movement. Notably, many of these interventions were not primarily concerned with lifting up the poor, but with protecting the middle classes. Notably some of the courts that have addressed economic equality in this manner have been criticized for pursuing a majoritarian agenda and engaging in “judicial populism,” that is, catering justice to the middle class. Commentators have argued that, in doing so, courts have strayed from the core objective of justiciable social rights: protecting society’s most vulnerable. This Review argues that if rights are to play a role in promoting material equality, some judicial populism is probably helpful. When large segments of the population benefit from judicial interventions, equality gains are likely larger than when interventions focus on the poor alone. Such interventions are not necessarily inconsistent with the judicial role: protecting the rights of the groups that lack political power, even if those groups comprise numerical majorities, is arguably a proper function of constitutional courts. What is more, such interventions can be particularly impactful. A large body of empirical social science literature on rights effectiveness has shown that, although rights enforcement is often difficult, rights are most impactful when mobilized groups of citizens push for their enforcement. Such mobilization is more likely to occur for rights that benefit majorities than for rights that protect vulnerable minorities alone. It follows that a human rights agenda focused on economic justice that also benefits the middle classes can be particularly powerful.